Town of Fairfield v. Connecticut Siting Council

• Decision Date: 19 June 1995
• Docket Number: No. 13094,13094
• Citation: 656 A.2d 1067,37 Conn.App. 653
• Court: Connecticut Court of Appeals
• Parties: TOWN OF FAIRFIELD et al. v. CONNECTICUT SITING COUNCIL et al.

Page 1067

656 A.2d 1067

37 Conn.App. 653

TOWN OF FAIRFIELD et al. v. CONNECTICUT SITING COUNCIL et al.

No. 13094.

Appellate Court of Connecticut.

Argued Oct. 25, 1994.

Decided April 25, 1995.

Certification Granted June 19, 1995.

Linda M. Guliuzza, New Haven, for appellants (plaintiffs).

Mark F. Kohler, Asst. Atty. Gen., with whom, on brief was Richard Blumenthal, Atty. Gen., for appellee (named defendant).

Anthony M. Fitzgerald, New Haven, for appellee (defendant Connecticut Light and Power Co.).

Before DUPONT, C.J., and LAVERY and HEIMAN, JJ.

LAVERY, Judge.

The plaintiffs appealed to the trial court from the defendant Connecticut Siting Council's (council) denial of their requests for a reversal or modification under General Statutes § 4-181a(b) of the council's certification of environmental compatibility and public need for the construction of an electric transmission line. The council denied that request because it found no changed conditions. The trial court granted the defendants' motions to dismiss and the plaintiffs ¹ appealed to this court.

The plaintiffs claim that the trial court incorrectly concluded that the council's decision was not a final decision under the Uniform Administrative Procedure Act (UAPA), General Statutes §§ 4-166 through 4-189, and that the plaintiffs' requests were petitions for reconsideration.

We agree with the plaintiffs and reverse the judgment of the trial court.

The pertinent facts are as follows. In January, 1991, the defendants Connecticut Light and Power Company and United Illuminating Company (utilities) applied to the defendant council for a certificate of environmental compatibility and public need (certificate) for the construction of an electric transmission line that would be 15.3 miles in length and extend from Bridgeport to Norwalk within an existing railroad right-of-way. The application was served on all appropriate local and state officials and the hearing date was noticed in the local newspapers. A six hour contested hearing was held in the Westport town hall on April 29, 1991. On September 18, 1991, the council approved the application pursuant to General Statutes § 16-50k and limited conditions of construction and operation of the proposed transmission line. No appeal was taken from this decision. The utilities have already completed a substantial portion of the project in reliance on the certificate granted by the council.

Subsequent to September 18, 1991, and prior to May 6, 1993, numerous motions and requests seeking to open the granting of the certificate and concerning stop work orders and investigations into alternatives to the proposed construction were submitted to the council. Without holding a hearing, the council denied the motions and requests in a written decision dated May 6, 1993.

The council found that "the subject matter of all motions, requests, and contentions to reevaluate this case and reinvestigate issues, has already been carefully considered by the Council in deciding this application ... on September 18, 1991. No one has introduced new information or facts that were not available at that time.

"Because of a legal expectation of finality of a decision, we must find a compelling reason to reverse our decision or reopen this proceeding. After considering each and every motion, request and contention, we find no such compelling reason."

Subsequent to the May 6, 1993 decision, new motions for modification under § 4-181a(b) were filed with the council. These motions claimed that changed conditions, new information, and new technology have occurred since the council's September 18, 1991 decision.

On June 29, 1993, the council announced that it would conduct public hearings on July 13, 1993, on the motions to open and reconsider the construction of the facility. Prior to the hearing, the council solicited written comments and consultation from the state departments of the environmental protection, health services, public utility control, economic development and transportation, and the state council on environmental quality and the state office of policy and management. The hearing on July 13, 1993, was limited to the taking of oral statements from the public and parties. The council permitted the submission of evidence and briefs, which were to be filed at the council's office on or before July 20, 1993. On July 30, 1993, the council issued a written opinion.

