FairwindCT, Inc. v. Connecticut Siting Council ( 2014 )

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FAIRWINDCT, INC., ET AL. v. CONNECTICUT
SITING COUNCIL ET AL.
(SC 19090)
(SC 19091)
Rogers, C. J., and Palmer, Zarella, Eveleigh, Espinosa and Robinson, Js.
Argued February 21—officially released September 23, 2014
Emily A. Gianquinto, with whom were Nicholas J.
Harding and Mary E. Mintel, for the appellants
(plaintiffs).
Clare E. Kindall, assistant attorney general, with
whom were Robert L. Marconi, assistant attorney gen-
eral, and, on the brief, George Jepsen, attorney general,
for the appellee (named defendant).
Michael A. Kurs, with whom were Lee D. Hoffman
and Paul Corey, for the appellee (defendant BNE
Energy, Inc.).
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 Con-
necticut 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 Som-
ers, Michael Somers and Susan Wagner, were granted
party status by the council and also intervened in the
proceedings on the petitions pursuant to General Stat-
utes (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 Stat-
utes § 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, pur-
suant 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 environ-
mental compatibility and public need (certificate). On
December 13, 2010, BNE submitted a similar petition
for the construction and operation of three 1.6 mega-
watt wind turbines on property located at the intersec-
tion 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 resi-
dents 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 Cole-
brook North project and is within one mile of the Cole-
brook 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 pro-
posed 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 dis-
missed 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 incor-
rectly 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 con-
clude 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 rele-
vant to our resolution of this claim. The council deter-
mined 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 renew-
able energy sources.’’ On appeal to the trial court, the
plaintiffs contended that the Colebrook North and Cole-
brook South projects were not ‘‘facilit[ies]’’ for pur-
poses 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]enew-
able 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 construc-
tion given [a] statute by the agency charged with its
enforcement. . . . Conclusions of law reached by the
administrative agency must stand if the court deter-
mines 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. . . . Wall-
ingford v. Dept. of Public Health, 262 Conn. 758, 771–72,
817 A.2d 644 (2003); see Bridgeport Hospital v. Com-
mission on Human Rights & Opportunities, 232 Conn.
91, 109, 653 A.2d 782 (1995) (the factual and discretion-
ary 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 Lis-
bon, Inc. v. Dept. of Public Utility Control, supra, 283
Conn. 691. Because the council’s interpretation of the
phrase ‘‘grid-side distributed resources project or facil-
ity’’ 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 prin-
ciples 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 Stat-
utes § 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 generat-
ing facilities that, ‘‘in the case of a facility utilizing
renewable energy sources, [have] a generating capacity
of one megawatt of electricity or less . . . .’’ As we
have indicated, renewable energy sources are statuto-
rily defined to include wind. See General Statutes (Rev.
to 2009) § 16-1 (a) (26).15 Thus, when the legislature
amended § 16-50i (a) (3) in 1981 to exempt certain facili-
ties that use renewable energy sources from the provi-
sions of the Public Utility Environmental Standards Act
(act); see Public Acts 1981, No. 81-439, § 4; it must
have believed that electric generating facilities that use
renewable energy sources, including wind, were encom-
passed by the definition of ‘‘facility.’’
Indeed, it is more rational to conclude that the legisla-
ture’s intent was to include all electric generating plants
in the definition of facility, regardless of how the plant
is powered, than to conclude that the legislature’s intent
was to exclude electric generating plants that do not
use fuel, as that term is ordinarily understood, because,
when § 16-50i was first enacted in 1971; see Public Acts
1971, No. 575, § 3; it is doubtful that the legislature
intended to restrict the definition of fuel to only include
combustible material as is argued by the plaintiffs.16
This conclusion is supported by General Statutes § 16-
50g,17 which sets forth the legislative finding and pur-
pose of the act and provides that ‘‘[t]he legislature finds
that power generating plants . . . have had a signifi-
cant impact on the environment and ecology of the
state of Connecticut’’ and that ‘‘continued . . . devel-
opment of such power plants . . . if not properly
planned and controlled, could adversely affect the qual-
ity of the environment . . . .’’ (Emphasis added.) Thus,
the language of § 16-50g implies that the legislature
intended for the council to have jurisdiction over all
‘‘power generating plants,’’ an interpretation that is
strongly supported by the legislative history of the act.
Specifically, during hearings on the proposed legislation
before the Joint Standing Committee on the Environ-
ment, Senator George L. Gunther explained that the
legislation was ‘‘basically designed to create a commis-
sion to regulate the siting of power plants in our state.’’
Conn. Joint Standing Committee Hearings, Environ-
ment, Pt. 2, 1971 Sess., p. 458. Senator Gunther also
explained that the need to control the siting of power
plants and to regulate their effects on the environment
was ‘‘brought . . . to a head’’ when the United Illumi-
nating Company acquired Cockenoe Island with the
intent of constructing a nuclear power plant there. Id.
Thus, it is reasonable to conclude that the language in
§ 16-50i (a) (3) referring to ‘‘any fuel, including nuclear
materials,’’ was merely intended to make it emphatically
clear that the council’s jurisdiction over the siting of
‘‘electric generating facilities’’ would include jurisdic-
tion over the siting of nuclear power plants. Moreover,
although one person who testified before the Joint
Standing Committee on the Environment expressed
concern about the air pollution caused by fuel burning
electric generating plants; see id., p. 500, remarks of
Sylvia Dowling (referring to extensive air pollution that
would be caused by proposed fuel oil burning electric
generating plant in Stamford); nothing in the act or its
legislative history suggests that the only problems that
it was intended to address were those associated with
the consumption of fuel. To the contrary, the act
expressly provides that it was intended to address the
effects of electric generating plants on the water
resources of the state, on the ‘‘proliferation of towers
in the state’’18 and on ‘‘scenic . . . values . . . .’’19 Gen-
eral Statutes § 16-50g. The construction of electric gen-
erating wind turbines implicates all of these concerns.
In addition, § 16-50g refers to ‘‘the need for adequate
and reliable public utility services at the lowest reason-
able cost to consumers’’ and the necessity of balancing
that need with environmental concerns. We can per-
ceive no reason why, unlike other electric generating
plants, the legislature would have intended to exempt
wind turbine projects, which add to the supply of elec-
tricity in the state and ‘‘promote energy security,’’ from
the provisions of the act and subject them to ordinary
zoning procedures.
This interpretation of § 16-50i (a) (3) is also supported
by the legislature’s enactment, in 2011, of General Stat-
utes § 16-50kk, which directs the council, in consulta-
tion with the Department of Energy and Environmental
Protection (department),20 to ‘‘adopt regulations, in
accordance with the provisions of chapter 54, concern-
ing the siting of wind turbines.’’ Public Acts 2011, No.
11-245, § 1. Section 16-50kk (b) provides that the council
‘‘shall not act on any application [for a certificate] or
petition [for a declaratory ruling] for siting of a wind
turbine until after the adoption of regulations pursuant
to subsection (a) of this section.’’ Because nothing in
§ 16-50kk confers jurisdiction on the council over appli-
cations for certificates, which necessarily relate to
‘‘facilit[ies]’’ under § 16-50k (a); see General Statutes
(Supp. 2014) § 16-50k (a) (‘‘no person shall . . . com-
mence the construction . . . of a facility . . . with-
out having first obtained a certificate of environmental
compatibility and public need’’ [emphasis added]); it is
reasonable to conclude that when the legislature
enacted § 16-50kk, it believed that the electric generat-
ing wind turbines were facilities for purposes of § 16-
50i (a) (3).21
We conclude, therefore, that, as used in § 16-50i (a)
(3), the word ‘‘facility’’ includes ‘‘any electric generating
. . . facility,’’ in the ordinary sense of that phrase, and
the phrase ‘‘using any fuel, including nuclear materials,’’
was merely intended to ensure that all electric generat-
ing facilities would be included in the scope of the act
regardless of the type of fuel that a facility used. It
was not intended to ensure that an electric generating
facility would be excluded from the scope of the statu-
tory scheme if it used no fuel.22 Because there is no
dispute that the proposed projects in the present case
were electric generating facilities and they do not fall
within any exception to § 16-50i (a) (3), we conclude
that the council had jurisdiction to consider BNE’s
petitions.
II
We next address the plaintiffs’ claim that the trial
court incorrectly determined that the council was
authorized to attach conditions to declaratory rulings
issued pursuant to § 16-50k (a). The defendants contend
that the plaintiffs lack standing to challenge the condi-
tions. We conclude that the plaintiffs lacked standing
to challenge the conditions, per se, but our analysis
does not end here. We also conclude that the plaintiffs
had standing to claim that the imposition of the condi-
tions showed that the council had not determined that
the proposed projects complied with the substantive
requirements of the act when it approved BNE’s peti-
tions. We further conclude that: (1) the council actually
ruled that the proposed projects complied with the act;
and (2) its rulings were supported by substantial evi-
dence. Accordingly, we reject this claim on its merits.
The following additional procedural history is rele-
vant to our resolution of this claim. In its decisions
approving the petitions for the Colebrook North and
Colebrook South projects, the council imposed numer-
ous conditions on the construction of the wind turbine
projects. Most significantly, the council required BNE
to submit a development and management plan that
would include, among other things, ‘‘[a] detailed site
plan showing the placement and/or extent of vegetative
clearing, grading, wetland buffers, access roads, turbine
foundations, building specifications, equipment and
material laydown and staging areas’’; ‘‘an open space
and conservation plan to protect environmentally-sensi-
tive areas of the property for the life of the project’’;
‘‘[a]n erosion and sediment control plan, consistent with
the 2002 Connecticut Guidelines for Soil Erosion and
Sediment Control . . . as amended’’; a ‘‘[s]tormwater
[m]anagement [p]lan, consistent with the [depart-
ment’s] 2004 . . . Stormwater Quality Manual’’; ‘‘[a]
post-construction noise monitoring protocol describing
locations, frequency and methods to be employed for
a post-construction noise study’’; and implementation
of the noise study to determine whether ‘‘any mitigation
measure should be employed, including turbine opera-
tions management, to ensure the project complies with
[the department’s] noise regulations . . . .’’
On appeal to the trial court, the plaintiffs contended
that the council had no authority under § 16-50k (a) to
impose these conditions on its approval of the declara-
tory rulings. They further argued that, even if the council
had such authority, it exceeded that authority by impos-
ing conditions that allowed BNE to meet the substantive
standards for approval after the projects were
approved. BNE contended that the plaintiffs lacked
standing to contest the imposition of conditions on the
approvals because they were not aggrieved by them.
The trial court agreed with BNE that the plaintiffs
lacked standing to challenge the imposition of condi-
tions but, nevertheless, addressed the merits of the
plaintiffs’ claim and rejected it on the ground that the
council impliedly had the same authority to impose
conditions on the approval of declaratory rulings issued
pursuant to § 16-50k (a) as it had to impose conditions
on the approval of certificates.23 See General Statutes
(Supp. 2014) § 16-50k (a) (‘‘[a]ny facility with respect
to which a certificate is required shall thereafter be
built, maintained and operated in conformity with such
certificate and any terms, limitations or conditions con-
tained therein’’). The trial court also concluded that the
record showed that the council had expressly found that
the proposed projects met the substantive requirements
for approval, and the council had not improperly
allowed BNE to establish compliance with those
requirements at some later date.
Because it implicates the trial court’s subject matter
jurisdiction, we first address the defendants’ claim that
the plaintiffs lack standing to challenge the council’s
imposition of conditions on its approval of BNE’s peti-
tions for a declaratory ruling. ‘‘[I]n order to have stand-
ing to bring an administrative appeal, a person must be
aggrieved.’’ (Internal quotation marks omitted.) Mou-
tinho v. Planning & Zoning Commission, 278 Conn.
660, 664, 899 A.2d 26 (2006). ‘‘Classical aggrievement
requires a two part showing. First, a party must demon-
strate a specific, personal and legal interest in the sub-
ject matter of the decision, as opposed to a general
interest that all members of the community share. . . .
Second, the party must also show that the agency’s
decision has specially and injuriously affected that spe-
cific personal or legal interest. . . . Aggrievement does
not demand certainty, only the possibility of an adverse
effect on a legally protected interest.’’ (Internal quota-
tion marks omitted.) Id., 665.
There is nothing in the record of this case that shows
that the plaintiffs have specific, personal interests that
were affected by the conditions that the council
imposed on its approvals of BNE’s petitions. The condi-
tions imposed no costs or burdens on them. Moreover,
the plaintiffs lack standing as intervenors pursuant to
General Statutes (Supp. 2014) § 22a-19 (a) (1) because
the conditions themselves do not have ‘‘the effect of
unreasonably polluting, impairing or destroying the
public trust in the air, water or other natural resources
of the state.’’ Accordingly, we agree with defendants
that the plaintiffs lacked standing to challenge the coun-
cil’s imposition of the conditions, per se. We therefore
conclude that the trial court lacked jurisdiction to enter-
tain the plaintiffs’ claim that the council had no statu-
tory authority to impose the conditions.
The defendants do not dispute, however, that the
plaintiffs’ interests were affected by the council’s
approvals of BNE’s petitions and, therefore, they have
standing to challenge them. Accordingly, to the extent
that the plaintiffs claim that the council’s imposition of
the conditions shows that the approvals were improper
because the council had not determined that the peti-
tions met the substantive requirements for approval
when it issued its rulings or, if it had made such determi-
nations, they were not supported by substantial evi-
dence, we conclude that they have standing to raise
those claims.
