Citizens Against Pollution Northwest, Inc. v. Connecticut Siting Council

• Decision Date: 15 January 1991
• Docket Number: No. 14042,14042
• Citation: 584 A.2d 1183,217 Conn. 143
• Court: Connecticut Supreme Court
• Parties: CITIZENS AGAINST POLLUTION NORTHWEST, INC. v. CONNECTICUT SITING COUNCIL et al.

Page 1183

584 A.2d 1183

217 Conn. 143

CITIZENS AGAINST POLLUTION NORTHWEST, INC. v. CONNECTICUT SITING COUNCIL et al.

No. 14042.

Supreme Court of Connecticut.

Argued Nov. 6, 1990.

Decided Jan. 15, 1991.

Wesley W. Horton, with whom was Jeffrey A. Hoberman, Hartford, for appellant (plaintiff).

Phyllis E. Lemell, Asst. Atty. Gen., for appellee (named defendant).

Lewis K. Wise, Hartford, for appellee (defendant Bio-Gen Torrington Partnership).

Before PETERS, C.J., and GLASS, SANTANIELLO, FRANCIS X. HENNESSY and MENT, JJ.

GLASS, Associate Justice.

The sole issue in this appeal concerns the applicability and the effective date of Public Acts 1988, No. 88-317 (act), that substantially revised chapter 54 of the General Statutes, the Uniform Administrative Procedure Act (UAPA). Our specific focus is upon the applicability of the provision of the act extending the time period for service of an appeal from the decision of an administrative agency. The trial court determined that the act was inapplicable to the plaintiff's administrative appeal, and accordingly dismissed the appeal for lack of subject matter jurisdiction in view of the plaintiff's failure to serve the appeal within the required time period under the UAPA prior to its revision by the act. We conclude that the trial court properly determined that the act was inapplicable to the plaintiff's appeal, and we therefore affirm the judgment of dismissal.

The relevant facts are as follows. On December 5, 1988, the defendant Bio-Gen Torrington Partnership (Bio-Gen) applied to the named defendant, the Connecticut Siting Council (council), for a certificate of environmental compatibility and public need for its proposed electricity generating facility. See General Statutes § 16-50l. In February, March, April and May of 1989, the council held public hearings concerning the application. Bio-Gen appeared in the hearings as a party, and the council designated the city of Torrington, the towns of Harwinton and Litchfield, the Farmington River Watershed Association, Inc., the Sons of Jacob Cemetery Association, Inc., and Terence Delaney as additional parties of record. The plaintiff, Citizens Against Pollution Northwest, Inc. (CAP), became a party to the hearings by way of intervention, as did Alan DiCara and the Honorable Nancy Johnson.

On November 22, 1989, the council rendered its decision granting Bio-Gen's application. On November 30, 1989, the council mailed copies of its decision to all parties of record. Forty-three days later, on January 12, 1990, CAP appealed from the council's decision to the Superior Court. On the same date, CAP served copies of the appeal upon all parties of record. ¹

Thereafter, Bio-Gen and the council moved to dismiss the appeal, alleging that the court lacked subject matter jurisdiction because CAP had failed to serve copies of the appeal upon all parties of record within thirty days of the mailing of the council's decision as required by General Statutes § 4-183(b). ² CAP opposed the motions on the ground that its appeal was governed by § 23(c) ³ of the act, which replaced the thirty day period for service in § 4-183(b) with a forty-five day period, within which period all record parties had been served. The court found that because the agency proceedings that were the subject of CAP's appeal had commenced when Bio-Gen applied to the council for the certificate on December 5, 1988, § 4-183(b) prior to its amendment by the act governed the time period for service of the appeal. Since CAP had served its appeal thirteen days after the expiration of the thirty day period under that statute, the trial court dismissed the appeal for lack of jurisdiction. ⁴

CAP appealed to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023. The sole issue raised by CAP in this appeal is whether the trial court properly concluded that § 4-183(b) as it existed prior to its amendment by the act, rather than § 23(c) of the act, governs the time period for service of CAP's administrative appeal.

