Lead Opinion
Opinion
The plaintiffs Citizens Against Overhead Power Line Construction (association) and Richard M. Legere
The following undisputed facts are relevant to our consideration of this appeal. On October 20, 2008, the power company applied to the siting council for certificates of environmental and public need for the construction, operation and maintenance of the
The power company designed the state project to cure deficiencies in existing electricity transmission lines in north-central Connecticut and the greater Springfield area. The siting council observed that the state project spanned both areas because the transmission systems of the two areas were interconnected. The siting council explained: “From the point of view of transmission, Greater Springfield and the adjacent portion of north-central Connecticut are effectively the same load area. Since key transmission lines in the system serving Greater Springfield terminate at substations in Connecticut, the resolutiоn of Springfield area problems necessarily involves improvement to parts of Connecticut’s electric grid as well. At the sanie time, the need to resolve these Springfield area problems offers an opportunity to reinforce the reliability of electric supply within north-central Connecticut, and improve the power transfer capacity between Massachusetts and Connecticut.”
During the proceedings, the siting council granted party status to both the consumer counsel and the association. The association is an unincorporated group of individuals, including Legere, who own property in towns affected by the Springfield project portion of the state project.
On March 16, 2010, the siting council issued its decision on the power company’s application. The siting
On April 7, 2010, the power company petitioned the siting council for reconsideration, which the siting council granted. In connection with the petition for reconsideration, the siting council heard additional testimony concerning the Manchester project. On July 20, 2010, the siting council issued its findings of fact, opinion and decision and order on the petition for reconsideration and granted the power company’s application with respect to the Manchester project. The findings of fact, opinion and decision and order following reconsideration were issued under the docket number 370A-MR. The siting council’s decision and order listed the association as a party to the proceedings on the petition for reconsideration.
On May 7, 2010, the plaintiffs filed the operative complaint in the Superior Court, appealing the March 16, 2010 decision.of the siting council. The power company filed a motion to dismiss, alleging, among other things, that (1) the plaintiffs did not take their appeal from a final decision of the siting council and (2) the plaintiffs were not statutorily or classically aggrieved by the decision of the siting council.
“Public Act 06-32 amended § 4-183 (c) in order to confer subject matter jurisdiction over an appeal if taken within forty-five days of a reconsidered decision. Specifically, it allows for an appeal (1) [w]ithin forty-five days after mailing of the final decision under section 4-180 ... or (2) within forty-five days after the agency denies a petition for reconsideration of the final decision ... or (3) within forty-five days after mailing of the final decision made after reconsideration .... The purpose of Public Act 06-32 was to correct the situation where an appeal on certain discrete issues, not reconsidered by an agency, would often be considered untimely if filed concurrently with the appeal of the reconsideration. The purpose was not to penalize an appellant who filed an appeal before reconsideration was completed by the agency.
“The appeal at issue in this case only concerns Suf-field and associated towns, not the subject of [the power company’s] motion to reconsider. Thus, the consideration of the appeal is not affected by the [siting council's] July 20 reconsideration decision.” (Emphasis in original; internal quotation marks omitted.)
On appeal, the defendants renew their claim that the plaintiffs failed to appeal from a final decision of the siting council. The defendants assert that, pursuant to General Statutes §§ 4-181a (a) (4)
Whether the siting council’s March 16, 2010 decision is a final decision from which the plaintiffs may appeal hinges on the operation of §§ 4-181a (a) (4) and 4-183 (c) (1). Accordingly, this case presents a question of statutory interpretation, over which our review is plenary. “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.” (Internal quotation marks omitted.) Brouillard v. Connecticut Siting Council,
We conclude that, pursuant to the plain and unambiguous text of both §§ 4-181a (a) (4) and 4-183 (с), the only decision from which the plaintiffs properly could have appealed was the siting council’s July 20, 2010 decision. In reaching this determination, we first consider the text of § 4-181a (a) (4), which provides in
In this situation, § 4-181a (a) (4) provides by its plain and unambiguous terms that the agency decision made after reconsideration — in this case, the. July 20, 2010 decision — replaces the original agency decision as the sole final decision of the agency. Even though the July 20, 2010 decision resolved only those issues relating to the Manchester project portion of the state project, it was the only decision from which the plaintiffs properly could have brought an appeal to the Superior Court.
