text:
    Fernando Frillici et al. v. Town of Westport et al.
    (14972)
    Peters, C. J., and Callahan, Borden, Norcott and Palmer, Js.
    Argued September 21
    decision released December 6, 1994

      Lawrence J. Merly, with whom was Joseph Merly, for the appellants (plaintiffs).

      G. Kenneth Bernhard, with whom was Gregory C. Hammonds, for the appellees (named defendant et al.).

      Richard F. Webb, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Joseph Rubin, assistant attorney general, for the appellee (defendant state).
   Borden, J.

The dispositive issue in this appeal is whether regulation of shellfish beds in the area off the shore of the town of Westport known as Cockenoe Flats is under the jurisdiction of the town of Westport and the town’s shellfish commission or under the jurisdiction of the state of Connecticut. The plaintiffs appeal from the judgment of the trial court, rendered after a court trial, in favor of the defendants. The plaintiffs’ primary claim on appeal is that the trial court improperly interpreted the General Statutes to confer jurisdiction over Cockenoe Flats on Westport, rather than on the state. We agree with the plaintiffs that the state has jurisdiction and reverse the judgment in part.

The plaintiffs, Fernando Frillici, John Posh, Melvin Hartman, Jr., the Connecticut Saltwater Sportsmen’s Protective Association, Inc., and the Fairfield County League of Sportmen’s Clubs, Inc., initiated this action against the defendants, the town of Westport, the Westport shellfish commission, the state of Connecticut, the state department of agriculture, the former commissioner of agriculture, Kenneth B. Andersen, and the current commissioner of agriculture, John R. H. Blum. The plaintiffs challenged Westport’s exercise of jurisdiction over recreational clamming at Cockenoe Flats, which included the imposition by Westport of a license requirement and limitations on the quantity of clams that an individual can harvest on any one day. In their seven count complaint, the plaintiffs sought: (1) injunctive relief against Westport’s continued exercise of jurisdiction over Cockenoe Flats; (2) damages from Westport and the Westport shellfish commission for violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.; (3) damages from Andersen for deprivation of the plaintiffs’ property and liberty interests in violation of the plaintiffs’ rights under 42 U.S.C. § 1983 et seq.; (4) damages from Andersen for due process violations pertaining to a hearing held under General Statutes § 26-195 on or about February 27, 1986; (5) damages from Westport and the Westport shellfish commission for deprivation of the plaintiffs’ property and liberty interests in violation of 42 U.S.C. §§ 1983, 1985 and 1986; (6) damages from Westport and the Westport shellfish commission for a taking of the plaintiffs’ property and liberty interests without due process of law in violation of the fifth amendment to the United States constitution and article first, § 11, of the Connecticut constitution; and (7) damages from Westport and the Westport shellfish commission for conduct that was “wilful, malicious, arbitrary, capricious and with strong hand.”

The trial court determined that Westport has jurisdiction over Cockenoe Flats, and rejected all of the plaintiffs’ claims accordingly. This appeal followed.

The factual background can be gleaned from the briefs of the parties. The subject of this dispute is an area of submerged land in navigable waters off the shore of Westport. This area is commonly known as Cockenoe Flats, and lies off Westport’s shore between an area known as Saugatuck Shores and Cockenoe Island, which is about three quarters of a mile offshore. Although the parties disagree as to whether the state or Westport has jurisdiction to regulate recreational clamming in this area, it is undisputed that in 1984 Westport asserted such jurisdiction. At that time, pursuant to its local regulations, Westport began to require the purchase of a $10 clamming permit and began enforcing a one peck (now a one-half bushel) daily limit.* Although Westport ceased enforcement following complaints, it reasserted jurisdiction following a Superior Court statement that Westport had jurisdiction over Cockenoe Flats. The plaintiffs claim that the regulations imposed by Westport have infringed on their longstanding right to use Cockenoe Flats for recreational clamming.

The plaintiffs and the defendants presented extensive testimony before the trial court regarding the history of the jurisdiction over Cockenoe Flats. Both parties agree that, prior to 1881, the state had jurisdiction of all areas from the high water mark seaward. In 1881, the legislature established a jurisdictional line pursuant to which the state retained jurisdiction over all “shell-fisheries” south, or seaward, of the line, and the towns were conferred jurisdiction over all grounds north of the line. Public Acts 1881, c. 160, § 1. The location of this line was revised in 1882, and it is undisputed that Cockenoe Flats lies north of that revised line.* Public Acts 1882, c. 123.

In 1909, the legislature enacted chapter 125 of the Public Acts of 1909, the statutory predecessor to General Statutes § 26-257, which authorized the state and the Westport selectmen to cause a map to be made of the shellfish grounds located within the waters of West-port. The act provided that when the map was made and accepted by the state through its shellfish commissioners, “said shell-fish commissioners shall have and exercise all the powers and duties with reference to the grounds designated thereby which they now have or may hereafter legally exercise with reference to the grounds south of the present state jurisdiction line.” Public Acts 1909, c. 125, § 2. This map was made, and the grounds designated on the map were returned to the jurisdiction of the state. Whether Cockenoe Flats was within these designated grounds is a disputed issue in this appeal.

I

The plaintiffs claim that the trial court misconstrued the relevant jurisdictional statutes to reach the improper conclusion that Westport, and not the state, has jurisdiction over Cockenoe Flats. First, the plaintiffs argue that the trial court improperly determined that the 1909 legislation and the 1910 map did not transfer jurisdiction over Cockenoe Flats back to the state. The defendants counter that the 1909 legislation purported to transfer only “shell-fish grounds,” and that Cockenoe Flats was not understood to be or designated as a “shell-fish ground” and was, therefore, not included on the 1910 map. Second, the plaintiffs argue that if the defendants are correct that the 1909 legislation did not transfer Cockenoe Flats back to the state, then the 1882 legislation never transferred the area to Westport in the first place, because the state jurisdictional line established in 1882 had granted the towns jurisdiction only over “shell fishery grounds” north of the line, and if Cockenoe Flats was not a “shell-fish ground” in 1909, then it had not been a “shell fishery ground” in 1882. Finally, the plaintiffs contend that even if jurisdiction over Cockenoe Flats had been vested in Westport by virtue of the earlier legislation, the legislature believed the state to have jurisdiction over Cock-enoe Flats and confirmed this belief by legislation when it amended General Statutes § 26-280 in 1983. Public Acts 1983, No. 83-236. We agree with this last contention.

The precursor of § 26-280 is General Statutes (Cum. Sup. 1935) § 1356c, enacted by the legislature in 1935. That statute granted authorization to the Westport selectmen to require a written permit to take shellfish from Saugatuck Shores, and allowed them to charge a fee for the permit. Saugatuck Shores, also known as “the great marsh,” is an area along the Westport coast that extends to the low water mark. Cockenoe Island lies south, or seaward, of Saugatuck Shores; Cockenoe Flats, the subject of this dispute, is the area that lies between the southern boundary of Saugatuck Shores (the low water mark) and the northern shore of Cockenoe Island. By its terms, § 26-280, and its statutory predecessors, referred only to Westport’s jurisdiction over Saugatuck Shores and made no reference to Cockenoe Flats. The statute remained essentially unchanged until 1983.

There apparently was no question or dispute over whether Westport or the state had jurisdiction over Cockenoe Flats until the 1970s. In the late 1960s, West-port acquired title to Cockenoe Island, which previously had been privately owned. Thereafter, Westport attempted to assert jurisdiction over Cockenoe Flats, and an arrest was made in Cockenoe Flats for violation of the Westport shellfish regulations. Although that case was eventually nolled, John Baker, the then chief of the aquaculture division of the state department of agriculture, testified at an evidentiary hearing that the state had jurisdiction over Cockenoe Flats. Shortly thereafter, the Westport town attorney indicated that he also was convinced, in light of his interpretation of the General Statutes and the pronouncements of the state, that the state had jurisdiction over the area. Additionally, the state department of enyironmen-tal protection and the aquaculture division of the state department of agriculture expressed their belief that the state had jurisdiction over Cockenoe Flats.

Following these pronouncements, from the mid-1970s to the early 1980s, Westport did not assert jurisdiction over Cockenoe Flats, although it closely regulated clamming at Saugatuck Shores. Westport limited the number of available shellfishing permits for Saugatuck Shores to approximately 300 for Westport residents and 100 for nonresidents. At the same time, boaters could clam at Cockenoe Flats without restriction.

In 1983, Westport sought legislation in order to allow a newly created Westport shellfish commission to regulate shellfishing at Saugatuck Shores. Until that time, authority over Saugatuck Shores had been vested in the Westport selectmen, rather than a shellfish commission. House Bill No. 6266 purported to amend § 26-280 so as to authorize the newly created Westport shellfish commission, in addition to the Westport selectmen, to regulate shellfishing at Saugatuck Shores. As the defendants correctly argue, the purpose of the bill was to bring § 26-280 into conformity with General Statutes § 26-257a, which had been enacted in 1963, to authorize the creation of a local shellfish commission in each town to regulate the taking of shellfish from waters under town control.

