3. The Proposed Final Decision mechanically applies standards that are inappropriate in assessing the navigational needs of small boaters in the area in question.
In lieu of analyzing the overwhelming citizen evidence to the contrary, the Proposed Final Decision instead relies on a mathematical formula to reject the contention that the proposed dock will present a navigational hazard. Under this formula, the fact that 92% of the river's width and .06% of the area between the applicant's river frontage and the main channel will remain available for small craft navigation if the project is completed is considered determinative.
This analysis is fatally flawed in that it utterly overlooks how the location is actually used by small boaters. The uncontroverted testimony was that the only safe location for paddlers is along the shallow waters of the west shore in the precise area of the proposed project. (See citizens’ evidence summarized in Charts A and B, above, also, Intervenor Public Trust’s Brief and Reply Brief). In other words, the paddlers "channel" runs right through the proposed project and the alternatives to that "channel" are dangerous because of the presence of turbulent waters and large craft.
It may be true that "as the crow flies" there would be room for small craft to get around the proposed dock. The problem is that kayaks are not crows. As is the case with highways on land, one’s mode of transportation inevitably constrains one’s ability to move safely from one location to another. The truth is, sometimes you just can't go "as the crow flies," that is, unless you are a crow. You must stick to the road or, in this case, the paddler's "channel" along the safe shallows of the western shore where the proposed project would be located.
The mechanistic approach is fatally flawed because it fails to answer the key question in the case, which is not whether the river is wide, but rather whether the proposed dock is in a location that will interfere with safe navigation by paddlecraft and other small boats. By relying on a mathematical formula and ignoring the testimony of dozens of witnesses with personal knowledge of how the river is actually used, the proposed final decision creates the illusion of reason rather than its substance. A rational and defensible analysis would deal forthrightly with the overwhelming testimony that this proposed dock will obstruct navigation. This one does not, and as such, it is arbitrary, unreasonable, and unworthy of the Commissioner’s signature.

4. The Proposed Final Decision mechanically applies standards that are inappropriate in assessing the alteration of the vistas and viewpoints of the area in question.
The Proposed Final Decision supports its conclusion that the project would not have a negative visual impact by relying on the same mechanical formula cited in Point 4, above, to show that it will occupy only a small portion of river's surface.
The same could be said about the Statue of Liberty in New York harbor or the Race Rock Lighthouse, but it would have little to do with whether the structure was visible to the public. Indeed, it is precisely because 92% of the rest of the river's width and 99.94% of its area would remain unspoiled by manmade objects that the project would stand out and be visually objectionable. If the area were already filled with structures it would be a different issue. But it's not. That's the point of the dozens of citizens whose statements are not mentioned in the Proposed Final Decision. (See citizens’ evidence summarized in Charts A and B, above, also, Intervenor Public Trust’s Brief and Reply Brief).
Contrary to the assertions of some, the citizen evidence cannot be simply dismissed as a “referendum.” Those who came forward did so at their own time and expense, took oaths, and either subjected themselves to cross-examination or took the time to reduce their thoughts to writing, have them notarized, and direct them to the DEP. This is not the same as taking a few minutes to enter your local voting booth and record an anonymous tally that need never be explained. It is a consummate act of citizenship for which the Commissioner (contrary to the views of his staff as expressed at page 10 of its post-hearing brief) must surely be thankful.
The citizen evidence is based upon hundreds of hours of collective experience with the aesthetics of a location that the citizens find beautiful precisely because it has never seen a manmade structure. It is not the product of a brief site visit made during the off season. Nobody was paid to say this. It is not a matter of defending their professional actions. Far from being a referendum, the evidence provided by these citizens is in fact a unanimous verdict on the aesthetics of this unique location.
The Department has failed to adopt articulable standards for assessing visual impact. There is no reason for it to suddenly adhere to an arbitrary mathematical formula and the lay opinion of staff and the applicants’ paid agent over the overwhelming evidence provided by the citizen witnesses. Unlike highly technical matters on which the Department might claim some special expertise, there is no reason to substitute its judgment for that of the citizenry on what is essentially a value judgment like aesthetics.

* It is worth noting that over the long course of these proceedings, not one single citizen has stepped forward to join the applicants in their assessment that the project would not degrade the aesthetics of the area.
On a related matter, the decision also misinterprets the evidence by asserting that the project will weather into the background over time. at 15. The testimony of Mr. Sharpe clearly established that the white powerboat that would occupy approximately 1/4 of the project's length would never "weather" into the background overtime. (Testimony of Sharpe, 2/28/02 or 3/5/02).
In the relatively recent case of Port Clinton Associates v. Board of Selectmen, 217 Conn. 588, fn. 13 (1991), our Supreme Court indicated that it had serious doubts about how far the right to “wharf out” should extend, and seemed to invite a more thoughtful analysis on the subject. The Court said:
“Both Port Clinton and the board appear to have implicitly assumed throughout this litigation that Port Clinton's right to wharf out extends as far as the federal channel designated by the United States government and mapped out in Port Clinton's proposal. See Appendix. The board has argued that because this right to wharf out is subject to the public's superior right of navigation, its deprivation cannot be a "taking," but has not claimed that Port Clinton had no right whatever to expand its dock. See Lane v. Harbor Commissioners, supra. We shall assume, therefore, for purposes of this opinion only, that Port Clinton had the right to wharf out until it reached the federal channel so long as its exercise of that right did not interfere with the public's superior right of navigation. (emphasis added) 217 Conn. 588, at fn. 13