This conclusion is consistent with the plain and unambiguous language of § 4-183 (c), which sets forth the time to appeal from the final decision of an agency. Section 4-183 (c) provides in relevant part: “(1) Within forty-five days after mailing of the final decision under section 4-180 or, if there is no mailing, within forty-five days after personal delivery of the final decision under said section, or (2) within forty-five days after the agency denies a petition for reconsideration of the final decision pursuant to subdivision (1) of subsection (a) of section 4-181a, or (3) within forty-five days after
The court determined that the disjunctive structure of § 4-183 (c) — subdivisions (1) through (4) are separated by the word “or” — indicated that the statute gives plaintiffs a choice of when to appeal an agency decision. That is, a plaintiff could choose to appeal an agency decision immediately under § 4-183 (c) (1) or could choose to appeal after the agency denied, granted or failed to act on a petition for reconsideration. We do not agree.
We conclude that § 4-183 (c) clearly lists four distinct scenarios and provides that a plaintiff shall appeal within whichever time frame is applicable and occurs latest. Although this court has stated that, generally, “[t]he last antecedent rule provides that qualifying phrases, absent a contrary intention, refer solely to the last antecedent in a sentence”; Connecticut Ins. Guaranty Assn. v. Drown,
This reading of § 4-183 (c) is harmonious with our interpretation of § 4-181a (a) (4). Because § 4-181a (a) (4) provides that a reconsidered agency decision replaces the original agency decision as the sole final decision for purposes of an appeal, it follows logically that § 4-183 (c) does not provide a plaintiff with options of when an appeal may be taken. Rather, if an agency decision has not been the subject of a petition for reconsideration, under § 4-183 (c) (1), an appeal shall be brought within forty-five days of the mailing of such decision. If, however, the decision is the subject of a petition for recоnsideration, the plaintiff shall bring an appeal within the time frame dictated by § 4-183 (c) (2), (3) or (4), depending on whether the agency denied, granted or failed to act on the petition for reconsideration. In this way, §§ 4-181a (a) (4) and 4-183 (c) work in concert to prevent the piecemeal appeal of an agency decision before the final resolution of all issues pre
The judgment is affirmed.
Notes
Legere is the executive director of the association. Angela Ciottone, an attorney, was added as a party plaintiff on July 23,2010, but she participated only in the pretrial proceedings and is not a party to this appeal. Accordingly, in this opinion, we refer to the association and Legere as the plaintiffs.
General Statutes § 4-18 la (a) (4) provides: “Except as otherwise provided in subdivision (3) of this subsection, an аgency decision made after reconsideration pursuant to this subsection shall become the final decision in the contested case in lieu of the original final decision for purposes of any appeal under the provisions of section 4-183, including, but not limited to, an appeal of (A) any issue decided by the agency in its original final decision that was not the subject of any petition for reconsideration or the agency’s decision made after reconsideration, (B) any issue as to which reconsideration was requested but not granted, and (C) any issue that was reconsidered but not modified by the agency from the determination of such issue in the original final decision.”
General Statutes § 4-183 provides in relevant part: “(a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section. The filing of a petition for reconsideration is not a prerequisite to the filing of such an appeal. . . .