The proposed bill came under scrutiny by certain members of the local community, including the plaintiffs, who feared that Westport intended a shellfish commission, authorized by the bill, to exert jurisdiction over Cockenoe Flats in addition to Saugatuck Shores. Frillici sent a letter to Senator Eugene Skowronski expressing his concern and the concerns of others regarding the effect of House Bill No. 6266, and urging its defeat lest Westport be permitted to assert jurisdiction over Cockenoe Flats. In response to this letter, Westport sent a letter to Senator Skowronski explaining that although “[cjoncepts regarding expansion of local authority beyond the Saugatuck Shores area were . . . discussed” at a public meeting, “Westport is not pursuing [greater local jurisdiction] in the proposed legislation being considered at the present time.”

With this controversy in the background, when House Bill No. 6266 was considered by the Senate, the following amendment to the bill was offered and accepted: “The provisions of this section shall not be deemed to extend the jurisdiction of the selectmen or the shellfish commission of the town of Westport to any shores, beaches, or flats not within the jurisdiction of such selectmen or commission on or before [October 1, 1983].” Public Acts 1983, No. 83-236.

The plaintiffs argue that the legislative history of this amendment, read in light of the controversy surrounding its enactment, indicates that its purpose was to ensure that jurisdiction over Cockenoe Flats remained with the state, and that even if it was enacted based upon a mistaken assumption that the state had jurisdiction at the time, the legislature’s intent must be given effect. We agree.

The defendants argue that resort to the legislative history is unnecessary because the language of the statute is unambiguous and that “the legislative intent is to be found not in what the legislature meant to say, but in the meaning of what it did say.” Muha v. United Oil Co., 180 Conn. 720, 730, 433 A.2d 1009 (1980). They argue that the 1910 map shows that Cockenoe Flats remained within the jurisdiction of Westport because the area was not designated as shellfish grounds on the map, and therefore did not return to state jurisdiction pursuant to § 26-257. Read in conjunction with the map, they argue, the last line of § 26-280 provides that jurisdiction remains with Westport, as it properly was in 1983, the perception of the legislature notwithstanding. We agree that reading the last sentence of § 26-280 without resort to the legislative history and the background of understanding against which it was enacted could lead to the defendants’ conclusion that the 1910 map is dispositive of jurisdiction. The defendants urge that such a reading, without resort to these aids of statutory construction, is supported by the maxim that “ ‘when the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent.’ ” West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 508, 636 A.2d 1342 (1994), citing American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 193, 530 A.2d 171 (1987).

We do not agree with the defendants, however, that the language of the amendment is clear on its face and that its meaning can readily be determined without resort to interpretive aids. Indeed, by itself the language says nothing about the scope of Westport’s jurisdiction prior to October 1,1983. The statute itself, while clearly assuming that Westport had jurisdiction over Saugatuck Shores, gives no indication as to the jurisdictional status of Cockenoe Flats. Because we must look beyond the language to outside sources, including the map upon which the defendants urge us to rely, we see no valid reason not to consider the legislative history and the historical background and understandings regarding jurisdiction over Cockenoe Flats.

We disagree, therefore, with the defendants’ assertion that we must make this inquiry with blinders on regarding what the legislature intended the sentence to mean. To the contrary, “[i]t is axiomatic that the process of statutory interpretation involves a reasoned search for the intention of the legislature.” In re Valerie D., 223 Conn. 492, 512, 613 A.2d 748 (1992); Lauer v. Zoning Commission, 220 Conn. 455, 459-60, 600 A.2d 310 (1991). “In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . .Ambroise v. William Raveis Real Estate, Inc., [226 Conn. 757, 764, 628 A.2d 1303 (1993)]; see Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of Information Commission, 227 Conn. 848, 852-57, 633 A.2d 305 (1993).” (Citations omitted; internal quotation marks omitted.) State v. Metz, 230 Conn. 400, 409, 645 A.2d 965 (1994); Fleming v. Garnett, 231 Conn. 77, 91, 646 A.2d 1308 (1994).

Regardless of what the actual status of Cockenoe Flats may have been prior to 1983, as may have been disclosed by the map upon which the defendants rely, we conclude that, by the 1983 enactment of the final sentence of § 26-280, the legislature expressed its intent that jurisdiction be vested in the state. We find persuasive the plaintiffs’ argument that even if jurisdiction had been vested in Westport prior to 1983, the legislature reasonably believed jurisdiction to be vested in the state, and enacted the 1983 amendment to § 26-280 specifically to preserve that status. To ignore the intent behind such an amendment would, in effect, contradict our presumption “that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous.” Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., 193 Conn. 208, 231-32, 477 A.2d 988 (1984); Turner v. Turner, 219 Conn. 703, 713, 595 A.2d 297 (1991); Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 407, 528 A.2d 805 (1987). That the legislative branch enacts legislation based upon what may be a reasonable but mistaken factual or legal assumption is not a sufficient justification for the judicial branch, in interpreting and applying that legislation to a particular set of facts, to fail to give proper effect to the legislation.

Every legislator who rose to support the amendment at issue indicated his or her belief that the amendment, which became the last sentence of § 26-280, served to prohibit Westport from exercising jurisdiction over Cockenoe Flats and was designed to preserve jurisdiction in the state. The fact that the legislature added language that referred to the status quo is indicative of the importance the legislature ascribed to maintaining what it perceived to be the status quo: that jurisdiction over Cockenoe Flats was vested exclusively in the state. Senator Skowronski stated that “for the purpose of legislative history, this amendment is offered for the express purpose of [ejnsuring that by the provisions of this bill, the Town of Westport is not acquiring any jurisdiction over any new waters or new shores, beaches or flats or any clambeds that it does not now have. That’s why the amendment is offered and I make these comments to make legislative history on this point.” (Emphasis added.) 26 S. Proc., Pt. 7,1983 Sess., p. 2311. Senator George L. Gunther’s remarks were particularly illuminating. He stated: “I rise to support the amendment. I think there has been a lot of distortion on exactly what this bill would have accomplished as it lies in the file. This will make it abundantly clear that there is no additional jurisdiction being given to the Town of Westport. There was great concern about the [Cockenoe] Island and some of the flats off of West-port that are under the state’s jurisdiction. This will make it clear that there is no additional jurisdiction, and that it [is] still under the state’s control and consequently this makes the bill very clear and I think it will clear up all the question[s] on the bill itself.” (Emphasis added.) Id., pp. 2311-12. After the amendment was adopted, Senator Skowronski added: “Now on the bill, as amended, what the bill as amended does is simply [transfer] the jurisdiction of the Saugatuck Shores in Westport now presently under the jurisdiction of the Board of Selectmen in the Town of Westport to the Shellfish Commission of the Town of Westport. As Senator Gunther indicated, and as I indicated, this bill does not give the board of selectmen or the shellfish commission in Westport jurisdiction over any new waters or new areas, it simply transfers the jurisdiction over the areas and waters they now have from the board of selectmen to the Shellfish Commission.” Id., pp. 2312-13.

In the House of Representatives, the amendment was read and then remarked upon by Representative Teresalee Bertinuson: “I think it’s self-explanatory. It simply makes it very clear that passage of this bill in no way would extend the jurisdiction of the Town of Westport over the coastal waters.” (Emphasis added.) 26 H.R. Proc., Pt. 12, 1983 Sess., p. 4169. Representative Julie D. Belaga of Westport stated: “I don’t object to the amendment. It is known as gilding the lily. It’s exactly what I’ve been saying all along, and if the Senate wishes to waste the paper, so be it.” Id., p. 4170. Once the amendment was adopted, the bill was placed on the consent calendar and subsequently passed.

It is clear from the record, therefore, as the trial court concluded, that all of the legislators who spoke had the perception that Cockenoe Flats was within the state’s jurisdiction. It is further evident from Senator Gunther’s remarks and from the record that the legislature was aware that jurisdiction over Cockenoe Flats was a controversial issue in Westport and neighboring communities. Given that the legislature perceived the state to have jurisdiction, the amendment to the bill must be viewed as a product of the legislature’s intent to settle the issue of jurisdiction over Cockenoe Flats in favor of maintaining jurisdiction in the state.

We are convinced that the language of the last sentence of § 26-280 must be given the meaning ascribed to it by the legislature when it passed the legislation. “A statute . . . should not be interpreted to thwart its purpose. . . . Board of Education v. State Board of Labor Relations, 217 Conn. 110, 126-27, 584 A.2d 1172 (1991).” (Internal quotation marks omitted.) West Hartford Interfaith Coalition, Inc. v. Town Council, supra, 228 Conn. 508. To read the statute to affirm jurisdiction in Westport would be in direct opposition to the clearly expressed purpose of the legislature. Because the determination of jurisdiction over coastal waters is a prerogative of the legislature, there can be no doubt that, had the legislature explicitly stated in 1983 that jurisdiction over Cockenoe Flats was to be vested in the state, we would be compelled to agree. We see no justification to thwart the legislature’s purpose simply because that purpose could have been stated more clearly. To do so would betray not only the legislature’s objective, but also our own fundamental objective—“to ascertain and give effect to the apparent intent of the legislature.” State v. Metz, supra, 230 Conn. 409; Fleming v. Garnett, supra, 231 Conn. 92.

II

The plaintiffs ask us to remand the case with instruction to the trial court to render judgment in their favor regarding jurisdiction over Cockenoe Flats and liability, to issue an injunction, and to hold a hearing in damages. Although we agree with the plaintiffs’ jurisdictional claim and, therefore, their claim for injunctive relief, we find no merit in their due process claims. We therefore remand the case to the trial court only for consideration of whether an injunction should issue and for a new trial on the plaintiffs’ remaining claims for damages.

