Sams v. Dept. of Environmental Protection

****************************************************** The ‘‘officially released’’ date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ‘‘officially released’’ date appearing in the opinion. In no event will any such motions be accepted before the ‘‘officially released’’ date. All opinions are subject to modification and technical correction prior to official publication in the Connecti- cut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Con- necticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be repro- duced and distributed without the express written per- mission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ******************************************************  DAVID SAMS ET AL. v. DEPARTMENT OF ENVIRONMENTAL PROTECTION (SC 18438) Rogers, C. J., and Palmer, Zarella, Eveleigh, Harper and Vertefeuille, Js.* Argued September 27, 2012—officially released April 30, 2013 Jeffrey J. Mirman, for the appellants (plaintiffs). David H. Wrinn, assistant attorney general, with whom, on the brief, were Richard Blumenthal, former attorney general, and George Jepsen, attorney general, for the appellee (defendant).  Opinion EVELEIGH, J. The plaintiffs, David Sams and Betsy Sams, appeal1 from the judgment of the trial court affirming the decision of the department of environmen- tal protection hearing officer requiring the removal of a gabion seawall2 that the plaintiffs had constructed on their property along the shoreline of the Connecticut River without having obtained approval from either the town of Old Saybrook (town) in accordance with Gen- eral Statutes (Rev. to 2003) § 22a-1093 or the defendant, the department of environmental protection (depart- ment),4 in accordance with General Statutes (Rev. to 2003) § 22a-361.5 On appeal, the plaintiffs claim that the trial court improperly concluded that: (1) the depart- ment properly asserted jurisdiction over the seawall under § 22a-361 because the department failed to prove that the seawall was located waterward of the high tide line; (2) the department properly asserted jurisdiction under the Coastal Management Act (act), General Stat- utes §§ 22a-90 through 22a-111, because there is no evidence in the record that the town had determined whether the plaintiffs needed coastal site plan approval prior to constructing the seawall; (3) substantial evi- dence supported the department’s findings and conclu- sions that the factual predicates to the department’s jurisdiction under § 22a-361—that the seawall is located in ‘‘tidal, coastal or navigable waters’’ of the state and that the bank on which the seawall is located is a ‘‘coastal bluff or escarpment’’—had been met; and (4) the hearing officer’s decision to order the removal of the entire seawall was not an abuse of discretion. We disagree with the plaintiffs and, accordingly, affirm the judgment of the trial court. To provide context for the claims raised in the present case and the specific facts relevant to those claims, we begin as we did in our recent opinion in Shanahan v. Dept. of Environmental Protection, 305 Conn. 681, 47 A.3d 364 (2012), by outlining the statutory scheme in effect at the time of the proceedings in the present case; see footnote 8 of this opinion; governing activities along the Connecticut coastline in order to protect coastal resources. ‘‘[T]he legislature has enumerated several activities that are subject to regulation by the depart- ment if conducted ‘waterward of the high tide line.’ General Statutes § 22a-359 (a);6 see General Statutes § 22a-361 (a) (1). Specifically, § 22a-361 (a) (1) directs a property owner seeking, inter alia, to ‘erect any struc- ture,’ ‘maintain any structure’ or ‘carry out any work incidental thereto’ along the Connecticut coast ‘water- ward of the high tide line’ to obtain a permit from the commissioner of environmental protection (commis- sioner) and agree to carry out any conditions deemed necessary to the implementation of that permit. . . . Any violation of this provision is considered a public nuisance for which the department may issue a cease and desist order.7 General Statutes §§ 22a-362 and 22a- 363f. The term ‘high tide line’ as used in § 22a-361 (a) is statutorily defined as ‘a line or mark left upon tide flats, beaches, or along shore objects that indicates the intersection of the land with the water’s surface at the maximum height reached by a rising tide. The mark may be determined by (1) a line of oil or scum along shore objects, (2) a more or less continuous deposit of fine shell or debris on the foreshore or berm, (3) physi- cal markings or characteristics, vegetation lines, tidal gauge, or (4) by any other suitable means delineating the general height reached by a rising tide. The term includes spring high tides and other high tides that occur with periodic frequency but does not include storm surges in which there is a departure from the normal or predicted reach of the tide due to the piling up of water against a coast by strong winds such as those accompanying a hurricane or other intense storm.’ General Statutes § 22a-359 (c).8 ‘‘In addition to the requirements of § 22a-361, coastal activity may also be subject to regulation under the [act], General Statutes § 22a-90 et seq. Among the act’s goals is the management of coastal bluffs [and escarp- ments],9 which play an integral role in maintaining a balanced pattern of erosion and sedimentation along the coastline. General Statutes § 22a-92 (b) (2) (A). In addition to providing a significant source of sediment for other coastal features, bluffs [and escarpments] also support unique plant communities, provide wildlife hab- itats, and protect against coastal flooding. The act’s policies specifically declare that the natural contours of bluffs [and escarpments] should be preserved and that activities altering the natural supply of sediment from bluffs [and escarpments] should be disapproved. General Statutes § 22a-92 (b) (2) (A). The act establishes a ‘coastal boundary’; General Statutes § 22a-94 (b);10 and requires property owners wishing to construct, inter alia, any shoreline flood and erosion control struc- ture that is within the coastal boundary to submit a coastal site plan for approval by the local zoning author- ity. General Statutes § 22a-109.’’ (Citation omitted.) Sha- nahan v. Dept. of Environmental Protection, supra, 305 Conn. 687–89. The act permits a town to exempt, by regulation, certain activities and uses from the site plan process but does not permit towns to exempt ‘‘shoreline flood and erosion control structures . . . .’’ General Statutes (Rev. to 2003) § 22a-109 (b). The town may modify or deny any coastal site plan if it fails to comply with the town’s zoning regulations or the act’s requirements.11 Any activity that occurs within the coastal boundary not exempt from coastal site plan review, which occurs without having received lawful approval from the rele- vant town zoning board, or which violates the terms or conditions of such approval, is deemed a public nui- sance. General Statutes § 22a-108.12 When such unlawful activity takes place, the municipality in which the activ- ity has occurred has the authority to exercise all enforcement remedies legally available to it, such as issuing a cease and desist order. General Statutes § 22a- 108. In addition, after notifying the relevant municipal- ity, the commissioner may also take enforcement action against the unlawful activity. General Statutes § 22a- 108. ‘‘[T]he commissioner may order that such a public nuisance be halted, abated, removed or modified and that the site of the violation be restored as nearly as reasonably possible to its condition prior to the viola- tion . . . .’’ General Statutes § 22a-108. Thus, the statu- tory scheme provides for concurrent jurisdiction between the department and a coastal town over an activity that occurs within the coastal boundary without lawful approval from the relevant municipality. With this regulatory framework in mind, we turn to the specific facts as found by the department hearing officer and revealed by the record, and procedural his- tory, relevant to our resolution of this appeal. The plain- tiffs’ property is located on the Connecticut River, approximately four miles upstream from Long Island Sound in the town. The shoreline of the plaintiffs’ prop- erty is a steep bank with a grade of approximately seventy degrees, and consists of gravel and loose sandy soils. During the summer of 2000, the plaintiffs began observing the effects of erosion along the shoreline of their property, causing it to become unstable. The erosion was caused by two concurrent forces: the ero- sion at the top of the bank was caused by weather related runoff, and the erosion at the bottom of the bank was caused by scouring from wake and wave activity. If left unchecked, the erosion would have even- tually altered the bank to a point of equilibrium or stability. The trees located on the plaintiffs’ property nearest to the bank, however, would have eventually broken away and fallen into the Connecticut River. The ongoing erosion also would have compromised the sta- bility of the plaintiffs’ patio. After noticing the erosion, the plaintiffs consulted with Chris Lawrie, a landscape specialist, regarding pos- sible erosion control solutions. After considering vari- ous means to mitigate the effects of the erosion, the plaintiffs decided to install a 261 foot long gabion sea- wall. The plaintiffs, in consultation with Lawrie, selected this option after concluding that the composi- tion of the soil and the severity of the grade appeared to make a vegetative solution impossible, and a riprap system13 would have required excavation of the bank beyond that required for the seawall. The seawall was constructed during August and September, 2004. The plaintiffs did not seek approval from either the town or the department before constructing the sea- wall, nor did they conduct any surveys prior to construc- tion. Rather, Gary Sharpe, a licensed engineer whom the plaintiffs had hired, advised the plaintiffs that, based on his experience, no authorization would be required if the seawall was installed landward of the high tide line. Thus, the plaintiffs and Lawrie agreed that all con- struction of the seawall would occur landward of the high tide line as depicted on site plans that the plaintiffs previously had submitted when they applied to the department for permits for construction of a dock. The high tide line depicted on those earlier site plans listed an elevation of 4.1 feet.14 Lawrie installed a silt fence in alignment with the most landward set of dock pil- ings—at what he believed to be the high tide line—and all construction occurred