FAIRWINDCT, INC., ET AL. v. CONNECTICUT SITING COUNCIL ET AL.
(SC 19090) (SC 19091)
Supreme Court of Connecticut
Argued February 21—officially released September 23, 2014
Rogers, C. J., and Palmer, Zarella, Eveleigh, Espinosa and Robinson, Js.
Emily A. Gianquinto, with whom were Nicholas J. Harding and Mary E. Mintel, for the appellants (plaintiffs). Clare E. Kindall, assistant attorney general, with whom were Robert L. Marconi, assistant attorney general, and, on the brief, George Jepsen, attorney general, for the appellee (named defendant). Michael A. Kurs, with whom were Lee D. Hoffman and Paul Corey, for the appellee (defendant BNE Energy, Inc.).
The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the
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ROBINSON, J. This appeal arises from two petitions for declaratory rulings that the defendant BNE Energy, Inc. (BNE), submitted to the named defendant, the Connecticut Siting Council (council). In the petitions, BNE sought the council‘s approval for the construction and operation of three electric generating wind turbines at two separate sites in the town of Colebrook. The plaintiffs, FairwindCT, Inc. (FairwindCT), Stella Somers, Michael Somers and Susan Wagner, were granted party status by the council and also intervened in the proceedings on the petitions pursuant to
The record reveals the following procedural history and facts that were found by the trial court or that are undisputed. On December 6, 2010, pursuant to
FairwindCT was formed by several Colebrook residents for the purpose of educating the public about the regulation and operation of industrial wind generation projects in Connecticut. Stella Somers and Wagner are officers and directors of FairwindCT. Stella Somers and her husband, Michael Somers, own a resort hotel known as Rock Hall, which is located approximately one-half
The council held public hearings on the Colebrook South project during March and April, 2011, and on the Colebrook North project during April and May, 2011. The plaintiffs participated in the hearings and submitted testimony and documentary evidence in support of their position that BNE had failed to establish that the proposed projects would comply with state noise law and governing water quality standards or that the projects would not have an adverse environmental impact. The council ultimately granted both of BNE‘s petitions, with conditions.9 The plaintiffs appealed from the council‘s rulings to the trial court pursuant to
We address each of the plaintiffs’ claims on appeal in turn. Additional facts and procedural history will be set forth as necessary.
I
The plaintiffs first claim that the trial court incorrectly determined that the council had jurisdiction over BNE‘s petitions because the projects are neither “grid-side distributed resources project[s]” nor “facilit[ies]” for purposes of
The following additional procedural history is relevant to our resolution of this claim. The council determined that it had jurisdiction over the petitions pursuant to
We begin our analysis with the standard of review. “Although the interpretation of statutes is ultimately a question of law . . . it is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement. . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts.” (Internal quotation marks omitted.) Wheelabrator Lisbon, Inc. v. Dept. of Public Utility Control, 283 Conn. 672, 691, 931 A.2d 159 (2007). It is also well established “that courts should accord deference to an agency‘s formally articulated interpretation of a statute when that interpretation is both time-tested and reasonable.” Longley v. State Employees Retirement Commission, 284 Conn. 149, 166, 931 A.2d 890 (2007).