A

The plaintiffs claim that the trial court improperly concluded “that the plaintiffs did not suffer a deprivation of any right, privilege or immunity secured by the Constitution or law based upon a hearing held by Commissioner Andersen and the failure of the State and Westport to provide any hearing or notice regarding a change in jurisdiction after more than 76 years of State jurisdiction.” We read this claim as challenging the trial court’s adverse judgment as to counts three, four and five of the plaintiffs’ amended complaint, all of which rely on alleged due process violations pursuant to the fourteenth amendment to the United States constitution. We agree with the trial court’s conclusion that the plaintiff’s due process rights have not been violated.

“The fourteenth amendment to the United States constitution provides that the ‘State [shall not] deprive any person of life, liberty, or property, without due process of law . . . .’In order to prevail on [their] due process claim[s], the plaintifffs] must prove that: (1) [they have] been deprived of a property [or liberty] interest cognizable under the due process clause; and (2) the deprivation of the property [or liberty] interest has occurred without due process of law. See Double I Limited Partnership v. Planning & Zoning Commission, 218 Conn. 65, 76, 588 A.2d 624 (1991); Connecticut Education Assn. v. Tirozzi, 210 Conn. 286, 293, 554 A.2d 1065 (1989) . . . .” Tedesco v. Stamford, 222 Conn. 233, 241-42, 610 A.2d 574 (1992). An interest protected or cognizable under the due process clause must have a basis in “existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits . . . .” (Internal quotation marks omitted.) New England Savings Bank v. Lopez, 227 Conn. 270, 277, 630 A.2d 1010 (1993). The plaintiffs have not met the first prong of this test, because they have failed to establish the deprivation of a protected substantive property or liberty interest cognizable under the federal due process clause.

The plaintiffs argue that the state, through its enactments and actions concerning jurisdiction and by history, custom and usage, conferred a property interest on the plaintiffs to harvest clams in Cockenoe Flats. At oral argument, the plaintiffs’ counsel clarified this alleged right to be a “property or liberty right to clam under state jurisdiction free of control from an interloper third-party which is the Town of Westport.” The plaintiffs concede, however, that the state could impose the same or more severe restrictions on the plaintiffs’ harvesting of clams from Cockenoe Flats without infringing on the plaintiffs’ protected rights. This concession, in effect, demonstrates the lack of merit in the plaintiffs’ due process claims.

If the plaintiffs do not have a property or liberty interest that would prohibit the state from imposing restrictions on clamming, we fail to see how that alleged interest is offended by the imposition of the same permissible restrictions, even by Westport’s purportedly wrongful exercise of jurisdiction. Put another way, although Westport’s assertion of jurisdiction over Cock-enoe Flats may have been illegal under state law, in the sense that it was not authorized given the 1983 legislation, that illegality does not ipso facto create a substantive property or liberty interest protected under the federal due process clause. Not every instance of illegal government conduct results in a violation of the due process clause.

If there exists any “right to harvest clams,” and we do not imply that there is, either the alleged right to harvest clams is a right to harvest clams free of such restrictions or it is a right to harvest clams that allows for such restrictions. The plaintiffs concede that they do not have a protected interest in restriction free clamming. Because the plaintiffs concede that such restrictions, if lawfully imposed, do not infringe on their alleged right to harvest clams, their due process claim fails, because their alleged right, to the extent it is protected from interference, has not been infringed upon by the actions of Westport, the state or any of its subsidiaries or officials. Although the plaintiffs seem to argue that Westport’s wrongful exercise of jurisdiction violates their due process rights per se, in the absence of a showing that Westport has overstepped the bounds of a protected property or liberty interest, the plaintiffs’ due process claims are without merit.

B

The plaintiffs also claim damages from Westport and the Westport shellfish commission for (1) alleged violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. (count two), and (2) conduct that was “wilful, malicious, arbitrary, capricious and with strong hand” (count seven). The trial court rendered judgment for the defendants on these counts based solely on its conclusion that West-port had jurisdiction over Cockenoe Flats and therefore was engaged in a rightful exercise of its regulatory authority. We remand these claims for consideration in light of our contrary holding on the jurisdictional issue.

C

We also remand the case to the trial court for a final disposition as to the plaintiffs’ request for injunctive relief. In light of our holding on the jurisdictional issue, we would expect an injunction against enforcement of the Westport regulations to issue, unless the trial court determines that, the jurisdictional issue having been authoritatively settled, there is no need for an injunction. We also leave to the discretion of the trial court the plaintiffs’ various claims for injunctive relief pertaining to the future exercise of jurisdiction over Cock-enoe Flats and the plaintiffs’ request for injunctive relief ordering the defendants: (1) to publish, at their expense, an article or notice to the public that no one who clams in the area is required to have a Westport permit; and (2) to refund all moneys received from the sale of clam permits except to those sold to people wishing to clam from Saugatuck Shores.

With respect to counts one, two and seven, the judgment is reversed, and the case is remanded for further proceedings limited to consideration of the plaintiffs’ claims (1) for injunctive relief under count one, (2) for damages for alleged CUTPA violations under count two, and (3) for damages under count seven. With respect to counts three, four, five and six, the judgment is affirmed.

In this opinion the other justices concurred.

       The plaintiffs appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       The defendants also claim that Westport had asserted its authority over shellfishing in the area prior to 1984.

       The Westport Shellfish Regulations, as revised to November 30,1989, provides in relevant part: “I. SHELLFISH COMMISSION ....
      “C. The [Westport Shellfish] Commission may issue licenses for the taking of shellfish therefrom and fix the fees therefor may designate the quantities of such shellfish to be taken, the sizes of such shellfish and the methods of taking.
      * * *
      “V. DAILY POSSESSION LIMIT AND HOURS
      “A. Pursuant to Public Act No. 83-245, no person who has not been an actual inhabitant or resident of this State for at least thirty (30) days next preceding shall dig or take any clams from the waters or shores thereof.
      “B. Pursuant to Section 26-228, of the Connecticut General Statutes, shells or shellfish shall not be taken from any place in the jurisdictional boundaries of the Town of Westport between sunset and sunrise.
      “VI. METHODS OF HARVESTING AND SIZE LIMITS
      “A. Pursuant to Section 26-252, of the Connecticut General Statutes, no rake, tongs, dredge, or other device shall be used for taking any variety of shellfish, within the jurisdictional boundaries of the Town of Westport, with spaces or openings between the teeth or prongs of less than one (1) inch.
      “B. No Round or Hard-shell clams less than one (1) inch in thickness, or which will pass through a ring of one and one-half (1-1/2) inches internal diameter shall be taken. No long-neck clams less than one and one-half (1-1/2) inches in length shall be taken. If any clams are taken not meeting these minimum specifications, they shall, without unnecessary injury, be returned to these waters when taken.
      “C. No person shall use any power-driven tool or other commercial device, such as a bull rake, to harvest oysters, clams or mussels within the waters or tidal flats within the limits of the Town of Westport that are under control of the Shellfish Commission.
      “VII. CLAMMING LICENSES ....
      “C. Each Permittee shall pay the following fees for said Permit when issued:
      “$2.00 Connecticut Senior Citizen Annual Permit (age 62 and over)
      “$10.00 Connecticut Senior Citizen Life Permit
      “$10.00 Connecticut Resident Annual Permit . . . .”

       The state does not require a permit for recreational clamming of beds under its jurisdiction and imposes a daily limit of one bushel.

       In 1984, Frank Palmer, who is not a party in this case, brought a declaratory judgment action against the department of agriculture and Westport to determine the extent of the state’s jurisdiction over Cockenoe Flats. The court granted the department’s motion to strike, holding that Palmer should seek redress by way of the statutory scheme for resolution of shellfish area boundary disputes provided for under General Statutes § 26-195. Palmer v. Dept. of Agriculture, Superior Court, judicial district of Fairfield, Docket No. 21 83 88 (July 1, 1985).
      Thereafter, Palmer petitioned the commissioner of agriculture, pursuant to § 26-195, to determine the extent of state jurisdiction over Cockenoe Flats. Following a public hearing, the commissioner determined that West-port had jurisdiction over Cockenoe Flats. Following this determination, a group of interested parties, including some of the plaintiffs in this case, appealed from the commissioner’s decision to the Superior Court. That court, Landau, J., concluded that the commissioner had correctly determined that Westport had jurisdiction over Cockenoe Flats, but that the determination had to be vacated because § 26-195 only gives the commissioner authority to settle disputes with respect to shellfish grounds within the exclusive jurisdiction of the state, and the conclusion that Cockenoe Flats was not within the jurisdiction of the state resulted in the case being beyond the scope of the commissioner’s authority. Frillici v. Dept. of Agriculture, Superior Court, judicial district of Fairfield, Docket No. CV86 0230537 S (April 25, 1988). Although the appellants “won” their appeal, it was a hollow victory, and Westport, in reliance on the Superior Court’s basis for its holding—that Westport had jurisdiction over Cockenoe Flats—reasserted jurisdiction over the area.

       The trial court’s decision was based on the 1881 line, which it found placed Cockenoe Flats within Westport’s jurisdiction. All parties now agree, however, that the 1882 line is controlling.

