Burton v. Connecticut Siting Council ( 2015 )

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NANCY BURTON v. CONNECTICUT SITING
COUNCIL ET AL.
(AC 36799)
Gruendel, Alvord and Mullins, Js.
Argued September 11—officially released November 17, 2015
(Appeal from Superior Court, judicial district of New
Britain, Hon. Joseph M. Shortall, judge trial referee.)
Nancy Burton, self-represented, the appellant
(plaintiff).
Robert L. Marconi, assistant attorney general, with
whom, on the brief, was George Jepsen, attorney gen-
eral, for the appellee (named defendant).
Bradford S. Babbitt, with whom, on the brief, was
Kenneth C. Baldwin, for the appellee (defendant
Dominion Nuclear Connecticut, Inc.).
Opinion
GRUENDEL, J. The self-represented plaintiff, Nancy
Burton, appeals from the judgment of the Superior
Court dismissing, for lack of subject matter jurisdiction,
her administrative appeal from a decision of the named
defendant, the Connecticut Siting Council (council).
The dispositive issue is whether the plaintiff had stand-
ing to pursue that appeal. We affirm the judgment of
the Superior Court.1
This case concerns the construction of an indepen-
dent fuel storage facility (facility) for spent nuclear fuel
at the Millstone Nuclear Power Station in Waterford
(Millstone) by the defendant Dominion Nuclear Con-
necticut, Inc. (Dominion). In 2003, Dominion filed an
application with the council for a certificate of environ-
mental compatibility and public need in order to con-
struct a dry storage facility pursuant to General Statutes
§ 16-50k. Connecticut Coalition Against Millstone v.
Connecticut Siting Council, 286 Conn. 57, 61, 942 A.2d
345 (2008). At that time, Millstone utilized ‘‘wet storage
to store both spent fuel and all the fuel in a reactor
core in the event of the need for refueling, maintenance
or emergency measures . . . .’’ Id. Due to ‘‘dwindling
space in the wet storage facilities,’’ Dominion submitted
that the construction of a ‘‘dry storage facility was nec-
essary to compensate’’ therefor. Id.In 2004, the council approved Dominion’s application
to complete all subsurface infrastructure work to
accommodate 135 horizontal storage modules (mod-
ules) on the Millstone site. In addition, the council per-
mitted Dominion to construct a concrete pad large
enough to accommodate the installation of forty-nine
modules. The council ordered Dominion to install those
modules ‘‘in numeric order as identified in the record
. . . .’’ The council’s approval also provided that
Dominion could petition for permission to install addi-
tional modules in the future. Two parties who inter-
vened in that proceeding pursuant to General Statutes
(Rev. to 2011) § 22a-19 (a),2 including the plaintiff,
appealed that decision to the Superior Court, which
ultimately dismissed the appeal. Connecticut Coalition
Against Millstone v. Connecticut Siting Council, supra,286 Conn. 65. Our Supreme Court affirmed that judg-
ment on appeal. Id., 88.
On October 31, 2012, Dominion filed an application
for ‘‘certain modifications to the existing [facility] and
. . . to install all remaining concrete pads to accommo-
date the full build-out of 135 [modules].’’ Significantly,
Dominion did not seek approval to install any additional
modules as part of this application, a distinction the
council specifically noted in its findings of fact.
The plaintiff intervened in that administrative pro-
ceeding pursuant to § 22a-19 (a) and thereafter partici-
pated through the submission of interrogatories, direct
testimony, cross-examination, and the introduction of
various exhibits and motions. The council held a public
hearing over the course of two days, conducted a site
visit, and solicited comments from state agencies and
nearby municipalities. In its May 2, 2013 decision, the
council found that the proposed activity ‘‘would have
no effect on wetlands or watercourses’’ and ‘‘would not
significantly increase stormwater run-off from the site
and no modifications to stormwater discharge struc-
tures would be required.’’ The council noted that the
facility was not within a flood hazard area and that
‘‘[n]o vegetation or habitats would be directly affected,
as all modifications would be within previously dis-
turbed and currently industrially maintained areas. The
project would not affect any State or federally endan-
gered, threatened, or special concern species.’’ The
council also found that ‘‘[t]he project is consistent with
the provisions of the Connecticut Environmental Pro-
tection Act [(CEPA), General Statutes § 22a-14 et seq.],
as it will not have the effect of unreasonably polluting,
impairing, or destroying the public trust in the air, water
or other natural resources of the state.’’ It thus con-
cluded that ‘‘the effects associated with the modifica-
tion of the existing [facility], including the effects on the
natural environment; ecological integrity and balance;
public health and safety; scenic, historic, and recre-
ational values; forests and parks; air and water purity;
and fish and wildlife are not disproportionate either
alone or cumulatively with other effects when com-
pared to need, are not in conflict with the policies of
the state concerning such effects, and not sufficient
reason to deny this application to amend and modify’’ its
prior approval of the facility. Accordingly, the council
approved Dominion’s application and ordered in rele-
vant part that ‘‘[t]he Certificate Holder shall install a
concrete pad large enough to accommodate 135 [mod-
ules] . . . .’’ The council did not authorize the installa-
tion of any additional modules on that concrete pad.3
From that decision, the plaintiff timely appealed to
the Superior Court. The operative complaint, the plain-
tiff’s second amended complaint dated June 7, 2013,
alleges that the council acted arbitrarily and capri-
ciously in nine respects.4 Both Dominion and the coun-
cil thereafter moved to dismiss the administrative
appeal for lack of subject matter jurisdiction.5 By memo-
randum of decision dated March 11, 2014, the court
concluded that the plaintiff lacked the requisite stand-
ing and thus dismissed the appeal. This appeal followed.
