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Judge hears arguments to dismiss salt distributor's appeal of State Pier permit decision

A Superior Court judge on Monday heard arguments for and against a motion to dismiss the lawsuit that DRVN Enterprises filed against the state Department of Energy and Environmental Protection and Connecticut Port Authority, appealing DEEP's decision to approve a permit for work at State Pier.

DRVN, a road salt distributor that was forced to vacate State Pier at the end of February due to the $235.5 million redevelopment of the site into a wind energy hub, was an intervenor in the process of the permit approval. The DEEP on Aug. 3 approved permits for activities related to the redevelopment, such as filling and dredging.

DRVN filed an appeal in Superior Court in September. DEEP and the Port Authority filed motions to dismiss the lawsuit in September and October, to which attorney Keith Anthony, representing DRVN, filed an objection.

DVRN's lawsuit said the business and its owner Steve Farrelly have suffered personal and business-related losses due to the decision because he was displaced from the pier.

At the conclusion of the hourlong remote hearing Monday, Judge John Cordani told the attorneys he was going to take another look at the documents, "and you'll get a decision from me shortly."

The attorneys for the defendants argued that DRVN has no standing to bring this case.

John Casey, an attorney with Robinson+Cole who is representing the Port Authority, offered the judge the following analogy.

"They're essentially a prior tenant to a shopping mall, whose lease expired, they moved out, and the mall owner wants to renovate the mall," he said of DRVN.

He added "the fact that you used to operate in a store doesn't give you a right to dictate to the property owner how they improve their property, which is essentially what DRVN is trying to do here."

Casey said the pier is being renovated for all water-dependent uses; it could accommodate road salt importation when the work is done, though that use isn't guaranteed.

He concluded, "If you want to use this pier, I think the last thing you want to do is disrupt this process any further."

Assistant Attorney General Lori DiBella, representing DEEP, said it's not enough for a party to have an interest at the time of application, but that the party must remain aggrieved through the entire proceeding. Noting that DRVN vacated the pier at the end of February, she said there's "no ongoing interest here."

DiBella argued there's no risk of injury to DRVN from the implementation of DEEP's decision because DRVN has no right to use the pier. She also argued that the causes of DRVN's financial losses are speculative.

"There could've been other reasons for these losses they suffered anyway regardless of their relationship to the pier, because of the pandemic," she said.

Keith Anthony, the attorney for DRVN, responded that the defendants' focus has been that DRVN wasn't a tenant after February, but he thinks everyone is overlooking that the approval of the permit shut down the ability to import anything to the pier.

"My client does not need to be a tenant to import salt," Anthony said, adding, "His interest didn't end when he stopped being a tenant. He can import salt to that pier whether he's a tenant or not."

The salt could then be put on a truck and transported elsewhere.  

He asked Cordani to deny the defendants' motion to dismiss, saying that some of the things they discussed Monday are substantive issues that go beyond mere issues of standing.

The judge previously told DiBella, the DEEP attorney, she was "running far afield of the facts that are admissible on a motion to dismiss," saying she was arguing facts in a record that's not before the court.

Anthony used less time than the other attorneys, speaking for less than 10 minutes. DiBella and Casey responded by saying that Anthony has to demonstrate a specific, personal and legal interest but that he was arguing a community interest, which isn't enough to establish standing.

e.moser@theday.com

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