78 Conn. App. 169 | Conn. App. Ct. | 2003
Opinion
The plaintiff, the town of Canterbury (town), appeals from the judgment of the trial court dismissing on jurisdictional grounds its appeal from the administrative decision of the defendant, Arthur J. Rocque, Jr., the commissioner of environmental protection (commissioner), placing conditions on the town’s application for permits for a municipal solid waste transfer station. We reverse the judgment of the trial court.
The following facts are relevant to our discussion. On November 1,1996, the town submitted an application to the waste management bureau of the department of environmental protection (department), pursuant to General Statutes § 22a-208a, for permits to construct and to operate a municipal solid waste and bulky waste transfer station
Subsequently, a department hearing officer conducted public hearings on thirty-three days between August 18, 1997, and June 30, 1998, and issued a pro
The parties filed exceptions to the proposed final decision and requested oral argument. The commissioner then appointed the director of the department’s office of adjudications to render the final decision. On March 16,2001, after briefs and oral argument, the com
The court dismissed the appeal on the jurisdictional ground that the town had no statutory right to appeal. The court reasoned that the commissioner’s determination was not a final decision in a contested case under the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq., and, therefore, that the town was not entitled pursuant to General Statutes § 4-183 to appeal to the Superior Court. This appeal followed. Additional facts will be recited as appropriate.
The question for our determination is whether the statutoiy scheme relating to the permitting process for a solid waste transfer station, as set forth in § 22-208a (e), contemplates a right to appeal from an adverse determination by the commissioner under the circumstances presented by this case.
At the outset, we must first consider the applicable standard of review. “A determination regarding a trial court’s subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Miller’s Pond Co., LLC v. Rocque, 71 Conn. App. 395, 401, 802 A.2d 184, aff'd, 263 Conn. 692, 822 A.2d 238 (2003). Also, “[i]t is well established that, in determining whether a court has
To begin, we note that there is no common law right to judicial review of administrative determinations. “Judicial review of an administrative decision is a creature of statute.” Summit Hydropower Partnership v. Commissioner of Environmental Protection, 226 Conn. 792, 799, 629 A.2d 367 (1993). “There is no absolute right of appeal to the courts from a decision of an administrative agency.” (Internal quotation marks omitted.) Fairfield v. Connecticut Siting Council, 238 Conn. 361, 368, 679 A.2d 354 (1996). Therefore, for the Superior Court to have jurisdiction to hear an appeal from an administrative determination, there must be statutory authority for such an appeal. Whether an administrative decision is subject to appeal is governed by § 4-183 (a), which provides in relevant part that “[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. . . .” A “final decision” is defined as an “agency determination in a contested case . . . .” General Statutes § 4-166 (3) (A). A “contested case” is defined as “a proceeding ... in which the legal rights, duties or privileges of a party are required by statute to be determined by an agency after an opportunity for hearing or in which a hearing is in fact held . . . .” General Statutes § 4-166 (2).
Resolution of this appeal therefore requires us to determine whether § 22a-208a requires the commissioner to determine the legal rights, duties or privileges of a party “after an opportunity for hearing or in which a hearing is in fact held . . . .” General Statutes § 4-166 (2). The question is not answered simply by reference to the fact that a hearing was, indeed, held. Our Supreme
We begin our discussion by examination of the statute in question. General Statutes § 22a-208a (e) provides in relevant part that “[t]he commissioner may hold a public hearing prior to approving or denying an application [for a solid waste facility] if in his discretion the public interest will be best served thereby, and shall hold a hearing upon receipt of a petition signed by at least
The court determined that General Statutes § 22a-208a (e) does not create a statutory right to a hearing unless a petition for a public hearing is filed in accordance with the time frame set forth in § 22-3a-6 (i) of the regulations. The court characterized the hearing actually conducted by the commissioner as gratuitous. Characterizing the commissioner’s issuance of a notice of tentative determination as an “action” in the terms of § 22a-3a-6 of the regulations, the court observed in conjunction with the submission of a petition on February 9, 1998, that “[t]his certainly exceeded the thirty day period for submitting a petition for a hearing, running from an action by the department. The department rule of practice does not contemplate that a gratuitous hearing may be ‘converted’ into a mandatory one by the filing of a petition for a hearing beyond the thirty day period of the rule.” The court concluded that because the hearing was not mandated, there was no contested case under General Statutes § 4-166 (2), and, therefore, no final decision under General Statutes § 4-166 (3) (A). Accordingly, the court dismissed the appeal, reasoning that it lacked subject matter jurisdiction.
