IN THE MATTER OF : APPLICATION NO. 200103104, ARTHUR AND JUDITH SCHALLER : DECEMBER 2, 2002

POST-HEARING BRIEF OF THE OBJECTIONS RAISED BY THE CONNECTICUT RIVER COMMITTEE FOR THE PUBLIC TRUST TO THE HEARING OFFICER’S PROPOSED FINAL DECISION

SUBMITTED BY: James S. McKay, Coordinator, Connecticut River Committee for the Public Trust
14 Ridge Road, Chester, CT 06412
(860) 526-4236

Overview
Intervenor Connecticut River Committee for the Public Trust raised 7 specific objections to the Hearing Officer’s Proposed Final Decision. In addition, the Commissioner has requested the briefs address the question of “Whether or not the availability of allegedly reasonably available alternatives to the exercise of riparian rights diminishes or extinguishes those riparian rights.” This brief will address the question posed by the Commissioner first, with a discussion of additional objections to follow.
COMMISSIONER’S QUESTION:
“Whether or not the availability of allegedly reasonably available alternatives to the exercise of riparian rights diminishes or extinguishes those riparian rights.”
The answer to the above question is no.
The analysis of alternatives under Section 22a-19(b) is not a freestanding requirement and cannot in and of itself justify the limitation of riparian rights. As noted in the proposed final decision, it is activated only when there is a showing that conduct “has, or is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.” Sec. 22a-19(a).
This distinction is important because most areas of the state are likely to have some form of reasonable alternative to the exercise of riparian rights and if the mere existence of such alternatives were alone sufficient to limit those rights it would effectively curtail them throughout the state. Such is clearly not the design or intent of Section 22a-19. In the absence of any harm to the public, riparian rights would still prevail even if reasonably available alternatives exist.
An important underlying question is whether the state has a right to limit private conduct that is “likely to impair” the public trust. On this question the law is well-settled.
The power of the state to regulate under Section 22a-19 is unassailable. As Appellant’s concede, “there is no dispute that the riparian right of access can be controlled under the police power of the state.” (App. Reply Brief at 6). As stated by our Supreme Court, “There is no reason why, because of its peculiar nature as property, this right cannot, like any other property right, be made subject to reasonable police regulation in the interest of public welfare.” The Court further noted: “the right has been subject to regulation in this state and elsewhere for many years.” Shorehaven Golf Club v. Water Resources Commission, 146 Conn. 619, at 624 (1959).