This court also has held, however, that “when a state agency‘s determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference. . . . Wallingford v. Dept. of Public Health, 262 Conn. 758, 771–72, 817 A.2d 644 (2003); see Bridgeport Hospital v. Commission on Human Rights & Opportunities, 232 Conn. 91, 109, 653 A.2d 782 (1995) (the factual and discretionary determinations of administrative agencies are to be given considerable weight by the courts . . . [but] it is for the courts, and not for administrative agencies, to expound and apply governing principles of law . . .).” (Internal quotation marks omitted.) Wheelabrator Lisbon, Inc. v. Dept. of Public Utility Control, supra, 283 Conn. 691. Because the council‘s interpretation of the phrase “grid-side distributed resources project or facility” as used in
In determining the scope of the council‘s authority under
The plaintiffs claim that the legislature intended to exclude from the scope of
Indeed, it is more rational to conclude that the legislature‘s intent was to include all electric generating plants in the definition of facility, regardless of how the plant is powered, than to conclude that the legislature‘s intent was to exclude electric generating plants that do not use fuel, as that term is ordinarily understood, because, when
This interpretation of
We conclude, therefore, that, as used in
II
We next address the plaintiffs’ claim that the trial court incorrectly determined that the council was authorized to attach conditions to declaratory rulings issued pursuant to
The following additional procedural history is relevant to our resolution of this claim. In its decisions approving the petitions for the Colebrook North and Colebrook South projects, the council imposed numerous conditions on the construction of the wind turbine projects. Most significantly, the council required BNE to submit a development and management plan that would include, among other things, “[a] detailed site plan showing the placement and/or extent of vegetative clearing, grading, wetland buffers, access roads, turbine foundations, building specifications, equipment and material laydown and staging areas“; “an open space and conservation plan to protect environmentally-sensitive areas of the property for the life of the project“; “[a]n erosion and sediment control plan, consistent with the 2002 Connecticut Guidelines for Soil Erosion and Sediment Control . . . as amended“; a “[s]tormwater [m]anagement [p]lan, consistent with the [department‘s] 2004 . . . Stormwater Quality Manual“; “[a] post-construction noise monitoring protocol describing
On appeal to the trial court, the plaintiffs contended that the council had no authority under
Because it implicates the trial court‘s subject matter jurisdiction, we first address the defendants’ claim that the plaintiffs lack standing to challenge the council‘s imposition of conditions on its approval of BNE‘s petitions for a declaratory ruling. “[I]n order to have standing to bring an administrative appeal, a person must be aggrieved.” (Internal quotation marks omitted.) Moutinho v. Planning & Zoning Commission, 278 Conn. 660, 664, 899 A.2d 26 (2006). “Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share. . . . Second, the party must also show that the agency‘s decision has specially and injuriously affected that specific personal or legal interest. . . . Aggrievement does not demand certainty, only the possibility of an adverse effect on a legally protected interest.” (Internal quotation marks omitted.) Id., 665.
There is nothing in the record of this case that shows that the plaintiffs have specific, personal interests that
The defendants do not dispute, however, that the plaintiffs’ interests were affected by the council‘s approvals of BNE‘s petitions and, therefore, they have standing to challenge them. Accordingly, to the extent that the plaintiffs claim that the council‘s imposition of the conditions shows that the approvals were improper because the council had not determined that the petitions met the substantive requirements for approval when it issued its rulings or, if it had made such determinations, they were not supported by substantial evidence, we conclude that they have standing to raise those claims.
The standard of review for agency decisions is well established. “Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency‘s findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . [I]t imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and [provides] a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action. . . . The United States Supreme Court, in defining substantial evidence . . . has said that it is something less than the weight of the evidence, and [that] the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency‘s finding from being supported by substantial evidence.” (Citations omitted; emphasis omitted; internal quotation marks omitted.) Sweetman v. State Elections Enforcement Commission, 249 Conn. 296, 331–32, 732 A.2d 144 (1999). “[T]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency.” (Internal quotation marks omitted.) Id., 332. “As with any administrative
In support of their claim that the council‘s imposition of conditions on its approval of BNE‘s petitions shows that the council had made no determination that the petitions met the substantive requirements for approval, the plaintiffs in the present case rely on this court‘s decision in Finley v. Inland Wetlands Commission, 289 Conn. 12, 959 A.2d 569 (2008). In that case, the defendant Inland Wetlands Commission of the Town of Orange (commission) granted the application of the defendant Stew Leonard‘s Orange, LLC (Stew Leonard‘s), for a permit to conduct regulated activities. Id., 14–15. The commission imposed a number of conditions on the approval.24 Id., 16. The plaintiffs, who had intervened in the proceedings pursuant to
The plaintiffs in the present case contend that, just as in Finley, the conditions of approval imposed by the council show that the counsel had not determined that the proposed projects were in compliance with water quality standards when it approved BNE‘s petitions. Specifically, the plaintiffs point to the following language that is contained in both of the council‘s rulings: “The [c]ouncil understands that designing the access road to the turbines on this site poses challenges regarding water quality . . . . However, the [c]ouncil believes these design challenges can be met, so that the project would not have an adverse impact on water quality.