On appeal, the town argues that the Superior Court has jurisdiction to hear its appeal on the ground that General Statutes § 22a-208a (e) creates a right to a public hearing either by the commissioner’s determination
Our analysis begins with the language of the statute itself as, in this instance, the meaning of the language appears plain and not does not appear amenable to other interpretations by reference to extrinsic sources. See State v. Courchesne, 262 Conn. 537, 570, 816 A.2d 562 (2003) (en banc). The relevant language is: “The commissioner may hold a public hearing prior to approving or denying an application if in his discretion the public interest will be best served thereby, and shall hold a hearing upon receipt of a petition signed by at least twenty-five persons. . . .” General Statutes § 22a-208a (e). As stated, the statute sets forth two independent circumstances in which a hearing may be warranted. They are (1) when the commissioner determines that there is sufficient public interest and (2) when a petition has been timely filed by at least twenty-five persons. Because we believe that in this instance the town’s right to appeal stems from having filed a petition for a hearing on February 9, 1998, before the commissioner’s disposition of the application, we need not discuss whether the discretionary portion of the statute entitling the commissioner to conduct a hearing on the basis of his determination of public interest also constitutes a statutory entitlement to a hearing so as to fit this case within the group of those entitled to judicial review.
The commissioner argues that the provisions of § 22a-3a-6 are regulations of the public’s right to petition for a hearing in this circumstance and that because the petition for a hearing was not filed within thirty days of the commissioner’s “action,” the hearing held in this
Here, the operative statute, General Statutes § 22a-208a (e), provides in relevant part that the commissioner “shall hold a hearing upon receipt of a petition signed by at least twenty-five persons. . . .” The commissioner does not argue that this language is ambiguous, nor does he dispute that a hearing conducted pursuant to that provision would entitle a disappointed petitioner to seek judicial review. Rather, the commissioner argues that § 22a-3a-6 of the regulations, requiring that a petition for a hearing be filed within thirty days of the commissioner’s “action,” sets a reasonable parameter to the exercise of that right to a hearing. There can be no doubt that the department is statutorily authorized to adopt rules of practice to govern the manner in which it meets its statutory responsibilities. See General Statutes § 4-167. For purposes of this discussion, we assume without deciding, that the commissioner could validly adopt a regulation to govern the procedure for submitting a hearing petition pursuant to General Statutes § 22a-208a. There also is no dispute that § 22a-3a-6 is a regulation validly adopted by the commissioner. The question remains, however, whether that was violated by the town in this instance. We believe it was not.
We agree with the general proposition that if a board’s time-tested interpretation of a regulation is reasonable, its interpretation should be accorded great weight by the courts. Office of Consumer Counsel v. Dept. of Pub
Contrary to the assertion of the commissioner, we read § 22a-3a-6 of the regulations as requiring a party seeking a hearing to file such a request with the commissioner within thirty days of the disposition of the application and not, as the commissioner urges, within thirty days of his notice of tentative determination. Thus, we believe, the “action” referred to in the regulation is the commissioner’s disposition of the application. The regulation requires one seeking a hearing to attach to the hearing request a “copy of the commissioner’s letter or other document disposing of the application” and in the request for a hearing to “state specifically any findings to which the respondent objects and any other grounds for contesting the order or the Commissioner’s disposition of the application. . . .” Regs., Conn. State Agencies § 22a-3a-6 (i) (4). If, as the commissioner urges, his “action” is the filing of a tentative determination, one seeking a hearing could never comply with the regulation’s requirement that the hearing requester attach a copy of the commissioner’s disposition or set forth any basis for contesting the commissioner’s disposition because, at that juncture, there would have been no disposition. One would have in hand no more than a tentative determination.
