City of New Haven v. Public Utilities Commission

Decision Date15 January 1974
Citation345 A.2d 563,165 Conn. 687
CourtConnecticut Supreme Court
PartiesCITY OF NEW HAVEN et al. v. PUBLIC UTILITIES COMMISSION it al.

George C. Hastings, Hartford, with whom were Henry L. Fisher, James M. O'Connor and Peter B. Cooper, New Haven, and with whom on the brief, were Thomas F. Keyes, Corporation Counsel, S. Frank D'Ercole, Hartford, Stephen Darley and Louise G. Trubek, New Haven, for appellants (named plaintiff et al.).

Frederick D. Neusner, Asst. Atty. Gen., with whom were Righard L. Barger, Asst. Atty. Gen., and, on the brief, Robert K. Killian, Atty. Gen., for appellee (named defendant).

John D. Fassett, New Haven, with whom, on the brief, was Noel E. Hanf, New Haven, for appellee (defendant The United Illuminating Company).

Walter F. Torrance, Jr., Waterbury, for appellee (defendant The Connecticut Light and Power Company).

Before SHAPIRO, LOISELLE, MacDONALD, RUBINOW and DANNEHY, JJ.

SHAPIRO, Associate Justice.

This case involves an appeal from a judgment of the Court of Common Pleas based on its order modifying a supersedeas and on its dismissal of an appeal from a finding and order of the public utilities commission granting applications of The United Illuminating Company and The Connecticut Light and Power Company for approval of the construction of certain electrical transmission lines within the city of New Haven.

The material facts are as follows: On or about July 16, 1970, under the provisions of General Statutes § 16-243, 1 The United Illuminating Company, hereinafter called UI, made application to the public utilities commission, hereinafter called the P.U.C., for approval of the construction of a two-circuit, three phase 115-KV overhead electrical transmission line as part of the New England interstate grids from the UI Grand Avenue substation in New Haven to a new substation to be constructed at the site of the former Connecticut Coke Company, south of Waterfront Street in New Haven. These high voltage lines were to be situated on nineteen poles varying between 93 and 180 feet in height. On or about July 16, 1970, The Connecticut Light and Power Company, hereinafter called CL&P, made application to the P.U.C. for approval of the construction of a 345-KV/115-KV overhead electrical transmission line which was to be constructed between Totoket Junction in the town of North Branford and UI's proposed substation at the Coke Works site on the east shore of the New Haven harbor as part of the New England interstate grid. These high voltage lines within the city of New Haven were to be situated on poles varying between 85 and 165 feet in height. The PU.C. held public hearings with respect to these applications in Hartford on July 29, 1970, and in New Haven on september 23, 24, and 28, 1970. On December 1, 1971, the P.U.C. made and filed its finding and order approving the aforesaid applications, thereby permitting UI and CL&P to construct the high voltage overhead transmission lines within the territorial limits of New Haven, subject to P.U.C. approval of a plan for selective tree planting and cutting. The order also directed the defendants 'to do all reasonably possible to diminish the effect upon the beauty and natural resources for general aesthetic and ecological considerations.' The plaintiffs, pursuant to § 16-35, 2 appealed from this order to the Court of Common Pleas. 3 This appeal operated as a supersedeas of the P.U.C. order pursuant to § 16-39. 4 On February 16, 1972, UI and CL&P filed a motion for modification of the supersedeas which the court (McGuinness, J.) granted. Thereafter, the court (Hanrahan, J.) heard evidence on the issue of aggrievement and reviewed the certified record of the proceedings of the P.U.C. From a judgment dismissing the appeal, the plaintiffs have appealed to this court.

I

We first consider the motion for modification of the supersedeas. The plaintiffs have assigned error in the court's refusal to find certain facts recited in their draft finding on the claim that they were admitted or undisputed. They have also assigned error in several paragraphs of the court's finding. Neither assignment of error has been briefed and therefore they must be treated as abandoned. Jones Destruction, Inc. v. Upjohn, 161 Conn. 191, 193, 286 A.2d 308; Maltbie, Conn.App.Proc. Proc. § 327.