“By ordering a [d]evelopment and [m]anagement . . . phase for the project, the [c]ouncil will assure that
The council also expressly found, however, that, with respect to the Colebrook North project, “[t]he proposed project would comply with air and water quality standards” and, with respect to the Colebrook South project, that “[s]tormwater generated at the site would be controlled in accordance with the 2004 Connecticut Stormwater Quality Manual and the 2002 Connecticut Guidelines for Soil Erosion and Sediment Control.” In addition, the council expressly found that, for both projects, “the effects associated with the construction, maintenance, and operation of a . . . wind renewable generating project . . . would meet all applicable [United States] Environmental Protection Agency and [department] . . . [w]ater [q]uality [s]tandards . . . .” This finding was supported in both cases by an extensive and detailed “stormwater management plan with stormwater pollution prevention plan” that BNE had submitted with the petitions.25 There is nothing in the record to suggest that the plans that BNE submitted to the council with its petitions were different than the “erosion and sediment control plan, consistent with the 2002 Connecticut Guidelines for Soil Erosion and Sediment Control . . . as amended” and the “[s]tormwater [m]anagement [p]lan, consistent with the [department‘s] 2004 . . . Stormwater Quality Manual” that the council required BNE to include in the development and management plan as a condition of approval. Indeed, the council represents in its brief to this court that this condition was merely intended to require BNE to include in the development and management plan the erosion and sediment control plans and the stormwater management plans that it already had submitted to the council.
The plaintiffs contend, however, that, even if the council had made a final determination that BNE‘s petitions met the substantive requirements for approval, the documents that BNE submitted with the development and management plans after the hearings closed showed that that determination was not supported by substantial evidence. Although the trial court denied the plaintiffs’ request to supplement the record with these materials and sustained the defendants’ objection to the testimony of the plaintiffs’ expert witnesses, William F. Carboni and Michael S. Klein, about the development and management plan, the plaintiffs made an offer of proof of the testimony that Carboni and Klein would have given in support of this claim. Specifically, the plaintiffs’ attorney represented to the trial court that Carboni would have testified that information discovered during the development and management phase
As the trial court recognized during trial, however, this offer of proof does not support the plaintiffs’ claim that the council‘s approvals of BNE‘s petitions were not supported by substantial evidence in the record that was before the council when it made its decisions. Rather, it merely supports a conclusion that the plans that BNE had submitted to the council with its petitions had to be revised after approval to address unforeseen site conditions. Moreover, if a party can show that newly discovered conditions make it impossible for the project to comply with the substantive requirements for approval or that the revised plans are not in compliance with those requirements, the party is not without recourse. The party may bring this fact to the attention of the council and, if it is not satisfied with the result of such informal proceedings, it may file a petition for a declaratory ruling claiming that the project is not in compliance with the terms of approval,26 bring a nuisance action27 or bring a CEPA action.28 See
We conclude, therefore, that the present case is distinguishable from Finley v. Inland Wetlands Commission, supra, 289 Conn. 12. In Finley, the commission had approved Stew Leonard‘s regulated activities permit on the condition that it submit “a ‘[r]evised and updated erosion control plan that implements all [s]tate [r]egulations . . . .’ ” (Emphasis added.) Id., 41. It was clear, therefore, that “the commission had not determined that the existing erosion control plan met state regulations when it rendered its decision.” Id. In the present case, the council expressly found that the existing plans for protecting water quality on each of the proposed projects satisfied water quality standards,
III
We next address the plaintiffs’ claim that the trial court improperly determined that the council was not required to consider the requirements of state noise law when it approved BNE‘s petitions.29 We disagree.