       General Statutes § 26-257 provides: “local shellfish grounds under state CONTROL. When shellfish grounds or franchises located within the limits of the towns of West Haven, New Haven, Milford and Westport, and northerly of the state jurisdiction line, have been surveyed, and a map of the same made and accepted by the commissioner of agriculture according to law, said commissioner shall have and exercise all the powers and duties with reference to the grounds designated thereby which he has with reference to the grounds south of the state jurisdiction line; and any copies of such books, records and maps which were used in connection with such survey shall be kept on file in the office of the commissioner; provided the selectmen of the town of Westport shall have exclusive jurisdiction over, and power to designate, shellfish grounds in the waters, in said town, of all creeks and estuaries tributary to Compo Mill Pond in said town, and the selectmen of the town of Milford shall have exclusive jurisdiction over, and power to designate or lease, shellfish grounds in the waters, in said town, of the Indian River, Gulf Pond and that portion of the Milford Harbor located northerly of the breakwater. The map of such grounds in the town of Milford shall be published with the annual report of the commissioner of agriculture. Taxes and rentals on grounds in the towns of West Haven and Westport and in the city of New Haven and on franchises in the town of Milford designated on such maps shall be paid to the treasurer of the town or city.”

       Because we conclude that the 1983 legislation conferred jurisdiction over Cockenoe Flats on the state, we do not consider the effects of the earlier legislation. Even if Westport had jurisdiction following the 1909 legislation and the creation of the 1910 map, later legislative action superseded that arrangement.
      At trial, the plaintiffs also pressed a claim that the town and the state were bound by numerous oral and written statements of government officials that the state had jurisdiction over Cockenoe Flats. The trial court rejected this claim. Because the plaintiffs did not brief this claim in this court, they are deemed to have abandoned it, and we do not consider it. Mather v. Griffin Hospital, 207 Conn. 125, 129 n.2, 540 A.2d 666 (1988).

       The original 1935 enactment referred to Saugatuck Shores as being in the towns of Westport and Fairfield. The legislature amended the statute in 1941 to remove references to Fairfield. Public Acts 1941, c. 141. As amended, General Statutes (Sup. 1941) § 573f provided: “taking of shellfish at ‘saugatuck shores.’ No person shall take, remove or carry away shell-fish of any kind from the shores, beaches and flats at ‘Saugatuck Shores,’ so called, in the town of Westport, between June first and October first in each year, except under a written permit issued by the selectmen of said town. Any person, who has been a resident of this state for more than one year continuously, desiring to take shell-fish from said shores, beaches and flats shall make application to the selectmen of said town on a form similar to that provided in connection with licenses or permits for fishing and such selectmen shall issue such number of permits and to such applicants as shall to them appear suitable and proper, and each permittee or licensee shall pay the sum of one dollar for such permit or license when issued to him and such license or permit, unless revoked for cause, shall continue in effect for the balance of the calendar year in which the same shall be issued. Any person who shall take shell-fish from said shores, beaches and flats in violation of the provisions hereof shall be fined not more than twenty-five dollars or imprisoned not more than thirty days or both.”

       Consistent with their position that jurisdiction over all waters off West-port was vested in the state in 1909, the plaintiffs argue that this statute was a grant of jurisdiction over Saugatuck Shores to Westport.

       The statute was amended in 1947 to provide for shellfishing by residents of Westport, Weston and Wilton in certain areas without a permit, and to require that application be made to the Westport police department for the otherwise required permits. General Statutes (Cum. Sup. 1947) § 905i.

       General Statutes § 26-280 provides: “TAKING OF SHELLFISH AT saugatuck shores IN Westport. No person shall take, remove or carry away shellfish of any kind from the shores, beaches and flats at ‘Saugatuck Shores,’ so called, in the town of Westport, between June first and October first in each year, except under a written permit issued by the selectmen of said town or as authorized by the shellfish commission of the town of Westport, provided residents of the towns of Westport, Weston and Wilton may take, remove or carry away shellfish from the shores, beaches and flats between the westerly boundary of Sherwood Island Park and the mouth of the Saugatuck River without obtaining such a permit. Any other person, who has been a resident of this state for more than one year continuously, desiring to take shellfish from said shores, beaches and flats shall make application to the police department of Westport on a form similar to that provided in connection with licenses or permits for fishing and such police department shall issue such number of permits and to such applicants as appear suitable and proper, and each permittee or licensee shall pay the sum of one dollar for such permit or license when issued to him and such license or permit, unless revoked for cause, shall continue in effect for the balance of the calendar year in which the same is issued. Any person who takes shellfish from said shores, beaches and flats in violation of the provisions hereof shall be fined not more than twenty-five dollars or imprisoned not more than thirty days or both. The provisions of this section shall not be deemed to extend the jurisdiction of the selectmen or the shellfish commission of the town of Westport to any shores, beaches, or flats not within the jurisdiction of such selectmen or commission on or before October 1, 1983.”

       A copy of this letter was sent to Senator George L. Gunther, Senator Fred Lovegrove, Representative Julie D. Belaga, Representative Susan Barrett, Representative Elinor Wilber and Representative Christine Niedermeier.

       The defendants argue that it is essential to distinguish between designated “grounds,” which can be leased to commercial shelifishers, from shellfish “beds,” which are public shellfishing areas. They contend that Cockenoe Flats was not a designated shellfish ground, and was therefore not transferred from the town to the state in 1909. The plaintiffs contest the argument that there is a difference between beds and grounds, and argue that the 1909 statute transferred to the state all beds and grounds north of the jurisdictional line. Alternatively, they argue that because the 1882 statute transferred jurisdiction to the town over “shell fishery grounds,” if there is a difference between beds and grounds and Cockenoe Flats is a bed, then it never came into Westport’s jurisdiction in the first instance. In light of our ultimate conclusion regarding the effect of the 1983 legislation, we need not resolve this dispute.

       It is true that, in construing statutes, we have often relied upon the canon of statutory construction that we need not, and indeed ought not, look beyond the statutory language to other interpretive aids unless the statute’s language is not absolutely clear and unambiguous. See, e.g., State v. Cain, 223 Conn. 731, 744-45, 613 A.2d 804 (1992); Mercado v. Commissioner of Income Maintenance, 222 Conn. 69, 74, 607 A.2d 1142 (1992); Rose v. Freedom of Information Commission, 221 Conn. 217, 225, 602 A.2d 1019 (1992); Anderson v. Ludgin, 175 Conn. 545, 552-53, 400 A.2d 712 (1978). That maxim requires some slight but plausible degree of linguistic ambiguity as a kind of analytical threshold that must be surmounted before a court may resort to aids to the determination of the meaning of the language as applied to the facts of the case. See, e.g., Sanzone v. Board of Police Commissioners, 219 Conn. 179, 187, 592 A.2d 912 (1991). It is also true, however, that we have often eschewed such an analytical threshold, and have stated that, in interpreting statutes, we look at all the available evidence, such as the statutory language, the legislative history, the circumstances surrounding its enactment, the purpose and policy of the statute, and its relationship to existing legislation and common law principles. See, e.g., Fleming v. Garnett, 231 Conn. 77, 91-92, 646 A.2d 1308 (1994); State v. Metz, 230 Conn. 400, 409, 645 A.2d 965 (1994); Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of Information Commission, 227 Conn. 848, 852-57, 633 A.2d 305 (1993); Ambroise v. William Raveis Real

        Estate, Inc., 226 Conn. 757, 764, 628 A.2d 1303 (1993); Texaco Refining & Marketing Co. v. Commissioner of Revenue Services, 202 Conn. 583, 589, 522 A.2d 771 (1987). This analytical model posits that the legislative process is purposive, and that the meaning of legislative language (indeed, of any particular use of our language) is best understood by viewing not only the language at issue, but by its context and by the purpose or purposes behind its use.
      We need not, in this case, determine which process is, in general, more appropriate to the judicial task of statutory construction. Even if we were to apply the “plain meaning” principle articulated above, we would be required to examine the extratextual sources in order to discern the meaning of the 1983 legislation as applied to the facts of this case.

       Indeed, the trial court determined that “[t]he legislative history of [Public Acts 1983, No.] 83-236 affirms the perception of the legislators and town officials that Westport had no jurisdiction over town waters . . . with the exception of Saugatuck Shores.”

       Because it is not dispositive of this case, we assume without deciding that prior to the 1983 legislation, jurisdiction over Cockenoe Flats was vested with the town of Westport and we look to what the legislature intended by its 1983 revision of § 26-280.

       The transcript indicates that the word preceding “Island” was unintelligible. The plaintiffs however, indicated at oral argument in this court that there was testimony to the effect that the word was “Cockenoe,” and in response to direct questioning the defendants did not dispute this assertion.

       As the plaintiffs indicated at oral argument, “coastal waters” refers to areas seaward of the low water mark. Saugatuck Shores is the area inland of the low water mark; Cockenoe Flats lies seaward of the low water mark.

       The record indicates that Representative Belaga made assurances to the legislature that the newly created Westport shellfish commission would not exercise jurisdiction beyond Saugatuck Shores. Indeed, when the West-port shellfish commission first attempted to exert jurisdiction over Cockenoe Flats in 1984, Representative Belaga contacted First Selectman William Seiden to ask that the commission cease and desist, which he directed it to do.