The standard of review for agency decisions is well
established. ‘‘Judicial review of an administrative
agency decision requires a court to determine whether
there is substantial evidence in the administrative
record to support the agency’s findings of basic fact
and whether the conclusions drawn from those facts
are reasonable. . . . This so-called substantial evi-
dence rule is similar to the sufficiency of the evidence
standard applied in judicial review of jury verdicts, and
evidence is sufficient to sustain an agency finding if it
affords a substantial basis of fact from which the fact
in issue can be reasonably inferred. . . . [I]t imposes
an important limitation on the power of the courts to
overturn a decision of an administrative agency . . .
and [provides] a more restrictive standard of review
than standards embodying review of weight of the evi-
dence or clearly erroneous action. . . . The United
States Supreme Court, in defining substantial evidence
. . . has said that it is something less than the weight
of the evidence, and [that] the possibility of drawing
two inconsistent conclusions from the evidence does
not prevent an administrative agency’s finding from
being supported by substantial evidence.’’ (Citations
omitted; emphasis omitted; internal quotation marks
omitted.) Sweetman v. State Elections Enforcement
Commission, 249 Conn. 296, 331–32, 732 A.2d 144(1999). ‘‘[T]he credibility of witnesses and the determi-
nation of factual issues are matters within the province
of the administrative agency.’’ (Internal quotation
marks omitted.) Id., 332. ‘‘As with any administrative
appeal, our role is not to reexamine the evidence pre-
sented to the council or to substitute our judgment
for the agency’s expertise, but, rather, to determine
whether there was substantial evidence to support its
conclusions.’’ Connecticut Coalition Against Millstone
v. Connecticut Siting Council, 286 Conn. 57, 86, 942
A.2d 345 (2008).
In support of their claim that the council’s imposition
of conditions on its approval of BNE’s petitions shows
that the council had made no determination that the
petitions met the substantive requirements for
approval, the plaintiffs in the present case rely on this
court’s decision in Finley v. Inland Wetlands Commis-
sion, 289 Conn. 12, 959 A.2d 569 (2008). In that case,
the defendant Inland Wetlands Commission of the Town
of Orange (commission) granted the application of the
defendant Stew Leonard’s Orange, LLC (Stew Leo-
nard’s), for a permit to conduct regulated activities. Id.,14–15. The commission imposed a number of conditions
on the approval.24 Id., 16. The plaintiffs, who had inter-
vened in the proceedings pursuant to § 22a-19, appealed
from the commission’s decision claiming that it was not
supported by substantial evidence. Id. The trial court
denied the plaintiffs’ appeal. Id. The plaintiffs then
appealed to this court. Id., 16–17. This court concluded
that it was ‘‘implicit in the condition of approval requir-
ing Stew Leonard’s to submit a ‘[r]evised and updated
erosion control plan that implements all [s]tate [r]egula-
tions’ that the commission had not determined that the
existing erosion control plan met state regulations when
it rendered its decision.’’ Id., 41. This court further con-
cluded that the plaintiffs had ‘‘met their burden of prov-
ing that the commission’s decision was not premised
on a determination, supported by substantial evidence,
that the proposed development complied with applica-
ble statutes and regulations and would not cause harm
to the wetlands.’’ Id., 41–42. Accordingly, we reversed
the judgment of the trial court and remanded the case
to that court with direction to render judgment sus-
taining the plaintiffs’ appeal. Id., 43.
The plaintiffs in the present case contend that, just
as in Finley, the conditions of approval imposed by the
council show that the counsel had not determined that
the proposed projects were in compliance with water
quality standards when it approved BNE’s petitions.
Specifically, the plaintiffs point to the following lan-
guage that is contained in both of the council’s rulings:
‘‘The [c]ouncil understands that designing the access
road to the turbines on this site poses challenges regard-
ing water quality . . . . However, the [c]ouncil
believes these design challenges can be met, so that
the project would not have an adverse impact on
water quality.
‘‘By ordering a [d]evelopment and [m]anagement
. . . phase for the project, the [c]ouncil will assure that
the project would be designed to meet [the depart-
ment’s] water quality standards, in conformance with
the 2004 Connecticut Stormwater Quality Manual, the
2000 [Department of Transportation] Drainage Manual
and the 2002 Connecticut Guidelines for Soil Erosion
and Sediment Control.’’
The council also expressly found, however, that, with
respect to the Colebrook North project, ‘‘[t]he proposed
project would comply with air and water quality stan-
dards’’ and, with respect to the Colebrook South proj-
ect, that ‘‘[s]tormwater generated at the site would be
controlled in accordance with the 2004 Connecticut
Stormwater Quality Manual and the 2002 Connecticut
Guidelines for Soil Erosion and Sediment Control.’’ In
addition, the council expressly found that, for both proj-
ects, ‘‘the effects associated with the construction,
maintenance, and operation of a . . . wind renewable
generating project . . . would meet all applicable
[United States] Environmental Protection Agency and
[department] . . . [w]ater [q]uality [s]tandards . . . .’’
This finding was supported in both cases by an exten-
sive and detailed ‘‘stormwater management plan with
stormwater pollution prevention plan’’ that BNE had
submitted with the petitions.25 There is nothing in the
record to suggest that the plans that BNE submitted to
the council with its petitions were different than the
‘‘erosion and sediment control plan, consistent with
the 2002 Connecticut Guidelines for Soil Erosion and
Sediment Control . . . as amended’’ and the
‘‘[s]tormwater [m]anagement [p]lan, consistent with the
[department’s] 2004 . . . Stormwater Quality Manual’’
that the council required BNE to include in the develop-
ment and management plan as a condition of approval.
Indeed, the council represents in its brief to this court
that this condition was merely intended to require BNE
to include in the development and management plan the
erosion and sediment control plans and the stormwater
management plans that it already had submitted to
the council.
The plaintiffs contend, however, that, even if the
council had made a final determination that BNE’s peti-
tions met the substantive requirements for approval,
the documents that BNE submitted with the develop-
ment and management plans after the hearings closed
showed that that determination was not supported by
substantial evidence. Although the trial court denied
the plaintiffs’ request to supplement the record with
these materials and sustained the defendants’ objection
to the testimony of the plaintiffs’ expert witnesses, Wil-
liam F. Carboni and Michael S. Klein, about the develop-
ment and management plan, the plaintiffs made an offer
of proof of the testimony that Carboni and Klein would
have given in support of this claim. Specifically, the
plaintiffs’ attorney represented to the trial court that
Carboni would have testified that information discov-
ered during the development and management phase
confirmed his testimony during the hearings before the
council that the original drainage plan for the Colebrook
South project was inadequate. With respect to the Cole-
brook North project, Carboni would have testified that
it had been discovered that portions of Rock Hill Road
had to be rebuilt, which would have an adverse effect
on nearby wetlands. In addition, Carboni would have
testified that the development and management plan
showed twice as much clearing as the original plan.
Klein would have testified that, during the development
and management phase, vernal pools had been discov-
ered at the Colebrook South site that had required the
redesign of the road. In addition, he would have testified
that some of the slopes at the Colebrook South site
were different than those shown on the original plans,
so the road could not be built in accordance with those
plans. With respect to the Colebrook North project,
Klein would have testified that problems with erosion
and stormwater caused by the rebuilding of Rock Hall
Road were going to be compounded by the discovery
that a culvert under the road had to be rebuilt. In addi-
tion, he would have testified that the increased clearing
at the site meant increased runoff.
As the trial court recognized during trial, however,
this offer of proof does not support the plaintiffs’ claim
that the council’s approvals of BNE’s petitions were
not supported by substantial evidence in the record
that was before the council when it made its decisions.
Rather, it merely supports a conclusion that the plans
that BNE had submitted to the council with its petitions
had to be revised after approval to address unforeseen
site conditions. Moreover, if a party can show that newly
discovered conditions make it impossible for the proj-
ect to comply with the substantive requirements for
approval or that the revised plans are not in compliance
with those requirements, the party is not without
recourse. The party may bring this fact to the attention
of the council and, if it is not satisfied with the result
of such informal proceedings, it may file a petition for
a declaratory ruling claiming that the project is not in
compliance with the terms of approval,26 bring a nui-
sance action27 or bring a CEPA action.28 See General
Statutes § 22a-16.
We conclude, therefore, that the present case is dis-
tinguishable from Finley v. Inland Wetlands Commis-
sion, supra, 289 Conn. 12. In Finley, the commission
had approved Stew Leonard’s regulated activities per-
mit on the condition that it submit ‘‘a ‘[r]evised and
updated erosion control plan that implements all [s]tate
[r]egulations . . . .’ ’’ (Emphasis added.) Id., 41. It was
clear, therefore, that ‘‘the commission had not deter-
mined that the existing erosion control plan met state
regulations when it rendered its decision.’’ Id. In the
present case, the council expressly found that the
existing plans for protecting water quality on each of
the proposed projects satisfied water quality standards,
and merely required BNE to include those plans in the
development and management plan to ensure ongoing
compliance. Accordingly, we conclude that the trial
court properly concluded that the council had not
approved BNE’s petitions without first determining that
they complied with the substantive requirements for
approval. Although the plaintiffs have presented evi-
dence that the plans had to be revised after approval
to address newly discovered site conditions, they have
not established that the approvals were not supported
by substantial evidence in the record before the council
when it ruled on BNE’s petitions. Accordingly, we reject
this claim.
III
We next address the plaintiffs’ claim that the trial
court improperly determined that the council was not
required to consider the requirements of state noise
law when it approved BNE’s petitions.29 We disagree.
The following additional procedural history is rele-
vant to our resolution of this claim. During the hearings
before the council on BNE’s petitions, the plaintiffs
submitted the written ‘‘pre-filed’’ testimony of their
expert, Michael Bahtiarian, regarding the proposed
projects’ compliance with Connecticut noise control
regulations. Bahtiarian testified in both proceedings
that, under § 22a-69-3.1 of the Regulations of Connecti-
cut State Agencies, ‘‘[n]o person shall cause or allow
the emission of excessive noise beyond the boundary
of his/her Noise Zone so as to violate any provisions
of these Regulations.’’ Section 22a-69-1.1 (o) of the Reg-
ulations of Connecticut State Agencies defines ‘‘noise
zone’’ to mean ‘‘an individual unit of land or a group
of contiguous parcels under the same ownership as
indicated by public land records and, as relates to noise
emitters, includes contiguous publicly dedicated street
and highway rights-of-way, railroad rights-of-way and
waters of the state.’’ Bahtiarian testified that the materi-
als that BNE submitted with its petitions showed the
BNE had not measured noise levels at the property line
of the properties on which the projects were located,
as required by these regulations, but at a more distant
‘‘receptor locations . . . .’’30 He further testified that,
according to his calculations, ‘‘the wind turbines will
not be in compliance with the Connecticut regulation
at the property boundary.’’ Specifically, he was of the
opinion that, for the Colebrook South project, ‘‘these
wind turbines will be in excess of [six] to [ten decibels]
above the permitted limits at night,’’ and, for the Cole-
brook North project, they would be ‘‘in excess of [six]
to [nine decibels] above the permitted limits at night.’’
In addition, he opined that, for the Colebrook South
project, ‘‘excesses of [zero] to [four] decibels to the
industrial-to-residential limit of [fifty-one] dB(A)31
would also occur,’’ and, for the Colebrook North proj-
ect, ‘‘excesses of [zero] to [three] decibels’’ would
occur. The council ultimately concluded in each case
that ‘‘noise emitted by the project would meet [the
department’s] allowable limits at the nearest residential
receptors . . . .’’
On appeal to the trial court, the plaintiffs contended
that the council improperly ignored state noise law
when it approved BNE’s petitions. The trial court con-
cluded that, although § 16-50k (a) required the council
to consider only air and water quality standards when
determining whether BNE’s petitions should be
approved, because the plaintiffs had intervened in the
proceedings pursuant to § 22a-19, and because the
council was authorized to give ‘‘such consideration to
other state laws . . . as it shall deem appropriate’’ pur-
suant to General Statutes § 16-50x (a),32 the council had
jurisdiction to consider noise issues. Ultimately, the
trial court observed that ‘‘the mission of the council is
to balance public need and environmental impact’’; see
Preston v. Connecticut Siting Council, 20 Conn. App.
474, 489, 568 A.2d 799, cert. denied, 214 Conn. 803, 573
A.2d 316 (1990); and concluded that, in each case, ‘‘the
council had the authority to find that a reasonable
approach to noise pollution was to measure the harm
at residences rather than property lines.’’
On appeal to this court, the plaintiffs renew their
claim that the council was required to apply the depart-
ment’s noise regulations, which require noise levels to
be measured at the property line, not at the receptor
residential dwellings. The council does not dispute the
plaintiffs’ interpretation of the applicable noise regula-
tions, and it also does not dispute the plaintiffs’ claim
that it made no finding that the proposed projects will
comply with those regulations.33 The council claims,
however, that the trial court improperly determined
that it had jurisdiction to consider noise issues when
ruling on a petition for a declaratory ruling. Specifically,
the council claims that, pursuant to § 16-50k (a), it is
required to consider only whether the proposed proj-
ects meet the department’s air and water quality stan-
dards. See General Statutes (Supp. 2014) § 16-50k (a)
(‘‘the council shall . . . approve by declaratory ruling
. . . any . . . grid-side distributed resources . . .
facility . . . as long as such project meets air and water
quality standards of the Department of Energy and Envi-
ronmental Protection’’); see also Nizzardo v. State Traf-
fic Commission, 259 Conn. 131, 158, 788 A.2d 1158(2002) (§ 22a-19 does not expand jurisdiction of agency
beyond that conferred by statutes governing scope of
specific agency’s authority).
We first address the council’s claim that the trial
court incorrectly concluded that the council had juris-
diction to consider environmental issues other than
compliance with air and water quality standards, includ-
ing noise issues, when considering whether it should
approve BNE’s petitions.34 Whether the council is
authorized or required to consider and apply state noise
law when ruling on petitions for declaratory rulings
is a question of statutory interpretation. Because the
council’s interpretation of the relevant statutes is not
time-tested and has not previously been subject to judi-
cial review, our review is plenary. Wheelabrator Lisbon,
Inc. v. Dept. of Public Utility Control, supra, 283
Conn. 691.