It stated in part: "In deciding these motions and requests to reopen, we acted under General Statutes § 4-181a(b) which allows us to reverse or modify a final decision on a showing of changed conditions.... In conclusion, we find that the subject matter of all motions, requests, and contentions to re-evaluate this case and reinvestigate issues, has already been carefully considered by the Council in deciding this application two years ago, on September 18, 1991. We know of no new information or facts that were not available at that time that would compel us to reopen this case. We have not identified any unknown or unforeseen events or any relevant circumstances that would compel us to reopen this case. There have been no scientific or technological breakthroughs that would have altered our analysis. Our analysis remains valid today and consistent with State law and State policy, including policy from the State Department of Public Health and Addiction Services and the Department of Environmental Protection.

"Because of a legal expectation of finality of a decision, we must find a showing of changed conditions or a compelling reason to reopen this proceeding. After considering each and every motion, request, and contention, we find no such changed conditions or compelling reasons."

Commissioner Paulann H. Sheets filed a six page dissenting opinion concluding that there were changed conditions and that a rehearing should take place. That rehearing she felt should reexamine the decision in light of the changed conditions and modify it appropriately if the evidence warranted.

From the July 30 decision, the town of Fairfield, the Alliance to Limit Electromagnetic Radiation Today (A.L.E.R.T.), Ann Graney, Santo Piro, Christine Piro, Jennifer Lindine, Spencer Stout and David S. Parker appealed to the Superior Court alleging that the council, "[i]n denying the motions for revocation, reconsideration, amendment and/or modification, acted illegally, arbitrarily and in abuse of the discretion vested in it in that: a. its decision is clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; b. it failed to adequately notice the public hearing held July 13, 1993, in violation of the federal and state constitutions and state statutory provisions; c. it failed to employ the procedures for contested cases, in violation of General Statutes § 4-181a(b); d. it considered the effect of 'changed conditions' in the absence of a full evidentiary hearing; e. it relied, in error, upon the comments of the department of public health and addiction services in rendering its decision; f. it failed to consider the project's effects upon historic resources, aesthetics, the environment, property values and health; and g. it erred in denying party status to the plaintiffs, A.L.E.R.T., David S. Parker and Town of Fairfield, in violation of State Statutory provisions."

The council and the utilities then each filed a motion to dismiss. Each motion was based on the trial court's lack of jurisdiction. The trial court granted each motion ruling that, in a hearing held under § 4-181a(b), there is no automatic right to an appeal and that, even though the council had held a hearing, it had not been required to do so under the statute and could have denied the motions without one. It further found that since no hearing was required by the statute, denial of the motions did not create the right to appeal and cited Summit Hydropower Partnership v. Commissioner of Environmental Protection, 226 Conn. 792, 629 A.2d 367 (1993).

The trial court further found that motions for reconsideration, reversal or modification of any final decision are governed by the requirements for contested cases. General Statutes § 4-181a(b). The agency's consideration of the motions was not a "contested case" under § 4-166(2) and, since no hearing was required, it was not an "agency determination in a contested case" and not a "final decision" under § 4-166(3). As previously stated, the definition of "final decision" includes "an agency decision made after reconsideration." (Emphasis added.) The ruling of an agency granting or denying a petition for reconsideration is, however, expressly excluded from the definition of "final decision" in § 4-166(3).

We do not decide whether the plaintiffs' appeal has any merit but only whether the plaintiffs' have a right to have their appeal heard.

This case is governed by the UAPA and more specifically § 4-181a(b), which allows an agency to modify or reverse a prior final decision of a contested case on a showing of changed conditions. This appeal is the first time this section has come before any appellate court for review. Although there was no prior statutory authority in the UAPA similar to this section, prior case law had recognized changed conditions as a ground for altering an administrative decision. Shea v. State Employees Retirement Commission, 170 Conn. 610, 368 A.2d 159 (1976).

General Statutes § 4-181a(b) provides: "On a showing of changed conditions, the agency may reverse or modify the final decision at any time, at the request of any person or on the agency's own motion. The procedure set forth in this chapter for contested cases shall be applicable to any proceeding in which such reversal or modification of any final decision is to be considered. The party or parties who were the subject of the original final decision, or their successor, if known, and intervenors in the original contested case, shall be notified of the...