“(c) (1) Within forty-five days after mailing of the final decision under section 4-180 or, if there is no mailing, within forty-five days after personal delivery of the final decision under said section, or (2) within forty-five days after the agency denies a petition for reconsideration of the final decision pursuant to subdivision (1) of subsection (a) of section 4-181a, or (3) within forty-five days after mailing of the final decision made after reconsideration pursuant to subdivisions (3) and (4) of subsection (a) of section 4-181a or, if there is no mailing, within forty-five days after personal delivery of the final decision made after reconsideration pursuant to said subdivisions, or (4) within forty-five days after the expiration of the ninety-day period required under subdivision (3) of subsection (a) of section 4-181a if the agency decides to reconsider the final decision and fails to render a decision made after reconsideration within such period, whichever is applicable and is later, a person appealing as provided in this section shall serve a copy
The dissent concludes that the word “may” in § 4-183 (a), as well as the “purpose of the 2006 amendments to the statute,” largely govern an analysis of the timeliness of the present appeal. As stated previously, § 4-183 (a) provides in relevant part: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section. . . .” (Emphasis added.) General Statutes § 4-183 (a). We interpret this prefatory language as it is written, merely to provide a right to appeal that is in accordance with the remainder of § 4-183. Mindful of the substantive distinction between “may” and “shall,” we apply the word “may” to the words that immediately follow it in the statute. Thus, we interpret the statute to convey that the bringing of an appeal from a final agency decision, in accordance with the provisions of § 4-183, is a discretionary act. An appeal is timely, however, only if it is taken in accordance with § 4-183 (c) (1), which, by its terms, governs the timeliness of an appeal.
Additionally, we disagree that the plain language of the statute reflects that, by amending § 4-183 (c) (1), the legislature intended merely to “extend the permissive time for taking an appeal.” As stated previously in this opinion, subsection (c) addresses four events directly related to an agency’s final decision, and unambiguously provides that an appeal may be taken from “whichever is applicable and is later . . . .” General Statutes § 4-183 (c) (4). In our view, to permit an appellant, in its discretion, to bring an appeal from any of these four events would effectively render the phrase, “whichever is applicable and is later,” meaningless. In our interpretation of statutory language, we must presume that “the legislature did not intend to enact meaningless provisions. . . . [S]tatutes must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant . . . .” (Internal quotation marks omitted.) Housatonic Railroad Co. v. Commissioner of Revenue Services,
Last, the dissent suggests that the plaintiffs should be permitted to bring an appeal from the March 16, 2010 decision of the agency because they lacked any interest in the issues addressed in the motion for reconsideration filed by the power company. As the dissent notes, “[t]he motion for reconsideration was filed by [the power company] in response to the [siting council’s] denial of its application regarding a geographic area of no immediate interest to the [plaintiffs].” Even if we assume that this is accurate, it does not follow that the plaintiffs necessarily lacked any “legal interest” in the reconsidered decision, as stated by the dissent. There is no dispute that the siting council considered both aspects of the state project together under the same docket number. Although the siting council ultimately issued separate decisions
Dissenting Opinion
dissenting. In dismissing this appeal on the ground that the plaintiffs Citizens Against Overhead Power Line Construction (Citizens) and Richard M. Leg-ere did not appeal to the Superior Court from a final decision by the defendant Connecticut Siting Council (siting council), the majority did not reach the issuе of whether the trial court properly dismissed the plaintiffs’ appeal on the ground that they lacked standing to appeal the decision of the siting council. Unlike the majority, I believe that the plaintiffs timely appealed to the Superior Court from a final decision of the siting council. I believe, as well, that Legere had standing to appeal the siting council’s decision. Accordingly, I would reverse the judgment of the Superior Court as it relates to Leg-ere and remand the matter to the Superior Court for a hearing on the merits of Legere’s claims.
Because I agree, generally, with the majority’s recitation of the procedural facts of this appeal, they need not be reiterated. Instead, I will focus on the issues in which I disagree with the majority.