It is well established that ‘‘[a] party must have stand-
ing to assert a claim in order for the court to have
subject matter jurisdiction over the claim.’’ (Internal
quotation marks omitted.) Lewis v. Slack, 110 Conn.
App. 641, 643, 955 A.2d 620, cert. denied, 289 Conn. 953,
961 A.2d 417 (2008). ‘‘Standing is the legal right to set
judicial machinery in motion. One cannot rightfully
invoke the jurisdiction of the court unless he [or she]
has, in an individual or representative capacity, some
real interest in the cause of action, or a legal or equitable
right, title or interest in the subject matter of the contro-
versy.’’ (Internal quotation marks omitted.) Sadloski v.
Manchester, 228 Conn. 79, 84, 634 A.2d 888 (1993), on
appeal after remand, 235 Conn. 637, 668 A.2d 1314(1995). ‘‘[T]he court has a duty to dismiss, even on its
own initiative, any appeal that it lacks jurisdiction to
hear. . . . Where a party is found to lack standing, the
court is consequently without subject matter jurisdic-
tion to determine the cause.’’6 (Citation omitted; internal
quotation marks omitted.) Lewis v. Slack, supra,643–44.
‘‘To be entitled to invoke the judicial process, a party
must have suffered an aggrievement.’’ Kelly v. Dearing-
ton, 23 Conn. App. 657, 660, 583 A.2d 937 (1990). ‘‘Two
broad yet distinct categories of aggrievement exist, clas-
sical and statutory. . . . 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 [controversy], as opposed to a general
interest that all members of the community share. . . .
Second, the party must also show that the [alleged con-
duct] has specially and injuriously affected that specific
personal or legal interest. . . . Statutory aggrievement
. . . exists by legislative fiat . . . . In other words, in
cases of statutory aggrievement, particular legislation
grants standing to those who claim injury to an interest
protected by that legislation.’’ (Internal quotation marks
omitted.) McWeeny v. Hartford, 287 Conn. 56, 64–65,
946 A.2d 862 (2008). ‘‘[T]he question of whether the
pleadings set forth sufficient facts, if presumed true, to
establish a party’s aggrievement presents a question of
law over which we exercise plenary review.’’ Connecti-
cut Independent Utility Workers, Local 12924 v. Dept.
of Public Utility Control, 312 Conn. 265, 273, 92 A.3d
247 (2014). With those principles in mind, we turn to
the question of whether the court properly concluded
that the plaintiff lacked standing to maintain this admin-
istrative appeal.
I
At the outset, we note what is not in dispute. In
her complaint, the plaintiff did not specify whether her
appeal was brought pursuant to CEPA or the Uniform
Administrative Procedure Act (UAPA), General Stat-
utes § 4-166 et seq. With respect to the latter, our
Supreme Court has explained that ‘‘[b]ecause the UAPA
does not, by itself, render the plaintiffs statutorily
aggrieved for standing purposes,’’ a party must establish
that it is classically aggrieved. Financial Consulting,
LLC v. Commissioner of Insurance, 315 Conn. 196,
227, 105 A.3d 210 (2014); see also Bingham v. Dept. of
Public Works, 286 Conn. 698, 704, 945 A.2d 927 (2008)
(‘‘the UAPA . . . requires that the appealing party be
aggrieved in order to bring the appeal’’). In its memoran-
dum of decision, the court found that the plaintiff was
not classically aggrieved because she failed to allege a
specific, personal and legal interest in the subject mat-
ter of the decision rendered by the council, rather than
a general interest shared by members of the community.