The following additional procedural history is relevant to our resolution of this claim. During the hearings before the council on BNE‘s petitions, the plaintiffs submitted the written “pre-filed” testimony of their expert, Michael Bahtiarian, regarding the proposed projects’ compliance with Connecticut noise control regulations. Bahtiarian testified in both proceedings that, under § 22a-69-3.1 of the Regulations of Connecticut State Agencies, “[n]o person shall cause or allow the emission of excessive noise beyond the boundary of his/her Noise Zone so as to violate any provisions of these Regulations.” Section 22a-69-1.1 (o) of the Regulations of Connecticut State Agencies defines “noise zone” to mean “an individual unit of land or a group of contiguous parcels under the same ownership as indicated by public land records and, as relates to noise emitters, includes contiguous publicly dedicated street and highway rights-of-way, railroad rights-of-way and waters of the state.” Bahtiarian testified that the materials that BNE submitted with its petitions showed the BNE had not measured noise levels at the property line of the properties on which the projects were located, as required by these regulations, but at a more distant “receptor locations . . . .”30 He further testified that, according to his calculations, “the wind turbines will not be in compliance with the Connecticut regulation at the property boundary.” Specifically, he was of the opinion that, for the Colebrook South project, “these wind turbines will be in excess of [six] to [ten decibels] above the permitted limits at night,” and, for the Colebrook North project, they would be “in excess of [six] to [nine decibels] above the permitted limits at night.” In addition, he opined that, for the Colebrook South project, “excesses of [zero] to [four] decibels to the industrial-to-residential limit of [fifty-one] dB(A)31 would also occur,” and, for the Colebrook North project, “excesses of [zero] to [three] decibels” would
On appeal to the trial court, the plaintiffs contended that the council improperly ignored state noise law when it approved BNE‘s petitions. The trial court concluded that, although
On appeal to this court, the plaintiffs renew their claim that the council was required to apply the department‘s noise regulations, which require noise levels to be measured at the property line, not at the receptor residential dwellings. The council does not dispute the plaintiffs’ interpretation of the applicable noise regulations, and it also does not dispute the plaintiffs’ claim that it made no finding that the proposed projects will comply with those regulations.33 The council claims, however, that the trial court improperly determined that it had jurisdiction to consider noise issues when ruling on a petition for a declaratory ruling. Specifically, the council claims that, pursuant to
We first address the council‘s claim that the trial court incorrectly concluded that the council had jurisdiction to consider environmental issues other than compliance with air and water quality standards, including noise issues, when considering whether it should approve BNE‘s petitions.34 Whether the council is
We conclude that the council has jurisdiction to consider state noise law when ruling on petitions for declaratory rulings. Section 16-50x (a) expressly provides in relevant part that “[i]n ruling on . . . petitions for a declaratory ruling for facilities . . . the council shall give such consideration to other state laws . . . as it shall deem appropriate.”35 In addition, the council has the expertise to determine whether a proposed project complies with state noise law, because: (1) state noise regulations are promulgated by the department; see
Having concluded that the council had jurisdiction to consider whether the proposed projects complied with state noise law, we next consider whether the council had authority to approve BNE‘s petitions if it determined that the projects did not comply with state noise law. We conclude that it did. As we have already noted,
We also note that, when ruling on applications for certificates, the council is required to consider “the policies of the state concerning the natural environment . . . [and] public health and safety“;
In support of their claim that the council must enforce state noise law when ruling on petitions, the plaintiffs rely on
We conclude, therefore, that the legislature intended to authorize the council to approve petitions for declaratory rulings for proposed projects even if they do not comply with state laws outside of the act itself, including state noise law.41 Accordingly, we agree with the trial court that the council was authorized to approve BNE‘s petitions even though it had not determined that the proposed projects comply with state noise law.
IV
We next consider the plaintiffs’ claim that the council‘s approval of shorter hub heights for the Colebrook North project was not supported by substantial evidence and that, even if it was supported by substantial evidence, they were prevented from testing the reliability of that evidence because the evidence was not presented until the end of the last day of the hearings. We conclude that the approval was supported by substantial evidence and that, even if the council improperly allowed BNE to present evidence without providing the plaintiffs with an opportunity for rebuttal, any impropriety was harmless.
The following additional procedural history is relevant to our resolution of this issue. At the end of the
In its decision approving the petition for a declaratory ruling for the Colebrook North project, the council ordered that, “[u]nless otherwise approved by the [c]ouncil, the wind turbines shall be constructed using 80 meter hub height and [an] 82.5 meter rotor diameter.” The council explained that its “determination of minimal visual impact to the Rock Hall [p]roperty42 is based on the 100 meter hubs and 82.5 meter rotor diameter and notes visibility will be improved by using 80 meter hubs at the proposed turbine locations.” (Footnote added.)
At trial, Bahtiarian testified that if a wind turbine with an 80 meter hub and a wind turbine with a 100 meter hub have the same power output, they will produce the same level of noise. He also testified that “the shorter hub height makes the wind turbine closer to the property, and distance is the big factor in determining what sound is received at an abutter.” In combination with the noise tolerance factor that had been discovered in certain documents that BNE had submitted under seal, lowering the hub heights would result in an approximately three decibel increase over previous noise level calculations at certain locations. Bahtiarian further testified that those noise levels would violate applicable noise regulations, under which noise is measured at the property line.
