Wallingford v. Dept. of Public Health (concurring)
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The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** WALLINGFORD v. DEPT. OF PUBLIC HEALTH CONCURRENCE SULLIVAN, C. J., with whom ZARELLA, J., joins, concurring. I concur in the majority s judgment that the defendant, the department of public health, has regulatory jurisdiction over all of the property belonging to the plaintiff, the town of Wallingford, that is watershed land pursuant to General Statutes (Rev. to 1999) § 2532 (b), subject to the plaintiff s right to build a golf course on the Cooke property pursuant to Public Acts, Spec. Sess., June, 2001, No. 01-4, § 13 (Spec. Sess. P.A. 01-4). I write separately to express my disagreement from the majority with regard to three components of its analysis. First, I agree with the majority that this appeal is not moot. In my view, however, this is because Spec. Sess. P.A. 01-4, § 13, does not prevent us from providing the practical relief requested by the plaintiff s petition for a declaratory ruling and its administrative appeal. See State v. McElveen, 261 Conn. 198, 208, 802 A.2d 74 (2002). Accordingly, I see no need to employ the collateral consequences doctrine as does the majority. See id. My conclusion rests upon an analysis of the precise nature of the plaintiff s claims and the resolution of those claims by the defendant and the trial court. The plaintiff broadly sought a declaratory ruling from the defendant as to the applicability of . . . § 25-32 et seq. to Town-owned, non-utility land. The impetus for this request was that the plaintiff was considering changing the use of the Cooke property. The defendant issued a declaratory ruling in which it found that the plaintiff had purchased the property for open space purposes or such other purposes as the [plaintiff] may decide are necessary and that the [plaintiff] was investigating the feasibility of creating a golf course on the property. The defendant ultimately concluded that the Cooke property was subject to its jurisdiction. The plaintiff appealed to the trial court, claiming that the Cooke property is not subject to . . . § 25-32 et seq. . . . . While the plaintiff s appeal was pending, Spec. Sess. P.A. 01-4, § 13, was enacted and took effect. That act provided, in effect, that the plaintiff may use the Cooke property for the construction and operation of a golf course, subject to certain conditions including that: (1) the plaintiff own the course; (2) the course be designed, constructed and operated in accordance with practices as specified by the department of environmental protection; and (3) the plaintiff file certain reports related to the environmental management of the course. Spec. Sess. P.A. 01-4, § 13. Subsequently, the trial court concluded that, despite the intervening passage of the public act, the appeal was not moot because the issue of the department s jurisdiction over what the plaintiff has termed townowned, non-utility land was still in dispute. Ultimately, the trial court dismissed the plaintiff s appeal. From this procedural history, I conclude the following. First, the plaintiff s petition for a declaratory ruling and its administrative appeal were both wholly silent as to the intended use of the Cooke property as a golf course. Second, the plaintiff s petition for a declaratory ruling and its administrative appeal were not limited to a request for a determination of the applicability of § 25-32 (b), but rather requested a ruling as to the applicability of all of the defendant s regulatory powers pursuant to § 25-32 et seq. Third, Spec. Sess. P.A. 01-4, § 13, mooted only the question of whether the plaintiff would need to receive a § 25-32 (b) permit were it to build a golf course. Fourth, the trial court s holding applied beyond the Cooke property and extended to all townowned, non-utility land. Thus, in my view, there is no need to resort to the collateral consequences doctrine, because, were we to reverse the judgment, the plaintiff would then be free to: (1) change the use of the Cooke property to something other than a golf course without seeking a § 2532 (b) permit; (2) refuse to list the Cooke property as well as other property that it owns on its water supply plans pursuant to General Statutes § 25-32d;1 (3) change the use of other watershed property without being subject to the defendant s § 25-32 (b) regulatory jurisdiction. None of this relief is provided by Spec. Sess. P.A. 01-4, § 13, and, thus, the case is not moot. Second, although the majority does not reach the question of whether the plaintiff is required to list the Cooke property on its water supply plan pursuant to § 25-32d; see footnote 10 of the majority opinion; I would reach this issue and conclude that the plaintiff is not so required. Although, I acknowledge that this was not the plaintiff s primary issue on appeal, the issue is fairly encompassed within the plaintiff s petition for a declaratory ruling and was raised in both the trial court and in this court. Accordingly, I would reach the issue. General Statutes § 25-32d provides in relevant part: (b) Any water supply plan submitted pursuant to this section shall evaluate the water supply needs in the service area of the water company submitting the plan and propose a strategy to meet such needs. The plan shall include . . . (6) a forecast of any future land sales, an identification which includes the acreage and location of any land proposed to be sold, sources of public water supply to be abandoned and any land owned by the company which it has designated, or plans to designate, as class III land . . . . (Emphasis added.) Thus, I would interpret the application of § 25-32d listings to be restricted to those lands that might potentially affect the water supply needs in the service area of the water company . . . . General Statutes § 2532d (b). The defendant s own regulations implementing this statutory provision support this interpretation. The defendant requires that a water supply plan contain: A description of the existing water supply system, including . . . a list and description of: water company owned lands . . . . (Emphasis added.) Regs., Conn. State Agencies § 25-32d-3 (a) (2). It is undisputed that the Cooke property has no effect on the plaintiff s water supply. Thus, the plaintiff is not required to list the Cooke property on its water supply plan.2 It is, however, subject to the defendant s § 25-32 (b) powers to the extent that those powers have not been limited by Spec. Sess. P.A. 01-4, § 13. This is because the § 25-32 (b) permitting process applies to any watershed lands, whether or not such lands have an impact upon the plaintiff s water supply or some other water company s water supply. Finally, I write to express my disagreement with the majority s unpersuasive use of legislative history to bolster its conclusion. In my view, that history simply fails to illuminate, in the slightest, the question at bar in this case. Therefore, I believe that the majority opinion provides yet another example of the misuse of such history, like those that Justice Zarella persuasively criticized in his dissent, in which I joined, in State v. Courchesne, 262 Conn. 537, 597, A.2d (2003). As noted previously, the primary question in this appeal is whether all of the watershed lands owned by the plaintiff are subject to the defendant s § 25-32 (b) permitting powers. The majority states that the legislative history supports its conclusion that the plaintiff s lands are so subject. The only legislative history cited in support of its conclusion, however, at best, simply supports the express broad statutory purpose to provide for the orderly disposition of watershed lands as an important natural resource. In my view, as the majority itself seems to acknowledge, the legislative history that it cites adds nothing to its statutory argument. Hence, I do not see how this legislative history supports its conclusion. Consequently, I would rely solely on the statutory text in interpreting the relevant statutory provisions in this appeal. 1 The trial court s decision is ambiguous as to whether it concluded that the plaintiff is required to list the Cooke property in its § 25-32d water supply plan. As discussed subsequently, the majority opinion does not determine whether the plaintiff is required to list the property. 2 The defendant may, however, have regulatory jurisdiction pursuant to § 25-32d (b) over certain other lands of the plaintiff, as long as those lands are related to the water supply needs in the service area of the water company . . . .
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