TOWN OF MIDDLEBURY ET AL. v. CONNECTICUT SITING COUNCIL
SC 19799
Supreme Court of Connecticut
June 27, 2017
Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js.*
Argued January 17—officially released June 27, 2017
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Stephen L. Savarese, with whom was Dana D’Angelo, town attorney, for the appellants (plaintiffs).
Robert L. Marconi, assistant attorney general, with whom were Clare E. Kindall, assistant attorney general, and, on the brief, George Jepsen, attorney general, for the appellee (defendant).
Philip M. Small and Franca L. DeRosa, with whom, on the brief, was Kyle R. Johnson, for the appellee (intervening defendant).
Opinion
McDONALD, J. This appeal concerns a proviso contained in
The record reveals the following undisputed facts and procedural history. On June 23, 1999, the council granted CPV’s predecessor a certificate, pursuant to
On November 3, 2014, CPV submitted a petition to open and modify the certificate based on changed conditions, pursuant to
The council granted the petition as to the request to open the certificate, but opened the original docket in its entirety and thus did not limit the proceedings to the changed conditions alleged in CPV’s petition. As a consequence, the plaintiffs and others sought to oppose the facility on the basis of other changed conditions that they claimed weighed against the facility as originally planned and as proposed. One of the individual plaintiffs was designated a party to the proceedings, other plaintiffs, including the town of Middlebury, were permitted to intervene in the proceedings, and others participated in the process by submitting public comments and/or speaking at the public hearings.
Between January and March, 2015, the council conducted a public inspection of the site and held seven evidentiary hearings. At the evidentiary hearings, the parties and intervenors were permitted to submit evidence and question witnesses. In addition, the council sought information from parties and intervenors through interrogatories and requests for late-filed exhibits. The plaintiffs raised a broad range of concerns on the purported adverse effects of the facility on the environment and public safety, including, but not limited to, the impact of harmful pollutants on nearby residents, the effect of increased pollution, noise, and traffic on the rural setting of the neighboring localities, and the proximity of the facility to the Waterbury-Oxford Airport and its attendant risk to aviation safety.
On May 14, 2015, the council issued a written decision granting the petition as to the request to modify the certificate and approving CPV’s proposed modifications, with certain conditions. The decision was issued in three parts: ‘‘Findings of Fact’’ (sixty-three pages containing 314 separate findings); ‘‘Opinion’’ (ten pages of ultimate findings of fact and legal conclusions); and ‘‘Decision and Order.’’ The council determined therein that conditions had changed since it issued the original certificate in 1999, citing most, but not all, of the changes alleged in CPV’s petition. It acknowledged the anticipated adverse effects of the facility, but concluded that such effects were ‘‘not disproportionate either alone or cumulatively with other effects when compared to [the] benefit’’ and were therefore ‘‘not sufficient reason to deny the proposed project.’’ The council concluded: ‘‘[T]he current CPV proposal significantly improves on th[e] original project.
The plaintiffs appealed from the council’s decision to the Superior Court pursuant to
After oral argument, the trial court dismissed the appeal. The trial court concluded that the council had ‘‘extensively considered neighborhood concerns’’ because ‘‘there can be no genuine dispute that the council heard and admitted massive amounts of evidence about neighborhood concerns and made extensive findings on these matters in its decision.’’ The court deemed the plaintiffs’ due process and substantial evidence claims abandoned due to inadequate briefing, but nonetheless explained why those claims failed on the merits. The trial court concluded that ‘‘[t]he plaintiffs enjoyed a full opportunity to present their case’’ and, in any event, had failed to identify any harm flowing from the rulings they challenged. In addition, the trial court concluded that there was substantial evidence to support the council’s decision approving CPV’s modifications. Accordingly, the trial court rendered judgment dismissing the plaintiffs’ appeal.
The plaintiffs appealed to the Appellate Court, challenging the trial court’s decision on the merits of their neighborhood concerns claim and on the abandonment of their due process and substantial evidence claims. We thereafter transferred the appeal to this court pursuant to
I
The plaintiffs’ principal claim is that the trial court improperly concluded that the council had discharged its duty under
The present case requires us both to discern the meaning of a statute and to ascertain whether that stan-dard was met under the facts of the present
Section
We begin by acknowledging what is and is not at issue. There is no claim in the present case that the concerns raised by the plaintiffs failed to relate to the factors set forth in
Nowhere in the act is the term ‘‘consider’’ defined, nor does the act elaborate procedural requirements that might indicate a meaning specific to this context. ‘‘In the absence of a definition of terms in the statute itself, [w]e may presume . . . that the legislature intended [a word] to have its ordinary meaning in the English language, as gleaned from the context of its use. . . . Under such circumstances, it is appropriate to look to the common understanding of the term as expressed in a dictionary.’’ (Internal quotation marks omitted.) Studer v. Studer, 320 Conn. 483, 488, 131 A.3d 240 (2016); see
Thus, although the council is required to take neighborhood concerns into account, notably absent from
Indeed, in other contexts, the legislature has required the fact finder both to ‘‘consider’’ specified matters and to make written findings relating to the considered matters. See, e.g.,
This interpretation of
In sum, the requirement to consider neighborhood concerns only obliges the council to reflect on the concerns of the neighborhood and take them into account when rendering a decision. There is no support for the more onerous interpretation proffered by the plaintiffs.