         It is also evident from the record that in 1983, Westport, the West-port shellfish commission and the Attorney General’s office all believed that Cockenoe Flats was under the exclusive jurisdiction of the state. In 1984, the state department of agriculture also indicated its belief that the state had jurisdiction over Cockenoe Flats by designating it as a state recreation clamming area in official regulations. Section 26-235-1 of the Regulations of Connecticut State Agencies provides in part: “recreation CLAMMING AREAS
      “The following shores and waters are designated exclusive recreation clam harvesting areas for the purposes of Section 26-235 of the Connecticut General Statutes:
      “(a) WESTPORT COCKENOE ISLAND AREA: That area of shores and waters bounded northerly by Westport Saugatuck Shores and the mouth of the Saugatuck River; easterly by designated shellfish ground as shown on map entitled ‘Norwalk and Westport Town Oyster Grounds Prepared By The Connecticut Shellfish Commission’; southerly by the jurisdictional line shown on said map, Cockenoe Island and designated shellfish ground as shown on said map; westerly by Sprite Island and the Norwalk and Westport Town Line as shown on said map. (Effective August 27, 1984).”

       We recognize that there are limits on the degree to which a court properly may give effect to legislative history that the language of the legislation simply will not bear. Given the ambiguity of this legislative language when read against its historical background, however, this is not such a case.

       In counts three and five, the plaintiffs claim a deprivation of their property and liberty interests under 42 U.S.C. § 1983 et seq. In count four, the plaintiffs claim due process violations pertaining to the Palmer hearing held by Andersen, which is procedurally unrelated to this case.

       Counts three, four and five also refer generally to the due process clause of the Connecticut constitution. The plaintiffs have not, however, presented an adequate and independent analysis of any state constitutional claim. “We have repeatedly apprised litigants that we will not entertain a state constitutional claim unless the defendant has provided an independent analysis under the particular provisions of the state constitution at issue.” State v. Robinson, 227 Conn. 711, 721, 631 A.2d 288 (1993). We therefore decline to consider the defendants’ state constitutional claims.
      In count six, the plaintiffs sought relief for a taking of their property and liberty interests without due process of law in violation of the fifth amendment to the United States constitution and article first, § 11, of our state constitution. Because the plaintiffs did not brief this claim before this court, we deem it to have been abandoned. In any event, we fail to see any basis for a “taking” claim under the facts of this case.

       As plaintiffs’ counsel stated at oral argument, “the state of Connecticut can charge $10 or $100. We don’t object to reasonable regulation. . . . We object to unreasonable regulation which is [regulation by] a third party.”

       The defendants have not contended that if we reverse the trial court on the jurisdictional issue, the trial court’s judgment on these counts should be affirmed on alternative grounds. See Practice Book § 4140 (c).


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    Connecticut Light and Power Company et al. v. Maria DaSilva, Executrix (Estate of Joseph DaSilva), et al.
    (14977)
    Peters, C. J., and Callahan, Norcott, Katz and Palmer, Js.
    Argued October 26
    decision released December 6, 1994

      Jeanine M. Dumont, with whom was Bonnie L. Amendola, for the appellants (plaintiffs).

      Steven M. Olivo, for the appellees (defendants).
   Peters, C. J.

The dispositive issue in this case is whether a trial court has discretion to deny a petition for a utility rent receivership with respect to multifamily residential property once the utility company has established that the owner or lessor of the property is currently in default in the payment of utility charges. The plaintiffs, Connecticut Light and Power Company and Yankee Gas Services Company, filed a petition for an order to show cause for the appointment of a receiver of rents pursuant to General Statutes § 16-262Í for designated properties owned by the defendants Maria DaSilva, both individually and as executrix of the estate of Joseph DaSilva, and JAG, Ltd. After a hearing, the trial court denied the petition. The plaintiffs appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We reverse.

The relevant facts are undisputed. The plaintiffs petitioned for the appointment of a rent receiver on August 18, 1993. The defendants had made no payments on the applicable utility accounts for their residential property since February 1, 1993. Because of prior arrearages for utility services, DaSilva, as executrix and individually, had previously executed, on February 14,1992, a promissory note and a guaranty secured by two mortgage deeds. On January 31,1993, when these instruments were in default, the defendants owed the plaintiffs $594,405.01. Further utility charges have continued to accrue since February 1, 1993. At the time of the plaintiffs’ petition for the appointment of a receiver of rents, they had also initiated proceedings for the foreclosure of the mortgages. Subsequent to the hearing on the petition for the utility rent receivership, the trial court determined, in a separate hearing, that there was reason to believe that the indebtedness secured by the mortgages was undersecured in the amount of $200,000.

The trial court denied the plaintiffs’ petition for the appointment of a rent receiver for three reasons. It concluded that the plaintiffs: (1) had failed to establish a threat of waste or loss; (2) had taken the mortgage note and guaranty in substitution for the preexisting indebtedness; and (3) were adequately secured by the secured note and guaranty. We agree with the plaintiffs that the court misconstrued the applicable statutes and documents and therefore improperly denied the plaintiffs’ petition.

Our point of departure is the text of § 16-262f (a). That statute entitles a utility company to apply for a receivership “[u]pon default of the owner ... of a residential dwelling who is billed directly . . . forutility service furnished to such building . . . .’’Thestat-ute requires an immediate judicial order “to show cause why a receiver should not be appointed,” and a hearing, within seventy-two hours, whose “sole purpose . . . shall be to determine whether there is an amount due and owing between the owner and the . . . utility.” That statute further directs the court to “make a determination of any amount due and owing and any amount so determined shall constitute a lien upon the real property of such owner.”

“Section 16-262Í permits public service companies to petition for a statutory rent receivership under limited circumstances that are statutorily linked to the [General Statutes] § 16-262e (a) prohibition on the termination of utility services. Under § 16-262e (a), service may not be terminated: (1) to a residential dwelling; (2) despite nonpayment of a delinquent account; (3) for service billed directly to the residential building’s lessor, owner, agent or manager; and (4) when it is impracticable for occupants of the building to receive service in their own name. Unable to terminate service to such a residential dwelling, public service companies are expressly instructed, by § 16-262e (a), to ‘pursue the remedy provided in section 16-262Í.’ . . . The summary rent receivership proceedings authorized by § 16-262Í constitute, as we have previously recognized, a statutory trade-off for the requirement of continued service imposed by § 16-262e (a). Hartford Electric Light Co. v. Tucker, 183 Conn. 85, 94, 438 A.2d 828, cert. denied, 454 U.S. 837, 102 S. Ct. 143, 70 L. Ed. 2d 118 (1981).” Southern Connecticut Gas Co. v. Housing Authority, 191 Conn. 514, 518-20, 468 A.2d 574 (1983). The statutory proceedings authorized by § 16-262Í are sui generis. Id., 520.

In light of the language, the acknowledged purpose and the sui generis nature of § 16-262f, the trial court was mistaken in its assumption that the appointment of a rent receiver for the protection of a utility is governed by the same wide-ranging equitable and discretionary principles that govern rent receiverships in ordinary mortgage foreclosure proceedings. See, e.g., Hartford Federal Savings & Loan Assn. v. Tucker, 196 Conn. 172, 175, 491 A.2d 1084, cert. denied, 474 U.S. 920, 106 S. Ct. 250, 88 L. Ed. 2d 258 (1985). Once the plaintiffs presented factual evidence to establish a default in utility payments with respect to residential property, they were entitled to the appointment of a rent receiver without having to demonstrate any further equitable right such as a threat of waste or loss. The trial court, in light of its own findings in the companion foreclosure proceedings, was also mistaken in its conclusion that the plaintiffs had adequate security to collect the amounts that were in default because of their ability to avail themselves of the defendants’ note, guaranty and mortgages.

We recognize that, even when a default has been incontrovertibly established, extraordinary circumstances may warrant a withholding of judicial relief. The defendants in this case have failed, however, to satisfy their burden of demonstrating the existence of any such extraordinary circumstance.

The defendants contend, as the trial court concluded, that the plaintiffs irrevocably elected not to pursue the remedy otherwise afforded them by § 16-262f. The trial court decided that an election of remedies flowed from the plaintiffs agreement to accept the secured promissory note and guaranty from the defendants in the first place. On appeal, without pursuing that claim, the defendants argue that an election of remedies flowed from the plaintiffs’ institution of proceedings to obtain a judgment of default on the note and the guaranty and to foreclose on the correlative mortgages executed as security for the note and the guaranty. We disagree that the plaintiffs are barred from pursuing a utility rent receivership under § 16-262Í in the circumstances of this case.

When the plaintiffs initially agreed to accept a note and a guaranty, and two mortgages as security for these monetary obligations, which were intended to enable the defendants to work out their preexisting arrearages for utility bills, the plaintiffs arguably bound themselves not to pursue these arrearages so long as the instruments were not in default. Unless otherwise agreed, if a promissory note is taken for a preexisting obligation, the obligation is ordinarily suspended “until dishonor of the note or until it is paid.” General Statutes § 42a-3-310 (b) (2). We need not determine, however, whether the parties in this case had “otherwise agreed,” because, as the trial court found, the defendants had defaulted on the note and the guaranty at the time when the plaintiffs initiated their § 16-262Í application.