The court found the following facts: On December 1, 1971, the P.U.C. entered an order on the application of UI and CL&P, and on December 28, 1971, pursuant to § 16-35, and appeal was taken from that order. The appeal seeks review of the order only insofar as it authorizes construction of transmission lines within the city of New Haven. UI and CL&P, on February 16, 1972, filed a motion for modification of the supersedeas which followed as a result of the filing of the appeal pursuant to § 16-39. The modification was requested by motion dated February 16, 1972, so as to permit commencement prior to April 1, 1972, of construction of foundations for the towers to be located in New Haven which were included in the construction authorized by the P.U.C. After a hearing, the court on March 14, 1972, granted the motion and specifically authorized UI to construct three foundations with anchor bolts on property owned by it at English station in New Haven and CL&P to construct nine foundations with anchor bolts within its right-of-way in New Haven. Absent the granting of such order modifying the supersedeas, the plaintiffs, by filing their appeal, would have prevented the commencement of construction prior to April 1, 1972. If the court had denied the motion, the effect would have been to declare all of the prior proceedings a nullity. The original application to the P.U.C. was made in July, 1970, and it held extensive public hearings prior to rendering its order on December 1, 1971. To require UI and CL&P to proceed with another application under Public Act No. 575 of the 1971 session of the General Assembly 5 (now General Statutes §§ 16-50g-16-50w) with additional public hearings covering the same subject matter with the same opposition, followed by the appellate procedure provided therein, would place an undue burden on all the parties and result in an undue delay.

From the foregoing facts, the court concluded that §§ 16-50g-16-50w are not applicable to the facilities in question; that justice, equity, public safety and expediency required that the order of March 14, 1972, modifying the supersedeas be entered; and that such an order was required to prevent the plaintiffs, by the mere filing of their appeal, from delaying construction of the facilities beyond April 1, 1972, and thereby requiring further proceedings with respect to such facilities pursuant to §§ 16-50g-16-50w.

The plaintiffs make the claim that modification of the supersedeas was for the purpose of avoiding applicability of Public Act No. 575; that Public Act No. 575 may not be construed so as specifically to exempt the transmission lines in controversy from complying with its provisions; that the legislative history of the act indicates that the exemption for facilities under construction prior to April 1, 1972, was included only for the purpose of allowing the Power Facility Evaluation Council (established by § 16-50j) time to become administratively organized before accepting and acting upon applications; and that considerations concerning the location and method of construction of the transmission lines in controversy by the Power Facility Evaluation Council were properly within the scope of the act.

We are at once confronted by the question of applicability of Public Act No. 575, now chapter 277a of the General Statutes, as it may relate to the contemplated transmission lines. The language of § 16-50k(d) is explicit in stating: 'This chapter (277a) shall apply to any facility the construction of which is commenced on or after April 1, 1972 . . ..' (Emphasis added.) This language is to be construed according to commonly approved usage. General Statutes § 1-1. The word commence is defined to mean 'to begin; to enter upon; start; to initiate formally by performing the first act; to have a beginning.' Webster, Third New International Dictionary. Applying this usage to the present situation, we must conclude that § 16-50k(d) does provide a period of protection when, as in the present case, construction had commenced before April 1, 1972.

Our construction of the statute is fortified by its legislative history. The plaintiffs argue in their brief that the legislative record makes clear that the date of April 1, 1972, was inserted in Public Act No. 575 for administrative convenience only and not for the purpose of permitting construction to be commenced prior to April 1, 1972. During discussion of this bill on May 28, 1971, in the House of Representatives, one member stated: 'The effective date is now July 1, '71' for the promulgation of rules, but the commencement of the actual working side of the Bill . . . which will affect the utility companies, will be April 1, 1972.' Another member stated: 'The reason for the two effective dates . . . the one of July 1st and the other of April 1st . . . is on the one hand to give the Council (Power Facility Evaluation Council) time to come into action, to get appointed, to adopt its regulations, set up its mechanics and then hopefully by April 1st of next year they will have done all that and can begin to accept applications.' 14 H.R.Proc., Pt. 9, 1971 Sess., pp. 4020, 4022. Thus, contrary to the plaintiffs' claim, the language of Public Act No. 575 indicates that it does not affect construction commenced prior to April 1, 1972. We may take judicial notice of the discussion on the floor of the General Assembly. Harris v. Planning Commission0, 151 Conn. 95, 100, 193 A.2d 499.

The appendix to the UI and CL&P brief discloses that at the hearing on the motion for modification of the supersedeas, there was testimony given by the UI manager of engineering in...

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