Miller's Pond Co. v. City of New London

Decision Date07 June 2005
Docket NumberNo. 17166.,17166.
Citation873 A.2d 965,273 Conn. 786
CourtConnecticut Supreme Court

Ben A. Solnit, New Haven, for the appellants (plaintiffs).

Michael P. Carey, New London, with whom was John J. Radshaw III, Hartford, for the appellees (defendants).



The principal issue in this appeal is whether the trial court properly determined that the defendants, the city of New London (city), the New London water and water pollution control authority (New London water authority), the town of Waterford, and the Waterford water pollution control authority (Waterford water authority), are immune from antitrust liability under General Statutes ž 35-31(b)1 because their alleged anticompetitive activities were "specifically directed or required" by statute with respect to the wholesale water market in the New London area. The plaintiffs, Miller's Pond Company, LLC (Miller's Pond Company), Gary Saunders and Thomas Schacht,2 appeal3 from the judgment of the trial court following its grant of the defendants' motion for summary judgment. They contend that the trial court improperly: (1) applied ž 35-31(b), which exempts certain activities from the Connecticut Antitrust Act, General Statutes ž 35-24 et seq., when those activities are "specifically directed or required by a statute of this state, or of the United States," to the facts of the present case; and (2) granted the defendants' motion for summary judgment because there are unresolved factual issues about the definition of the relevant market. As an alternate ground for affirming the trial court's decision, the defendants contend that General Statutes ž 35-44b4 requires us to apply the broader federal case law principles governing state action antitrust immunity that have evolved from the United States Supreme Court decision in Parker v. Brown, 317 U.S. 341, 350-51, 63 S.Ct. 307, 87 L.Ed. 315 (1943). We reverse the judgment of the trial court and remand the case for further proceedings.

The record reveals the following facts and procedural history.5 The defendants own water sources and water treatment, transmission and distribution facilities that serve the city, Waterford and other parts of southeastern Connecticut; the New London water authority and the Waterford water authority are the "two dominant water utilities" in southeastern Connecticut. The defendants own every source of freshwater and all related supply facilities that are located within their municipal borders and "capable of serving the [r]egion," except for Miller's Pond (pond), an approximately seventy-seven acre manmade lake located in the northeastern corner of Waterford. Miller's Pond Company owns and has exclusive riparian rights to the pond, which is served by several tributaries and receives water from a 9.83 square mile watershed, making it "the only significant untapped surface fresh water reservoir capable of supplying the relevant geographic market served by the defendants." That relevant market consists of the city, Waterford and portions of Montville and East Lyme, and may be expanded to include Groton, Ledyard, Preston and Norwich upon completion of a planned water interconnection loop.

Since 1988, the plaintiffs have been seeking to sell or develop the pond as a water source for utilities in the region or as a private water supply for industrial or recreational facilities. Indeed, in 1998, Miller's Pond Company entered into an agreement with the Connecticut Water Company to develop the sale and distribution of either raw or treated water from the pond in the New London region. The potential market in the region is controlled, however, by the defendants.

The city previously had supplied water to Waterford from sources owned and controlled by the city until December, 1986, when the long-term supply contract expired. During renegotiations of that agreement, Waterford informed the city that it intended to develop its own water supply system using the pond as the primary water source. The city opposed this plan, and in April, 1988, it imposed a moratorium on new water connections in Waterford, which was to remain in place until Waterford signed a new water service agreement with the city. Thereafter, Waterford abandoned its efforts to supply its water independently and, in October, 1988, it signed a new agreement for a term of forty-eight years (1988 agreement).