See Fort Trumbull Conservancy, LLC v. Alves, 262
Conn. 480, 486, 815 A.2d 1188 (2003). The plaintiff in
this appeal does not contest the propriety of that deter-
mination. Accordingly, our consideration of the ques-
tion of the plaintiff’s standing is confined to whether
the allegations of her operative complaint establish stat-
utory aggrievement under CEPA.
II
Although ‘‘[t]raditionally, citizens seeking to protect
the environment were required to show specific, per-
sonal aggrievement to attain standing to bring a legal
action,’’ CEPA waives that requirement by providing
that ‘‘any person or other entity, without first having
to establish aggrievement, may intervene in any admin-
istrative proceeding challenging conduct which has, or
which is reasonably likely to have, the effect of unrea-
sonably polluting, impairing or destroying the public
trust in the air, water or other natural resources of the
state.’’ (Internal quotation marks omitted.) Burton v.
Dominion Nuclear Connecticut, Inc., 300 Conn. 542,
556, 23 A.3d 1176 (2011). With respect to administrative
proceedings, § 22a-19 (a) confers such statutory stand-
ing on intervening parties.7
As our Supreme Court has explained, ‘‘in order to
survive a motion to dismiss, [a plaintiff seeking to assert
a claim under § 22a-19] must articulate a colorable claim
of unreasonable pollution, impairment or destruction of
the environment.’’ (Internal quotation marks omitted.)
Finley v. Inland Wetlands Commission, 289 Conn. 12,
35, 959 A.2d 569 (2008). ‘‘A complaint does not suffi-
ciently allege standing . . . by merely reciting the pro-
visions of § [22a-19], but must set forth facts to support
an inference that unreasonable pollution, impairment
or destruction of a natural resource will probably result
from the challenged activities unless remedial measures
are taken.’’ (Internal quotation marks omitted.) Id. To
ascertain whether the plaintiff has articulated a color-
able claim of environmental harm, we therefore must
scrutinize the allegations of the operative complaint.
Paragraph 12 of that complaint contains nine distinct
allegations of arbitrary and capricious action by the
council. See footnote 4 of this opinion. Paragraph 12
(C) alleges that ‘‘[t]he council failed to adequately con-
sider the environmental and health implications and
consequences of the application as required by law
. . . .’’ Bereft of any factual allegations of environmen-
tal harm, subparagraph (C) merely asserts a legal con-
clusion, and thus plainly is inadequate.8 See Finley v.
Inland Wetlands Commission, supra, 289 Conn. 35(complaint does not sufficiently allege standing by
merely reciting provisions of § 22a-19); Wucik v. Plan-
ning & Zoning Commission, 113 Conn. App. 502, 507–
508, 967 A.2d 572 (2009) (conclusory statement devoid
of any specific factual allegations cannot establish
aggrievement); Hendel’s Investors Co. v. Zoning Board
of Appeals, 62 Conn. App. 263, 274, 771 A.2d 182 (2001)
(conclusory statements purporting to allege
aggrievement insufficient without adequate accompa-
nying factual allegations).
The remaining eight allegations of impropriety set
forth in paragraph 12 of the complaint all allege proce-
dural error. Subparagraphs (A), (B), and (H) challenge
the sufficiency of the evidence submitted by Dominion,
while subparagraphs (D) and (E) allege bias on the part
of the council.9 Subparagraphs (G) and (I) allege that
the council’s decision is inconsistent with its prior deci-
sion in 2004, with unspecified ‘‘state policies,’’ and with
‘‘the council’s own analysis’’ regarding ‘‘the need for
Millstone generation of electricity . . . .’’ Lastly, sub-
paragraph (F) alleges that the council ‘‘acted prema-
turely’’ on Dominion’s 2012 application, claiming that
the council instead should have waited until after the
Nuclear Regulatory Commission promulgated ‘‘an Envi-
ronmental Impact Statement . . . in the year 2014
. . . .’’10 None of those claims of impropriety contain
any allegations of fact that ‘‘support an inference that
unreasonable pollution, impairment or destruction of
a natural resource will probably result from the chal-
lenged activities . . . .’’11 (Internal quotation marks
omitted.) Finley v. Inland Wetlands Commission,
supra, 289 Conn. 35. They thus do not constitute a
colorable claim of environmental harm.
III
Our Supreme Court ‘‘consistently [has] acknowl-
edged . . . that an intervenor’s standing pursuant to
§ 22a-19 strictly is limited to challenging only environ-
mental issues covered by the statute and only those
environmental concerns that are within the jurisdiction
of the particular administrative agency conducting the
proceeding into which the party seeks to intervene.’’