The trial court concluded that, because the plaintiffs had standing only to raise environmental concerns, they
We first address the plaintiffs’ claim that the trial court improperly determined that they lacked standing to challenge the council‘s order that the hub heights be lowered to eighty meters because the hub height of the wind turbines does not affect air or water quality or any other environmental factor at issue in this appeal. We agree with the plaintiffs. The plaintiffs raised a colorable claim that lowering the hub heights could affect the environment.43 The trial court concluded that the council had jurisdiction to consider that claim, and we have agreed with that conclusion. See footnote 35 of this opinion. Accordingly, we conclude that the plaintiffs had standing to raise this claim.
We next address the plaintiffs’ claim that the council‘s order that the hub heights on the Colebrook North project be lowered to eighty meters was not supported by substantial evidence. In support of their claim to the contrary, the defendants rely on testimony during the hearings before the council that an eighty meter wind turbine had been installed at a location known as Jiminy Peak. In addition, the defendants point to a product brochure for wind turbines that BNE had submitted with its petitions that referred to “80 and 100 meter tower configurations” and Corey‘s testimony that 80 meter hub heights would be feasible on the Colebrook North project. We agree with the defendants that this evidence supported the council‘s finding that the shorter hub heights would be feasible.44 Moreover, we conclude that it was reasonable for the council to conclude that shorter hub heights would reduce visibility concerns.
We further conclude that, even if the council improp-
With respect to the plaintiffs’ contention that “the change to shorter hub heights . . . could . . . have implications for other environmental concerns, including water quality, wildlife fatalities and protection of historic resources,” they have pointed to no specific evidence or offer of proof that would support this claim.47 Accordingly, any failure by the council to consider the environmental effects of lower hub heights must be deemed harmless. Cf. In re Lukas K., 300 Conn. 463, 473–74, 14 A.3d 990 (2011) (denial of request for continuance in parental termination proceeding was harmless when parent had “not identified on appeal any additional evidence or arguments that he could have presented if the trial court had granted his request“); State v. Lopez, 280 Conn. 779, 790, 911 A.2d 1099 (2007) (when defendant did not identify on appeal any arguments that defense counsel would have made at sentencing hearing if trial court had granted defendant‘s request for continuance so that new counsel could review trial transcript, any impropriety in denying
V
We next address the plaintiffs’ claim that the council deprived them of their right to ‘‘fundamental fairness.’’ See Grimes v. Conservation Commission, 243 Conn. 266, 273, 703 A.2d 101 (1997) (‘‘we have recognized a common-law right to fundamental fairness in administrative hearings’’). Specifically, the plaintiffs claim that the council improperly: (1) denied their request to cross-examine an employee of the department who had submitted comments on the proposed projects pursuant to
‘‘The right to fundamental fairness in administrative proceedings encompasses a variety of procedural protections . . . . In a number of administrative law cases . . . we have characterized these procedural protections as ‘due process’ rights. . . . Although the ‘due process’ characterization, at first blush, suggests a constitutional source, there is no discussion in these cases of a property interest in terms of constitutional due process rights. These decisions are, instead, based on a line of administrative law cases and reflect the development, in Connecticut, of a common-law right to due process in administrative hearings . . . [that] is not coextensive with constitutional due process.’’ (Citations omitted.) Id., 273 n.11. The scope of the right to fundamental fairness in administrative proceedings, like the scope of the constitutional right to due process that it resembles, is a question of law over which our review is plenary. Megin v. Zoning Board of Appeals, 106 Conn. App. 602, 608, 942 A.2d 511, cert. denied, 289 Conn. 901, 957 A.2d 871 (2008).