The act either revised or repealed almost all of the prior provisions of the UAPA. Among the various provisions revised were those controlling the time period for service of appeals from administrative decisions upon state agencies and record parties. Before its revision by the act, § 4-183(b) ⁵ permitted an aggrieved person to appeal from the final decision of an agency within forty-five days of the mailing of notice of that decision, provided that copies of the appeal were served upon the agency and record parties within thirty days of the mailing of notice of the decision. Section 23(c) ⁶ of the act, codified as § 4-183(c), replaced the above provisions of § 4-183(b) with a forty-five day time period for both the filing of an administrative appeal and service of the appeal upon all parties of record. Because CAP did not serve all record parties until the forty-third day after the mailing of notice of the agency's final decision, it is clear that unless the act applies to CAP's appeal, the appeal was not served in a timely manner under § 4-183(b) as it existed before its revision by the act, and accordingly, that the dismissal of the appeal by the trial court was proper.

CAP claims that the act applies to its appeal for two reasons. First, CAP argues that the act applies by virtue of the first clause of § 107 of the act, which section provides in its entirety: "This act shall take effect July 1, 1989, and shall be applicable to all agency proceedings commenced on or after such date." According to CAP, the first clause of § 107 deems all of the provisions of the act concerning appellate review of administrative decisions applicable to appeals from such decisions rendered on or after July 1, 1989, without regard to the date that the underlying agency proceedings commenced. As for the second clause of § 107, CAP contends that it governs only the application of the provisions of the act concerning "agency proceedings." Since subsequent appellate review is not itself a part of agency proceedings, CAP maintains the second clause of § 107 does not limit the application of § 23(c) to those cases where the underlying agency proceedings had commenced on or after July 1, 1989.

CAP's second argument in support of the claimed applicability of the act rests primarily upon our decision in Chieppo v. Robert E. McMichael, Inc., 169 Conn. 646, 363 A.2d 1085 (1975). According to CAP, Chieppo establishes a general rule that the process of an appeal is not controlled by the statute in effect on the date the events that gave rise to the appeal occurred, but rather, by the statute in effect on the date that the decision appealed was rendered. Because the administrative decision appealed in this case was rendered after July 1, 1989, CAP contends that the act governs the process of its appeal from that decision, and hence the time period in which copies of its appeal were required to be served. We find both of CAP's arguments unavailing.

CAP's argument that the first clause of § 107 renders the provisions of the act concerning appellate review applicable to administrative appeals without regard to the date that the underlying agency proceedings commenced was advanced by the plaintiffs in Vernon Village, Inc. v. Commissioner of Environmental Protection, 217 Conn. 130, 585 A.2d 76 (1990). As in this case, the agency proceedings that culminated in the decision appealed in Vernon Village, Inc., had commenced before July 1, 1989. In both cases the agency rendered its final decision after July 1, 1989, and an appeal subsequently was filed in the Superior Court. Like the plaintiff in this case, the plaintiffs in Vernon Village, Inc., urged that the first clause of § 107 independently governed the applicability of all of the sections of the act concerning appellate review of administrative decisions. The plaintiffs also maintained that such sections were excluded from the scope of the second clause of § 107, as well as § 24(a), ⁷ because the application of these provisions was limited to "agency proceedings," and thus did not extend to "court proceedings" involved in appellate review.

In Vernon Village, Inc., we rejected the interpretation of the first clause of § 107 proposed by the plaintiffs as inconsistent with the second clause of § 107 and § 24(a) of the act, and as a consequence, at odds with the manifest intent of the legislature to provide a single standard for determining the application and the effective date of the act in all cases. That standard, we held, "is tied to the date that the underlying agency proceedings commenced, and in cases where such proceedings had commenced before July 1, 1989, the effective date of the act, the act is inapplicable." Id., at 138, 585 A.2d 76. We also determined that construing the term "agency proceedings" in a literal fashion would effectively read the provisions of the act concerning appellate review out of the act, a result certainly not intended by the legislature. Id., at 139, 585 A.2d 76. Consequently, we concluded, as did the trial court, that the act was inapplicable to the plaintiffs' administrative appeal because the underlying agency proceedings had commenced before July 1, 1989. We affirmed the judgment of dismissal in light of the plaintiffs' failure to comply with the law as it existed before its revision by the act. Id., at 142, 585 A.2d 76.

CAP concedes that the agency proceedings involved in this case had commenced before July 1, 1989. It is also undisputed that service of CAP's appeal had occurred beyond the expiration of the time period for service in § 4-183(b) prior to its revision by the act. We conclude that in this case, as in Vernon Village, Inc., the fact that the agency proceedings had commenced before July 1, 1989, renders the act inapplicable to CAP's appeal. Therefore, the trial court properly dismissed the appeal for lack of subject matter...