landward of that fence. On September 29, 2004, Michael Grzywinski, a depart- ment staff member, conducted an investigation of the plaintiffs’ property in response to a complaint received after the seawall had been virtually completed. In his inspection report, Grzywinski noted the location of the seawall and a silt fence, as well as a ‘‘body of water with evidence of tide’’ and a ‘‘wrack line,’’ which is a line of debris indicating where the water level intersects with the land. Grzywinski also observed and photo- graphed a wrack line to the north of the plaintiffs’ dock, and debris and water in contact with the seawall to the south of the dock. On the basis of these factors, Grzywinski determined that the seawall was located waterward of the high tide line, and that, because the plaintiffs had not received a permit from the department prior to construction, the seawall had been constructed in violation of § 22a-361. The department then notified the town of the seawall’s construction. On October 1, 2004, Christina Costa, the town’s zon- ing enforcement officer, inspected the plaintiffs’ prop- erty. On the basis of her observations, she determined that the seawall had been built in violation of both the town’s zoning regulations and the act. As a result, on December 8, 2004, the town issued a cease and desist order to the plaintiffs. The order noted that a zoning permit was required under the town’s zoning regula- tions, and that coastal site plan approval was required under the act because the seawall was located in the coastal boundary and was a ‘‘ ‘shoreline flood and ero- sion control structure’ ’’ as defined in General Statutes (Rev. to 2003) § 22a-109 (c). Following this action by the town, on March 16, 2005, the department issued a notice of violation to the plain- tiffs and Lawrie. The notice stated that the seawall had been constructed along the shoreline of the plaintiffs’ property waterward of the high tide line, without prior state authorization, in violation of § 22a-361. The viola- tion notice required the plaintiffs to submit a plan for removal of the seawall and for restoration of the shore- line to its preexisting condition. After issuing the notice of violation, department staff revisited the plaintiffs’ property on at least two separate occasions. On June 22, 2006, department officials took photographs of the plaintiffs’ property during a period of predicted high tide, which showed water up to and overlapping the footing and in contact with the southern portion of the seawall. Additionally, photographs taken by department officials on September 12, 2006, showed the same water levels. The department officials did not report any instances of intense storm activity in the area during any of the site inspections. In response to the notice of violation, the plaintiffs retained Sharpe to conduct an additional survey to determine whether the seawall was built waterward of the high tide line. Sharpe prepared a site plan showing the location of the seawall landward of what he believed to be the high tide line, based on actual on-site observa- tions. Sharpe excluded from his consideration data obtained when the river was above flood stage, and when a weather factor may have influenced the tide. On May 13, 2005, Sharpe submitted the site plan and permit application to the department in support of the plaintiffs’ attempt to obtain permission to retain the seawall. The permit application proposed to replace a portion of the seawall with shallower courses of green gabions that would be supplemented with vegetative plantings, but to retain the footing and first two courses of the existing stone gabions. After analyzing the plain- tiffs’ permit application, the department rejected the proposal because it considered the proposal to be inconsistent with the act, which stresses nonstructural solutions to mitigate the effects of erosion. On March 17, 2006, after denying the plaintiffs’ permit application, the department issued an order to the plain- tiffs to remove the seawall and to restore the area to its previous condition. The removal order stated that it would take effect twenty-one days after the date of the commissioner’s signature, unless the plaintiffs filed an answer or requested a hearing. On April 7, 2006, the plaintiffs filed an answering statement and requested a hearing. The Connecticut Gateway Commission and the town filed requests to intervene in the proceeding, to which the plaintiffs objected. The department denied those requests but permitted the town to submit a brief in support of its position that the plaintiffs had violated the act.15 In September, 2006, the department commenced an administrative hearing on the plaintiffs’ challenge to the removal order. In her final decision, issued on November 2, 2007, the hearing officer determined, inter alia, that the department properly exercised jurisdiction under §§ 22a-108 and 22a-361. The hearing officer fur- ther concluded that, because the department’s jurisdic- tion encompassed the entire seawall, the department had the authority to order it to be removed. The plain- tiffs appealed from the decision of the hearing officer to the trial court on December 14, 2007. The trial court affirmed the hearing officer’s decision. This appeal fol- lowed. See footnote 1 of this opinion. Additional facts will be set forth as necessary. I DEPARTMENT