We conclude that the council has jurisdiction to con-
sider state noise law when ruling on petitions for declar-
atory rulings. Section 16-50x (a) expressly provides in
relevant part that ‘‘[i]n ruling on . . . petitions for a
declaratory ruling for facilities . . . the council shall
give such consideration to other state laws . . . as it
shall deem appropriate.’’35 In addition, the council has
the expertise to determine whether a proposed project
complies with state noise law, because: (1) state noise
regulations are promulgated by the department; see
General Statutes § 22a-69; and the commissioner of the
department, or his designee, is a member of the council;
see General Statutes (Supp. 2014) § 16-50j (b);36 (2)
when ruling on applications for certificates, the council
is required to consider ‘‘[t]he nature of the probable
environmental impact of the facility . . . including a
specification of every significant adverse effect . . .
and conflict with the policies of the state concerning
. . . public health and safety’’ pursuant to General Stat-
utes (Supp. 2014) § 16-50p (a) (3) (B);37 and (3) pursuant
to § 16-50kk, which was effective July 1, 2011, the coun-
cil is now required to consider noise when ruling on
petitions for declaratory rulings involving wind
turbines.38
Having concluded that the council had jurisdiction
to consider whether the proposed projects complied
with state noise law, we next consider whether the
council had authority to approve BNE’s petitions if it
determined that the projects did not comply with state
noise law. We conclude that it did. As we have already
noted, § 16-50x (a) provides that, ‘‘[i]n ruling on . . .
petitions for a declaratory ruling for facilities . . . the
council shall give such consideration to other state laws
and municipal regulations as it shall deem appropriate.’’
This language indicates that the council is not required
to give any consideration to state noise law when ruling
on a petition.
We also note that, when ruling on applications for
certificates, the council is required to consider ‘‘the
policies of the state concerning the natural environment
. . . [and] public health and safety’’; General Statutes
(Supp. 2014) § 16-50p (a) (3) (B); but it is not required
to deny applications that conflict with those policies.
General Statutes (Supp. 2014) § 16-50p (a) (3) (C) (coun-
cil must explain why fact that proposed project conflicts
with state’s public policies is ‘‘not sufficient reason to
deny the application’’). We can perceive no reason why
the legislature would have wanted to impose stricter
standards on proposed projects that are eligible for
approval by way of a declaratory ruling than on projects
that require a certificate.
In support of their claim that the council must enforce
state noise law when ruling on petitions, the plaintiffs
rely on General Statutes § 22a-72 (c), which provides
that ‘‘[e]ach . . . agency . . . (1) having jurisdiction
over any property or facility . . . shall comply with
federal and state requirements respecting control and
abatement of environmental noise.’’ The use of the word
‘‘comply’’ in this statute, however, as distinct from the
word ‘‘enforce,’’ suggests that the state agencies are
merely required to comply with state noise law when
operating their own properties or facilities, not that
they are required to ensure that owners of private prop-
erties and facilities over which they have jurisdiction
for some limited reason comply with state noise law.
Indeed, many state agencies may not be competent to
enforce state noise law.39 Even if we were to accept
the plaintiffs’ interpretation of § 22a-72 (c), General
Statutes § 16-50w provides in relevant part that ‘‘[i]n
the event of any conflict between the provisions of this
chapter and any provisions of the general statutes, as
amended . . . this chapter shall take precedence.’’
Accordingly, even if § 22a-72 (c) requires all state agen-
cies to enforce state noise law on any property or facility
over which they have jurisdiction, the provision of § 16-
50x (a) authorizing the council to ‘‘give such consider-
ation to other state laws and municipal regulations as
it shall deem appropriate’’ would trump § 22a-72 (c).40
We conclude, therefore, that the legislature intended
to authorize the council to approve petitions for declara-
tory rulings for proposed projects even if they do not
comply with state laws outside of the act itself, includ-
ing state noise law.41 Accordingly, we agree with the
trial court that the council was authorized to approve
BNE’s petitions even though it had not determined that
the proposed projects comply with state noise law.
IV
We next consider the plaintiffs’ claim that the coun-
cil’s approval of shorter hub heights for the Colebrook
North project was not supported by substantial evi-
dence and that, even if it was supported by substantial
evidence, they were prevented from testing the reliabil-
ity of that evidence because the evidence was not pre-
sented until the end of the last day of the hearings. We
conclude that the approval was supported by substan-
tial evidence and that, even if the council improperly
allowed BNE to present evidence without providing the
plaintiffs with an opportunity for rebuttal, any impropri-
ety was harmless.
The following additional procedural history is rele-
vant to our resolution of this issue. At the end of the
hearing on BNE’s petition for a declaratory ruling
approving the Colebrook North project, counsel for
BNE asked the council how it wanted BNE to respond
to concerns that a member of the council, Brian Golem-
biewski, had raised regarding the relocation of one of
the turbines, and asked if BNE should submit a late
filed exhibit. When the acting chairman of the council,
Colin C. Tait, indicated that he did not think that such
a submission would be appropriate because it would
involve ‘‘redesigning the whole project,’’ Paul Corey, a
principal of BNE, asked if he could respond to Golem-
biewski ’s concern, and Tait allowed him to do so. Corey
stated that, with respect to concerns regarding the
visual impact of the wind turbines, it would be possible
to reduce the hub height of the wind turbines from 100
to 80 meters. Counsel for the plaintiffs then moved to
strike Corey’s statement, and Tait responded that the
council would ‘‘take it for what it’s worth.’’ Tait
explained that, ‘‘sometimes on cell towers when the
only question is can it be moved X number of feet and
the testimony indicates that it might be and does not
involve wetlands and things that require further study,
my thought is that at this point we will not require a
late file. And if it turns out during discussions that it
can be done but it doesn’t redo the whole thing, we
will consider it at the time and let [counsel for the
plaintiffs] know about it . . . .’’
In its decision approving the petition for a declaratory
ruling for the Colebrook North project, the council
ordered that, ‘‘[u]nless otherwise approved by the
[c]ouncil, the wind turbines shall be constructed using
80 meter hub height and [an] 82.5 meter rotor diameter.’’
The council explained that its ‘‘determination of mini-
mal visual impact to the Rock Hall [p]roperty42 is based
on the 100 meter hubs and 82.5 meter rotor diameter
and notes visibility will be improved by using 80 meter
hubs at the proposed turbine locations.’’ (Footnote
added.)
At trial, Bahtiarian testified that if a wind turbine
with an 80 meter hub and a wind turbine with a 100
meter hub have the same power output, they will pro-
duce the same level of noise. He also testified that ‘‘the
shorter hub height makes the wind turbine closer to
the property, and distance is the big factor in determin-
ing what sound is received at an abutter.’’ In combina-
tion with the noise tolerance factor that had been
discovered in certain documents that BNE had submit-
ted under seal, lowering the hub heights would result in
an approximately three decibel increase over previous
noise level calculations at certain locations. Bahtiarian
further testified that those noise levels would violate
applicable noise regulations, under which noise is mea-
sured at the property line.
The trial court concluded that, because the plaintiffs
had standing only to raise environmental concerns, they
could not raise a claim regarding the hub heights. Never-
theless, the court addressed the merits of their claim
and concluded that they had failed to establish that
lowering the hub heights would have any effect on noise
levels. Specifically, the trial court relied on Bahtiarian’s
testimony at trial that lowering the hub heights would
not affect the noise level produced by the wind turbines.
Thereafter, the plaintiffs filed a motion for articulation
in which they asked the trial court to clarify why it had
determined that hub height was not an environmental
issue. The plaintiffs also asked the trial court to clarify
whether it had considered Bahtiarian’s testimony that
reducing the distance between the wind turbines and
the noise receptor locations would increase noise levels
at certain receptor locations. The court issued an articu-
lation in which it stated that it had concluded that hub
heights were not an environmental issue because they
did not impact the natural resources of the state. The
court also referred the plaintiffs to Bahtiarian’s testi-
mony that hub heights would have no affect on the
noise produced by the wind turbines, and that the major
factor affecting noise levels was distance from the
turbines.
We first address the plaintiffs’ claim that the trial
court improperly determined that they lacked standing
to challenge the council’s order that the hub heights be
lowered to eighty meters because the hub height of the
wind turbines does not affect air or water quality or
any other environmental factor at issue in this appeal.
We agree with the plaintiffs. The plaintiffs raised a col-
orable claim that lowering the hub heights could affect
the environment.43 The trial court concluded that the
council had jurisdiction to consider that claim, and we
have agreed with that conclusion. See footnote 35 of
this opinion. Accordingly, we conclude that the plain-
tiffs had standing to raise this claim.
We next address the plaintiffs’ claim that the council’s
order that the hub heights on the Colebrook North
project be lowered to eighty meters was not supported
by substantial evidence. In support of their claim to the
contrary, the defendants rely on testimony during the
hearings before the council that an eighty meter wind
turbine had been installed at a location known as Jiminy
Peak. In addition, the defendants point to a product
brochure for wind turbines that BNE had submitted
with its petitions that referred to ‘‘80 and 100 meter
tower configurations’’ and Corey’s testimony that 80
meter hub heights would be feasible on the Colebrook
North project. We agree with the defendants that this
evidence supported the council’s finding that the
shorter hub heights would be feasible.44 Moreover, we
conclude that it was reasonable for the council to con-
clude that shorter hub heights would reduce visibility
concerns.
We further conclude that, even if the council improp-
erly allowed BNE to raise the hub height issue at the
last minute, thereby depriving the plaintiffs of an oppor-
tunity to evaluate and respond to the issue in a meaning-
ful way, any such impropriety was harmless. As we
have indicated previously in this opinion, the council
was not required to consider state noise law when ruling
on BNE’s petition. A careful review of the record indi-
cates that it is highly improbable that Bahtiarian’s opin-
ion that lowering the hub heights would increase noise
levels at various locations on the property line by some
undetermined amount, but less than three decibels,
would have affected its decision.45 The council’s pri-
mary purpose in requiring BNE to lower the hub heights
was to reduce the visibility of the towers from the Rock
Hall property, and it is within the council’s broad discre-
tion to balance visibility concerns with noise concerns.
In any event, even if it were likely that the council would
have concluded that, in light of Bahtiarian’s testimony,
lowering the hub heights would result in intolerable
noise levels, the remedy would be to order BNE to
install wind turbines with 100 meter hub heights, not
to deny the petition altogether.46 Accordingly, the fact
that the plaintiffs were unable to present Bahtiarian’s
testimony during the hearings before the council does
not require reversal. See Murach v. Planning & Zoning
Commission, 196 Conn. 192, 205, 491 A.2d 1058 (1985)
(‘‘not all procedural irregularities require a reviewing
court to set aside an administrative decision; material
prejudice to the complaining party must be shown’’
[internal quotation marks omitted]); see also Klein v.
Norwalk Hospital, 299 Conn. 241, 254, 9 A.3d 364 (2010)
(burden is on party claiming error to prove that error
was harmful); Hicks v. State, 287 Conn. 421, 439, 948
A.2d 982 (2008) (‘‘[t]he harm[ful] error standard in a
civil case is whether the improper ruling would likely
affect the result’’ [internal quotation marks omitted]).
With respect to the plaintiffs’ contention that ‘‘the
change to shorter hub heights . . . could . . . have
implications for other environmental concerns, includ-
ing water quality, wildlife fatalities and protection of
historic resources,’’ they have pointed to no specific
evidence or offer of proof that would support this
claim.47 Accordingly, any failure by the council to con-
sider the environmental effects of lower hub heights
must be deemed harmless. Cf. In re Lukas K., 300 Conn.
463, 473–74, 14 A.3d 990 (2011) (denial of request for
continuance in parental termination proceeding was
harmless when parent had ‘‘not identified on appeal
any additional evidence or arguments that he could
have presented if the trial court had granted his
request’’); State v. Lopez, 280 Conn. 779, 790, 911 A.2d
1099 (2007) (when defendant did not identify on appeal
any arguments that defense counsel would have made at
sentencing hearing if trial court had granted defendant’s
request for continuance so that new counsel could
review trial transcript, any impropriety in denying
request for continuance was deemed harmless). More-
over, as with the other conditions that the council
imposed on the approval of the project, if lowering
the hub heights ultimately were to require substantive
changes to the project plans, the plaintiffs could bring
this fact to the attention of the council or file a petition
for a declaratory ruling claiming that the project was not
in compliance with the terms of approval. We conclude,
therefore, that the trial court properly found that the
council’s order requiring BNE to lower hub heights on
the Colebrook North project from 100 meters to 80
meters was supported by substantial evidence and that
any impropriety in allowing the last minute introduction
of the evidence was harmless.
V
We next address the plaintiffs’ claim that the council
deprived them of their right to ‘‘fundamental fairness.’’
See Grimes v. Conservation Commission, 243 Conn.
266, 273, 703 A.2d 101 (1997) (‘‘we have recognized a
common-law right to fundamental fairness in adminis-
trative hearings’’). Specifically, the plaintiffs claim that
the council improperly: (1) denied their request to
cross-examine an employee of the department who had
submitted comments on the proposed projects pursuant
to § 16-50j (h); (2) denied their request to cross-examine
witnesses about the cumulative impact of the projects;
(3) allowed BNE to submit certain materials under seal
and issued overbroad protective orders; and (4) denied
their requests for continuances, thereby depriving them
of adequate time to prepare for cross-examination of
witnesses. We disagree.
‘‘The right to fundamental fairness in administrative
proceedings encompasses a variety of procedural pro-
tections . . . . In a number of administrative law cases
. . . we have characterized these procedural protec-
tions as ‘due process’ rights. . . . Although the ‘due
process’ characterization, at first blush, suggests a con-
stitutional source, there is no discussion in these cases
of a property interest in terms of constitutional due
process rights. These decisions are, instead, based on
a line of administrative law cases and reflect the devel-
opment, in Connecticut, of a common-law right to due
process in administrative hearings . . . [that] is not
coextensive with constitutional due process.’’ (Cita-
tions omitted.) Id., 273 n.11. The scope of the right
to fundamental fairness in administrative proceedings,
like the scope of the constitutional right to due process
that it resembles, is a question of law over which our
review is plenary. Megin v. Zoning Board of Appeals,
106 Conn. App. 602, 608, 942 A.2d 511, cert. denied, 289
Conn. 901, 957 A.2d 871 (2008).
As a preliminary matter, we address the council’s
claim that the plaintiffs lack standing to raise these
claims in the appeal from the council’s ruling on the
Colebrook South petition because, in that proceeding,
they do not have standing to appeal by virtue of their
status as parties, but only by virtue of their status as
intervenors pursuant to § 22a-19,48 and, as such, they
are not entitled to raise procedural claims. See Pond
View, LLC v. Planning & Zoning Commission, 288
Conn. 143, 159, 953 A.2d 1 (2008) (‘‘The intervenors
have cited no case, and we have found none, in which
this court has permitted environmental intervenors to
raise purely procedural issues when the only basis for
standing that they have alleged is § 22a-19. Although
this court never expressly has concluded that standing
under § 22a-19 does not include standing to raise any
related procedural issues, it is axiomatic that the statute
encompasses substantive environmental issues only,
and the court repeatedly has declined to consider
whether procedural issues are covered.’’). We disagree.