After the defendants’ default, the plaintiffs’ rights to pursue their statutory entitlement to a rent receivership were fully protected both by the terms of the agreement between the parties and by § 16-262Í. The parties expressly agreed that the plaintiffs’ remedies, in the event of default, were “cumulative” and that the plaintiffs had retained their rights “to resort to every other right or remedy available at law or in equity.”* The terms of their agreement are entirely consistent with § 16-262f (c), which counsels against any election of remedies.

The plaintiffs’ initiation of default and foreclosure proceedings on the note and guaranty and the mortgages securing these instruments did not abrogate their contractual and statutory rights. Under the law of negotiable instruments, a dishonored instrument is not “paid” in the absence of an act or agreement that “would discharge an obligation to pay money under a simple contract.” See General Statutes § 42a-3-601. Under governing principles of contract law, a party who manifests the choice of one available remedy among others “by bringing suit or otherwise” has not barred his right to pursue any other remedy “unless the remedies are inconsistent and the other party materially changes his position in reliance on the manifestation.” 3 Restatement (Second), Contracts § 378 (1981). As these authorities recognize, the essence of “payment” is the actual collection of moneys owed, not the pursuit of remedies to accomplish their collection. In the absence of a discharge on grounds such as bankruptcy, an unpaid default judgment does not automatically discharge an indebtedness.

The defendants argue, however, that they have been materially disadvantaged by the plaintiffs’ pursuit of default and foreclosure proceedings because of the defendants’ continued liability as parties to a negotiable instrument. They suggest that the plaintiffs “could obtain a default in the foreclosure, and then assign the note to a third party, who could collect on it, while the plaintiffs collected on their receivership under ... § 16-2621” The defendants’ argument assumes that a person who takes a negotiable instrument after its maturity and default could collect on the instrument, as a holder in due course thereof, without regard to any defenses of whole or partial payment. The defendants are mistaken. Under General Statutes § 42a-3-302 (a) (2) (iii), a holder cannot be “in due course” unless the holder takes the instrument “without notice that the instrument is overdue or has been dishonored . . . .” Under General Statutes § 42a-3-304 (b) (2), an instrument “payable at a definite time” becomes “overdue on the day after the due date.” Because the promissory note in this case bore a due date of January 31,1993, it gave notice on its face that it had become “overdue” on February 1, 1993. By the time of these proceedings, therefore, the note could no longer be negotiated to a holder in due course. Under General Statutes § 42a-3-305 (a) (2), enforcement of the instrument by any taker other than a holder in due course would preserve for the obligor on the instrument any “defense . . . that would be available if the person entitled to enforce the instrument were enforcing a right to payment under a simple contract.”

The protracted proceedings in this case failed to accord with the letter or the spirit of § 16-262Í. The plaintiffs clearly established their right to a rent receivership. On remand, the trial court should promptly designate a rent receiver and determine the amount of the utility charges due and owing from the defendants to the plaintiffs.

The judgment is reversed and the trial court is directed to conduct a prompt hearing in accordance with this opinion.

In this opinion the other justices concurred.

       General Statutes § 16-262f provides in relevant part: “petition for RECEIVER OF RENTS; HEARING; APPOINTMENT; DUTIES. TERMINATION OF RECEIVERSHIP. LIENS. NONEXCLUSIVITY OF REMEDY. CONTEMPT, (a) Upon default of the owner, agent, lessor or manager of a residential dwelling who is billed directly by an electric, gas, telephone or water company or by a municipal utility for utility service furnished to such building, such company or municipal utility may petition the superior court or a judge thereof, for appointment of a receiver of the rents or payments for use and occupancy for any dwelling for which the owner, agent, lessor or manager is in default. The court or judge shall forthwith issue an order to show cause why a receiver should not be appointed, which shall be served upon the owner, agent, lessor or manager or his agent in a manner most reasonably calculated to give notice to such owner, agent, lessor or manager as determined by such court or judge, including, but not limited to, a posting of such order on the premises in question. A hearing shall be had on such order no later than seventy-two hours after its issuance or the first court day thereafter. The sole purpose of such a hearing shall be to determine whether there is an amount due and owing between the owner, agent, lessor or manager and the company or municipal utility. The court shall make a determination of any amount due and owing and any amount so determined shall constitute a lien upon the real property of such owner. A certificate of such amount may be recorded in the land records of the town in which such property is located describing the amount of the lien and the name of the party in default. When the amount due and owing has been paid the company or municipality shall issue a certificate discharging the lien and shall file the certificate in the land records of the town in which such lien was recorded. The receiver appointed by the court shall collect all rents or payments for use and occupancy forthcoming from the occupants of the building in question in place of the owner, agent, lessor or manager. The receiver shall pay the petitioner or other supplier, from such rents or payments for use and occupancy, for electric, gas, telephone, water or heating oil supplied on and after the date of his appointment. The owner, agent, lessor or manager shall be liable for such reasonable fees and costs determined by the court to be due the receiver, which fees and costs may be recovered from the rents or payments for use and occupancy under the control of the receiver, provided no such fees or costs shall be recovered until after payment for current electric, gas, telephone and water service and heating oil deliveries has been made. The owner, agent, lessor or manager shall be liable to the petitioner for reasonable attorney’s fees and costs incurred by the petitioner, provided no such fees or costs shall be recovered until after payment for current electric, gas, telephone and water service and heating oil deliveries has been made and after payments of reasonable fees and costs to the receiver. Any moneys from rental payments or payments for use and occupancy remaining after payment for current electric, gas, telephone and water service or heating oil deliveries, and after payment for reasonable costs and fees to the receiver, and after payment to the petitioner for reasonable attorney’s fees and costs, shall be applied to any arrear-age found by the court to be due and owing the company or municipal utility from the owner, agent, lessor or manager for service provided such building. Any moneys remaining thereafter shall be turned over to the owner, agent, lessor or manager. The court may order an accounting to be made at such times as it determines to be just, reasonable, and necessary. . . .
      “(c) Nothing in this section shall be construed to prevent the petitioner from pursuing any other action or remedy at law or equity that it may have against the owner, agent, lessor or manager.”

       Although the plaintiffs’ petition also cited Steven Olivo, trustee, as a defendant, the plaintiffs withdrew the case as to him.

       DaSilva as executrix was the maker of a promissory note in the amount of $840,000; this note was secured by a mortgage deed and security agreement. DaSilva individually executed a personal guaranty of the note; this guaranty was also secured by a mortgage deed and security agreement.

       General Statutes § 16-262e provides in relevant part: “notice furnished TENANTS BY UTILITY RE INTENDED TERMINATION. ASSUMPTION BY TENANTS OF LIABILITY FOR FUTURE SERVICE. LIABILITY OF LANDLORDS FOR CERTAIN UTILITY SERVICES. DEDUCTION FROM RENT, (a) Notwithstanding the provisions of section 16-262d, wherever an owner, agent, lessor or manager of a residential dwelling is billed directly by an electric, gas, telephone or water public service company or by a municipal utility for utility service furnished to such building not occupied exclusively by such owner, agent, lessor, or manager, and such company or municipal utility has actual or constructive knowledge that the occupants of such dwelling are not the persons to whom the company or municipal utility usually sends its bills, such company or municipal utility shall not terminate such service for nonpayment of a delinquent account owed to such company or municipal utility by such owner, agent, lessor or manager unless: (1) Such company or municipal utility makes a good faith effort to notify the occupants of such building of the proposed termination by the means most practicable under the circumstances and best designed to provide actual notice; and (2) such company or municipal utility provides an opportunity, where practicable, for such occupants to receive service in their own names without any liability for the amount due while service was billed directly to the lessor, owner, agent or manager and without the necessity for a security deposit; provided, if it is not practicable for such occupants to receive service in their own names, the company or municipal utility shall not terminate service to such residential dwelling but may pursue the remedy provided in section 16-262Í.”

       General Statutes § 42a-3-310 provides in relevant part: “effect of INSTRUMENT ON OBLIGATION FOR WHICH TAKEN. . . .
      “(b) Unless otherwise agreed and except as provided in subsection (a), if a note or an uncertified check is taken for an obligation, the obligation is suspended to the same extent the obligation would be discharged if an amount of money equal to the amount of the instrument were taken, and the following rules apply . . .
      “(2) In the case of a note, suspension of the obligation continues until dishonor of the note or until it is paid. Payment of the note results in discharge of the obligation to the extent of the payment.”

       Each open-ended mortgage deed and security agreement provides: “G. Remedies Cumulative. The rights and remedies of the Mortgagees herein provided are cumulative and the holder of the [Note or Guaranty] and of every other obligation secured hereby may recover judgment thereon, issue execution therefor, and resort to every other right or remedy available at law or in equity, without first exhausting and without affecting or impairing the security or any right or remedy afforded by this Mortgage, and no enumerated or special rights or powers herein shall be construed to limit in any manner any grant of general rights or powers or take away or limit any and all rights of Mortgagees under the laws of the State of Connecticut.”
      The trial court surmised that these provisions might be unenforceable because they were “not amenable to bargaining” and therefore might constitute “adhesion contractas).” The court acknowledged that the defendants had offered no such argument at trial. The defendants similarly have offered no such argument on appeal. In Hamm v. Taylor, 180 Conn. 491, 494-95, 429 A.2d 946 (1980), we held that “[b]efore a court strikes down as unconscionable the terms of a note that the legislature has deemed not to be illegal . . . the court should permit a factual showing of the circumstances that led to the inclusion of the challenged terms in the note or mortgage.” (Citation omitted.) The trial court in this case, therefore, lacked either a legal or a factual basis for its surmise.