JURISDICTION UNDER § 22a-361 The plaintiffs first claim that the trial court improp- erly rejected their claim that the department improperly had found that a portion of the seawall had been built waterward of the high tide line, thus implicating the department’s jurisdiction under § 22a-361. Specifically, the plaintiffs claim that the trial court improperly: (1) concluded that, in light of the visual observations made by department staff, there was sufficient evidence to sustain the hearing officer’s conclusion that a portion of the seawall was located waterward of the high tide line; and (2) failed to conclude that the department engaged in improper rule making by using the Army Corps of Engineers one year frequency tidal flood eleva- tion data as a method to determine the location of the high tide line. In response, the department contends that the trial court properly: (1) determined that substantial evidence supports the hearing officer’s finding that a portion of the seawall was located waterward of the high tide line; and (2) determined that use of the Army Corps of Engineers one year frequency tidal flood data was consistent with § 22a-359 (c). We agree with the department. Before addressing the substance of the plaintiffs’ claims, we reiterate the well established standards gov- erning our highly deferential review of factual findings made by administrative agencies. ‘‘The substantial evi- dence rule governs judicial review of administrative fact-finding under [the Uniform Administrative Proce- dure Act (UAPA)]. General Statutes § 4-183 (j) (5) and (6). Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . This substantial evidence standard is highly deferential and permits less judicial scrutiny than a clearly erroneous or weight of the evidence standard of review. . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the pos- sibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence . . . . The burden is on the [plaintiffs] to demonstrate that the [agency’s] factual conclusions were not supported by the weight of substantial evi- dence on the whole record.’’ (Internal quotation marks omitted.) Shanahan v. Dept. of Environmental Protec- tion, supra, 305 Conn. 700, quoting Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 124–25, 830 A.2d 1121 (2003). The following additional facts as found by the hearing officer are relevant to the resolution of the plaintiffs’ claims. After Grzywinski inspected the plaintiffs’ prop- erty and determined that the seawall was in violation of § 22a-361, department officials reviewed the depart- ment’s database for prior state authorizations issued for the plaintiffs’ property, and found the two dock permits and associated site plans. As previously stated, those plans indicated a high tide line elevation at the plaintiffs’ property of 4.1 feet, based on the Army Corps of Engineers one year frequency tidal flood elevation. This standard is based on the highest yearly occurring tidal flood and is based on observed, rather than pre- dicted, tidal activity. Meteorological influences, such as storm events, are included in the tidal flood profiles; however, the data does not include hurricane events. After receiving the department’s notice of violation, in an attempt to retain the seawall, the plaintiffs retained Sharpe to prepare a site plan and permit application and to conduct a survey to determine the location of the high tide line. The site plan submitted to the department depicted a high tide line of 2.8 feet, rather than 4.1 feet as had been shown in the plaintiffs’ earlier dock permit applications. Sharpe based the 2.8 foot high tide line measurement on his actual on-site observations, not the Army Corps of Engineers one year frequency tidal flood data. Sharpe excluded from his consideration data obtained on occasions when the river was above flood stage, or a weather factor might have influenced the tide. After submitting the site plan to the department, Sharpe continued his survey. Sharpe took measure- ments of surface water heights at periods of predicted high tide over fifteen months, from April 11, 2005, to July 13, 2006. Sharpe also determined elevations for any wrack lines present, and recorded relevant weather conditions. The data collected during Sharpe’s entire survey indicated water levels as high as 4.4 feet under light wind conditions and following rain. The survey indicated that, on January 3, 2006, water was in contact with the seawall under windy conditions. On January 18, 2006, Sharpe noted that water was at the seawall during a light breeze, and following a heavy rain. On February 1, 2006, Sharpe observed water at the base of the seawall during a light breeze of five to ten miles per hour. Furthermore, Sharpe reported wrack lines as high as 4 feet during a period of heavy rain, 3.8 feet under light wind conditions, and 3.7 feet under calm conditions. After Sharpe concluded his survey, the plaintiffs hired Professor W. Frank Bohlen to review Sharpe’s data and conclusions. Like Sharpe, Bohlen declined to use the one year frequency tidal flood elevation data in determining the location of the high tide line because it is influenced by storm events. In his review of Sharpe’s data, Bohlen eliminated all data reflecting tidal and stream flow anomalies and all storm events. Bohlen concluded that, in order to accurately determine the location of the