This court has repeatedly held that ‘‘all that is
required to invoke the jurisdiction of the Superior Court
under [CEPA] is a colorable claim, by any person [or
entity] against any person [or entity], of conduct
resulting in harm to one or more of the natural resources
of this state. . . . Although it is true, of course, that
the plaintiff need not prove its case at this stage of the
proceedings . . . the plaintiff nevertheless must artic-
ulate a colorable claim of unreasonable pollution,
impairment or destruction of the environment. . . . A
complaint does not sufficiently allege standing [how-
ever] by merely reciting the provisions of § 22a-16, but
must set forth facts to support an inference that unrea-
sonable pollution, impairment or destruction of a natu-
ral resource will probably result from the challenged
activities unless remedial measures are taken.’’ (Cita-
tion omitted; internal quotation marks omitted.) Fort
Trumbull Conservancy, LLC v. New London, 282 Conn.
791, 804–805, 925 A.2d 292 (2007). This court also has
held that ‘‘the mere allegation that a defendant has
failed to comply with certain technical or procedural
requirements of a statute imposing environmental stan-
dards does not, in and of itself, give rise to a colorable
claim of unreasonable pollution under the [CEPA]. . . .
A claim that the defendant has violated the substantive
provisions of such a statute, however, may give rise
to an inference that the conduct causes unreasonable
pollution.’’ (Citation omitted; emphasis omitted.) Id.,
808.
Fort Trumbull Conservancy, LLC, involved an action
brought pursuant to § 22a-16, and not an intervention
in an administrative proceeding pursuant to § 22a-19.
The same principles, however, apply here. See Pond
View, LLC v. Planning & Zoning Commission, supra,
288 Conn. 159. Thus, ‘‘[t]he cases wherein we have
permitted standing under § 22a-19 have involved cir-
cumstances in which the conduct at issue in the applica-
tion before this court allegedly would cause direct harm
to the environment.’’ (Emphasis in original.) Id., 159–60.
In the present case, it is true that, as the defendants
claim, the council’s alleged conduct, namely, preventing
the plaintiffs from cross-examining witnesses, issuing
protective orders and not allowing the plaintiffs ade-
quate time to prepare for cross-examination, could have
had no direct impact on the environment. It is also
true, however, that, if the plaintiffs can prove their
procedural fairness claims, they will have established
that they were deprived of a full and fair opportunity
to participate in the hearings, resulting in an increased
risk of an erroneous ruling by the council on the sub-
stantive issues before it, including the plaintiffs’ claim
pursuant to § 22a-19 that BNE’s conduct would impair
the natural resources of the state. In other words, the
alleged deprivation of the plaintiffs’ right to fundamen-
tal fairness could result in decisions by the council that
did not give adequate consideration to environmental
issues. It would be absurd to conclude that the plaintiffs
had standing to intervene in the hearings before the
council pursuant to § 22a-19 because they had made a
colorable claim that the proposed projects would harm
the environment, but they have no standing to claim
that the council refused to provide them with a fair
opportunity to present their claim. The right to a funda-
mentally fair hearing is implicit in the right to intervene
pursuant to CEPA. We therefore reject the defendants’
claim that the plaintiffs lack standing to raise these
claims in the appeal from the council’s ruling on the
Colebrook South petition. Having reached this conclu-
sion, we address the plaintiffs’ procedural claims in
turn.
A
We first address the plaintiffs’ claim that the trial
court incorrectly determined that the council did not
deprive the plaintiffs of the right to fundamental fair-
ness by denying their request to cross-examine an
employee of the department of who had submitted com-
ments on the proposed projects pursuant to § 16-50j
(h).49 We disagree.
The following additional procedural history is rele-
vant to our resolution of this claim. On February 7,
2011, the council solicited comments on both projects
from various agencies, including the department, pursu-
ant to § 16-50j (h). The department submitted its com-
ments, in the form of letters signed by Frederick L.
Riese, a senior environmental analyst, on April 6, 2011.
The next day, the plaintiffs submitted revised witness
lists naming Riese as a witness. The council refused to
allow the amendment and barred the plaintiffs from
cross-examining Riese about the letters.50
In its rulings on the petitions, the council relied on
Riese’s letter to support several of its findings of fact.51
In its conclusions of law, the council explained that it
had not permitted Riese to testify because the plaintiffs
had not submitted any prefiled testimony for Riese, as
the council had requested pursuant to its regulations.
In addition, the plaintiffs had ‘‘failed to proffer what
. . . Riese would testify about, failed to demonstrate
how [their] case would be impaired without . . .
Riese’s testimony and failed to show how [they] would
be prejudiced without the testimony.’’ The council also
observed that Riese was not a witness for the council
or for any party or intervenor, but his comments were
statutorily required.
On appeal to the trial court, the plaintiffs contended
that they were prejudiced by their inability to cross-
examine Riese about the letters that he had submitted
to the council. At trial, when counsel for the plaintiffs
attempted to question the plaintiffs’ expert, Klein, about
Riese’s qualifications and the letters, counsel for the
council objected on the ground that the plaintiffs had
failed to present any testimony on that issue in the
proceedings before the council. The trial court sus-
tained the objection on the ground that Klein’s opinion
as to the propriety of Riese’s submitting letters to the
council that were not subject to cross-examination was
irrelevant. Counsel for the plaintiffs then attempted to
make an offer of proof regarding the testimony that
Klein would have given. Specifically, she stated that
Klein would testify that Riese lacked proper qualifica-
tions. At that point, the trial court interrupted counsel
for the plaintiffs and asked why the plaintiffs could not
have presented that evidence to the council. Counsel
for the plaintiffs stated that the plaintiffs had not
received the letters until after April 6, 2011, when the
hearing on the Colebrook South petition had already
begun, and that the council had imposed deadlines for
the submission of prefiled testimony. The court then
stated that, because Riese’s qualifications and the unre-
liability of his opinions were irrelevant to the question
of whether the council was authorized to receive his
comments without affording the plaintiffs an opportu-
nity to cross-examine him, it would not allow an offer
of proof on those issues.52
In its memorandum of decision, the trial court, relying
on General Statutes § 16-50o (a),53 concluded that the
council’s refusal to call Riese as a witness was justified
because ‘‘the plaintiffs, as intervenors, were not at the
level of parties that were entitled to cross-examination
in every instance.’’54 It further concluded that ‘‘[t]he
right to cross-examination in this instance was a matter
of discretion for the council, as is the use that the
council decides to make of the comments.’’ Accord-
ingly, it concluded that the council’s refusal to call Riese
as a witness had not deprived the plaintiffs of a funda-
mentally fair proceeding. The plaintiffs challenge this
conclusion on appeal to this court.
We begin our analysis with a review of the governing
statutes. General Statutes (Supp. 2014) § 16-50j (h) pro-
vides in relevant part that ‘‘[p]rior to commencing any
hearing . . . the council shall consult with and solicit
written comments from (1) the Department of Energy
and Environmental Protection . . . . Copies of such
comments shall be made available to all parties prior
to the commencement of the hearing.’’ Section 4-176
(g) provides that ‘‘[i]f the agency conducts a hearing in
a proceeding for a declaratory ruling, the provisions
of subsection (b) of section 4-177c, section 4-178 and
section 4-179 shall apply to the hearing.’’ General Stat-
utes § 4-178 (3) provides that ‘‘when a hearing will be
expedited and the interests of the parties will not be
prejudiced substantially, any part of the evidence may
be received in written form . . . .’’ Subsection (5) of
§ 4-178 provides in relevant part that ‘‘a party . . . may
conduct cross-examinations required for a full and true
disclosure of the facts . . . .’’ In addition, as we have
indicated, § 16-50o (a) provides in relevant part that
‘‘[e]very party or group of parties as provided in section
16-50n shall have the right . . . to conduct such cross-
examination as may be required for a full and true
disclosure of the facts.’’
These statutes were intended to embody the com-
mon-law principles of fundamental fairness that this
court recognized in Grimes v. Conservation Commis-
sion, supra, 243 Conn. 273, by ensuring that hearings
on petitions for declaratory rulings are conducted in a
manner that will not prejudice the parties and that will
result in a full and true disclosure of the facts. Accord-
ingly, the questions that we must address are whether
the council reasonably could have concluded that call-
ing Riese as a witness was not required to ensure a full
and true disclosure of the facts and, if not, whether the
plaintiffs were prejudiced by the council’s refusal to
allow the plaintiffs to cross-examine Riese.55 See also
Roy v. Commissioner of Motor Vehicles, 67 Conn. App.
394, 397, 786 A.2d 1279 (2001) (‘‘[t]he plaintiff bears
the burden of demonstrating that a hearing officer’s
evidentiary ruling is arbitrary, illegal or an abuse of
discretion’’ [internal quotation marks omitted]).
We recognize that the council did not provide Riese’s
comments to the plaintiffs before the hearing on the
Colebrook South petition commenced, as required by
§ 16-50j (h). We further recognize that, if the plaintiffs
had had access to Riese’s comments in a more timely
manner, they would have been in a better position to
explain to the council why they believed it was neces-
sary to cross-examine him. On the basis of the entire
record, however, we conclude that, even assuming that
the council’s failure to comply with the timing require-
ments of § 16-50j (h) was improper, that impropriety
was harmless. We also conclude that the council was
not required pursuant to § 4-178 (5) or § 16-50o (a) to
allow the plaintiffs to cross-examine Riese.
First, the only items in the record before the council
that the plaintiffs have identified as being relevant to
this claim are their amended witness lists naming Riese
as a witness and the council’s conclusions of law
explaining their decision to disallow Riese’s testimony.
Although we recognize that the plaintiffs did not receive
Riese’s comments until after the hearing on the Cole-
brook South project had commenced, they have not
explained why they could not have informed the council
of the reasons that they were concerned about the relia-
bility of Riese’s opinions, that they believed it was nec-
essary to call him as a witness and that they could
not comply with the council’s deadlines for identifying
witnesses. The plaintiffs also have not explained why,
during their examination of their own experts, they
could not have asked them about Riese’s letters.56
Second, although the council relied on Riese’s com-
ments to support certain findings of fact, those findings
were peripheral to the council’s rulings. See footnote
51 of this opinion. We therefore do not agree with the
plaintiffs’ characterization of the council’s use of the
comments as ‘‘heavy reliance’’ on them. Moreover, a
careful review of Riese’s comments reveals that they
were generally neutral and descriptive. He did not take
any position on whether the petitions should be
approved. Indeed, if anything, the comments brought
attention to the shortcomings of BNE’s petitions.
Accordingly, we conclude that the council reasonably
could have determined, on the basis of the record before
it, that cross-examination of Riese was not required to
allow the plaintiffs to present a ‘‘full and true disclosure
of the facts . . . .’’ General Statutes § 4-178 (5); accord
General Statutes § 16-50o (a). For the same reasons,
we conclude that, even if we assume that the council’s
failure to comply with the timing requirements of § 16-
50j (h) was improper, any such impropriety was harm-
less. See Klein v. Norwalk Hospital, supra, 299 Conn.
254; Hicks v. State, supra, 287 Conn. 439. We therefore
reject the plaintiffs’ claim that the council’s denial of
their request to call Riese as a witness deprived them
of their right to fundamental fairness.
B
We next address the plaintiffs’ claim that the trial
court incorrectly determined that the council had prop-
erly refused to allow the plaintiffs to cross-examine
witnesses about the cumulative impact of the two pro-
posed projects. We conclude that we need not deter-
mine whether the council’s ruling was improper
because, even if we assume that it was, the plaintiffs
have not established that they were harmed.
The following additional procedural history is rele-
vant to our resolution of this claim. The plaintiffs filed
two motions with the council requesting that the pro-
ceedings on BNE’s two petitions for declaratory rulings
be consolidated. The council denied both motions.
Thereafter, during the hearing on the Colebrook South
petition, the plaintiffs sought to question a witness
about the Colebrook North project and counsel for BNE
objected on the ground that that project was not the
subject of the hearing. When counsel for the plaintiffs
argued that the council was required to consider the
cumulative impact of the two projects pursuant to § 16-
50p (a) (3) (B),57 counsel for BNE countered that the
council ‘‘has more than sufficient information to com-
pare the effects of the two projects and to consider
them cumulatively while still maintaining two separate
records.’’ Council Chairman Robert Stein ruled that
‘‘this is about Colebrook South since this one came
first. When we get to the next one, then we can talk
about the cumulative impact.’’ Later in the hearing,
counsel for the plaintiffs questioned a witness about
the distance of the two projects from his property and
counsel for BNE moved to strike the witness’ response
on the same ground. Stein again noted that the hearing
was related only to the Colebrook South project and
the plaintiffs would have ample opportunity to address
the Colebrook North project in the other proceeding.
He also indicated, however, that he would consider the
witness’ response for what it was worth.
In the hearing on the Colebrook North petition, coun-
sel for the plaintiffs attempted to question a witness
about the Colebrook South project and counsel for BNE
objected on the ground that there were two separate
proceedings. Counsel for the plaintiffs responded that
the council had ruled in the hearing on the Colebrook
South petition that the plaintiffs could present evidence
about the cumulative impact of the two projects in the
hearing on the Colebrook North petition. Counsel for
BNE then stated that the council had ruled only that
the proper place to discuss the Colebrook North project
was in the hearing on that project, not that it would
allow evidence about the cumulative effects of the proj-
ects. The council’s staff attorney stated that, under § 16-
50p (a) (3) (B), the council could consider only cumula-
tive effects of existing facilities, not proposed facilities.
Stein then corrected his earlier ruling on that basis
and sustained BNE’s objection to testimony about the
cumulative impact of the projects.
