Fairwindct, Inc. v. Conn. Siting Council

• Decision Date: 23 September 2014
• Docket Number: Nos. 19090,19091.,s. 19090
• Citation: 99 A.3d 1038,313 Conn. 669
• Court: Connecticut Supreme Court
• Parties: FAIRWINDCT, INC., et al. v. CONNECTICUT SITING COUNCIL et al.

313 Conn. 669

99 A.3d 1038

FAIRWINDCT, INC., et al.

v.CONNECTICUT SITING COUNCIL et al.

Nos. 19090

19091.

Supreme Court of Connecticut.

Argued Feb. 21, 2014.

Decided Sept. 23, 2014.

Emily A. Gianquinto, with whom were Nicholas J. Harding and Mary E. Mintel, Hartford, for the appellants (plaintiffs).

Clare E. Kindall, assistant attorney general, with whom were Robert L. Marconi, assistant attorney general, and, on the brief, George Jepsen, attorney general, for the appellee (named defendant).

Michael A. Kurs, with whom were Lee D. Hoffman, Hartford, and Paul Corey, for the appellee (defendant BNE Energy, Inc.).

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, ESPINOSA and ROBINSON, Js.

Opinion

ROBINSON, J.

This appeal arises from two petitions for declaratory rulings that the defendant BNE Energy, Inc. (BNE), submitted to the named defendant, the Connecticut Siting Council (council). In the petitions, BNE sought the council's approval for the construction and operation of three electric generating wind turbines at two separate sites in the town of Colebrook. The plaintiffs, FairwindCT, Inc. (FairwindCT), Stella Somers, Michael Somers and Susan Wagner, were granted party status by the council and also intervened in the proceedings on the petitions pursuant to General Statutes (Supp.2014) § 22a–19.¹ The council approved both petitions with conditions. The plaintiffs appealed from each of the council's rulings pursuant to General Statutes § 4–183, and the trial court dismissed the appeals.

These appeals followed.² The plaintiffs claim on appeal that the trial court incorrectly determined that: (1) the council had jurisdiction over BNE's petitions pursuant to General Statutes (Supp.2014) § 16–50k (a) ;³ (2) the council was authorized to attach conditions to its approval of the petitions; (3) the council was authorized to approve the petitions if the proposed projects did not comply with state noise law; (4) the council's approval of eighty meter hub heights for one of the projects was supported by substantial evidence; and (5) the council did not deprive the plaintiffs of their right to fundamental fairness during the hearings on the petitions. We affirm the judgments of the trial court.

The record reveals the following procedural history and facts that were found by the trial court or that are undisputed. On December 6, 2010, pursuant to § 16–50k (a)⁴ and General Statutes § 4–176(a),⁵ BNE submitted a petition to the council seeking a declaratory ruling that it could construct and operate three 1.6 megawatt wind turbines at 29 Flagg Hill Road and 17 Flagg Hill Road in Colebrook (Colebrook South project), without first obtaining a certificate of environmental compatibility and public need (certificate). On December 13, 2010, BNE submitted a similar petition for the construction and operation of three 1.6 megawatt wind turbines on property located at the intersection of Route 44 and Rock Hall Road in Colebrook (Colebrook North project). In both petitions, BNE claimed that it was not required to obtain certificates because the projects were “grid-side distributed resources ... facilit[ies]” for purposes of General Statutes (Supp.2014) § 16–50k (a).

FairwindCT was formed by several Colebrook residents for the purpose of educating the public about the regulation and operation of industrial wind generation projects in Connecticut. Stella Somers and Wagner are officers and directors of FairwindCT. Stella Somers and her husband, Michael Somers, own a resort hotel known as Rock Hall, which is located approximately one-half mile from the Colebrook North project and one and one-half miles from the Colebrook South project.

Wagner owns residential property that abuts the Colebrook North project and is within one mile of the Colebrook South project. The council granted the plaintiffs' requests for party status in the proceedings on BNE's petitions pursuant to General Statutes §§ 4–177a⁶ (a) and 16–50n (a),⁷ and the plaintiffs also intervened in the proceedings pursuant to § 22a–19 (a)(1),⁸ which is part of the Connecticut Environmental Protection Act (CEPA).

The council held public hearings on the Colebrook South project during March and April, 2011, and on the Colebrook North project during April and May, 2011. The plaintiffs participated in the hearings and submitted testimony and documentary evidence in support of their position that BNE had failed to establish that the proposed projects would comply with state noise law and governing water quality standards or that the projects would not have an adverse environmental impact. The council ultimately granted both of BNE's petitions, with conditions.⁹ The plaintiffs appealed from the council's rulings to the trial court pursuant to § 4–183(a). After conducting an evidentiary hearing, the trial court dismissed the appeals, and these appeals followed.¹⁰

We address each of the plaintiffs' claims on appeal in turn. Additional facts and procedural history will be set forth as necessary.