high tide line, it is best to obtain direct measurements of water levels over a relatively long period of time, such as the measurements obtained by Sharpe in his survey. On the basis of his analysis of Sharpe’s fifteen month survey, Bohlen concluded that the wrack line elevations varied from approximately 1.3 to 4 feet. He also noted that the wrack line comes into contact with the seawall at the higher elevations, preventing any additional shoreward movement of the wrack line. Bohlen ultimately concluded that the high tide line at the plaintiffs’ property fell between eleva- tions of 2.9 and 3.2 feet. At the hearing before the depart- ment, the plaintiffs pointed to the data obtained in Sharpe’s study, and Bohlen’s review of that data, as proof that the seawall is located landward of the high tide line, and as support of their claim that use of the Army Corps of Engineers one year frequency tidal flood elevation data is an improper method to determine the high tide line. The administrative hearing officer concluded that the department’s use of the Army Corps of Engineers one year frequency tidal flood elevation data as a method for determining the high tide line was consistent with § 22a-359 (c). Furthermore, the hearing officer found that the record showed that a portion of the seawall was located waterward of the high tide line. Accordingly, the hearing officer concluded that the department properly asserted jurisdiction over the seawall under § 22a-361. A The plaintiffs first claim that the trial court improp- erly concluded that substantial evidence supported the administrative hearing officer’s finding that the seawall was located partially waterward of the high tide line. The plaintiffs contend that the department failed to meet its burden of establishing the exact location of the high tide line, which, the plaintiffs claim, is required before the department can assert jurisdiction under § 22a-361. The plaintiffs further contend that the visual observations of department staff, which were made at several discrete moments in time, are insufficient to prove that a portion of the plaintiffs’ seawall was located waterward of the high tide line. In response, the department claims that its on-site observations of water coming into contact with the seawall are suffi- cient to support the finding that a portion of the seawall was located waterward of the high tide line. We agree with the department. We first set forth our standard of review. ‘‘The issue in this case . . . raises a question of statutory con- struction, which is a [question] of law, over which we exercise plenary review. . . . The process of statutory interpretation involves the determination of the mean- ing of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. . . . In seeking to determine that meaning . . . [we] first . . . consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . The test to deter- mine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.’’ (Internal quotation marks omitted.) State v. Marsh & McLennan Cos., 286 Conn. 454, 464–65, 944 A.2d 315 (2008). We begin with the text of the relevant revision of § 22a-359 (c). The term ‘‘ ‘high tide line’ ’’ refers to ‘‘a line or mark left upon tide flats, beaches, or along shore objects that indicates the intersection of the land with the water’s surface at the maximum height reached by a rising tide.’’ (Emphasis added.) General Statutes (Rev. to 2003) § 22a-359 (c). Thus, we have previously held that, by its plain meaning, the term high tide line as used in § 22a-359 (c) refers to the highest point at which the water’s surface intersects with the land over the course of the entire yearly tidal cycle, excluding only storm surges caused by a hurricane or other intense storm. Shanahan v. Dept. of Environmental Protection, supra, 305 Conn. 703. The explicit and lim- ited exclusion of storm surges caused by a hurricane or other intense storm refutes any suggestion that normal meteorological events are also excluded. Id. The statu- tory definition, therefore, extends the high tide line to locations that may only come in contact with tidal waters once during the single highest tide of the year. Therefore, we have held that if, ‘‘absent intense storm activity, the water level at high tide ever reaches a given location, that location is necessarily waterward of the high tide line as defined by § 22a-359 (c).’’16 (Emphasis in original.) Id. It follows that, if the department officials observe tidal waters coming in contact with a structure, then the portion of the structure that is in contact with the water is presumptively waterward of the high tide line. The exact elevation of the high tide line is not needed in these instances.17 Therefore, ‘‘[the plaintiffs’] argument originates from a mistaken premise: the critical question in the present case is not, as the [plaintiffs suggest], ‘where is the high tide line?’ but, rather, ‘was this seawall constructed waterward of the high tide line?’ ’’ Id., 706. In the present case, the hearing officer found, and the record shows, that during his initial inspection of the plaintiffs’ prop- erty on September 29, 2004, Grzywinski observed and, on subsequent visits, photographed a wrack line to the north of the plaintiffs’ dock, and debris and tidal waters coming in contact with the plaintiffs’ seawall. In addi- tion, photographs taken on June 22, 2006, and Septem- ber 12, 2006, show water in contact with the southern portion of the seawall. There is no evidence in the record indicating that the tide during any of the inspec- tions was influenced by a hurricane or other intense storm; rather, the photographs depict clear days with calm seas.18 Moreover, Sharpe’s independent study notes that water was at the base of the seawall on numerous occasions throughout the fifteen month period during which Sharpe recorded data. In the area reserved for weather related observations, Sharpe noted that, on one of the days that water was at the base of the seawall, there was a light breeze of five to ten miles per hour. On yet another day where water was recorded as being in contact with the seawall, there was a light breeze that followed a heavy rain. There is no mention that the tides on those days were influenced by a hurricane or other intense storm.19 Although we have recognized that there are situations in which the exact location of the high tide line must be proven by the department by a preponderance of the evidence in order for the department to assert juris- diction under § 22a-361, such as when the department is asserting jurisdiction over a structure under only § 22a-361; see id., 722–23; that circumstance is not impli- cated in the present case. In the present case, the depart- ment is asserting jurisdiction under both §§ 22a-361 and 22a-108. Thus, if the department properly exercises jurisdiction under both provisions, the exact location of the high tide line does not need to be established. Because we conclude in part II of this opinion that the department properly asserted jurisdiction under § 22a- 108, the department did not have to prove the exact location of the high tide line in the present case. See id., 702–703. Thus, we conclude that the trial court properly determined that the hearing officer’s finding that a portion of the seawall was located waterward of the high tide line was supported by substantial evi- dence, and that the department met its burden of prov- ing that a portion of the seawall was located waterward of the high tide line. Accordingly, we conclude that the department lawfully asserted jurisdiction under § 22a- 361. B The plaintiffs next claim that the trial court improp- erly rejected their claim that the department engaged in improper rule making when it used the Army Corps of Engineers one year frequency tidal flood elevation as a factor in determining the location of the high tide line. The plaintiffs contend that, because § 22a-359 (c) does not explicitly authorize use of the one year fre- quency tidal flood elevation as a method to determine the location of the high tide line, the department’s use of that measurement amounted to the enforcement of a regulation as to the proper method for measuring the high tide line without following the necessary proce- dures for adopting a regulation as required by the UAPA, General Statutes § 4-168. We also understand the plain- tiffs’ claim to be that the hearing officer abused her discretion in admitting evidence of the one year fre- quency tidal flood elevation. In response, the depart- ment contends that use of the one year frequency tidal flood elevation data is consistent with § 22a-359 and that the department’s use of this data as evidence in the present case did not constitute improper rule mak- ing. We agree with the department. The test for determining whether agency conduct or an agency ruling amounts to a regulation, and thus must comply with the UAPA, is whether such conduct or ruling has a ‘‘substantial impact on the rights and obliga- tions of parties who may appear before the agency in the future . . . .’’ Salmon Brook Convalescent Home, Inc. v. Commission on Hospitals & Health Care, 177 Conn. 356, 362, 417 A.2d 358 (1979). ‘‘[T]he label that the particular agency puts upon its given exercise of administrative power is not, for our purposes, conclu- sive; rather it is what the agency does in fact.’’ (Internal quotation marks omitted.) Id., quoting Lewis-Mota v. Secretary of Labor, 469 F.2d 478, 481–82 (2d Cir. 1972). Thus, in order to determine whether use of the one year frequency tidal flood elevation amounted to the enforcement of a regulation, we look to the purpose for which the department used the measurement in the present case. The record reveals that the department did not use the one year frequency tidal flood elevation as a rule of general applicability; see General Statutes § 4-166 (13) (defining ‘‘regulation’’); nor did it use the measure- ments obtained by use of the one year frequency tidal flood elevation data as the conclusive location of the high tide line in the present case. Instead, the depart- ment supplemented on-site observations made during inspections of the plaintiffs’ property with the measure- ments obtained by use of the one year frequency tidal flood elevation data. During those on-site observations, the department officials observed tidal waters coming in direct contact with the seawall. Similarly, Grzywinski concluded that the seawall was built in violation of § 22a-361 on the basis of the visual observations that he made during his initial inspection of the plaintiffs’ property, at which time he was unaware of the one year frequency tidal flood elevation data as it pertained to the location of the high tide line at the plaintiffs’ property.20 Thus, it is clear that use of the one year frequency tidal flood elevation data was used by the department as a ‘‘rough approximation’’ of the high tide line to confirm the department officials’ visual observations of the site,21 rather than as a binding regulation as to the proper method for determining the high tide line. Accordingly, we conclude that the trial court properly determined that the department did not engage in improper rule making. To the extent that the plaintiffs claim that evidence of the one year frequency tidal flood elevation should not have been admitted into evidence, we set forth the relevant standard of review. ‘‘The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . The court’s decision is not to be disturbed unless [its] discretion has been abused, or the error is clear and involves a misconception of the law.’’ (Citations omit- ted; internal quotation marks omitted.) State v. Iban C., 275 Conn. 624, 634, 881 A.2d 1005 (2005). We conclude that use of the one year frequency tidal flood elevation as a method to determine the location of the high tide line was entirely consistent with the statute. General Statutes (Rev. to 2003) § 22a-359 (c) provides that the high tide line may be determined by ‘‘(1) a line of oil or scum along shore objects, (2) a more or less continuous deposit of fine shell or debris on the foreshore or berm, (3) physical markings or characteristics, vegetation lines, tidal gauge, or (4) by any other suitable means delineating the general height reached by a rising tide.’’ (Emphasis added.) The statute, therefore, does not provide an exhaustive list of permissible measurement methods. Rather, the plain language of § 22a-359 (c) allows for the use of different measurements or surveys by the department when determining the location of the high tide line. The only limitations stated in the statute as to permissible methods are that the method used must be ‘‘suitable’’ and that storm surges due to hurricanes or other intense storms may not be included when determining the high tide line. General Statutes (Rev. to 2003) § 22a-359 (c). Although the one year frequency tidal flood elevation data includes some meteorological influences, it does not include storm surges due to hurricanes. Its use, therefore, was consistent with § 22a-359 (c). Thus, we conclude that the department’s use of the one year frequency tidal flood elevation was properly admitted into evidence. It is also important to note that, although the plaintiffs now claim that the department’s use of the one year frequency tidal flood elevation was unreasonable, in 1996 and 1999, the plaintiffs themselves used the one year frequency tidal flood elevation as a method to determine the location of the high tide line in their permit applications for a proposed dock, and subse- quent modification of the dock.22 Additionally, Sharpe testified that he customarily uses the one year frequency tidal flood elevation for high tide line determinations in department permit applications because the mea- surements are conservative and because he believes that the department uses the data as a reasonable deter- mination of the high tide line. Furthermore, Grzywinski testified that the one year frequency tidal flood eleva- tion has been used by property owners on department permit applications as a method to determine the loca- tion of the high tide line since at least 1988. We con- clude, therefore, that the trial court properly determined that the department’s use of the one year frequency tidal flood elevation was a ‘‘suitable means’’ to aid the department in determining the location of the high tide line, and thereby complied with the requirements of § 22a-359 (c). II DEPARTMENT JURISDICTION UNDER THE ACT In light of the department’s finding that a portion of the seawall was waterward of the high tide line and thus within the department’s jurisdiction under § 22a- 361, we turn to the plaintiffs’ claim that the trial court improperly concluded that the department also had jurisdiction under § 22a-108 of the act to order removal of the seawall as a ‘‘public nuisance.’’ See Shanahan v. Dept. of Environmental Protection, supra, 305 Conn. 721–23 (concluding that, because department asserted jurisdiction under § 22a-361 but not § 22a-108, depart- ment only had jurisdiction over portion of seawall waterward of high tide line). The plaintiffs contend that only a municipality, not the department, has authority to determine whether a public nuisance exists—a predi- cate to an enforcement action under § 22a-108— because only a municipality can determine whether a coastal site plan is required for a structure in the coastal boundary, which in turn determines whether a structure for which no such approval has been sought is lawful or a public nuisance. The plaintiffs claim that the town made no such determination and, therefore, the depart- ment exceeded its authority in finding that the seawall is a public nuisance. Furthermore, the plaintiffs claim that the department is bound by a decision of the Supe- rior Court rendered in their favor, Costa v. Sams, Supe- rior Court, judicial district of Middlesex at Middletown, Docket No. CV-XX-XXXXXXX-S (August 11, 2008) (46 Conn. L. Rptr. 186), in a subsequent action by the town’s zoning enforcement officer to enforce its cease and desist order. The department counte