(Internal quotation marks omitted.) Pond View, LLC v.
Planning & Zoning Commission, 288 Conn. 143, 157,
953 A.2d 1 (2008); see also Mystic Marinelife Aquar-
ium, Inc. v. Gill, 175 Conn. 483, 490, 400 A.2d 726(1978) (intervenor that has filed verified pleading at
administrative level pursuant to § 22a-19 has standing
to appeal on basis of that pleading ‘‘limited to . . .
environmental issues only’’). The court nevertheless has
carved a limited exception to that general rule involving
cases in which an intervenor alleges that it was denied
the right to fundamental fairness in the administrative
proceeding.12 FairwindCT, Inc. v. Connecticut Siting
Council, 313 Conn. 669, 713–14, 99 A.3d 1038 (2014).
The court reasoned that if parties intervening pursuant
to § 22a-19 can prove their factual allegations that ‘‘the
council refused to provide them with a fair opportunity
to present their claim’’; id., 714; that ‘‘alleged deprivation
. . . could result in decisions by the council that did
not give adequate consideration to environmental
issues.’’ Id., 713. The court therefore held that ‘‘[t]he
right to a fundamentally fair hearing is implicit in the
right to intervene pursuant to CEPA.’’13 Id., 714.
As with any standing issue, it remains that the plaintiff
must plead facts sufficient to substantiate such an alle-
gation. For example, in FairwindCT, Inc., the plaintiffs
claimed that the defendant violated their right to funda-
mental fairness by ‘‘preventing [them] from cross-exam-
ining witnesses, issuing protective orders and not
allowing [them] adequate time to prepare for cross-
examination . . . .’’ Id., 713. In contrast, the operative
complaint in the present case contains no such allega-
tions, nor does it reference the right to fundamental
fairness. Rather, the complaint acknowledges that the
plaintiff ‘‘intervened in the proceedings . . . and par-
ticipated through the submission of interrogatories,
cross-examination, direct testimony and the introduc-
tion of various exhibits and motions.’’ None of the alle-
gations of the complaint, including the nine claims of
the arbitrary and capricious conduct on the part of
the council, set forth any factual allegation of specific
conduct that would support a finding that the council
violated the plaintiff’s right to fundamental fairness.
Accordingly, the narrow exception outlined in Fair-
windCT, Inc., is inapposite to the present case.
IV
The plaintiff also claims that her status as an interve-
nor in the proceeding before the council conferred
‘‘automatic statutory standing’’ for purposes of her
appeal to the Superior Court. That contention is con-
trary to well established law.
Section 16-50j-17 of the Regulations of Connecticut
State Agencies addresses the status of intervenors
before the council. It provides in relevant part that ‘‘[n]o
grant of leave to participate as an intervenor shall be
deemed to be an expression by the council that the
person permitted to intervene is a party in interest who
may be aggrieved by any final decision, order, or ruling
of the council unless such grant of leave explicitly so
states.’’ Regs., Conn. State Agencies § 16-50j-17 (b). The
record in the present case does not contain such an
explicit statement by the council.
Furthermore, our appellate courts consistently have
‘‘held that [m]ere status . . . as a party or a participant
in a hearing before an administrative agency does not
in and of itself constitute aggrievement for the purposes
of appellate review. Hartford Distributors, Inc. v.
Liquor Control Commission, 177 Conn. 616, 620, 419
A.2d 346 (1979); see also New England Rehabilitation
Hospital of Hartford, Inc. v. Commission on Hospi-
tals & Health Care, 226 Conn. 105, 132, 627 A.2d 1257(1993); Milford v. Local 1566, 200 Conn. 91, 96, 510
A.2d 177 (1986); Bakelaar v. West Haven, 193 Conn. 59,
66, 475 A.2d 283 (1984); Fox v. Zoning Board of Appeals,
84 Conn. App. 628, 637, 854 A.2d 806 (2004); Olsen v.
Inland Wetlands Commission, 6 Conn. App. 715, 718,
507 A.2d 495 (1986).’’ (Internal quotation marks omit-
ted.) Concerned Citizens for the Preservation of Water-
town, Inc. v. Planning & Zoning Commission, 118
Conn. App. 337, 344, 984 A.2d 72 (2009), cert. denied,
294 Conn. 934, 987 A.2d 1028 (2010). Our courts simi-
larly have held that ‘‘[t]he mere statement that the appel-
lant is aggrieved, without supporting allegations as to
the particular nature of the aggrievement, is insuffi-
cient.’’ (Emphasis added; internal quotation marks omit-
ted.) Bongiorno Supermarket, Inc. v. Zoning Board of
Appeals, 266 Conn. 531, 542–43, 833 A.2d 883 (2003).