I

The plaintiffs first claim that the trial court incorrectly determined that the council had jurisdiction over BNE's petitions because the projects are neither “grid-side distributed resources project[s]” nor “facilit[ies]” for purposes of General Statutes (Supp.2014) § 16–50k (a).¹¹ See General Statutes (Supp.2014) § 16–50k (a)council can approve by declaratory ruling any “grid-side distributed resources project or facility”). We conclude that the trial court properly concluded that the council had jurisdiction over BNE's petitions because the projects were “facilit[ies]” for the purpose of § 16–50k (a).

The following additional procedural history is relevant to our resolution of this claim. The council determined that it had jurisdiction over the petitions pursuant to § 16–50k (a) because they were grid-side distributed resource projects with a capacity of not more than sixty-five megawatts and used “wind renewable energy sources.” On appeal to the trial court, the plaintiffs contended that the Colebrook North and Colebrook South projects were not “facilit[ies]” for purposes of § 16–50k (a) because “ ‘[f]acility’ ” is defined by General Statutes § 16–50i(a)(3) to include “any electric generating or storage facility using any fuel,” and wind is not a fuel.¹² The trial court concluded that wind is a fuel and rejected this claim. In support of this conclusion, the trial court relied on General Statutes (Rev. to 2009) § 16–1(a)(22), which defines “ ‘[r]enewable fuel resources' ” as “energy sources described in [subdivision] (26) ... of this subsection,” which, in turn, defines “ ‘[c]lass I renewable energy source’ ” to include “wind power....” General Statutes (Rev. to 2009) § 16–1(a)(26)(A). The trial court also observed that General Statutes (Rev. to 2009) § 16a–17 (1), which is located in chapter 296 of title 16a and governs the operation of fuel supply businesses, defines “ ‘[f]uel’ ” to include “any ... resource yielding energy....” The plaintiffs challenge this conclusion on appeal to this court.

We begin our analysis with the standard of review. “Although the interpretation of statutes is ultimately a question of law ... it is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement.... Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts.” (Internal quotation marks omitted.) Wheelabrator Lisbon, Inc. v. Dept. of Public Utility Control, 283 Conn. 672, 691, 931 A.2d 159 (2007). It is also well established “that courts should accord deference to an agency's formally articulated interpretation of a statute when that interpretation is both time-tested and reasonable.” Longley v. State Employees Retirement Commission, 284 Conn. 149, 166, 931 A.2d 890 (2007).

This court also has held, however, that “when a state agency's determination of a question of law has not previously been subject to judicial scrutiny ... the agency is not entitled to special deference.... Wallingford v. Dept. of Public Health, 262 Conn. 758, 771–72, 817 A.2d 644 (2003) ; see Bridgeport Hospital v. Commission on Human Rights & Opportunities, 232 Conn. 91, 109, 653 A.2d 782 (1995) (the factual and discretionary determinations of administrative agencies are to be given considerable weight by the courts ... [but] it is for the courts, and not for administrative agencies, to expound and apply governing principles of law ...).” (Internal quotation marks omitted.) Wheelabrator Lisbon, Inc. v. Dept. of Public Utility Control, supra, 283 Conn. at 691, 931 A.2d 159. Because the council's interpretation of the phrase “grid-side distributed resources project or facility” as used in § 16–50k (a) is not time-tested and has not previously been subject to judicial review, we conclude that our review is plenary.¹³

In determining the scope of the council's authority under § 16–50k (a), “we are guided by fundamental principles of statutory construction.” In re Matthew F., 297 Conn. 673, 688, 4 A.3d 248 (2010) ; see General Statutes § 1–2z.¹⁴ “[O]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.” (Internal quotation marks omitted.) Testa v. Geressy, 286 Conn. 291, 308, 943 A.2d 1075 (2008).

The plaintiffs claim that the legislature intended to exclude from the scope of § 16–50i(a)(3) any electric generating facility that does not use fuel. General Statutes § 16–50i(a)(3) (defining “ ‘[f]acility’ ” to include “any electric generating or storage facility using any fuel, including nuclear materials”). Section 16–50i(a)(3)(iii) expressly excludes from the definition of “ [f]acility,' ” however, certain types of electric generating facilities that, “in the case of a facility utilizing renewable energy sources, [have] a generating capacity of one megawatt of...