The notion that a request for hearing should be made after the commissioner’s disposition is consistent with the department’s regulations. Section 22a-3a-2 (c) (2) (I) of the regulations provides in relevant part that a proceeding terminates when “the Commissioner disposes of a license application, unless an opportunity for hearing is provided with respect to such disposition
That understanding of the term “action” is buttressed by reference to the utilization of the term “action” in the department’s regulatory scheme. If, as the commissioner urges, “action” means no more than a proposed disposition, the term “proposed” action or “intended” action would have been utilized as it is employed elsewhere in the regulations.
The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.
In this opinion the other judges concurred.
A solid waste and bulky waste transfer facility is used to transfer solid waste from a large number of smaller vehicles into a small number of larger vehicles for transportation to other sites for disposal or recycling.
The commissioner allowed the following parties to intervene in the permit application hearing: Haul of Fame, Inc., Packer Ltd., Quinnebaug Valley Regional Resources, LLC, Denis Yaworski, James Yaworski, Jr., and Rose Yaworski. The commissioner referred to those parties, collectively, as Yaworski, Inc.
It is noteworthy that the notice, purportedly pursuant to General Statutes § 22a-6h, informs the public not only of the commissioner’s tentative determination to grant the petitioners’ permit application, but also informs the public of the date and time of the public hearing. Neither party has briefed the question of whether that hearing notice comports with the statute’s requirement that the commissioner’s notice of tentative determination include “a brief description of all opportunities for public participation provided by statute or regulation, including the length of time available for submission of public comments to the commissioner on the application . . • •” General Statutes § 22a-6h (7). It clearly does not inform the public of a right to petition for a public hearing pursuant to the provisions of General Statutes § 22a-208a (e).
Yaworski previously had applied for permits to construct and to operate a transfer station at the same site as the town’s proposed facility- In his decision of December 23, 1994, the commissioner found that Yaworsld’s conduct in operating its landfill “reflects a thoroughgoing disregard for legal requirements as well as for the welfare of many individuals who live close to the [applicant's existing solid waste facilities. ” He also found that granting the permits would subject those individuals to the risk of further adverse impact if Yaworski continued to violate the law and “would make a mockery of [the department’s] solid waste regulatory program.”
Section 22a-3a-6 (i) (2) of the Regulations of Connecticut State Agencies provides: “Whenever any statute or regulation provides for the filing of a request for hearing concerning the Commissioner’s disposition of an application, the request shall be filed with the Office of Adjudications within the time prescribed by the applicable statute; and if not prescribed therein, by an applicable regulation other than this section; and if not prescribed therein, within thirty days of the Commissioner’s action. The requester shall attach to the request a copy of the Commissioner’s letter or other document disposing of the application.”
Further, that regulation requires in relevant part: “(4) An answer or request
The notion that one should seek a hearing after the commissioner’s disposition is not alien to the department’s regulatory scheme. See, for example, § 22a-133v-7 of the regulations, providing for a hearing after the board of examiners of environmental professionals has issued a. notice to deny, revoke or suspend the license of a licensed environmental professional.
See, for example, § 22a-238-l (e) of the regulations, concerning the commissioner’s revocation of the appointment of a resource recovery facilities inspector. In relevant part, the rule provides that “[t]he commissioner shall give prior written notice of revocation to the certified inspector and the chief executive officer or officers employing said inspector setting forth the reasons for the proposed action. Within twenty days of receipt of notification the inspector may request a hearing, and such hearing shall be held if requested. . . (Emphasis added.) See also §§ 22a-3a-3, 22a-la-l, 22a-231-1 and 22a-39-6 of the regulations, all of which utilize the modifiers “proposed” or “intended” to signify action that has not yet been determined.