Burton v. Conn. Siting Council

• Citation: 127 A.3d 1066,161 Conn.App. 329
• Decision Date: 17 November 2015
• Docket Number: No. 36799.,36799.
• Court: Connecticut Court of Appeals
• Parties: Nancy BURTON v. CONNECTICUT SITING COUNCIL et al.

161 Conn.App. 329

127 A.3d 1066

Nancy BURTON

v.CONNECTICUT SITING COUNCIL et al.

No. 36799.

Appellate Court of Connecticut.

Argued Sept. 11, 2015.

Decided Nov. 17, 2015.

Nancy Burton, self-represented, the appellant (plaintiff).

Robert L. Marconi, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (named defendant).

Bradford S. Babbitt, with whom, on the brief, was Kenneth C. Baldwin, Hartford, for the appellee (defendant Dominion Nuclear Connecticut, Inc.).

GRUENDEL, ALVORD and MULLINS, Js.

GRUENDEL, J.

The self-represented plaintiff, Nancy Burton, appeals from the judgment of the Superior Court dismissing, for lack of subject matter jurisdiction, her administrative appeal from a decision of the named defendant, the Connecticut Siting Council (council). The dispositive issue is whether the plaintiff had standing to pursue that appeal. We affirm the judgment of the Superior Court.¹

This case concerns the construction of an independent fuel storage facility (facility) for spent nuclear fuel at the Millstone Nuclear Power Station in Waterford (Millstone) by the defendant Dominion Nuclear Connecticut, Inc. (Dominion). In 2003, Dominion filed an application with the council for a certificate of environmental compatibility and public need in order to construct a dry storage facility pursuant to General Statutes § 16–50k. Connecticut Coalition Against Millstone v. Connecticut Siting Council, 286 Conn. 57, 61, 942 A.2d 345 (2008). At that time, Millstone utilized "wet storage to store both spent fuel and all the fuel in a reactor core in the event of the need for refueling, maintenance or emergency measures...." Id. Due to "dwindling space in the wet storage facilities," Dominion submitted that the construction of a "dry storage facility was necessary to compensate" therefor. Id.

In 2004, the council approved Dominion's application to complete all subsurface infrastructure work to accommodate 135 horizontal storage modules (modules) on the Millstone site. In addition, the council permitted Dominion to construct a concrete pad large enough to accommodate the installation of forty-nine modules. The council ordered Dominion to install those modules "in numeric order as identified in the record...." The council's approval also provided that Dominion could petition for permission to install additional modules in the future. Two parties who intervened in that proceeding pursuant to General Statutes (Rev. to 2011) § 22a–19 (a),² including the plaintiff, appealed that decision to the Superior Court, which ultimately dismissed the appeal. Connecticut Coalition Against Millstone v. Connecticut Siting Council, supra, 286 Conn. at 65, 942 A.2d 345. Our Supreme Court affirmed that judgment on appeal. Id., at 88, 942 A.2d 345.

On October 31, 2012, Dominion filed an application for "certain modifications to the existing [facility] and ... to install all remaining concrete pads to accommodate the full build-out of 135 [modules]." Significantly, Dominion did not seek approval to install any additional modules as part of this application, a distinction the council specifically noted in its findings of fact.

The plaintiff intervened in that administrative proceeding pursuant to § 22a–19 (a) and thereafter participated through the submission of interrogatories, direct testimony, cross-examination, and the introduction of various exhibits and motions. The council held a public hearing over the course of two days, conducted a site visit, and solicited comments from state agencies and nearby municipalities. In its May 2, 2013 decision, the council found that the proposed activity "would have no effect on wetlands or watercourses" and "would not significantly increase stormwater run-off from the site and no modifications to stormwater discharge structures would be required." The council noted that the facility was not within a flood hazard area and that "[n]o vegetation or habitats would be directly affected, as all modifications would be within previously disturbed and currently industrially maintained areas. The project would not affect any State or federally endangered, threatened, or special concern species." The council also found that "[t]he project is consistent with the provisions of the Connecticut Environmental Protection Act [ (CEPA), General Statutes § 22a–14 et seq. ], as it will not have the effect of unreasonably polluting, impairing, or destroying the public trust in the air, water or other natural resources of the state." It thus concluded that "the effects associated with the modification of the existing [facility], including the effects on the natural environment; ecological integrity and balance; public health and safety; scenic, historic, and recreational values; forests and parks; air and water purity; and fish and wildlife are not disproportionate either alone or cumulatively with other effects when compared to need, are not in conflict with the policies of the state concerning such effects, and not sufficient reason to deny this application to amend and modify" its prior approval of the facility. Accordingly, the council approved Dominion's application and ordered in relevant part that "[t]he Certificate Holder shall install a concrete pad large enough to accommodate 135 [modules]...." The council did not authorize the installation of any additional modules on that concrete pad.³