We decline to depart from that settled precedent.
Under Connecticut law, ‘‘[t]he plaintiff bears the bur-
den of proving subject matter jurisdiction, whenever
and however raised. . . . A plaintiff has the burden
of proof with respect to standing. . . . To establish
aggrievement . . . the plaintiff [must allege] facts
which, if proven, would constitute aggrievement as a
matter of law . . . .’’ (Citations omitted; internal quota-
tion marks omitted.) Emerick v. Glastonbury, 145
Conn. App. 122, 128–29, 74 A.3d 512 (2013), cert. denied,
311 Conn. 901, 83 A.3d 348 (2014); see also Martin v.
Brady, 261 Conn. 372, 376, 802 A.2d 814 (2002)
(reviewing court must examine pleadings to decide if
plaintiff has alleged sufficient facts to establish subject
matter jurisdiction); New England Rehabilitation Hos-
pital of Hartford, Inc. v. Commission on Hospitals &
Health Care, supra, 226 Conn. 120 (‘‘[p]leading and
proof of facts that constitute aggrievement are essential
prerequisites to the trial court’s subject matter jurisdic-
tion over an administrative appeal’’). With respect to
matters brought pursuant to § 22a-19, to survive a
motion to dismiss for lack for standing, the plaintiff’s
‘‘complaint . . . must set forth facts to support an
inference that unreasonable pollution, impairment or
destruction of a natural resource will probably result
from the challenged activities unless remedial measures
are taken.’’ (Internal quotation marks omitted.) Finley
v. Inland Wetlands Commission, supra, 289 Conn. 35.
It therefore was incumbent on the plaintiff to allege
such facts in her operative complaint to establish stand-
ing to maintain her appeal before the Superior Court.
The plaintiff has not met that burden. Absent from her
operative complaint is any colorable claim of probable
environmental harm or deprivation of her right to funda-
mental fairness before the council. Perhaps cognizant
of that deficiency, the plaintiff argues that the Superior
Court improperly confined its review to the operative
pleadings before it at the time that the defendants
moved to dismiss the appeal for lack of subject matter
jurisdiction. She posits that the court was required to
consider not only the allegations set forth in the opera-
tive complaint, but also those contained in the Decem-
ber 7, 2012 notice of intervention that she filed with
the council in the underlying proceeding. For two rea-
sons, we disagree.
First and foremost, the plaintiff has provided no legal
authority in support of that novel contention, which
runs contrary to our law. Connecticut is a fact pleading
jurisdiction. See Practice Book § 10-1; Florian v. Lenge,
91 Conn. App. 268, 274, 880 A.2d 985 (2005). In the
context of administrative appeals brought pursuant to
§ 22a-19, our Supreme Court has held that a plaintiff’s
‘‘complaint . . . must set forth facts to support an
inference that unreasonable pollution, impairment or
destruction of a natural resource will probably result
from the challenged activities unless remedial measures
are taken.’’ (Internal quotation marks omitted.) Finley
v. Inland Wetlands Commission, supra, 289 Conn. 35;
see also Connecticut Independent Utility Workers,
Local 12924 v. Dept. of Public Utility Control, supra,312 Conn. 273 (noting that reviewing court ‘‘must exam-
ine the complaint to determine whether it contains
allegations’’ sufficient to establish aggrievement
[emphasis in original]); Alarm Applications Co. v.
Simsbury Volunteer Fire Co., 179 Conn. 541, 545, 427
A.2d 822 (1980) (‘‘[w]e must examine each count of the
complaint . . . to determine whether [the] plaintiff
. . . has standing to sue’’). Indeed, General Statutes
(Rev. to 2011) § 22a-19 (a) expressly requires an
intervening party to file ‘‘a verified pleading’’ that speci-
fies ‘‘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.’’ As we already have
discussed, the operative complaint in the present case
lacks such factual allegations.