Section 4-183 (a) provides: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section. The filing of a petition for reconsideration is not aprerequisite to the filing of such an appeal.” (Emphasis added.) Thereafter, the statute sets forth the various time periods following the rendering of a decision by an administrative agency in which an appeal may be taken to the Superior Court. Tracking the statute’s time line enables the reader to understand that the latest time in which an appeal may be taken is forty-five days after the expiration of a ninety day period from the date an administrative agency decides to reconsider its decision but fails to actually render a reconsidered decision. General Statutes § 4-183 (c) (4). Because, in the present case, the plaintiffs appealed after the siting council’s initial decision and did not wait until the siting council’s reconsidered decision several months later,
As our canons of statutory interpretation instruct, I turn first to the language of the statute itself. See, e.g., Thames Talent, Ltd. v. Commission on Human Rights & Opportunities,
The operative language regarding appeals to the Superior Court from administrative appeals in which motions for reconsideration have been filed was added to the statute in 2006 by the creation of three new subdivisions in § 4-183 (c). P.A. 06-32, § 2. In essence, the 2006 amendments enable a would-be appellant to await an agency’s action on a motion for reconsideration before filing an appeal. As a result of the 2006 amendments, one may now bring an appeal to the Superior Court following an agency’s agreement to reconsider its decision within a certain time from the agency’s agreement to reconsider even in a circumstance in which the agency fails to timely render a decision after agreeing to reconsider its original decision. Nothing in the statute, however, mandates that an appellant await the agency’s decision on a motion to reconsider before filing an appeal.
“SUMMARY: This act caps, at 90 days, the maximum time a state agency has to issue a new decision in a contested case it decides to reconsider. By law, agencies can decide to reconsider a final decision in a contested case on their own or pursuant to a petition from a party to the case.
“With one exception, the act provides that a decision an agency issues in a contested case on reconsideration replaces its original decision as the final decision from which an appeal may be taken. The exception applies if an agency fails to render a decision on reconsideration within the 90-day period the act establishes. In this case, the original decision is the final decision for purpose of an appeal. By law, an appeal may be based on a number of issues, including issues the agency (1) deсided in its original final decision that were not the subject of the reconsideration; (2) was requested, but declined, to address on reconsideration; and (3) reconsidered but did not modify.
*582 “Lastly, the act establishes a deadline for filing an appeal after a petition for reconsideration is filed. The deadline is 45 days after (1) the petition is denied, (2) a decision made after reconsideration is mailed or personally delivered, or (3) the 90-day deadline for the decision.” Office of Legislative Research, Connecticut General Assembly, Summary of 2006 Public Acts (2006) p. 213.2
In my view, the majority’s interpretation of § 4-183 is also not consonant with the statute’s broader legislative context. Section 4-183 must be read in conjunction with the provisions of General Statutes § 4-181a concerning the reconsideration of decisions in contested cases. Section 4-18 la (a) (3) contains the following pertinent provision: “If the agency decides to reconsider a final decision, pursuant to subdivision (1) or (2) of this subsection, the agency shall proceed in a reasonable time to conduct such additional proсeedings as may be necessary to render a decision modifying, affirming or reversing the final decision, provided such decision made after reconsideration shall be rendered not later than ninety days following the date on which the agency decides to reconsider the final decision. If the agency fails to render such decision made after reconsideration within such ninety-day period, the original final decision shall remain the final decision in the contested case for purposes of any appeal under the provisions of section 4-183.” (Emphasis added.) The import of this language is that an agency’s original decision is, when
Having concluded that the plaintiffs did timely appeal to the Superior Court from a final decision of the siting council, I must also consider whether the court properly determined that the plaintiffs lacked standing on the
“Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. . . . Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved. . . . Statutory aggrievement exists by legislative fiat, not by judiсial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation.” (Citations omitted; internal quotation marks omitted.) RMS Residential Properties, LLC v. Miller,