In its conclusions of law on the Colebrook North
petition, the council stated that ‘‘§ 16-50p [(a) (3) (B)]
requires the [c]ouncil to consider the environmental
impact of a proposed facility alone and cumulatively
with other existing facilities.58 It is conceivable that the
[c]ouncil could have approved one of the petitions and
not the other, or that the [c]ouncil could have approved
or denied both petitions. Therefore, the [c]ouncil devel-
oped complete evidentiary records specific to each pro-
posed facility.’’ (Emphasis in original; footnote altered.)
This same conclusion is contained within in the coun-
cil’s ruling on the Colebrook South petition. In its con-
clusions of law on the Colebrook North petition, the
council also noted that its members were authorized
by the Uniform Administrative Procedure Act (UAPA),
General Statutes § 4-166 et seq., ‘‘to use their experi-
ence, technical competence and specialized knowledge
in the evaluation of evidence and the determination
of factual issues. This includes knowledge of agency
records, such as [the Colebrook South petition], that
are submitted to the [c]ouncil. In accordance with the
UAPA and in consideration of two complete evidentiary
records on two separate proposed facilities, the [c]oun-
cil used their experience, technical competence and
specialized knowledge in the evaluation of evidence
and the determination of factual issues concerning the
cumulative environmental impacts of [the two proj-
ects].’’ (Footnotes omitted.) Finally, in its ruling on the
Colebrook North petition, the council stated that it had
‘‘reviewed possible cumulative impacts from both wind
turbine projects . . . at certain properties. No evi-
dence in the record shows that any building is within
a [one-half mile] of both a turbine in the Colebrook
South project and a turbine in the Colebrook North
project. We find no cumulative impacts in terms of
noise, ice drop/throw or shadow flicker, and we find
that cumulative impacts in terms of visibility are not
substantial.’’59
In their briefs to the trial court, the plaintiffs con-
tended that the council had deprived them of their due
process rights by prohibiting them from presenting evi-
dence on the cumulative impact of the two projects.
They did not explain, however, in what manner the two
projects would have an adverse cumulative effect.60 In
its memorandum of decision on the appeal from the
council’s ruling on the Colebrook North petition, the
trial court stated that, in their capacity as parties to the
proceeding, the plaintiffs lacked standing to raise the
issue of cumulative impact pursuant to § 16-50k (a)
because, under that statute, the council was limited to
considering air and water quality, thereby implicitly
finding that the plaintiffs’ cumulative impact claim did
not implicate those issues.61 The court also concluded,
however, that, in their capacity as intervenors pursuant
to § 22a-19, the plaintiffs had standing to raise environ-
mental issues, which included noise, but not visibility
or shadow flicker. The court then noted that, in the
proceedings before the council, BNE’s expert had taken
into account the noise produced by all six turbines and,
at trial, the plaintiffs’ expert testified that the cumula-
tive effect of the projects on noise would be ‘‘ ‘nil.’ ’’
Accordingly, the court upheld the council’s ruling that
the projects would have no cumulative effect with
respect to noise.62 The plaintiffs challenge this conclu-
sion on appeal to this court.
We conclude that we need not decide whether the
council properly refused to admit evidence regarding
the cumulative impact of the proposed projects because
the plaintiffs have not identified any evidence that they
would have presented to the council, had the opportu-
nity been afforded, that could have affected the coun-
cil’s determination that the proposed projects would
have no cumulative impact. Thus, even if the council’s
refusal to admit the evidence was improper, the plain-
tiffs have not established that they were harmed by it.
See Klein v. Norwalk Hospital, supra, 299 Conn. 254;
Hicks v. State, supra, 287 Conn. 439; see also In re
Lukas K., supra, 300 Conn. 473–74; State v. Lopez, supra,280 Conn. 790. Accordingly, we reject this claim.
C
We next address the plaintiffs claim that the trial
court incorrectly determined that the council properly
allowed BNE to submit certain materials under seal and
that the council’s protective orders were not overbroad.
We conclude that we need not determine whether the
council acted properly because, even if we assume that
it did not, the plaintiffs have not met their burden of
proving harm.
The following additional procedural history is rele-
vant to our resolution of this claim. During the hearings
on BNE’s petitions, BNE asked the council for permis-
sion to file certain ‘‘confidential and proprietary busi-
ness data’’ under seal and also asked the court to issue
protective orders for the data. The plaintiffs objected
to the motions to the extent that they related to ‘‘data
regarding wind resources, wind speeds, and wind gener-
ation,’’ information regarding setback recommenda-
tions and information regarding the ‘‘mechanical loads
assessment’’ of the proposed turbines and certain noise
emission characteristics. The plaintiffs contended that
the materials were ‘‘public records’’ for purposes of
General Statutes (Supp. 2014) § 1-21063 and that they
did not fall within the exception for trade secrets set
forth in § 1-210 (b) (5) (A).64 The council granted the
motions to file under seal and issued protective orders
providing that access to the protected materials would
be provided only at the council’s office and that ‘‘[n]o
photocopying, no tape recording, no photographs, and
no note-taking of any kind whatsoever of the protected
materials will be permitted.’’ The council further
ordered that the protected materials would be made
available to parties and intervenors provided that they
executed a nondisclosure agreement and agreed to be
bound by the protective orders. The plaintiffs again
objected to the orders and asked for certain modifica-
tions, which the council denied.
The council explained its decision to issue the protec-
tive orders in its rulings on the petitions. The council
observed that, pursuant to § 16-50o (c), ‘‘[t]he applicant
shall submit into the record the full text of the terms
of any agreement . . . entered into by the applicant
and any party to the certification proceeding . . . in
connection with the construction or operation of the
facility. This provision shall not require the public dis-
closure of proprietary information or trade secrets.’’
The council noted that, under its procedures, proprie-
tary information includes trade secrets and concluded
that the protected materials constituted trade secrets
as defined by this court in Town & Country House &
Homes Service, Inc. v. Evans, 150 Conn. 314, 318–19,
189 A.2d 390 (1963).65 The council also explained that
‘‘parties and intervenors in this proceeding, including,
but not limited to expert witnesses, were afforded the
opportunity to review the materials submitted under
the protective order[s] upon signing a [n]on-[d]isclosure
[a]greement. Furthermore, parties and intervenors were
afforded the opportunity to submit interrogatory ques-
tions related to the confidential and proprietary infor-
mation and responses to those interrogatories would
have been provided by BNE under seal. The parties may
also have availed themselves of the statutory process
under the [Freedom of Information Act] for a determina-
tion from the Freedom of Information Commission that
the parties were denied access to public records.’’66
(Footnotes omitted.)
On appeal to the trial court, the plaintiffs again
claimed that the protective orders had been overbroad
and unduly restrictive.67 At trial, Bahtiarian testified that
he had learned about the existence of the protected
materials when an attorney asked him during a hearing
before the council if he knew about certain information
contained in one of the sealed documents relating to
noise data. He never looked at the sealed documents
before the council issued its decision because he
believed that doing so would not have been ‘‘fruitful’’
if he could not take notes or copy the documents.68
Bahtiarian also testified that he had learned since the
hearings that one of the sealed documents showed that
the noise level of the wind turbines had a tolerance or
uncertainty factor of two decibels, meaning that the
worst case noise assessment that BNE had submitted
with its petitions was low by two decibels.69 Bahtiarian
admitted that, if he had reviewed the sealed materials,
he would not have had to take notes in order to remem-
ber the two decibel uncertainty factor. He also testified
that, whenever noise is measured, there will be an
uncertainty factor.
Carboni testified at trial that it was his understanding
that he could not review the protected materials during
the hearings on BNE’s petitions. Instead, Carboni
looked at equipment specifications that were publicly
available online, and determined that the roads shown
on BNE’s plans probably were not wide enough to
accommodate the equipment. During trial, he reviewed
notes on the protected materials that counsel for the
plaintiffs had taken. Those notes confirmed Carboni’s
opinion that the roads probably were not wide enough
for the equipment. When he was asked whether the
specifications in the sealed materials were ‘‘[d]ramati-
cally or slightly’’ different than the specifications that
were available online, Carboni testified that they were
‘‘in the same general range.’’
Klein testified at trial that it was also his understand-
ing that he could not review the protected materials
during the hearings on BNE’s petitions. After the coun-
cil issued its rulings, however, he reviewed notes taken
by counsel for the plaintiffs regarding the sealed materi-
als. Klein testified that the equipment specified in the
notes ‘‘would have the potential to affect the design
of the onsite improvements and offsite infrastructure
improvements that would be necessary to get that
equipment onto the site and to safely move it around
the site. Those improvements have a reasonable likeli-
hood of having an environmental impact with respect
to wetlands and water quality.’’ Klein also admitted,
however, that he did not know whether the roads would
have to be widened, which was within Carboni’s area
of expertise, and that, if they did, he believed that BNE
would be required to obtain certain construction per-
mits to ensure that the construction met applicable
water quality standards.
The trial court concluded that the council had prop-
erly entered the sealing orders and that, even if those
orders or the terms of the protective orders had been
improper, the plaintiffs had not established that they
were harmed because the materials had been available
for review by the plaintiffs’ experts, and none of the
experts had testified at trial that the sealed documents
would have affected their opinions.
On appeal to this court, the plaintiffs claim that the
council improperly sealed the protected materials
because they were filed with a public agency and, pursu-
ant to § 1-210, there is a presumption that documents
filed with a public agency are public records, and the
materials do not contain trade secrets for purposes of
§ 1-210 (b) (5) (A). They further contend that their lack
of access to the sealed documents prejudiced them
because the sealed documents: (1) revealed that there
was a two decibel tolerance factor for the wind turbines
that the council had not considered when it found that
the projects would not exceed levels allowed by state
noise law at the residential receptor locations; and (2)
contained information suggesting that the area of site
clearance required to ensure that large trucks and
cranes would have access to the sites may have been
larger than the areas shown in the plans that BNE sub-
mitted with its petitions, which in turn, could have had
an effect on water quality.70
We conclude that we need not decide whether the
council properly allowed BNE to submit the documents
under seal and issued protective orders because, even
if the council’s actions were improper, the plaintiffs
were not harmed. First, although the plaintiffs have
suggested that timing issues and their inability to copy
or take notes on the protected materials made it point-
less to ask their experts to review the materials during
the hearings before the council, the information that
they rely on in support of their claim that they were
prejudiced was not so complex or technical that the
experts could not have gathered the required informa-
tion by simply reviewing the documents. The plaintiffs
cannot make a tactical decision not to review the docu-
ments on the assumption that doing so would be fruit-
less and then, when it becomes apparent that doing so
would not have been fruitless, claim that they were
harmed by the council’s orders rather than their tacti-
cal choice.
In any event, even if the council improperly allowed
BNE to submit the protected materials under seal and
the overbroad terms of the protective orders prevented
the plaintiffs from discovering this information in a
timely manner, any impropriety was harmless because
the plaintiffs have not established that the council
would likely have made different decisions if the plain-
tiffs had been able to examine or cross-examine wit-
nesses about the information. See Klein v. Norwalk
Hospital, supra, 299 Conn. 254; Hicks v. State, supra,
287 Conn. 439. With respect to the noise issue, the
plaintiffs have pointed to no evidence or offer of proof
in the record regarding the effect of the two decibel
tolerance factor on noise levels at the residential recep-
tors, which were the noise levels that the council con-
sidered when ruling on the petitions. With respect to
the road width issue, Carboni testified that the technical
equipment specifications in the protected materials
were ‘‘in the same general range’’ as the publicly avail-
able specifications that he relied on to support his testi-
mony before the council. Thus, the sealed information
would have been merely cumulative of information that
he already had.
The plaintiffs also contend, however, that, ‘‘without
the assistance of their experts to more fully examine
the contents of some of the more technical information,
including the [mechanical load assessments] and the
wind data, [they] simply do not know the total extent
of the prejudice they suffered by not being permitted
to properly analyze and cross-examine witnesses
regarding these documents.’’ Even if we assume that
the plaintiffs’ experts did not have sufficient access to
the protected materials to testify about them intelli-
gently or to assist the plaintiffs to prepare for cross-
examination of BNE’s witnesses in the hearings before
the council, however, the plaintiffs have not explained
why their expert witnesses could not have examined the
documents during those hearings to determine whether
they had been prejudiced by not having greater and
more timely access to them. Accordingly, we reject
this claim.
D
Finally, we address the plaintiffs’ claim that the trial
court incorrectly determined that the council did not
deprive them of their right to fundamental fairness by
denying their requests for continuances. We conclude
that we need not determine whether the council prop-
erly denied the requests for continuances because, even
if we assume that the denials were improper, the plain-
tiffs have not met their burden of proving harm.
The following additional procedural history is rele-
vant to our resolution of this claim. Before and during
the hearings before the council, BNE, on several occa-
sions, asked for extensions of time to respond to inter-
rogatory responses and to file prefiled testimony and
new evidence, which the council granted. On several
occasions, the plaintiffs did not receive the newly filed
materials, some of which were voluminous, until shortly
before the hearing was to be conducted. In response
to these late filings, the plaintiffs made several written
and oral requests for continuances so that they would
have adequate time to review the materials and prepare
for cross-examination of BNE’s witnesses. The council
denied all of the plaintiffs’ requests for continuances.
In its rulings on the petitions, the council concluded
that its procedures had been consistent with due pro-
cess requirements. In support of this conclusion, it
observed that ‘‘constitutional principles permit an
administrative agency to organize its hearing schedule
so as to balance its interest in reasonable, orderly and
nonrepetitive proceedings against the erroneous depri-
vation of a private interest and it is not unconstitutional
for the [c]ouncil, in good faith, to balance its statutory
time constraints against [the plaintiffs’] desire for more
time to present their objections to a proposal.’’ See
Concerned Citizens of Sterling, Inc. v. Connecticut
Siting Council, 215 Conn. 474, 485–86, 576 A.2d 510(1990). The council also stated that it had allowed the
plaintiffs to submit additional information after the
hearings had closed.
The trial court concluded in its memoranda of deci-
sion that ‘‘[t]he plaintiffs fail to demonstrate an uncon-
stitutional abuse of discretion by the council in regards
to its denial of the plaintiffs’ continuance requests. The
plaintiffs had ample opportunity prior to and during the
hearings to obtain and present evidence to the council.