The 1988 agreement defined the water supply relationship between the city and Waterford. Its stated purpose is "to provide the terms and conditions pursuant to which (1) the [c]ity will supply water to water consumers in [Waterford]; (2) other municipalities in New London County may have the opportunity to receive water from the [c]ity through the [s]upply [f]acilities, [t]ransmission [f]acilities and [d]istribution [f]acilities in [Waterford] and the [c]ity; and (3) the [c]ity and [Waterford] will negotiate in good faith toward the goal of a[r]egional [w]ater and/or [s]ewer [s]ystem. This [a]greement provides for the use of the [d]istribution [f]acilities in [Waterford] and for the use of the [s]upply [f]acilities and [t]ransmission [f]acilities owned or controlled by the [c]ity to provide water to water consumers in [Waterford]." The agreement also states that "[t]he [c]ity and [Waterford] will use their best efforts to deter the construction and operation of new [i]ndependent [w]ater [s]ystems in the [c]ity and [Waterford] respectively."6 The 1988 agreement defines an "`[i]ndependent [w]ater [s]ystem'" as "any private water company or system, private community water system, or private community well serving more than one water consumer."

The city also has an agreement to supply water to portions of the town of Montville. By its terms, the agreement required Montville to enter into a separate agreement with Waterford for the use of Waterford supply facilities needed for the city to deliver water to Montville.7 Waterford and Montville entered into this agreement in April, 1990 (1990 agreement). The 1990 agreement has several conditions that, inter alia, permit Montville to develop its own water sources only if that "development or purchase does not result in material depletion of any water resources of Waterford [or the city] which are presently planned or existing; and ... does not result in material depletion of any water resources of Waterford or [the city] which come into existence in the future and are located outside of Montville." The pond is the only property not already owned by the defendants that is subject to the restriction in the 1990 agreement, and the plaintiffs claim that the conditions in the 1990 agreement restrict their ability to market the pond to Montville as a regular or emergency water supply.

In regulatory submissions to the department of public health addressing planning matters, both Waterford and the city have recognized the pond as an existing or future component of their water supply systems. The city included the pond in its plan in 1988 as a direct response to a notice from a realtor that the pond might be offered for sale on the open market.

As previously noted, the plaintiffs have been attempting to develop the pond either as a water source for the region or as a private supply for industrial or recreational facilities since 1988. They allege, however, that the defendants have, in accordance with the "best efforts to deter the construction and operation of new [i]ndependent [w]ater [s]ystems" clause in the 1988 agreement, interfered with their development efforts in a variety of ways. For example, in December, 1998, the plaintiffs and representatives from the Connecticut Water Company met with the New London water authority and offered to enter into an agreement to sell water to the city. The city rejected this offer and refused to deal; in February, 1999, the chief administrator of the New London water authority threatened to use eminent domain proceedings if the plaintiffs did not sell the pond to the city.8 In April, 2000, Waterford, in accordance with its officials' understanding of the "best efforts" clause in the agreement, similarly refused to deal with the plaintiffs.

In February, 1998, the city filed an application with the department of environmental protection to divert waters from Hunts Brook, which is located upstream from the pond. Had that department granted this application, it would have reduced the flow of water into the pond by approximately 8 million gallons per day, and reduced the safe yield of the pond by one third. In May, 1998, the plaintiffs announced their intention to develop the pond similarly, and subsequently, in November, 1998, they filed their own application with the department of environmental protection to develop the pond as a regional water supply source and to dredge the valuable sand and gravel deposits from the basin. The department of environmental protection rejected this application without prejudice in October, 1999, because neither the city nor Waterford, as potential users of the water, had agreed to endorse the plaintiffs' application or join it.

In December, 1998, the department of environmental protection informed the city that its diversion application was incomplete, and instructed it to report on alternatives to the diversion of Hunts Brook, including obtaining water from the pond as well as from other nearby towns such as Groton and Norwich.9 Consistent with the 1988 agreement, the city has continued to refuse to discuss obtaining water from the pond, the plaintiffs or the Connecticut Water Company.

In January, 1999, the plaintiffs attended a public information meeting at Waterford town hall that was held in conjunction with the department of environmental protection permitting process. The day after that meeting, the plaintiffs met with Waterford's first...

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