Second, the operative complaint does not reference
the plaintiff’s December 7, 2012 notice of intervention
in any manner, and it was not appended thereto. More-
over, at the time that Dominion moved to dismiss the
appeal for lack of subject matter jurisdiction on July
29, 2013, that notice of intervention was not in the
record before the Superior Court. It is well settled that
if ‘‘the plaintiff’s standing does not adequately appear
from all materials of record, the complaint must be
dismissed.’’ (Internal quotation marks omitted.) Burton
v. Dominion Nuclear Connecticut, Inc., supra, 300
Conn. 550. Because the December 7, 2012 notice of
intervention was neither referenced in the operative
complaint nor submitted into the record at the time
that the defendants moved to dismiss the appeal, we
cannot agree with the plaintiff’s assertion that the Supe-
rior Court made a ‘‘deliberate decision to disregard the
notice of intervention,’’ as she argues in her appellate
brief.14
Rather, it appears to us that, consistent with Connect-
icut precedent, the court properly halted the proceeding
upon the filing of a motion to dismiss for lack of subject
matter jurisdiction. As our Supreme Court has noted,
because aggrievement implicates subject matter juris-
diction, ‘‘[a] possible absence of subject matter jurisdic-
tion must be addressed and decided whenever the issue
is raised.’’ (Internal quotation marks omitted.) Stauton
v. Planning & Zoning Commission, 271 Conn. 152,
157, 856 A.2d 400 (2004). ‘‘It is axiomatic that once the
issue of subject matter jurisdiction is raised, it must be
immediately acted upon by the court. . . . [O]nce
raised, either by a party or by the court itself, the ques-
tion [of subject matter jurisdiction] must be answered
before the court may decide the case.’’ (Citations omit-
ted; emphasis in original; internal quotation marks omit-
ted.) Fennelly v. Norton, 103 Conn. App. 125, 136–37,
931 A.2d 269, cert. denied, 284 Conn. 918, 931 A.2d 936(2007); see also Federal Deposit Ins. Corp. v. Peabody,
N.E., Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996) (once
motion to dismiss for lack of subject matter jurisdiction
filed, trial court ‘‘obligated’’ to scrutinize initial com-
plaint to determine whether subject matter jurisdiction
was lacking before considering motion to amend com-
plaint); Gurliacci v. Mayer, 218 Conn. 531, 545, 590
A.2d 914 (1991) (‘‘as soon as the jurisdiction of the
court to decide an issue is called into question, all other
action in the case must come to a halt until such a
determination is made’’). We refuse to assign error to
a court’s failure to consider a document that was not
properly part of the record before it.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In hearing appeals from decisions of the council, the Superior Court
acts as an appellate body. Connecticut Coalition Against Millstone v. Con-
necticut Siting Council, 286 Conn. 57, 85, 942 A.2d 345 (2008).
2
Hereinafter, unless otherwise indicated, all references to § 22a-19 in this
opinion are to the 2011 version of the statute.
3
As the council acknowledges in its appellate brief, it ‘‘did not give Domin-
ion the authority to build and install’’ any additional modules, but rather
simply permitted Dominion to expand the concrete pad ‘‘to accommodate
additional [modules] in the event Dominion needed to seek [council]
approval in the future.’’
4
Paragraph 12 of the operative complaint alleges in relevant part that
‘‘[i]n approving the application . . . the council acted arbitrarily and capri-
ciously and in violation of law as follows: ‘‘(A) The council lacked a proper
and adequate basis in fact to make a legally supportable determination that
Dominion presented changed circumstances sufficient to support modifica-
tion of the council’s [2004 approval];
‘‘(B) The council improperly and illegally relied upon information submit-
ted by Dominion which it knew to be deliberately misleading and inaccurate;
‘‘(C) The council failed to adequately consider the environmental and
health implications and consequences of the application as required by law;
‘‘(D) The council manifested bias, prejudice and predetermination of
the application;
‘‘(E) Edward C. Wilds, the Connecticut Department of Energy and Environ-
mental Protection’s designee on the council [in this proceeding], suffered
from a conflict of interest which he failed to disclose, bias and prejudgment
and, upon information and belief, he improperly influenced other members
of the [council] in favor of the application;
‘‘(F) Without adequate justification, and in the absence of demonstrated
need for speedy action on the part of Dominion, the council acted prema-
turely to approve the application in light of the fact that the [United States]
Nuclear Regulatory Commission (NRC), under orders of the [United States]
Court of Appeals for the District of Columbia Circuit, is embarking for the
first time on creating an Environmental Impact Statement, required by the
National Environmental Protection Act, to examine the environmental con-
sequences of on-site storage of high level nuclear waste at all the nation’s
commercial nuclear power plants, including Millstone, an undertaking the
NRC anticipates it will complete in the year 2014 and which will have
significant implications for spent fuel storage at Millstone;
‘‘(G) The [council’s] decision violates [its prior decision in 2004] insofar
as it allows a permanent spent nuclear fuel storage site and it is inconsistent
with the council’s findings of fact in [that prior decision], paragraph 25, as
follows: ‘The [facility] is neither a long term . . . storage site nor permanent
repository for the storage of spent fuel.’ Insofar as it allows long term and/
or permanent storage of spent nuclear fuel at Millstone and it is therefore
illegal and in conflict with state policies;
‘‘(H) Dominion failed to demonstrate a legally or factually sufficient basis
for the council to find a justifiable need for the modification;
‘‘(I) The decision is in conflict with the council’s own analysis that con-
cludes that the state of Connecticut has sufficient surplus power over the
next decade to negate the need for Millstone generation of electricity and
thus continued generation of high level nuclear waste and the need for
expanded nuclear spent fuel storage.’’
