Gimbel v. Loughlin, 115540

• Decision Date: 22 April 1968
• Docket Number: No. 115540,115540
• Citation: 28 Conn.Supp. 72,250 A.2d 329
• Court: Connecticut Superior Court
• Parties: , 78 P.U.R.3d 275 Harold GIMBEL et al. v. Eugene S. LOUGHLIN et al.

Page 329

250 A.2d 329

28 Conn.Supp. 72, 78 P.U.R.3d 275

Harold GIMBEL et al. v. Eugene S. LOUGHLIN et al.

No. 115540.

Superior Court of Connecticut, New Haven County, at New Haven.

April 22, 1968.

Sachs, Sachs, Giaimo & Sachs, New Haven, for plaintiffs.

Wiggin & Dana, New Haven, for defendant The United Illuminating Co.

Robert K. Killian, Atty. Gen., and John K. Jepson, Asst. Atty. Gen., for defendants Eugene S. Loughlin and others (Public Utilities Commission).

FITZ GERALD, Judge.

This is an appeal ^* by four individuals, all residents of the town of Woodbridge from a finding and order issued by the public utilities commission on October 30, 1967, approving an application by The United Illuminating Company for permission to construct a two-circuit 115 KV electric transmission line from the site of a new substation to be constructed at June Street and Hazel Terrace in the town of Woodbridge to a connection with an existing transmission line near Pease Road in that town. The site of the substation and the plan for such a structure were approved by the Woodbridge town plan and zoning commission in 1966 pursuant to its power under § 16-235 of the General Statutes. No appeal from that decision was taken by any person to the public utilities commission as permitted by the statute, and, accordingly, no issues regarding the substation are involved on the present appeal. Similarly, no issues are presented in this case regarding acquisition of the necessary right of way for the line, amounting to approximately 4100 feet, since the utility acquired the necessary property by purchases without employment of its power of eminent domain. Cf. Connecticut Power Co. v. Powers, 142 Conn. 722, 118 A.2d 304 (1955).

In approving the application for construction of the transmission line, the commission acted pursuant to § 16-243 of the General Statutes, which grants to it exclusive jurisdiction 'over the method of construction or reconstruction' of 'wires, poles, conductors and fixtures' for the transmission of electricity. Plaintiffs do not challenge the existence of such an exclusive jurisdiction in the commission, and they have admitted that a full and fair public hearing in which they were afforded every reasonable opportunity to participate was held by the commission before entering its order.

In their clmplaint, plaintiffs specify five respects in which they allege that the commission 'acted illegally, arbitrarily and unreasonably and exceeded or abused the statutory power and authority conferred upon it.' The last of these claims challenges the failure of the commission to require that the transmission line be constructed underground; the third claim alleges that the commission failed to consider 'the adverse effect upon the area' in approving the application for overhead construction of the line; and the remaining three claims all relate to plaintiffs' contention that the commission did not require the applicant to make and present sufficient studies regarding the cost of installing the line underground. Only this last contention was mentioned in plaintiffs' brief, where they state their claim as follows: 'The plaintiffs do not deny the authority of the commission to permit the construction of such overhead lines after requiring and hearing adequate evidence thereon. It is the position of the plaintiffs, however, that the commission acted unlawfully in permitting such construction without first having before it sufficient evidence as to alternative methods of installation.'

Neither before the commission nor on this appeal have plaintiffs suggested that the route of the approved transmission line is other than the shortest and most practical one feasible, and they have not challenged the commission's finding that construction of the line is necessary to provide the bulk electric power supply required for the utility applicant to continue furnishing adequate and reliable electric service to a rapidly growing portion of its franchise area.

The jurisdiction of the court over this appeal is conferred by § 16-35 of the General Statutes; § 16-37 thereof specifies the procedure on such an appeal. In Anthony Augliera, Inc. v. Loughlin, 149 Conn. 478, 481-482, 181 A.2d 596, 599 (1962), the scope of review and the procedure on such an appeal were summarized by our Supreme Court as follows: 'Under § 16-37, the court reviews, on a certified record, the proceedings of the commission, examines the legality of the order, authorization or decision appealed from and its propriety and expediency so far as the court has cognizance of the subject, and proceeds in the same manner as on complaints for equitable relief. The court cannot substitute its discretion for that legally vested in the commission but determines on the record whether there is a logical and rational basis for the decision of the commission or whether, in the light of the evidence, it has acted illegally or in abuse of its discretion. A plaintiff has the burden of proof as to the existence of any abuse.'