As a preliminary matter, we address the council’s claim that the plaintiffs lack standing to raise these claims in the appeal from the council’s ruling on the Colebrook South petition because, in that proceeding,
This court has repeatedly held that ‘‘all that is required to invoke the jurisdiction of the Superior Court under [CEPA] is a colorable claim, by any person [or entity] against any person [or entity], of conduct resulting in harm to one or more of the natural resources of this state. . . . Although it is true, of course, that the plaintiff need not prove its case at this stage of the proceedings . . . the plaintiff nevertheless must articulate a colorable claim of unreasonable pollution, impairment or destruction of the environment. . . . A complaint does not sufficiently allege standing [however] by merely reciting the provisions of
Fort Trumbull Conservancy, LLC, involved an action brought pursuant to
A
We first address the plaintiffs’ claim that the trial court incorrectly determined that the council did not deprive the plaintiffs of the right to fundamental fairness by denying their request to cross-examine an employee of the department of who had submitted comments on the proposed projects pursuant to
The following additional procedural history is relevant to our resolution of this claim. On February 7, 2011, the council solicited comments on both projects from various agencies, including the department, pursuant to
In its rulings on the petitions, the council relied on Riese’s letter to support several of its findings of fact.51 In its conclusions of law, the council explained that it had not permitted Riese to testify because the plaintiffs
On appeal to the trial court, the plaintiffs contended that they were prejudiced by their inability to cross-examine Riese about the letters that he had submitted to the council. At trial, when counsel for the plaintiffs attempted to question the plaintiffs’ expert, Klein, about Riese’s qualifications and the letters, counsel for the council objected on the ground that the plaintiffs had failed to present any testimony on that issue in the proceedings before the council. The trial court sustained the objection on the ground that Klein’s opinion as to the propriety of Riese’s submitting letters to the council that were not subject to cross-examination was irrelevant. Counsel for the plaintiffs then attempted to make an offer of proof regarding the testimony that Klein would have given. Specifically, she stated that Klein would testify that Riese lacked proper qualifications. At that point, the trial court interrupted counsel for the plaintiffs and asked why the plaintiffs could not have presented that evidence to the council. Counsel for the plaintiffs stated that the plaintiffs had not received the letters until after April 6, 2011, when the hearing on the Colebrook South petition had already begun, and that the council had imposed deadlines for the submission of prefiled testimony. The court then stated that, because Riese’s qualifications and the unreliability of his opinions were irrelevant to the question of whether the council was authorized to receive his comments without affording the plaintiffs an opportunity to cross-examine him, it would not allow an offer of proof on those issues.52
In its memorandum of decision, the trial court, relying on
We begin our analysis with a review of the governing statutes.
These statutes were intended to embody the common-law principles of fundamental fairness that this court recognized in Grimes v. Conservation Commission, supra, 243 Conn. 273, by ensuring that hearings on petitions for declaratory rulings are conducted in a manner that will not prejudice the parties and that will result in a full and true disclosure of the facts. Accordingly, the questions that we must address are whether the council reasonably could have concluded that calling Riese as a witness was not required to ensure a full and true disclosure of the facts and, if not, whether the plaintiffs were prejudiced by the council’s refusal to allow the plaintiffs to cross-examine Riese.55 See also Roy v. Commissioner of Motor Vehicles, 67 Conn. App. 394, 397, 786 A.2d 1279 (2001) (‘‘[t]he plaintiff bears the burden of demonstrating that a hearing officer’s evidentiary ruling is arbitrary, illegal or an abuse of discretion’’ [internal quotation marks omitted]).
We recognize that the council did not provide Riese’s comments to the plaintiffs before the hearing on the Colebrook South petition commenced, as required by
First, the only items in the record before the council
Second, although the council relied on Riese’s comments to support certain findings of fact, those findings were peripheral to the council’s rulings. See footnote 51 of this opinion. We therefore do not agree with the plaintiffs’ characterization of the council’s use of the comments as ‘‘heavy reliance’’ on them. Moreover, a careful review of Riese’s comments reveals that they were generally neutral and descriptive. He did not take any position on whether the petitions should be approved. Indeed, if anything, the comments brought attention to the shortcomings of BNE’s petitions. Accordingly, we conclude that the council reasonably could have determined, on the basis of the record before it, that cross-examination of Riese was not required to allow the plaintiffs to present a ‘‘full and true disclosure of the facts . . . .’’
B
We next address the plaintiffs’ claim that the trial court incorrectly determined that the council had properly refused to allow the plaintiffs to cross-examine witnesses about the cumulative impact of the two proposed projects. We conclude that we need not determine whether the council’s ruling was improper because, even if we assume that it was, the plaintiffs have not established that they were harmed.