. . . The council stated in its conclusions of law that
the plaintiffs received ample time for cross-examina-
tion. . . . The court finds such denial of continuance
requests properly within the discretion of the council.’’
(Citations omitted.)
On appeal to this court, the plaintiffs renew their
claim that the council’s denial of their requests for con-
tinuances deprived them of their right to fundamental
fairness. We need not decide whether the council
abused its discretion in denying the requests for contin-
uance, however, because the plaintiffs have identified
no evidence that they would have produced, arguments
that they would have made or questions that they would
have posed to BNE’s witnesses if the council had
granted their requests that likely would have affected
the council’s decisions.71 Accordingly, we must con-
clude that, even if the council’s actions were improper,
they were harmless. See In re Lukas K., supra, 300
Conn. 473–74 (denial of request for continuance in
parental termination proceeding was harmless when
parent had ‘‘not identified on appeal any additional evi-
dence or arguments that he could have presented if the
trial court had granted his request’’); State v. Lopez,
supra, 280 Conn. 790 (when defendant did not identify
on appeal any arguments that defense counsel would
have made at sentencing hearing if trial court had
granted defendant’s request for continuance so that new
counsel could review trial transcript, any impropriety
in denying request for continuance was deemed
harmless).
The judgments are affirmed.
In this opinion the other justices concurred.
1
We note that § 22a-19 has been amended since BNE filed the petitions
at issue in the present case. See Public Acts 2013, No. 13-186, § 1. This
amendment is not, however, relevant to the present appeal. For the sake
of convenience, we refer to the 2014 supplement of the statute. See footnote
8 of this opinion.
2
The plaintiffs appealed to the Appellate Court and we transferred the
appeals to this court pursuant to General Statutes § 51-199 (c) and Practice
Book § 65-1. Thereafter, the two appeals were consolidated for purposes
of briefing and oral argument.
3
We note that § 16-50k (a) has been amended twice since BNE filed the
petitions at issue in the present case. See Public Acts 2011, No. 11-80, § 1;
Public Acts 2013, No. 13-5, § 33. These amendments are not, however, rele-
vant to the present appeal. For the sake of convenience, we refer to the
2014 supplement of the statute. See footnote 4 of this opinion.
4
General Statutes (Supp. 2014) § 16-50k (a) provides in relevant part:
‘‘Except as provided in subsection (b) of section 16-50z, no person shall
exercise any right of eminent domain in contemplation of, commence the
preparation of the site for, commence the construction or supplying of a
facility, or commence any modification of a facility, that may, as determined
by the council, have a substantial adverse environmental effect in the state
without having first obtained a certificate of environmental compatibility
and public need, hereinafter referred to as a ‘certificate’, issued with respect
to such facility or modification by the council. Certificates shall not be
required for (1) fuel cells built within the state with a generating capacity
of two hundred fifty kilowatts or less, or (2) fuel cells built out of state
with a generating capacity of ten kilowatts or less. Any facility with respect
to which a certificate is required shall thereafter be built, maintained and
operated in conformity with such certificate and any terms, limitations or
conditions contained therein. Notwithstanding the provisions of this chapter
or title 16a, the council shall, in the exercise of its jurisdiction over the siting
of generating facilities, approve by declaratory ruling (A) the construction of
a facility solely for the purpose of generating electricity, other than an
electric generating facility that uses nuclear materials or coal as fuel, at a
site where an electric generating facility operated prior to July 1, 2004, and
(B) . . . any customer-side distributed resources project or facility or grid-
side distributed resources project or facility with a capacity of not more
than sixty-five megawatts, as long as such project meets air and water quality
standards of the Department of Energy and Environmental Protection.’’
5
General Statutes § 4-176 (a) provides: ‘‘Any person may petition an
agency, or an agency may on its own motion initiate a proceeding, for a
declaratory ruling as to the validity of any regulation, or the applicability
to specified circumstances of a provision of the general statutes, a regulation,
or a final decision on a matter within the jurisdiction of the agency.’’
6
General Statutes § 4-177a (a) provides: ‘‘The presiding officer shall grant
a person status as a party in a contested case if that officer finds that: (1)
Such person has submitted a written petition to the agency and mailed
copies to all parties, at least five days before the date of hearing; and (2)
the petition states facts that demonstrate that the petitioner’s legal rights,
duties or privileges shall be specifically affected by the agency’s decision
in the contested case.’’
We note that, although the plaintiffs sought party status pursuant to § 4-
177a, that statute governs contested cases, which do not include proceedings
on petitions for declaratory rulings. See General Statutes (Supp. 2014) § 4-
166 (4). Rather, General Statutes § 4-176 (d) authorizes agencies to grant
party status to certain persons in proceedings on petitions for declara-
tory rulings.
7
General Statutes § 16-50n (a) provides: ‘‘The parties to a certification or
amendment proceeding or to a declaratory ruling proceeding shall include:
(1) The applicant, certificate holder, or petitioner; (2) each person entitled
to receive a copy of the application or resolution under section 16-50l, if
such person has filed with the council a notice of intent to be a party; (3)
any domestic or qualified nonprofit corporation or association formed in
whole or in part to promote conservation or natural beauty, to protect the
environment, personal health or biological values, to preserve historical
sites, to promote consumer interests, to represent commercial and industrial
groups or to promote the orderly development of the areas in which the
facility is to be located, if it has filed with the council a notice of intent to
be a party; and (4) such other persons as the council may at any time deem
appropriate.’’ The plaintiffs have not specified, and the record does not
reveal, under which provision of § 16-50n (a) they sought party status.
8
General Statutes (Supp. 2014) § 22a-19 (a) (1) provides: ‘‘In any adminis-
trative, licensing or other proceeding, and in any judicial review thereof
made available by law, the Attorney General, any political subdivision of the
state, any instrumentality or agency of the state or of a political subdivision
thereof, any person, partnership, corporation, association, organization or
other legal entity may intervene as a party on the filing of a verified pleading
asserting that the proceeding or action for judicial review involves conduct
which has, or which is reasonably likely to have, the effect of unreasonably
polluting, impairing or destroying the public trust in the air, water or other
natural resources of the state.’’
9
One member of the council dissented from the council’s rulings.
10
The trial court held a joint evidentiary hearing on both appeals, but
issued separate memoranda of decision.
11
The plaintiffs contend that the proposed projects are not ‘‘grid-side
distribution resources project[s]’’ for purposes of General Statutes (Supp.
2014) § 16-50k (a) because only proposals for ‘‘grid-side distributed
resources’’ that the Public Utilities Regulatory Authority has approved pursu-
ant to General Statutes (Supp. 2014) § 16-243m (g) are eligible for exemption
from the requirement for a certificate for ‘‘grid-side distributed resources
project[s]’’ set forth in General Statutes (Supp. 2014) § 16-50k (a). See Gen-
eral Statutes (Supp. 2014) § 16-243m (g) (proposals for grid-side distributed
resources projects approved by Public Utilities Regulatory Authority are
‘‘eligible for expedited siting pursuant to subsection [a] of section 16-50k’’).
We need not address this claim because we conclude that the proposed
projects were facilities for purposes of § 16-50k (a).
12
The council determined that it had jurisdiction over BNE’s petitions
pursuant to § 16-50k (a), but did not specifically address the plaintiffs’ claim
that the projects were not ‘‘facilit[ies]’’ because wind is not a fuel.
13
The council contends that we should afford deference to its interpreta-
tion of § 16-50k (a) because the issue involves ‘‘extremely complex and
technical regulatory and policy considerations . . . .’’ Wheelabrator Lisbon,
Inc. v. Dept. of Public Utility Control, supra, 283 Conn. 692. We conclude
that the scope of the council’s authority under § 16-50k (a) is not so complex
and technical an issue that we are required to rely on the agency’s expertise
in the area.
14
General Statutes § 1-2z provides: ‘‘The meaning of a statute shall, in the
first instance, be ascertained from the text of the statute itself and its
relationship to other statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and unambiguous and
does not yield absurd or unworkable results, extratextual evidence of the
meaning of the statute shall not be considered.’’
15
This provision was added to § 16-1 in 1979. See Public Acts 1979, No.
79-214, § 1.
16
The plaintiffs rely on a number of dictionaries that define ‘‘fuel’’ as
combustible matter or matter that is consumed to produce energy.
17
General Statutes § 16-50g provides in relevant part: ‘‘The purposes of
this chapter are: To provide for the balancing of the need for adequate and
reliable public utility services at the lowest reasonable cost to consumers
with the need to protect the environment and ecology of the state and to
minimize damage to scenic, historic, and recreational values; to provide
environmental quality standards and criteria for the location, design, con-
struction and operation of facilities for the furnishing of public utility ser-
vices at least as stringent as the federal environmental quality standards
and criteria, and technically sufficient to assure the welfare and protection of
the people of the state; to encourage research to develop new and improved
methods of generating, storing and transmitting electricity and fuel and of
transmitting and receiving television and telecommunications with minimal
damage to the environment and other values described above; to promote
energy security; to promote the sharing of towers for fair consideration
wherever technically, legally, environmentally and economically feasible to
avoid the unnecessary proliferation of towers in the state particularly where
installation of such towers would adversely impact class I and II watershed
lands, and aquifers; to require annual forecasts of the demand for electric
power, together with identification and advance planning of the facilities
needed to supply that demand and to facilitate local, regional, state-wide
and interstate planning to implement the foregoing purposes.’’
18
Section 16-50g refers to ‘‘community antenna television towers and
telecommunication towers [that] have had a significant impact on the envi-
ronment and ecology of the state of Connecticut . . . .’’ Although the statute
does not expressly refer to electric generating towers, we can perceive
no reason why the legislature would have been less concerned about the
environmental and ecological impact of such towers.
19
Indeed, many persons who spoke before the committee referred gener-
ally to ‘‘power plants’’ and their effect on the environment, including their
negative impact on the state’s scenic beauty. See Conn. Joint Standing
Committee Hearings, supra, p. 470, remarks of John Lowenthal (referring
to ‘‘power facilities’’); id., p. 471, remarks of Lowenthal (referring to ‘‘power
plant siting’’); id., p. 472, remarks of Lowenthal (‘‘a power company must
submit to the council when it applies for permission to build a power plant’’);
id., p. 476, remarks of Arthur Rickerby, chairman of the Fairfield-Litchfield
Environmental Council (public needs ‘‘some control over the siting of elec-
tric generating plants’’); id., remarks of Rickerby (law is required to protect
‘‘breathtaking landscapes’’ of this state); id., p. 477, remarks of William E.
Reifsnyder, chairman of the Connecticut Group of the Atlantic Chapter of
the Sierra Club (noting ‘‘major conflicts arising over the siting of power
plants . . . on use of our open spaces—a limited resource’’ and need to
protect ‘‘the natural integrity of state parks and forests and other open
spaces of exceptional natural beauty’’); id., p. 497, remarks of Edward W.
Hutchison on behalf of the Connecticut Audubon Council (‘‘In the past the
production of electric power has resulted in vast construction, sited simply
wherever engineers and businessmen considered most convenient and eco-
nomically advantageous to themselves. Their heedlessness of environmental
factors resulted in many monstrosities and public eyesores, as well as much
needless destruction of wildlife and ecological values.’’); id., p. 507, remarks
of Seldon Sixfin (‘‘Many Bethany [c]itizens urge the passage of [the proposed
legislation] because they believe state legislation should protect Connecti-
cut’s fast-disappearing treasure: its scenic fields and forests. Bethany still
has natural beauty which must be protected from the cynical attacks of
public utilities in the guise of ‘service to the people.’ ’’).
20
In 2011, the Department of Environmental Protection became the
Department of Energy and Environmental Protection. See Public Acts 2011,
No. 11-80, § 1, codified as General Statutes § 22a-2d. For purposes of consis-
tency, we refer in this opinion to the Department of Energy and Environmen-
tal Protection.
21
The plaintiffs contend that § 16-50kk is not retroactive. Our point, how-
ever, is that, because § 16-50kk does not confer jurisdiction over electric
generating wind turbine facilities on the council, the council must have had
jurisdiction over such facilities before § 16-50kk was enacted. Accordingly,
the fact that § 16-50kk is not retroactive does not affect our conclusion.
The plaintiffs also contend that there is no evidence that § 16-50kk was
intended to be clarifying legislation. Toise v. Rowe, 243 Conn. 623, 628, 707
A.2d 25 (1998) (‘‘[w]here an amendment is intended to clarify the original
intent of an earlier statute, it necessarily has retroactive effect’’ [internal
quotation marks omitted]). Again, however, because the legislature had no
reason to believe that the council lacked jurisdiction over wind turbines,
there was no call for the legislature to expressly indicate that it was ‘‘clarify-
ing’’ that issue. In any event, there is no question that the legislature has
the power to enact clarifying legislation. Accordingly, if this court were to
conclude that wind turbines are not ‘‘facilit[ies]’’ for purposes of § 16-50k
(a), thereby rendering § 16-50kk meaningless, there is every reason to believe
that the legislature would simply enact legislation clarifying that wind tur-
bines are ‘‘facilities,’’ thereby overruling our decision.
22
Accordingly, we need not address the plaintiffs’ claim that wind is not
a fuel for purposes of § 16-50i (a) (3) or the defendants’ claim to the contrary.
Even if wind is not a fuel, an electric generating wind turbine is an ‘‘electric
generating . . . facility . . . .’’ General Statutes § 16-50i (a) (3).
23
The trial court concluded that, with respect to the Colebrook South
project, the plaintiffs were not classically aggrieved by the council’s ruling
approving the project because the project would not have a significant
impact on their properties. Accordingly, the court concluded that ‘‘[t]he
plaintiffs lack standing to raise, for example, the argument . . . that the
phrase ‘as long as such project meets air and water quality standards’ [set
forth in General Statutes (Supp. 2014) § 16-50k (a)] does not restrict the
council’s review to air and water quality only, but requires the council to
review the project under [General Statutes (Supp. 2014)] § 16-50p.’’ The
court also concluded, however, that the plaintiffs had statutory standing
pursuant to § 22a-19 to claim that the project would unreasonably impair
the public trust in the natural resources of the state by polluting the water,
causing excessive noise and harming wildlife.