Nevertheless, the plaintiffs argue that the council failed to satisfy its obligations even under this more limited interpretation because its failure to mention ‘‘neighborhood’’ anywhere in its findings of fact or decision suggests that the council did not consider neighborhood concerns. We disagree.
We first observe that ‘‘there is a strong presumption of regularity in the proceedings of a public agency, and we
More fundamentally, it is plain that the council did address specific neighborhood concerns presented by the parties and intervenors in its 314 findings of fact and detailed decision. The council made specific findings with respect to the factors in
Simply put, the plaintiffs have not met their burden of proving that the council acted contrary to law and ignored the neighborhood concerns that were presented to it. See Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343–44, 757 A.2d 561 (2000). Accordingly, we conclude that the trial court properly concluded that the council considered neighborhood concerns in accordance with
II
The plaintiffs also claim that the trial court improperly concluded that they had abandoned their due process and substantial evidence claims due to inadequate briefing. CPV contends, however, that this court cannot afford any practical relief on this claim because the plaintiffs have failed to challenge the trial court’s alternative conclusions rejecting the claims on the merits. We agree with CPV. Consequently, we cannot review the plaintiffs’ claim related to inadequate briefing, as it is moot.
‘‘Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [a] court’s subject matter jurisdiction . . . .’’ (Internal quotation marks omitted.) In re Jorden R., 293 Conn. 539, 555, 979 A.2d 469 (2009). It is well settled that ‘‘[a]n
‘‘Where an appellant fails to challenge all bases for a trial court’s adverse ruling on his claim, even if this court were to agree with the appellant on the issues that he does raise, we still would not be able to provide [him] any relief in light of the binding adverse finding[s] [not raised] with respect to those claims.’’ (Internal quotation marks omitted.) State v. Lester, 324 Conn. 519, 526–27, 153 A.3d 647 (2017). In such cases, the challenged ground is rendered moot. See Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 379 n.23, 119 A.3d 462 (2015) (‘‘where alternative grounds found by the reviewing court and unchallenged on appeal would support the trial court’s judgment, independent of some challenged ground, the challenged ground that forms the basis of the appeal is moot because the court on appeal could grant no practical relief to the complainant’’ [internal quotation marks omitted]); State v. Abushaqra, 151 Conn. App. 319, 326, 96 A.3d 559 (2014) (writ of error dismissed as moot where plaintiff in error failed to contest alternative holding of trial court).
In the present case, the trial court decided the plaintiffs’ due process and substantial evidence claims both on procedural grounds and on the merits. In their brief before this court, the plaintiffs do not challenge the trial court’s conclusions that they had failed to establish the existence of a due process violation and that there was substantial evidence in the record to support the council’s determination. As such, we cannot afford the plaintiffs any practical relief because, even if we were to agree that the trial court abused its discretion in concluding that they had abandoned their due process and substantial evidence claims due to inadequate briefing, the trial court’s unchallenged decision on the merits would stand. Accordingly, the plaintiffs’ claim is moot, and this court lacks subject matter jurisdiction to consider it.
The judgment is affirmed.
In this opinion the other justices concurred.
* This case originally was scheduled to be argued before a panel of this court consisting of Chief Justice Rogers and Justices Palmer, Eveleigh, McDonald, Espinosa and Robinson. Although Chief Justice Rogers was not present at oral argument, she has read the briefs and appendices, and has listened to a recording of oral argument prior to participating in this decision.
Notes
‘‘(3) The council shall file, with its order, an opinion stating in full its reasons for the decision. The council shall not grant a certificate, either as proposed or as modified by the council, unless it shall find and determine:
‘‘(A) Except as provided in subsection (b) or (c) of this section, a public need for the facility and the basis of the need;
‘‘(B) The nature of the probable environmental impact of the facility alone and cumulatively with other existing facilities, including a specification of every significant adverse effect, including, but not limited to, electromagnetic fields that, whether alone or cumulatively with other effects, impact on, and conflict with the policies of the state concerning the natural environment, ecological balance, public health and safety, scenic, historic and recreational values, forests and parks, air and water purity and fish, aquaculture and wildlife;
‘‘(C) Why the adverse effects or conflicts referred to in subparagraph (B) of this subdivision are not sufficient reason to deny the application . . . .
‘‘(c) (1) The council shall not grant a certificate for a facility described in subdivision (3) of subsection (a) of section 16-50i, either as proposed or as modified by the council, unless it finds and determines a public benefit for the facility and considers neighborhood concerns with respect to the factors set forth in subdivision (3) of subsection (a) of this section, including public safety. . . .’’
Although