The following additional procedural history is relevant to our resolution of this claim. The plaintiffs filed two motions with the council requesting that the proceedings on BNE’s two petitions for declaratory rulings be consolidated. The council denied both motions. Thereafter, during the hearing on the Colebrook South
In the hearing on the Colebrook North petition, counsel for the plaintiffs attempted to question a witness about the Colebrook South project and counsel for BNE objected on the ground that there were two separate proceedings. Counsel for the plaintiffs responded that the council had ruled in the hearing on the Colebrook South petition that the plaintiffs could present evidence about the cumulative impact of the two projects in the hearing on the Colebrook North petition. Counsel for BNE then stated that the council had ruled only that the proper place to discuss the Colebrook North project was in the hearing on that project, not that it would allow evidence about the cumulative effects of the projects. The council’s staff attorney stated that, under
In its conclusions of law on the Colebrook North petition, the council stated that ‘‘
In their briefs to the trial court, the plaintiffs contended that the council had deprived them of their due process rights by prohibiting them from presenting evidence on the cumulative impact of the two projects. They did not explain, however, in what manner the two projects would have an adverse cumulative effect.60 In its memorandum of decision on the appeal from the council’s ruling on the Colebrook North petition, the trial court stated that, in their capacity as parties to the proceeding, the plaintiffs lacked standing to raise the issue of cumulative impact pursuant to
We conclude that we need not decide whether the council properly refused to admit evidence regarding the cumulative impact of the proposed projects because the plaintiffs have not identified any evidence that they would have presented to the council, had the opportu-
C
We next address the plaintiffs claim that the trial court incorrectly determined that the council properly allowed BNE to submit certain materials under seal and that the council’s protective orders were not overbroad. We conclude that we need not determine whether the council acted properly because, even if we assume that it did not, the plaintiffs have not met their burden of proving harm.
The following additional procedural history is relevant to our resolution of this claim. During the hearings on BNE’s petitions, BNE asked the council for permission to file certain ‘‘confidential and proprietary business data’’ under seal and also asked the court to issue protective orders for the data. The plaintiffs objected to the motions to the extent that they related to ‘‘data regarding wind resources, wind speeds, and wind generation,’’ information regarding setback recommendations and information regarding the ‘‘mechanical loads assessment’’ of the proposed turbines and certain noise emission characteristics. The plaintiffs contended that the materials were ‘‘public records’’ for purposes of
The council explained its decision to issue the protective orders in its rulings on the petitions. The council observed that, pursuant to
On appeal to the trial court, the plaintiffs again claimed that the protective orders had been overbroad and unduly restrictive.67 At trial, Bahtiarian testified that he had learned about the existence of the protected materials when an attorney asked him during a hearing before the council if he knew about certain information contained in one of the sealed documents relating to noise data. He never looked at the sealed documents before the council issued its decision because he believed that doing so would not have been ‘‘fruitful’’ if he could not take notes or copy the documents.68 Bahtiarian also testified that he had learned since the hearings that one of the sealed documents showed that the noise level of the wind turbines had a tolerance or uncertainty factor of two decibels, meaning that the worst case noise assessment that BNE had submitted with its petitions was low by two decibels.69 Bahtiarian admitted that, if he had reviewed the sealed materials, he would not have had to take notes in order to remember the two decibel uncertainty factor. He also testified that, whenever noise is measured, there will be an uncertainty factor.
Carboni testified at trial that it was his understanding that he could not review the protected materials during the hearings on BNE’s petitions. Instead, Carboni looked at equipment specifications that were publicly available online, and determined that the roads shown on BNE’s plans probably were not wide enough to accommodate the equipment. During trial, he reviewed notes on the protected materials that counsel for the plaintiffs had taken. Those notes confirmed Carboni’s opinion that the roads probably were not wide enough for the equipment. When he was asked whether the specifications in the sealed materials were ‘‘[d]ramatically or slightly’’ different than the specifications that were available online, Carboni testified that they were
Klein testified at trial that it was also his understanding that he could not review the protected materials during the hearings on BNE’s petitions. After the council issued its rulings, however, he reviewed notes taken by counsel for the plaintiffs regarding the sealed materials. Klein testified that the equipment specified in the notes ‘‘would have the potential to affect the design of the onsite improvements and offsite infrastructure improvements that would be necessary to get that equipment onto the site and to safely move it around the site. Those improvements have a reasonable likelihood of having an environmental impact with respect to wetlands and water quality.’’ Klein also admitted, however, that he did not know whether the roads would have to be widened, which was within Carboni’s area of expertise, and that, if they did, he believed that BNE would be required to obtain certain construction permits to ensure that the construction met applicable water quality standards.