24
‘‘These conditions required Stew Leonard’s to submit: (1) ‘[r]evised and
updated erosion control plan that implements all [s]tate [r]egulations’; (2)
‘[a]dditional detailed information . . . required for the silt fence and hay
bales’; (3) ‘[a] plan that addresses the placement of eco stone pavers and
the winter sanding issues’; (4) ‘[a]ny and all conflicts with soil, pipes, inverts
and any other problems as discussed are addressed as part of the [s]torm
[d]rainage [p]lan’; and (5) ‘a phasing plan [designed by its engineer] to
minimize large disturbed areas and design the project to be constructed as
practical[ly] as possible without leaving large areas open for erosion.’ ’’
Finley v. Inland Wetlands Commission, supra, 289 Conn. 16 n.5.
25
The plaintiffs’ expert, William F. Carboni, submitted ‘‘pre-filed’’ testi-
mony to the council stating that, in his opinion, the stormwater management
and erosion control plans that BNE submitted with its petitions did not
comply with water quality standards. BNE’s expert, Melvin L. Cline, submit-
ted testimony to the council, however, in which he opined that the plans
for the Colebrook South project met or exceeded governing standards.
BNE’s expert, Curtis Jones, submitted similar testimony regarding the plans
for the Colebrook North project. The credibility of these witnesses was
for the council to determine. Connecticut Coalition Against Millstone v.
Connecticut Siting Council, supra, 286 Conn. 86. In addition, although we
have concluded that the scope of the council’s authority under § 16-50k is
not so complex and technical an issue that we must defer to the agency’s
expertise; see footnote 13 of this opinion; whether a particular project
complies with the substantive requirements for approval is a highly technical
and complex determination, and we therefore must defer to the council’s
expertise on that issue, and ‘‘limit our review to a determination of whether
the [council] gave reasoned consideration to all of the relevant factors or
whether it abused its discretion.’’ Wheelabrator Lisbon, Inc. v. Dept. of
Public Utility Control, supra, 283 Conn. 692; see also id. (agency’s ruling is
entitled to deference when issue involves ‘‘extremely complex and technical
regulatory and policy considerations’’); Christopher R. v. Commissioner of
Mental Retardation, 277 Conn. 594, 611, 893 A.2d 431 (2006) (‘‘we generally
defer to an agency with expertise in matters requiring such a technical,
case-by-case determination’’); Sweetman v. State Elections Enforcement
Commission, supra, 249 Conn. 332 (it is not role of trial court or of this
court to substitute its judgment for agency’s expertise).
26
See Middlebury v. Connecticut Siting Council, Superior Court, judicial
district of New Britain, Docket No. CV-01-0508047-S (February 27, 2002)
(plaintiffs filed petition for declaratory ruling seeking determination as to
whether development and management plan violated terms of siting coun-
cil’s final decision).
27
See Finley v. Inland Wetlands Commission, supra, 289 Conn. 23 (‘‘[T]he
plaintiff would be afforded the opportunity to review [any additional submis-
sions required by the conditions] and to inform the commission of any
inadequacies that [may be discovered] or any additional concerns raised by
the information received. If the commission should fail to take appropriate
action, [the interested party] . . . would not be without recourse. For over
one hundred years in this state, we have recognized the general power of
equity to afford relief by injunction and damages for injury caused by a
nuisance created by the unreasonable conduct on one’s own property of
an otherwise lawful activity.’’ [Internal quotation marks omitted.]).
28
We express no opinion as to whether the plaintiffs in the present case
would have standing to raise any of these claims or, if so, whether they
ultimately could prevail.
29
As we have indicated, the trial court concluded that, in the appeal from
the council’s ruling on the Colebrook South petition, the plaintiffs were not
classically aggrieved by the council’s ruling because the proposed project
would have no significant effect on their properties. See footnote 23 of this
opinion. The court also concluded, however, that the plaintiffs had standing
under § 22a-19 to raise the claim that the project would cause excessive
noise. Id. On appeal to this court, the plaintiffs do not challenge the trial
court’s determination that they were not classically aggrieved and the defen-
dants do not challenge the court’s finding that the plaintiffs had standing
pursuant to § 22a-19.
30
In their posthearing briefs to the council, the plaintiffs clarified that
BNE had measured noise levels at the nearest residential bedroom.
31
The materials submitted by BNE with their petitions stated that ‘‘[t]he
human ear does not perceive sound levels from each frequency as equally
loud. To compensate for this phenomenon in perception, a frequency filter
known as A-weighted (‘dBA’) is used to evaluate environmental noise levels.’’
32
General Statutes § 16-50x (a) provides in relevant part: ‘‘Notwithstanding
any other provision of the general statutes, except as provided in section
16-243, the council shall have exclusive jurisdiction over the location and
type of facilities and over the location and type of modifications of facilities
subject to the provisions of subsection (d) of this section. . . . In ruling
on applications for certificates or petitions for a declaratory ruling for
facilities and on requests for shared use of facilities, the council shall give
such consideration to other state laws and municipal regulations as it shall
deem appropriate. . . .’’
33
The council contends that it ‘‘did not err is issuing a decision in conflict
with the [department’s] specifications for using the property line for measur-
ing noise levels . . . .’’ (Emphasis added.) The council also states that it
made extensive findings with respect to the Colebrook South project that
the noise levels would comply with the department’s noise level regulations
‘‘at the nearest residence’’; (emphasis added); and, with respect to Colebrook
North, ‘‘likewise held that BNE’s project would comply with [the depart-
ment’s] noise regulations.’’ It is clear, therefore, that the council does not
contend that the projects complied with the portion of department’s noise
regulations that requires noise levels to be measured at the projects’ prop-
erty lines.
34
The council acknowledges that it, in fact, considered noise issues when
ruling on BNE’s petitions, but contends that it ‘‘cannot expand its own
jurisdiction by considering more than its mandate.’’ We note that the council
also considered setbacks, ice throw, shadow flicker, effects on wildlife,
visibility and historic and cultural issues.
35
The trial court concluded that, although the plaintiffs were classically
aggrieved by the council’s decision on the petition for the Colebrook North
project, they were entitled by virtue of their status as parties to the proceed-
ings on the petition to raise issues concerning only air and water quality
pursuant to § 16-50k (a). The court also concluded, however, that, by virtue
of their status as intervenors pursuant to § 22a-19, the plaintiffs could raise
other environmental issues, including excessive noise, in both appeals. We
conclude that, pursuant to § 16-50x, the council has jurisdiction to consider
state laws outside of the act, including state noise law, regardless of whether
the party raising the issue has intervened in the proceeding pursuant to
§ 22a-19.
36
We note that § 16-50j has been the subject of several recent amendments
by our legislature. See, e.g., Public Acts 2011, No. 11-101, § 2. These amend-
ments are not, however, relevant to the present appeal. For the sake of
convenience, we refer to the 2014 supplement of the statute.
37
We note that § 16-50p has also been the subject of several recent amend-
ments by our legislature. See, e.g., Public Acts 2014, No. 14-94, § 36. These
amendments are not, however, relevant to the present appeal. For the sake
of convenience, we refer to the 2014 supplement of the statute.
38
The plaintiffs concede that § 16-50kk is not retroactive.
39
For example, the Department of Banking has jurisdiction over banks,
but there is no reason to believe that it would have the expertise to ensure
that banks are complying with noise regulations.
40
The plaintiffs state conclusorily that ‘‘[n]othing about [§ 16-50x (a)]
indicates that the council has the right to operate above or in contradiction
to state laws,’’ including state noise laws. They do not reconcile this position
with the plain language of § 16-50x (a) providing in relevant part that ‘‘[i]n
ruling on . . . petitions for a declaratory ruling for facilities . . . the coun-
cil shall give such consideration to other state laws . . . as it shall deem
appropriate.’’ It is simply impossible to interpret this provision as requiring
the council to consider state laws outside of the act when ruling on petitions
for declaratory rulings, and the plaintiffs have pointed to nothing in the act
that requires the council to deny petitions that do not comply with state
noise law. To the extent that the plaintiffs claim that excessive noise violates
CEPA, although this provision of § 16-50x (a) authorizes the council to
consider the provisions of CEPA, it does not require the council to consider
those provisions or to deny petitions that are in conflict with them. Finally,
with respect to BNE’s claim that, although the council is not required to
consider state noise law, the department has jurisdiction to require facilities
subject to the act to comply with that law, that question is not before us
in these appeals.
41
This interpretation is consistent with the legislative history of § 16-50x.
The purpose of the statute, which was enacted in 1973; see Public Acts
1973, No. 73-458, § 4; was to ‘‘establish what is called one-stop permitting,
that is, the need for a utility to get only one permit before it could build
and operate a power facility.’’ (Internal quotation marks omitted.) Conn.
Joint Standing Committee Hearings, Environment, Pt. 2, 1973 Sess., p. 720,
written comments of Dan Lufkin, Commissioner of Environmental Protec-
tion. Lufkin stated that ‘‘[t]he argument made in support of one-stop permit-
ting is that centralized regulation of power facilities siting is in the public
interest because it promotes efficiency. Utilities, the argument goes, are
needlessly burdened with various permit requirements.’’ Id. John Lowenthal,
a professor of law at Rutgers University School of Law and one of the
original drafters of the act, submitted a written statement in which he argued
that ‘‘[u]tility interests fight hard to get ‘one-stop’ service, because they
know they can more likely control one agency than contend successfully
with an array of regulatory agencies, local interests, and environmental
groups.’’ Id., p. 733. Both Lufkin and Lowenthal argued unsuccessfully against
the enactment of the legislation that was codified as § 16-50x. Id., pp. 720–22,
733–34. Colin C. Tait, who is now the vice chairman of the council, submitted
a written statement to the Joint Standing Committee in which he argued
that ‘‘the concept of one-stop licensing is meritorious provided the one-stop
is a meaningful, full-fledged inquiry into the matter and that the public has
had an ample opportunity to be heard. I believe [that the proposed legislation]
satisfies those criteria and that one-stop licensing could help reduce the
time and cost involved in meeting the reasonable power needs of Connecticut
citizens without jeopardizing our environment.’’ Id., p. 736. During the debate
on the proposed legislation in the House of Representatives, Representative
Richard H. Wagner explained that the legislation ‘‘would provide for what
has been referred to . . . as [a] one-stop application procedure. Currently
amongst the various and sundry state, federal, and local agencies that a
power plant or public utility must go before to have a power plant, [there
are] approximately sixteen separate applications. The one-stop does not
mean that all of these would be eliminated but it would consolidate the
ones on the state level to one. Currently a utility must go before the power
facilities evaluation council if there is any environmental impact as far as
tidal wetlands or other things that must go before the [D]epartment of
[Energy and] [E]nvironmental [P]rotection and also must go before the
[P]ublic [U]tilities [C]ommission. [At] each one of these there is the power
of individuals to bring an action after the administrative decision has been
made by the agency. This gives the possibility of tying an applicant up into
three separate court suits.’’ 16 H.R. Proc., Pt. 12B, 1973 Sess., p. 6237. It is
clear, therefore, that § 16-50x was intended to increase the efficiency of
proceedings on applications for certificates and to reduce the burdens on
utility companies in those proceedings.
42
The council found that ‘‘Rock Hall . . . is a property listed on the
National Register of Historic Places. It was designed and built in 1911 and
1912 as a private residence by Addison Mizner.’’ The property line for Rock
Hall is 2198 feet from the nearest wind turbine. The plaintiffs Stella Somers
and Michael Somers submitted written testimony to the council stating
that they own Rock Hall and operate it as a ‘‘luxury inn and bed and
breakfast . . . .’’
43
In their trial brief to the trial court, the plaintiffs claimed that BNE had
presented no evidence to the council regarding the effect of the eighty meter
hubs on water or air quality. They further argued that lowering the hub
heights would result in increased noise at the property lines and that there
was no evidence that eighty meter hubs were feasible on the site.
44
The plaintiffs contend that the council should not have considered
Corey’s statement because he made it ‘‘[a]fter the close of evidence . . . .’’
(Emphasis in original.) The hearings before the council were conducted in
a somewhat informal manner, however, and it does not appear that there
was any formal ‘‘close of evidence . . . .’’ Rather, at the end of a session
in which the council members and various parties were presenting questions
to a panel of BNE witnesses, and while all parties were still present, Corey
asked Tait if he could respond to an issue that Golembewski had raised
earlier in the session, and Tait allowed him to do so without objection by
any party. Although the plaintiffs asked that Corey’s statement be stricken,
they did not explain the basis for that request. On appeal to this court, they
have represented that the basis for their request was that the statement
was unsupported by the evidence, not that it was offered after the close
of evidence.
45
We conclude that the trial court misinterpreted Bahtiarian’s testimony
when it found that lowering the hub heights would have no effect on noise
levels. As we have indicated, although Bahtiarian testified that lowering the
hub heights would not affect the level of noise produced by the wind turbines,
he also testified that it would decrease the distance between the hubs and
the property line, thereby increasing noise levels at certain locations on the
property line.
Bahtiarian’s estimate of a three decibel increase noise levels at the prop-
erty line was based, however, on the combined effects of lowering the hub
heights and the noise tolerance factor that had been discovered after the
council issued its rulings. Bahtiarian testified that the noise tolerance factor
was two decibels, meaning that the noise produced by the wind turbines
could be two decibels louder than the level stated in the documents that
BNE submitted with its petition. Therefore, in and of itself, the effect of
lowering the hub heights on noise levels at certain locations on the property
line would be less than three decibels. The plaintiffs have pointed to no
evidence concerning the effect that lowering hub heights would have on
noise levels at nearby residences, which were the noise levels that the
council considered.
46
Nothing prevents the plaintiffs from filing a petition for a declaratory
ruling with the council seeking this remedy.
47
The plaintiffs contend that the State Historic Preservation Office con-
cluded that ‘‘shorter hub heights would have an adverse effect on the charac-
teristics of Rock Hall that made it eligible for inclusion on the National
Register of Historic Places.’’ (Emphasis in original.) The letter that the office
submitted to the council states, however, that, ‘‘[i]n the opinion of this office,
the proposed . . . Colebrook North project (whether at 100 meter hub
height or 80 meter hub height) has a clear and substantial presence at close
proximity to the Rock Hall property.’’ (Emphasis added.) Thus, the State
Historic Preservation Office did not state that lowering the hub heights itself
would have an adverse effect on the Rock Hall property.