From that decision, the plaintiff timely appealed to the Superior Court. The operative complaint, the plaintiff's second amended complaint dated June 7, 2013, alleges that the council acted arbitrarily and capriciously in nine respects.⁴ Both Dominion and the council thereafter moved to dismiss the administrative appeal for lack of subject matter jurisdiction.⁵ By memorandum of decision dated March 11, 2014, the court concluded that the plaintiff lacked the requisite standing and thus dismissed the appeal. This appeal followed.

It is well established that "[a] party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim." (Internal quotation marks omitted.) Lewis v. Slack, 110 Conn.App. 641, 643, 955 A.2d 620, cert. denied, 289 Conn. 953, 961 A.2d 417 (2008). "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." (Internal quotation marks omitted.) Sadloski v. Manchester, 228 Conn. 79, 84, 634 A.2d 888 (1993), on appeal after remand, 235 Conn. 637, 668 A.2d 1314 (1995). "[T]he court has a duty to dismiss, even on its own initiative, any appeal that it lacks jurisdiction to hear.... Where a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause."⁶ (Citation omitted; internal quotation marks omitted.) Lewis v. Slack, supra, at 643–44, 955 A.2d 620.

"To be entitled to invoke the judicial process, a party must have suffered an aggrievement." Kelly v. Dearington, 23 Conn.App. 657, 660, 583 A.2d 937 (1990). "Two broad yet distinct categories of aggrievement exist, classical and statutory.... Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the [controversy], as opposed to a general interest that all members of the community share.... Second, the party must also show that the [alleged conduct] has specially and injuriously affected that specific personal or legal interest.... Statutory aggrievement ... exists by legislative fiat.... In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) McWeeny v. Hartford, 287 Conn. 56, 64–65, 946 A.2d 862 (2008). "[T]he question of whether the pleadings set forth sufficient facts, if presumed true, to establish a party's aggrievement presents a question of law over which we exercise plenary review." Connecticut Independent Utility Workers, Local 12924 v. Dept. of Public Utility Control, 312 Conn. 265, 273, 92 A.3d 247 (2014). With those principles in mind, we turn to the question of whether the court properly concluded that the plaintiff lacked standing to maintain this administrative appeal.

I

At the outset, we note what is not in dispute. In her complaint, the plaintiff did not specify whether her appeal was brought pursuant to CEPA or the Uniform Administrative Procedure Act (UAPA), General Statutes § 4–166 et seq. With respect to the latter, our Supreme Court has explained that "[b]ecause the UAPA does not, by itself, render the plaintiffs statutorily aggrieved for standing purposes," a party must establish that it is classically aggrieved. Financial Consulting, LLC v. Commissioner of Insurance, 315 Conn. 196, 227, 105 A.3d 210 (2014) ; see also Bingham v. Dept. of Public Works, 286 Conn. 698, 704, 945 A.2d 927 (2008) ("the UAPA ... requires that the appealing party be aggrieved in order to bring the appeal"). In its memorandum of decision, the court found that the plaintiff was not classically aggrieved because she failed to allege a specific, personal and legal interest in the subject matter of the decision rendered by the council, rather than a general interest shared by members of the community. See Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 486, 815 A.2d 1188 (2003). The plaintiff in this appeal does not contest the propriety of that determination. Accordingly, our consideration of the question of the plaintiff's standing is confined to whether the allegations of her operative complaint establish statutory aggrievement under CEPA.

II

Although "[t]raditionally, citizens seeking to protect the environment were required to show...