5
After the defendants moved to dismiss the administrative appeal for
lack of jurisdiction, the plaintiff requested permission to further amend her
complaint, which the court denied, noting the ‘‘well established ‘jurisdiction-
first’ rule. See, e.g., Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829,
839 n.6, 826 A.2d 1102 (2003).’’ The plaintiff does not challenge that ruling
in this appeal.
6
In her appellate brief, the plaintiff submits that because the defendants
did not object to her intervention in the proceeding before the council, they
have waived any objection with respect to her standing to maintain this
administrative appeal. That argument misunderstands our standing jurispru-
dence. ‘‘[T]he question of subject matter jurisdiction, because it addresses
the basic competency of the court, can be raised by any of the parties, or
by the court sua sponte, at any time.’’ (Emphasis added; internal quotation
marks omitted.) Webster Bank v. Zak, 259 Conn. 766, 774, 792 A.2d 66 (2002).
Moreover, ‘‘[i]t is hornbook law that the parties cannot confer subject matter
jurisdiction on a court by consent, waiver, silence or agreement.’’ Hayes v.
Beresford, 184 Conn. 558, 562, 440 A.2d 224 (1981). Accordingly, our courts
consistently have held that ‘‘[t]he requirement of subject matter jurisdiction
cannot be waived by any party and can be raised at any stage in the proceed-
ings.’’ (Internal quotation marks omitted.) Burton v. Dominion Nuclear
Connecticut, Inc., 300 Conn. 542, 550, 23 A.3d 1176 (2011).
7
General Statutes (Rev. to 2011) § 22a-19 (a) provides: ‘‘In any administra-
tive, 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.’’
8
In contrast to the conclusory statement set forth in paragraph 12 (C) of
the plaintiff’s complaint, the complaint in Finley contained detailed allega-
tions of fact that gave rise to a colorable claim of environmental harm. That
complaint alleged in relevant part that ‘‘[g]iven the amount of impervious
cover being introduced onto [the subject] property, the application failed to
satisfactorily account for removal of dissolved solids, inorganic and organic
nitrogen, salt, trash, pathogenic bacteria and various aromatic hydrocarbons,
and the deleterious effects of such pollution on wetlands and watercourses.
In addition, [the complaint] alleged that [t]he application did not contain
adequate information about the vernal pool or other wetland features to
support assertions of lack of wetland impact given the scale and intensity
of development and the anticipated vehicular traffic associated therewith.
. . . [The complaint also] alleged that the regulated activities allowed by
the permit granted . . . by the commission would have a specific deleteri-
ous effect and impact on these environmental resources.’’ (Internal quotation
marks omitted.) Finley v. Inland Wetlands Commission, supra, 289
Conn. 35–36.
9
To be clear, subparagraphs (D) and (E) allege that the council—and one
of its members in particular—displayed bias with respect to Dominion’s
application; they do not contain any allegations of bias with respect to the
plaintiff or her involvement in the proceeding.
10
To the extent that subparagraphs (F) and (G) of paragraph 12 of the
complaint could be broadly construed to invoke environmental risks related
to radiological safety, they are beyond the purview of the council and, hence,
improper. In Connecticut Coalition Against Millstone v. Connecticut Siting
Council, supra, 286 Conn. 79, our Supreme Court held that ‘‘considerations
of environmental risks related to radiological safety fall squarely within the
field preempted by federal law. Indeed, a decision by the council denying
the certificate on the basis of environmental effects caused by radiation
hazards actually would conflict with the [Nuclear Regulatory Commission’s]
regulations . . . . Accordingly, with respect to environmental concerns, we
conclude that the council’s jurisdiction is limited to nonnuclear environmen-
tal effects.’’ (Citation omitted.)