In City of Rockville v. Public Utilities Commission, 146 Conn. 1, 5, 146 A.2d 916, 918 (1958), it was held that '(u)pon such an appeal, the only question before the court is whether the commission acted illegally or in excess or abuse of its powers'; and in the absence of a finding the desirability that the reviewing court specify in its memorandum 'the legal conclusions upon which it based its judgment' was indicated. See, also, Wilson Point Property Owners Assn. v. Connecticut Light & Power Co., 145 Conn. 243, 252, 140 A.2d 874 (1958); Kram v. Public Utilities Commission, 126 Conn. 543, 550, 12 A.2d 775 (1940).

Only aggrieved persons may appeal under § 16-35 of the General Statutes; and the defendants in their answers have denied the plaintiffs' allegations of aggrievement. Upon the hearing of this appeal the court, relying on the analogy of the procedure followed upon appeals from certain other administrative agencies (see I. R. Stich Associates, Inc. v. Town Council, 155 Conn. 1, 229 A.2d 545 (1967); cf. Maloney v. Taplin, 154 Conn. 247, 224 A.2d 731 (1966), over the objection of counsel for the commission permitted the plaintiffs to introduce evidence claimed by them to support their status as aggrieved persons. The testimony of the plaintiff Gimbel disclosed that he claims aggrievement as a result of the commission's order based on his ownership at the time of the court hearing (February 21, 1968) of an option to purchase certain property adjoining the right of way of the transmission line, on which property he hopes to build a large motel. It appears that the option in question, the grantee of which is 'Investment Associates, Inc.,' and not the plaintiff Gimbel, had not been fully executed at the time of the hearing before the commission and that it had not even been partially executed until more than two months subsequent to the filing with the commission of the application for approval to construct the transmission line.

The three other plaintiffs are owners of residences on the only highway crossed by the line throughout its entire distance of approximately 4100 feet. The two that testified admitted that each of their reasons for objecting to the overhead construction of the transmission line had been submitted to the commission and rejected by it. As discussed in more detail hereinafter, a review of the entire record clearly discloses that the commission acted well within its discretion in rejecting each of these plaintiffs' claims since they produced no evidence to support their claims and there was substantial evidence to the contrary. The court is impelled to conclude that none of the plaintiffs have established that their individual interests are sufficiently affected adversely by the commission's order to make them aggrieved parties within the meaning of § 16-35. In view, however, of the obvious public interest in facilitating an expeditious resolution of this litigation, the court will, despite the foregoing conclusion, assume that at least one of the plaintiffs is sufficiently aggrieved by the commission's order to warrant consideration by the court of the merits of the appeal.

As previously noted, the only claim pressed by the plaintiffs in their brief is 'that the commission acted unlawfully in permitting such construction without first having before it sufficient evidence as to alternative methods of installation.' Plaintiffs' abandonment of other claims is shown by their statement at the conclusion of their brief of the specific relief they now request on this appeal, to wit, that the court vacate and set aside the commission's order and direct the commission 'to institute supplementary proceedings after necessary and proper tests to determine the actual cost to the United Illuminating Company of locating the said high voltage transmission lines under the ground, and after a study of other alternatives or other methods of connecting the power flow, and by ordering such other and further relief as this court shall deem proper.'

A demonstration that the apparently abandoned claims were without any merit does not require an extended discussion. In delegating exclusive jurisdiction over the construction and reconstruction of facilities for the transmission of electricity to the public utilities commission (§ 16-243), the General Assembly obviously recognized the desirability that an agency with state-wide jurisdiction and with expertise in the field have exclusive power and responsibility in such area. The wisdom of this decision by the General Assembly is apparent when one notes some of the problems that have arisen in other jurisdictions which had statutes which did not delineate as clearly as does § 16-243 the allocation of...