Both Legere and Citizens claim statutory aggrievement on the basis of the Public Utility Environmental Standards Act (PUESA), General Statutes § 16-50g et seq. The introductory portion of PUESA sets forth the General Assembly’s legislative findings and the purpose of PUESA. In pertinent part, it states: “The legislature finds that power generating plants and transmission lines for electricity and fuels, community antenna television towers and telecommunication towers have had a significant impact on the environment and ecology of the state of Connecticut; and that the continued operation and development of such power plants, lines and towers, if not properly planned and controlled, could adversely affect the quality of the environment and the ecological, scenic, historic and recreational values of the state. The purposes of this chapter are: To provide for the balancing of the need for adequate and reliable public utility services at the lowest reasonable cost to consumers with the need to protect the envirоnment and ecology of the state and to minimize damage to scenic, historic, and recreational values; to provide environmental quality standards and criteria for the location, design, construction and operation of facilities for the furnishing of public utility services at least as stringent as the federal environmental quality standards and criteria, and technically sufficient to assure the welfare and protection of the people of the state; to encourage research to develop new and improved methods of generating, storing and transmitting electricity and fuel and of transmitting and receiving television and telecommunications with minimal damage to the environment and other values described
PUESA also establishes the siting council and sets forth the siting council’s duties as well as the procedures for the siting council and applicants regarding aрplications for certificates of environmental compatibility and public need such as occurred in the case at hand. PUESA additionally includes statutory provisions setting substantive parameters for the siting council’s decisions on applications regarding transmission wires. General Statutes § 16-50p (i) provides in relevant part: “For a facility described in subdivision (1) of subsection (a) of section 16-50Í, with a capacity of three hundred forty-five kilovolts or greater, there shall be a presumption that a proposal to place the overhead portions, if any, of such facility adjacent to residential areas . . . is inconsistent with the purposes of this chapter . . . .” Finally, in this regard PUESA includes the following provision: “Any party may obtain judicial review of an order issued on an application for a certifícate or an amendment of a certificate in accordance with the provisions of section 4-183. . . .” General Statutes § 16-50q.
PUESA, therefore, sets policy and procedures for the process by which the state responds to efforts by utility companies to provide services within the state. In doing so, the legislation attempts to strike a balance between the need for the availability of cost effective and technologically efficient utility services and protection of the environment and the ecology. Notably, PUESA also provides for judicial review of administrative orders made under the statutory scheme. See General Statutes § 16-50g et seq.
A review of the complaint reveals that Citizens claims to be comprised of members who own property in the towns of Suffield and East Granby and whose property “benefits in value and desirability from its location in a scenic and historic district, which is part of and/or adjacent to the federally-recognized . . . Metacomet-Monadnock-Mattabesett trail.” Notably, Citizens makes no claim in the complaint that would, either expressly or by implication, place its members within the protections afforded by the statutory scheme regarding the siting council’s response to the power company’s application.
Legere, however, alleges, and the court found, that he owns real property that is subject to an easement in favor of the power company and over which the proposed transmission line is intended to pass. As a property owner over whose property the proposed transmission lines would pass, Legere argued that he was entitled to the protections of the provisions of § 16-50p (i) that “[f]or a facility described in subdivision (1) of subsection (a) of section 16-50i with a capacity of three hundred forty-five kilovolts or greater, there shall be a presumption that a proposal to place the overhead portions, if any, of such facility adjacent to residential areas ... is inconsistent with the purposes of this
Finally, in regard to statutory aggrievement, it appears that the trial court determined that, by the reference in § 16-50qto § 4-183, the legislature intended that only those who are classically aggrieved have the right to appeal a siting council decision. I do not agree. Rather, I believe the reference in § 16-50q, regarding judicial review, to the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq., simply establishes that anyone who is statutorily aggrieved may appeal in accordance with the procedures set forth in § 4-183 et seq. regarding administrative appeals generally. A contrary reading would render § 16-50q redundant, as one who is classically aggrieved by an administrative agency decision already has, without the benefit of § 16-50q, the right to appeal pursuant to the terms of § 4-183.