       General Statutes § 16-262f (c) provides: “Nothing in this section shall be construed to prevent the petitioner from pursuing any other action or remedy at law or equity that it may have against the owner, agent, lessor or manager.”

       General Statutes § 42a-3-601 provides in relevant part: “DISCHARGE AND effect of discharge, (a) The obligation of a party to pay the instrument is discharged as stated in this article or by an act or agreement with the party which would discharge an obligation to pay money under a simple contract.”

       Section 378 of the Restatement (Second) of Contracts provides: “election AMONG REMEDIES
      “If a party has more than one remedy under the rules stated in this Chapter, his manifestation of a choice of one of them by bringing suit or otherwise is not a bar to another remedy unless the remedies are inconsistent and the other party materially changes his position in reliance on the manifestation.”

       General Statutes § 42a-3-302 provides in relevant part: “HOLDER IN due COURSE, (a) Subject to subsection (c) and section 42a-3-106 (d), ‘holder in due course’ means the holder of an instrument if . . .
      “(2) The holder took the instrument (i) for value, (ii) in good faith, (iii) without notice that the instrument is overdue or has been dishonored or that there is an uncured default with respect to payment of another instrument issued as part of the same series, (iv) without notice that the instrument contains an unauthorized signature or has been altered, (v) without notice of any claim to the instrument described in section 42a-3-306, and (vi) without notice that any party has a defense or claim in recoupment described in section 42a-3-305 (a)-."

       General Statutes § 42a-3-304 provides in relevant part: “OVERDUE INSTRUMENT. . . .
      “(b) With respect to an instrument payable at a definite time the following rules apply . . .
      “(2) If the principal is not payable in instalments and the due date has not been accelerated, the instrument becomes overdue on the day after the due date.”

       General Statutes § 42a-3-305 provides in relevant part: “defenses and claims in recoupment, (a) Except as stated in subsection (b), the right to enforce the obligation of a party to pay an instrument is subject to the following . . .
      “(2) A defense of the obligor stated in another section of this article or a defense of the obligor that would be available if the person entitled to enforce the instrument were enforcing a right to payment under a simple contract . . . .”


author: Palmer, J.

text:
    Rockville Fish and Game Club, Inc. v. Inland Wetlands Commission of the Town of Tolland et al.
    (14993)
    Peters, C. J., and Borden, Berdon, Norcott and Palmer, Js.

      Argued September 23
    decision released December 6, 1994

      JoAnn Paul, for the appellant (plaintiff).

      Richard S. Conti, for the appellee (named defendant).
   Palmer, J.

This is an appeal by the plaintiff, the Rockville Fish and Game Club, Inc., challenging the validity of a wetlands permit awarded by the defendant inland wetlands commission of the town of Tolland (commission). The defendant Westwood Park, Inc. (Westwood), applied to the commission for a wetlands permit in connection with its proposed development of certain property in Tolland. The commission granted Westwood’s application for a permit without conducting a public hearing. The plaintiff, which owns land adjacent to the subject property, appealed from the commission’s decision to the trial court, which dismissed the plaintiffs appeal. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgment of the trial court.

The relevant facts are as follows. In September, 1991, Westwood applied to the Tolland planning and zoning commission for a permit to develop a twenty-eight acre parcel of property located on Dockerel Road. Westwood proposed to develop the property, comprised primarily of woodlands, into a fifteen lot residential subdivision. In conjunction with that application, Westwood also sought a permit from the inland wetlands commission to build a road across certain wetlands located on the property. Westwood’s application for a wetlands permit indicated that the construction and maintenance of the road as proposed would result in the disturbance of less than one acre of those wetlands.

Westwood’s application for a wetlands permit was considered by the commission at its meeting on October 3,1991. The commission took no action on the application at that time, however, deciding instead to obtain and review additional information concerning the impact of the proposed road construction on the wetlands. Following discussion of the application at its October 17,1991 meeting, the commission invited the plaintiff to participate in future meetings and to comment upon Westwood’s proposal.

The plaintiff is a club whose members use its property primarily for hunting and fishing. The property contains two ponds stocked with trout and several streams that cross the boundary onto Westwood’s property at several points. The plaintiff, concerned that Westwood’s proposed development would harm the water quality of those streams and ponds, opposed Westwood’s application for a wetlands permit at the commission’s meetings on October 17, November 7, November 21 and December 5,1991.* Members of the plaintiff club attended each of those meetings, and its president submitted two letters to the commission, including an analysis of the water quality of the wetlands that the plaintiff claimed would be adversely affected by Westwood’s proposed development. In addition, JoAnn Paul, an attorney for the plaintiff, and Barbara Obeda, an environmental systems analyst retained by the plaintiff, testified at the commission meeting on December 5, 1991, concerning the potential adverse impact of the proposed development on the surrounding wetlands.

The commission approved Westwood’s application for a wetlands permit on December 5,1991. The commission concluded that Westwood’s proposal did not constitute a "significant activity” within the meaning of § 2.1aa of the Tolland inland wetlands and watercourses regulations (wetlands regulations) and, therefore, that no public hearing was necessary under § 9.1 of those regulations. The plaintiff appealed from the commission’s decision to the Superior Court, claiming that the commission was required to conduct a public hearing on Westwood’s application for a wetlands permit pursuant to Tolland’s wetlands regulations and, in the alternative, that the commission was required to give notice of its intent to waive a public hearing pursuant to General Statutes § 22a-39 (k). The trial court rendered judgment dismissing the plaintiffs appeal. On appeal to this court, the plaintiff claims that the trial court improperly concluded that the commission had not been required: (1) to conduct a public hearing on Westwood’s application for a wetlands permit under the Tolland wetlands regulations; and (2) to publish notice of its intent to waive a public hearing on West-wood’s application pursuant to § 22a-39 (k). We affirm the judgment of the trial court.

I

The plaintiff first claims that the trial court improperly determined that the record of the proceedings before the commission supports the commission’s decision to grant Westwood’s application for a wetlands permit without conducting a public hearing. This claim is without merit.

Section 9.1 of the Tolland wetlands regulations requires the commission to hold a public hearing on any application for a wetlands permit that involves a “significant activity.” Section 2.1aa of those regulations defines “significant activity” as any activity “which may have a substantial effect on the area for which an application has been filed or on another part of the inland wetland or watercourse system. . . .” See footnote 7. Section 2.1aa also lists seven activities as examples of the type of activities that may have a “substantial effect” on wetlands.

The plaintiff claims that because the development proposed by Westwood involves several of the regulated activities enumerated in § 2.1aa, the commission could not properly have concluded that Westwood’s application for a wetlands permit did not involve a “significant activity.” This argument, however, ignores the definition of “significant activity” in § 2.1aa as an activity that “may have a substantial effect” on wetlands. An activity that may affect wetlands, therefore, is not a “significant activity” within the meaning of the Tolland wetlands regulations unless its potential effect on the wetlands is a substantial one. Because § 9.1 of the Tolland wetlands regulations mandates a public hearing only when the wetlands application involves a “significant activity,” a public hearing is not required if the activity, including any one or more of the activities enumerated in § 2.1aa, will not have a “substantial effect” on wetlands.

We conclude that the record of the meetings of the commission on Westwood’s application for a wetlands permit supports the commission’s determination that the proposed activity would have no “substantial effect” on the wetlands and, consequently, that the application did not involve a “significant activity” for which a public hearing was required. The environmental concerns raised by the plaintiff were addressed specifically in the detailed reports and testimony of Christie Barton, the town wetlands agent, David Smith, the town director of development, and Henry Torcellini, a consulting engineer. Relying on the reports and testimony of those witnesses, the commission reasonably could have concluded that the proposed development would have little or no adverse impact on the surrounding wetlands. Indeed, Torcellini testified that the proposed road construction site had been chosen because the portion of the wetlands to be affected by the construction was already disturbed, and Barton stated that the project would actually improve the condition of the affected wetlands area. Moreover, on the recommendation of commission staff, approval of West-wood’s application was conditioned on certain improvements to be made by Westwood to the subject property, including the creation of a conservation easement and a water retention basin, designed to eliminate any possible adverse effect of the development on the wetlands.

The commission’s determination that Westwood’s application for a wetlands permit did not involve a “significant activity” may not be disturbed by a reviewing court if the record of the proceedings before the commission reveals that there was substantial evidence to support its conclusion. See, e.g., Samperi v. Inland Wetlands Agency, 226 Conn. 579, 588, 628 A.2d 1286 (1993); Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 540-41, 525 A.2d 940 (1987). Moreover, it was the responsibility of the commission to evaluate the credibility of witnesses and to resolve disputed factual issues. Samperi v. Inland Wetlands Agency, supra, 588; Huck v. Inland Wetlands & Watercourses Agency, supra, 540-41. The record indicates that the commission carefully considered the conflicting expert testimony and documentary evidence concerning the possible impact of the proposed development on the wetlands. Although the contradictory evidence presented to the commission on the issue of that impact might have supported a contrary conclusion, the commission’s determination that West-wood’s application for a wetlands permit did not involve a “significant activity” within the meaning of § 2.1aa of the Tolland wetlands regulations was amply supported by the evidence. See Samperi v. Inland Wetlands Agency, supra, 588; Huck v. Inland Wetlands & Watercourses Agency, supra, 541-42. Therefore, the trial court properly rejected the plaintiff’s claim that the commission’s failure to conduct a hearing on West-wood’s application for a permit violated the town’s wetlands regulations.