11
In her appellate brief, the plaintiff also argues that the ‘‘council affirma-
tively abdicated its legal regulatory responsibility to assess the potential
effects of hurricanes and flooding on the infrastructure within its jurisdiction
and instead ‘deferred’ to the [Nuclear Regulatory Commission].’’ The opera-
tive complaint contains no such allegations.
12
The procedural right involved in administrative proceedings properly
is described as a right to fundamental fairness, as distinguished from the due
process rights implicated in judicial proceedings. Grimes v. Conservation
Commission, 243 Conn. 266, 273 n.11, 703 A.2d 101 (1997). ‘‘Administrative
hearings . . . are informal and governed without necessarily adhering to
the rules of evidence or procedure. . . . Nonetheless, administrative hear-
ings must be conducted in a fundamentally fair manner so as not to violate
the rules of due process. . . . A fundamental principle of due process is that
each party has the right to receive notice of a hearing, and the opportunity to
be heard at a meaningful time and in a meaningful manner.’’ (Citations
omitted.) Bryan v. Sheraton-Hartford Hotel, 62 Conn. App. 733, 740, 774
A.2d 1009 (2001); see also Huck v. Inland Wetlands & Watercourses Agency,
203 Conn. 525, 536, 525 A.2d 940 (1987) (administrative due process requires
due notice and right to produce relevant evidence). ‘‘The right to fundamental
fairness in administrative proceedings encompasses a variety of procedural
protections, including the right to adequate notice . . . . [Our Supreme
Court at times has] characterized these procedural protections as due pro-
cess rights. . . . Although the due process characterization, at first blush,
suggests a constitutional source, there is no discussion in these cases of a
property interest in terms of constitutional due process rights. These deci-
sions are, instead, based on a line of administrative law cases and reflect
the development, in Connecticut, of a common-law right to due process in
administrative hearings.’’ (Citation omitted; internal quotation marks omit-
ted.) Megin v. Zoning Board of Appeals, 106 Conn. App. 602, 607 n.6, 942
A.2d 511, cert. denied, 289 Conn. 901, 957 A.2d 871 (2008).
13
The defendants maintain that the exception enunciated in FairwindCT,
Inc., applies only to cases in which that party also has raised a colorable
claim of environmental harm. In so doing, they rely on the court’s statement
that ‘‘[i]t 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.’’ (Emphasis
added.) FairwindCT, Inc. v. Connecticut Siting Council, supra, 313 Conn.
713–14. We need not decide whether that exception is so limited, as the
operative complaint in this case lacks any allegations that the council refused
to provide the plaintiff with a fair opportunity to present her claims. See
id., 714.
14
More than one-half year after Dominion moved to dismiss the appeal
for lack of subject matter jurisdiction, the plaintiff on February 10, 2014,
filed a motion to supplement her memorandum of law in opposition to
Dominion’s motion to incorporate a copy of the notice of intervention. By
order dated March 10, 2014, the court denied the plaintiff’s motion. Although
the plaintiff in this appeal baldly asserts that the court improperly ‘‘disre-
garded’’ her notice of intervention, she has not properly briefed a claim that
the court abused its discretion in denying her February 10, 2014 motion to
supplement. In her appellate brief, the plaintiff fails to set forth an applicable
standard of review or to cite relevant authority in support thereof. ‘‘We
consistently have held that [a]nalysis, rather than mere abstract assertion,
is required in order to avoid abandoning an issue by failure to brief the
issue properly.’’ (Internal quotation marks omitted.) State v. Mendez, 154
Conn. App. 271, 275 n.2, 105 A.3d 917 (2014); see also Northeast Ct. Economic
Alliance, Inc. v. ATC Partnership, 272 Conn. 14, 51 n.23, 861 A.2d 473 (2004).
(‘‘[i]nasmuch as the plaintiffs’ briefing of the . . . issue constitutes an
abstract assertion completely devoid of citation to legal authority or the
appropriate standard of review, we exercise our discretion to decline to
review this claim as inadequately briefed’’). To the extent that the plaintiff’s
brief could be construed as raising a challenge to the propriety of the court’s
denial of her motion to supplement, we decline to afford it review. We
nonetheless note that, under Connecticut law, when a defendant has filed
a motion to dismiss for lack of subject matter jurisdiction, our trial courts
are obligated to rule on that motion before considering any requests by the
plaintiff to amend or supplement their pleadings. Federal Deposit Ins. Corp.
v. Peabody, N.E., Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996); see also
Gurliacci v. Mayer, 218 Conn. 531, 545, 590 A.2d 914 (1991) (‘‘the trial court
should not have allowed the amendment [to the complaint] before ruling
on the motion to dismiss [for lack of subject matter jurisdiction]’’).