48
As we have indicated, the trial court held that the plaintiffs were not
classically aggrieved by the council’s ruling on the Colebrook South project
because that project would have no effect on their properties; see footnote
23 of this opinion; and the plaintiffs have not challenged that holding on
appeal to this court.
49
General Statutes (Supp. 2014) § 16-50j (h) provides in relevant part:
‘‘Prior to commencing any hearing pursuant to section 16-50m, the council
shall consult with and solicit written comments from (1) the Department
of Energy and Environmental Protection . . . . Copies of such comments
shall be made available to all parties prior to the commencement of the
hearing. Subsequent to the commencement of the hearing, said [department]
. . . may file additional written comments with the council within such
period of time as the council designates. All such written comments shall
be made part of the record provided by section 16-50o. . . .’’
50
Neither party indicates where in the record the council’s order barring
the plaintiffs from cross-examining Riese can be found. The council does
not dispute, however, that it did not allow Riese to testify.
51
Specifically, the council relied on Riese’s comments to support their
findings that several species of bats could be found on project sites, that
the project would likely have some negative impact on those species, and
that postconstruction monitoring of the situation was recommended.
52
After the close of evidence, the plaintiffs also submitted a motion
requesting that the trial court supplement the record with an affidavit by their
attorney concerning a conversation that she had had with Riese regarding the
projects. The plaintiffs’ attorney stated in the affidavit that she had submitted
a freedom of information request to the Commissioner of Energy and Envi-
ronmental Protection requesting certain materials that BNE had submitted
to the department in connection with the proposed projects. The attorney
had recently spoken to Riese regarding the request and Riese had stated
incorrectly that there were only ‘‘ ‘a few hundred square feet of wetlands’ ’’
on the project sites and that the only area of concern was a ‘‘ ‘very small
stream’ ’’ that a person could ‘‘ ‘easily step over.’ ’’ The council opposed the
motion on the ground that the plaintiffs had not alleged that supplementing
the record was required to correct an irregularity in the proceedings before
the council and that Riese had disputed the accuracy of the plaintiffs’ attor-
ney’s characterization of their conversation in another affidavit. The trial
court denied the plaintiffs’ motion.
53
General Statutes § 16-50o (a) provides in relevant part: ‘‘Every party or
group of parties as provided in section 16-50n shall have the right to present
such oral or documentary evidence and to conduct such cross-examination
as may be required for a full and true disclosure of the facts.’’
54
As we have indicated, the plaintiffs had party status in both proceedings
before the council pursuant to § 16-50n (a). The trial court concluded that
the plaintiffs did not have standing as parties to appeal from the council’s
ruling on the Colebrook South petition, however, because they were not
aggrieved. See footnote 23 of this opinion. Thus, in the appeal from that
petition, they had only the rights of intervenors pursuant to § 22a-19. The
plaintiffs had standing as parties pursuant to § 16-50n (a), however, in the
appeal from the ruling on the Colebrook North petition. It is unclear why
the trial court stated otherwise. On appeal to this court, the defendants
have not claimed that intervenors in proceedings on petitions for declaratory
rulings have less expansive rights than parties.
55
The council contends that ‘‘[n]owhere in the statutory scheme is there
authority for oral testimony or even sworn testimony [by representatives
of the agencies from whom the council is required to solicit comments
pursuant to § 16-50j (h)]. Rather, the statute repeatedly and expressly
requires written comments, similar to an amicus brief or public comments.’’
(Emphasis in original.) We see nothing in the statutory scheme that would
prohibit the council from calling such persons as witnesses, however, if
doing so were required for a ‘‘full and true disclosure of the facts . . . .’’
General Statutes § 4-178 (5); see also General Statutes § 16-50o (a).
56
The plaintiffs contend that the violation of their right to ‘‘fundamental
fairness was not resolved by [their] ability to offer their own written and
testimonial evidence to rebut the Riese letters, because [their] due process
right consisted of the right to cross-examin[ation]. See [Wadell v. Board of
Zoning Appeals, 136 Conn. 1, 8, 68 A.2d 152 (1949)] (‘[c]ross-examination
is the greatest aid to the ascertainment of the truth which the advocate
possesses’) . . . .’’ (Citations omitted.) The plaintiffs did not have an unqual-
ified right, however, to cross-examine witnesses in the hearings on BNE’s
petitions and, having failed to explain to the council the basis of their request
to call Riese as a witness, they cannot now claim that council should have
known that cross-examination of Riese was required for a ‘‘full and true
disclosure of the facts.’’ General Statutes § 4-178 (5); accord General Statutes
§ 16-50o (a). Moreover, even if cross-examination would have been the best
method to ascertain the reliability of Riese’s comments, the plaintiffs might
have been able to rebut the comments by other methods. The plaintiffs
represent in their brief to this court that the deficiencies in Riese’s letters
included ‘‘silence regarding water quality issues and BNE’s failure to conduct
raptor, vernal pool, fauna and bird migration surveys, accompanied by a
focus on the potential visibility of the projects, which is not within [the
department’s] purview.’’ The plaintiffs easily could have brought these issues
to the council’s attention without cross-examining Riese.
We also disagree with the plaintiffs’ contention that they were deprived
of an opportunity to establish prejudice because the trial court denied their
motion to supplement the record with their attorney’s affidavit. See footnote
52 of this opinion. The council was entitled to rely on the record before it
when deciding whether the plaintiffs would be prejudiced if it did not allow
Riese to testify, and the affidavit concerned events that occurred long after
the council issued its rulings.
57
General Statutes (Supp. 2014) § 16-50p (a) (3) provides that, in proceed-
ings on applications for certificates, ‘‘[t]he council shall not grant a certificate
. . . unless it shall find and determine . . . (B) [t]he nature of the probable
environmental impact of the facility alone and cumulatively with other
existing facilities . . . .’’
58
Section 16-50p (a) (3) (B) applies only to applications for certificates,
not to petitions for declaratory rulings. The defendants do not claim on
appeal, however, that the council lacks authority to consider the cumulative
impact of facilities approved by declaratory ruling.
59
The council found in its ruling on the Colebrook South project that,
‘‘[i]n modeling noise at all of the receptor locations in both Colebrook North
and South, BNE assumed noise from all six of the turbines.’’ In its ruling
on the Colebrook North petition, the council found that ‘‘[t]he noise levels
predicted were based on the cumulative noise impact of the six proposed
turbines . . . .’’
60
In other words, the plaintiffs did not specify whether the cumulative
effect of the projects would impair air and water quality, scenic values,
noise levels, or some other environmental value that the council considered.
After the parties submitted their trial briefs to the trial court, the trial
court asked the council to submit record citations regarding the cumulative
impact of the projects. The plaintiffs submitted a response to the council’s
submission in which they argued that the citations provided by the council
did not support its conclusion that there would be no cumulative impact.
They did not point to any evidence, however, that would support a finding
that the projects would have a negative cumulative impact.
61
We disagree with the trial court’s determination that the plaintiff lacked
standing to raise noise issues in their capacity as parties. We concluded in
part III of this opinion that the council has jurisdiction to consider issues
other than air and water quality, such as state noise laws, when ruling on
petitions for declaratory rulings under the act even in the absence of any
CEPA claim because the council is authorized to ‘‘give such consideration
to other state laws and municipal regulations as it shall deem appropriate’’
pursuant to § 16-50x. See footnote 35 of this opinion.
62
In its memorandum of decision in the appeal from the council’s ruling
on the Colebrook South petition, the trial court stated that ‘‘[t]he plaintiffs’
own experts denied that the cumulative impact of the projects affected the
environment in [this] project. The plaintiffs’ point on cumulative impacts,
in any event, is visual, rather than environmental. The plaintiffs have argued
that [the two] projects affect those in the area of the [Colebrook] North
project and this is discussed in’’ the court’s memorandum of decision in
that case.
63
General Statutes (Supp. 2014) § 1-210 (a) provides in relevant part:
‘‘Except as otherwise provided by any federal law or state statute, all records
maintained or kept on file by any public agency, whether or not such records
are required by any law or by any rule or regulation, shall be public records
and every person shall have the right to (1) inspect such records promptly
during regular office or business hours, (2) copy such records in accordance
with subsection (g) of section 1-212, or (3) receive a copy of such records
in accordance with section 1-212. . . .’’ We note that § 1-210 has been the
subject of several recent amendments by our legislature. See, e.g., Public
Acts 2014, No. 14-217, § 18. These amendments are not, however, relevant
to the present appeal. For the sake of convenience, we refer to the 2014
supplement of the statute.
64
General Statutes (Supp. 2014) § 1-210 (b) (5) (A) provides in relevant
part: ‘‘Nothing in the Freedom of Information Act shall be construed to
require disclosure of:
***
‘‘(5) (A) Trade secrets, which for purposes of the Freedom of Information
Act, are defined as information, including formulas, patterns, compilations,
programs, devices, methods, techniques, processes, drawings, cost data,
customer lists, film or television scripts or detailed production budgets that
(i) derive independent economic value, actual or potential, from not being
generally known to, and not being readily ascertainable by proper means
by, other persons who can obtain economic value from their disclosure
or use, and (ii) are the subject of efforts that are reasonable under the
circumstances to maintain secrecy . . . .’’
65
‘‘A trade secret may consist of any formula, pattern, device or compila-
tion of information which is used in one’s business, and which gives him
an opportunity to obtain an advantage over competitors who do not know
or use it. It may be a formula for a chemical compound . . . or a list of
customers. . . . Matters of public knowledge or of general knowledge in
an industry cannot be appropriated by one as his secret. A trade secret is
known only in the particular business in which it is used. It is not essential
that knowledge of it be restricted solely to the proprietor of the business.
He may, without losing his protection, communicate the secret to employees
or to others who are pledged to secrecy. Nevertheless, a substantial element
of secrecy must exist, to the extent that there would be difficulty in acquiring
the information except by the use of improper means. Some of the factors
to be considered in determining whether given information is a trade secret
are (1) the extent to which the information is known outside the business;
(2) the extent to which it is known by employees and others involved in
the business; (3) the extent of measures taken by the employer to guard
the secrecy of the information; (4) the value of the information to the
employer and to his competitors; (5) the amount of effort or money expended
by the employer in developing the information; (6) the ease or difficulty
with which the information could be properly acquired or duplicated by
others.’’ (Citations omitted; internal quotation marks omitted.) Town &
Country House & Homes Service, Inc. v. Evans, supra, 150 Conn. 318–19.
66
The plaintiffs have not challenged this characterization of the protective
orders on appeal. In their opposition to BNE’s motions to file records under
seal, however, the plaintiffs contended that ‘‘the restrictions of the [protec-
tive orders] rendered the information filed under seal useless to the parties.
For example, the [r]aw [w]ind [d]ata was available on CD in a static PDF
format and was more than 1176 pages long. . . . [The plaintiffs] therefore
could not provide the information to their experts, and it would certainly
not have been fruitful to have an expert travel to [the council’s offices] to
. . . review thousands of pages of static data in a PDF chart without taking
notes.’’ (Citation omitted.)
67
On appeal to the trial court, BNE filed a motion to file the protected
materials under seal, which the trial court granted. Thereafter, the parties
entered into a joint stipulated protective order providing that the material
would be made ‘‘available to the plaintiffs, their lawyers and member of
their lawyers’ staff as needed,’’ provided that those persons executed a
nondisclosure agreement and agreed to be bound by the protective order.
The stipulated protective order also provided that no photocopying, tape
recording or photographing of the materials would be permitted, but that
persons with access to the materials could take notes. The order further
provided that parties and their lawyers could ‘‘share their notes taken during
review of the [p]rotected [m]aterials with their expert witnesses and staff
who may be assisting those experts . . . .’’ The plaintiffs do not challenge
the court’s sealing order or the terms of the stipulated protective order on
appeal to this court.
68
The protective orders provided that ‘‘no note-taking of any kind whatso-
ever of the protected materials will be permitted.’’ (Emphasis added.)
Although the parties were not allowed to copy any part of the sealed materi-
als, the record is not clear as to whether the council intended that the
parties would be prohibited from taking any notes while in the presence
of the sealed materials, even if the notes would not reveal protected infor-
mation.
69
As we have indicated, Bahtiarian also testified that the tolerance factor
of two decibels, when combined with lowering the hub heights to eighty
meters, would result in a worst case three decibel increase at the property
lines for the Colebrook North project. The plaintiffs have not specified
whether or where Bahtiarian testified as to the effect of the tolerance factor
alone on noise levels at the property lines on either of the two projects.
70
The plaintiffs also claim that the projects did not comply with the
manufacturer’s recommended setback requirements, which were publicly
available. They contend that they were prevented from cross-examining
witnesses about this issue during the hearings on the Colebrook North
petition when counsel for BNE objected to the line of questioning because
it involved confidential information. The council’s staff attorney advised
counsel for the plaintiffs, however, that, if he wanted to question BNE about
compliance with the recommended setback requirements, he could submit
questions to BNE that would be answered under seal. Counsel for the
plaintiffs indicated that he would do so. Accordingly, the plaintiffs were not
prevented from obtaining information or questioning BNE witnesses about
this issue.
71
The plaintiffs state in a footnote in their brief to this court that BNE
did not submit spring migratory bird studies and acoustic bat monitoring
surveys until after the council rendered its decisions. The plaintiffs do not
identify any information in those materials, however, that likely would have
affected the council’s decisions. The plaintiffs also contend that they had
very little time to prepare for their cross-examination of Michael Klemens,
the author of a wildlife assessment that BNE submitted after the hearings
had begun, and that ‘‘[t]hese instances of late filing were particularly detri-
mental to [the] plaintiffs because Klemens made several discoveries that
contradicted assertions made by BNE in its petitions, including the presence
of valuable habitats on both sites likely to support several state listed spe-
cies.’’ The plaintiffs, however, have not identified what additional questions
they would have asked Klemens or what additional evidence they would
have presented to the council in the event they were afforded more time.
Moreover, the plaintiffs have not explained how any such additional informa-
tion would have affected the council’s decisions.