The trial court concluded that the council had properly entered the sealing orders and that, even if those orders or the terms of the protective orders had been improper, the plaintiffs had not established that they were harmed because the materials had been available for review by the plaintiffs’ experts, and none of the experts had testified at trial that the sealed documents would have affected their opinions.
On appeal to this court, the plaintiffs claim that the council improperly sealed the protected materials because they were filed with a public agency and, pursuant to
We conclude that we need not decide whether the council properly allowed BNE to submit the documents under seal and issued protective orders because, even if the council’s actions were improper, the plaintiffs were not harmed. First, although the plaintiffs have suggested that timing issues and their inability to copy or take notes on the protected materials made it pointless to ask their experts to review the materials during
In any event, even if the council improperly allowed BNE to submit the protected materials under seal and the overbroad terms of the protective orders prevented the plaintiffs from discovering this information in a timely manner, any impropriety was harmless because the plaintiffs have not established that the council would likely have made different decisions if the plaintiffs had been able to examine or cross-examine witnesses about the information. See Klein v. Norwalk Hospital, supra, 299 Conn. 254; Hicks v. State, supra, 287 Conn. 439. With respect to the noise issue, the plaintiffs have pointed to no evidence or offer of proof in the record regarding the effect of the two decibel tolerance factor on noise levels at the residential receptors, which were the noise levels that the council considered when ruling on the petitions. With respect to the road width issue, Carboni testified that the technical equipment specifications in the protected materials were ‘‘in the same general range’’ as the publicly available specifications that he relied on to support his testimony before the council. Thus, the sealed information would have been merely cumulative of information that he already had.
The plaintiffs also contend, however, that, ‘‘without the assistance of their experts to more fully examine the contents of some of the more technical information, including the [mechanical load assessments] and the wind data, [they] simply do not know the total extent of the prejudice they suffered by not being permitted to properly analyze and cross-examine witnesses regarding these documents.’’ Even if we assume that the plaintiffs’ experts did not have sufficient access to the protected materials to testify about them intelligently or to assist the plaintiffs to prepare for cross-examination of BNE’s witnesses in the hearings before the council, however, the plaintiffs have not explained why their expert witnesses could not have examined the documents during those hearings to determine whether they had been prejudiced by not having greater and more timely access to them. Accordingly, we reject this claim.
D
Finally, we address the plaintiffs’ claim that the trial court incorrectly determined that the council did not
The following additional procedural history is relevant to our resolution of this claim. Before and during the hearings before the council, BNE, on several occasions, asked for extensions of time to respond to interrogatory responses and to file prefiled testimony and new evidence, which the council granted. On several occasions, the plaintiffs did not receive the newly filed materials, some of which were voluminous, until shortly before the hearing was to be conducted. In response to these late filings, the plaintiffs made several written and oral requests for continuances so that they would have adequate time to review the materials and prepare for cross-examination of BNE’s witnesses. The council denied all of the plaintiffs’ requests for continuances.
In its rulings on the petitions, the council concluded that its procedures had been consistent with due process requirements. In support of this conclusion, it observed that ‘‘constitutional principles permit an administrative agency to organize its hearing schedule so as to balance its interest in reasonable, orderly and nonrepetitive proceedings against the erroneous deprivation of a private interest and it is not unconstitutional for the [c]ouncil, in good faith, to balance its statutory time constraints against [the plaintiffs’] desire for more time to present their objections to a proposal.’’ See Concerned Citizens of Sterling, Inc. v. Connecticut Siting Council, 215 Conn. 474, 485–86, 576 A.2d 510 (1990). The council also stated that it had allowed the plaintiffs to submit additional information after the hearings had closed.
The trial court concluded in its memoranda of decision that ‘‘[t]he plaintiffs fail to demonstrate an unconstitutional abuse of discretion by the council in regards to its denial of the plaintiffs’ continuance requests. The plaintiffs had ample opportunity prior to and during the hearings to obtain and present evidence to the council. . . . The council stated in its conclusions of law that the plaintiffs received ample time for cross-examination. . . . The court finds such denial of continuance requests properly within the discretion of the council.’’ (Citations omitted.)
On appeal to this court, the plaintiffs renew their claim that the council’s denial of their requests for continuances deprived them of their right to fundamental fairness. We need not decide whether the council abused its discretion in denying the requests for continuance, however, because the plaintiffs have identified no evidence that they would have produced, arguments that they would have made or questions that they would
The judgments are affirmed.
In this opinion the other justices concurred.