Regarding classical aggrievement, and in the context of an appeal from a land use agency, our Supreme Court has observed: “To be entitled to an appeal, the [plaintiffs were] required to allege and prove that [they were] aggrieved by the decision of the commission.” Fletcher v. Planning & Zoning Commission,
In the complaint, Citizens did not allege a “specific, personal and legal interest in the subject matter” of the siting council's decision as distinguished from a “general interest, such as is the concern of all members of the community as a whole,” as is required to demonstrate classical aggdevement. (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning & Zoning Commission,
Contrary to Citizens’ general claims of concern regarding the power company’s proposed transmission lines, Legere alleged that he and his wife own real property located at 1204 Newgate Road, West Suffield, and that their personal and legal interests were directly affected by the power company’s proposed activity. The court found, and I agree, that these pleadings were sufficient to establish Legere’s direct and personal interest in the siting council’s proposed activity beyond a
Because it is not our function to find facts in assessing the correctness of the court’s ruling on a motion to dismiss, but, instead, to take the facts as reasonably found by the court, it is appropriate to note some of the pertinent facts found by the court. The court made the following relevant findings of fact: (1) Legere purchased the premises at 1204 Newgate Road, West Suf-field, in 1997; (2) the power company has a right-of-way (easement) for 115 kilovolt (115 kV) electric transmission lines; (3) the 345 kilovolt (345 kV) transmission line is proposed to be built in this same right-of-way; (4) the right-of-way traverses Legere’s property for four or five acres and is 305 feet wide; (5) the 345 kV line would be at least thirty or thirty-five feet above the ground; (6) Legere is allowed under the terms of the grant of the right-of-way to use the land for agricultural purposes, including raising chickens and alpacas, and growing crops such as hay and produce; (7) there is an apple orchard near, but not inside, the right-of-way; (8) during the winter months, Legere is rarely in the right-of-way, but during the other seasons, he estimates that he spends four to five hours a day in the right-of-way, under the electric wires; and (9) under § 2 of the right-of-way, which was granted in 1970 by Legere’s predecessor in interest, the power company has the right to erect, construct, repair, maintain, replace, relocate, inspect, operate, and remove upon, over, under and across the right-of-way, poles, towers, crossarms, guys, foundations, anchors, braces, ducts, manholes, and other structures, wires, cables and other conductors, аnd other fixtures and appurtenances useful for conducting electricity and/or for providing and maintaining electric and/or communication service, and monuments and
The court appears to have determined that Legere was not classically aggrieved on two bases: (1) the power company already had an easement over Legere’s real property that would not be overburdened by the construction of the proposed 345 kV line, and (2) Legere did not prove that the proposed 345 kilovolt transmission lines posed a health risk to him or threatened his use and enjoyment of his property.
Whether or not increasing the allowable voltage on the transmission lines traversing the Legere property would overburden the easement granted to the power company does not answer the question of whether the salutary purposes of PUESA would be met by granting the power company’s application. In other words, notwithstanding the existence of rights created by the easement, Legere retains a legal interest in the protection of his property and his well-being from unreasonably high exposure to radiation, and the state retains the responsibility to maintain the balance that PUESA was intended to achieve.
As to the second basis for the court’s determination that Legere is not classically aggrieved, it appears that the trial court made a decision on the merits rather than on whether Legere made a sufficient demonstration of potential harm to allow him to be heard on the merits. In rejecting Legere’s claim, the court commented: “Even
It is interesting, although I agree not persuasive, that my interpretation of the permissive nature of the 2006 amendments is consistent with Practice Book § 63-1 regarding appeals from the Superior Court. In pertinent part Practice Book § 63-1 (a) provides: “If a motion is filed within the appeal period that might give rise to a new appeal period as provided in subsection
It appears that the 2006 amendment to § 4-183 making it permissible for an appellant to await an agency’s reconsidеration of a final decision before filing an appeal would have the effect of overturning the holding of this court in Housing Authority v. State Board of Labor Relations,
At first blush, this court’s opinion in Brouillard v. Connecticut Siting Council,