II

The plaintiff also claims that the commission improperly failed to give notice of its intent to waive a public hearing on Westwood’s application for a wetlands permit as required by General Statutes § 22a-39 (k). We disagree.

Section 22a-39 (k) provides that the commissioner of environmental protection may waive the requirement of a public hearing on an application for an inland wetlands permit when the regulated activity for which the permit is sought is not likely to have a significant impact on the wetland or watercourse. See footnote 9. The plaintiff argues that the commission was required to comply with this provision before approving West-wood’s application for a wetlands permit. This claim lacks merit, however, because § 22a-39 (k) requires only the commissioner of environmental protection to give notice of his or her intent to issue a wetlands permit without conducting a public hearing. No such notice requirement is imposed on local wetlands agencies.

Moreover, in contrast to the notice requirement imposed on the commissioner under § 22a-39 (k), General Statutes § 22a-42a (a) provides that local wetlands agencies themselves shall promulgate regulations concerning notice and publication requirements. This grant of authority is consistent both with the public policy to require municipal regulation of activities affecting .wetlands and watercourses within the various cities and towns; General Statutes § 22a-42 (a); and with the statutory scheme designed to give local agencies broad discretion to oversee wetland activities. Samperi v. Inland Wetlands Agency, supra, 226 Conn. 592. When the legislature has chosen to impose specific notice requirements on inland wetlands agencies, it has done so in terms that are clear and unambiguous. See, e.g., General Statutes § 22a-42a (c) and (d). Moreover, even in these statutes, the legislature has not required a local agency to give notice of its intent to issue a wetlands permit without a public hearing. The legislature, if it intended to mandate such notice, could easily have expressed this intent. See State v. Metz, 230 Conn. 400, 410, 645 A.2d 965 (1994); State v. Ortiz, 217 Conn. 648, 654, 588 A.2d 127 (1991). Because the plaintiff has identified nothing in either the language or legislative history of § 22a-39 (k) to suggest that the legislature intended to require a local wetlands agency to give notice of its intent to waive a public hearing, the commission’s approval of Westwood’s application without such notice did not violate the requirements of § 22a-39 (k).

The judgment is affirmed.

In this opinion the other justices concurred.

       Although the trial court “denied” the plaintiffs appeal, the preferable usage is to “dismiss” such an appeal.

       A total of 2.7 acres of the twenty-eight acre parcel sought to be developed by Westwood is designated as wetlands.

       Westwood’s application stated that construction of the proposed road would result in the disturbance of 0.08 acres of wetlands. Although the commission made no express finding as to the wetlands acreage to be disturbed by the proposed development, the commission’s report to the department of environmental protection on its approval of Westwood’s application; see Regs., Conn. State Agencies § 22a-39-14; also stated that 0.08 acres of wetlands were to be disturbed by the project. The trial court, however, apparently in reliance on certain statements contained in Westwood’s trial brief, concluded that the commission reasonably could have determined “that the area of the wetlands to be disturbed is .8 acres . . . .” The parties have not raised this issue on appeal, and we therefore do not address it. Moreover, our resolution of the issue is unnecessary because, as we discuss more fully in part I of this opinion, we agree with the trial court that the commission’s decision to grant Westwood’s application without a public hearing is fully supported by the record of the proceedings before the commission.

       In addition to the disturbance of the wetlands that would be caused by the construction and maintenance of the road, Westwood acknowledged that drainage from the road would have an indirect effect on the wetlands.

       The plaintiff raised concerns not only about the impact of the proposed road on the wetlands, but also about the indirect effect that the development of a residential subdivision would have on the wetlands. The record of the meetings of the commission indicates that the commission considered all the issues raised by the plaintiff.

       Obeda also submitted a written report of her findings and conclusions to the commission.

       Section 2.1aa of the Tolland inland wetlands and watercourses regulations provides: “ ‘Significant activity’ means any activity, including, but not limited to, the following activities which may have a substantial effect on the area for which an application has been filed or on another part of the inland wetland or watercourse system:
      “1. Any activity involving a deposition or removal of material which will or may have a substantial effect on the regulated area or on another part of the inland wetland or watercourse system, or
      “2. Any activity which substantially changes the natural channel or may inhibit the natural dynamics of a watercourse system, or
      “3. Any activity which substantially diminishes the natural capacity of an inland wetland or watercourse to support desirable fisheries, wildlife, or other biological life, prevent flooding, supply water, assimilate waste, facilitate drainage, provide recreation or open space or other functions, or
      “4. Any activity which causes substantial turbidity, siltation or sedimentation in a wetland or watercourse, or
      “5. Any activity which causes a substantial diminution of either flow of a natural watercourse, or groundwater levels of the regulated area, or
      “6. Any activity which causes or has the potential to cause pollution of a wetland or watercourse, or
      “7. Any activity which destroys unique wetland or watercourse areas having demonstrable scientific or educational value.”

       Section 9.1 of the Tolland inland wetlands and watercourses regulations provides: “A public hearing shall be held on all applications involving a significant activity. A public hearing may be held on applications which do not involve significant activities if the Commission determines it is in the public interest. (A petition containing the signatures of twenty-five or more persons shall be considered as adequate public interest for the purposes of scheduling a public hearing.) Any person may appear and be heard at any public hearing within the format outlined by the Commission for said hearing.”

       General Statutes § 22a-39 provides in relevant part: “The commissioner shall . . . (k) Conduct a public hearing no sooner than thirty days and not later than sixty days following the receipt by said commissioner of any inland wetlands application, provided whenever the commissioner determines that the regulated activity for which a permit is sought is not likely to have a significant impact on the wetland or watercourse, he may waive the requirement for public hearing after (1) publishing notice, in a newspaper having general circulation in each town wherever the proposed work or any part thereof is located, of his intent to waive said requirement, and (2) mailing notice of such intent to the chief administrative officer in the town or towns where the proposed work, or any part thereof, is located, and the chairman of the conservation commission and inland wetlands agency of each such town or towns, except that the commissioner shall hold a hearing on such application upon receipt, within thirty days after such notice has been published or mailed, of a petition signed by at least twenty-five persons requesting such a hearing. The commissioner shall (1) publish notice of such hearing at least once not more than thirty days and not fewer than ten days before the date set for the hearing in a newspaper having a general circulation in each town where the proposed work, or any part thereof, is located, and (2) mail notice of such hearing to the chief administrative officer in the town or towns where the proposed work, or any part thereof, is located, and the chairman of the conservation commission and inland wetlands agency of each such town or towns. All applications and maps and documents relating thereto shall be open for public inspection at the office of the commissioner. The commissioner shall state upon his records his findings and reasons for the action taken . . . .”

       Section 2.1aa of the Tolland wetlands regulations expressly provides that the seven regulated activities enumerated therein are not exclusive.

       Specifically, the plaintiff claims that Westwood’s application for a wetlands permit involves four of the seven regulated activities listed in § 2.1aa of the Tolland wetlands regulations, namely, those activities described in 2.1aa (1), (3), (4) and (6). See footnote 7.

       Commission members and staff also visited the site of the proposed development to observe the property in light of the issues raised by the plaintiff.

       Torcellini also testified that the wetlands are narrowest at the point selected for the road construction, and that the proposed site is the only feasible location on Westwood’s property for the road.

       It is undisputed that the commission did not publish a notice of its intention to waive a public hearing on Westwood’s application for a wetlands permit.

       Indeed, § 22a-39 (k) expressly provides that whenever the commissioner of environmental protection intends to grant an application for a wetlands permit without conducting a public hearing, notice of such intent shall be mailed to the chairman of the local inland wetlands agency where the proposed regulated activity is to take place. Section 22a-39 (k) imposes no requirement on local wetlands agencies to provide such notice to the commissioner or to anyone else.

       General Statutes § 22a-42a (a) provides: “The inland wetlands agencies authorized in section 22a-42 shall through regulation provide for (1) the manner in which the boundaries of inland wetland and watercourse areas in their respective municipalities shall be established and amended or changed, (2) the form for an application to conduct regulated activities, (3) notice and publication requirements, (4) criteria and procedures for the review of applications and (5) administration and enforcement.”

       General Statutes § 22a-42 (a) provides: “To carry out and effectuate the purposes and policies of sections 22a-36 to 22a-45, inclusive, it is hereby declared to be the public policy of the state to require municipal regulation of activities affecting the wetlands and watercourses within the territorial limits of the various municipalities or districts.”

       The plaintiff also claims that the Tolland wetlands regulations are inconsistent with § 22a-39 (k) because the regulations do not require notice of the commission’s intent to waive a public hearing when the activity for which the permit is sought is not likely to have a significant impact on wetlands. The Tolland wetlands regulations do not conflict with § 22a-39 (k) for the reason we have already stated: § 22a-39 (k) imposes a notice requirement only on the commissioner of environmental protection, not on local wetlands agencies. See Lizotte v. Conservation Commission, 216 Conn. 320, 333, 579 A.2d 1044 (1990); Aaron v. Conservation Commission, 183 Conn. 532, 544, 441 A.2d 30 (1981).