Middlebury v. Connecticut Siting Council

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TOWN OF MIDDLEBURY ET AL. v. CONNECTICUT
SITING COUNCIL
(SC 19799)
Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js.*
Argued January 17—officially released June 27, 2017
Stephen L. Savarese, with whom was Dana D’Angelo,
town attorney, for the appellants (plaintiffs).
Robert L. Marconi, assistant attorney general, with
whom were Clare E. Kindall, assistant attorney general,
and, on the brief, George Jepsen, attorney general, for
the appellee (defendant).
Philip M. Small and Franca L. DeRosa, with whom,
on the brief, was Kyle R. Johnson, for the appellee
(intervening defendant).
Opinion
McDONALD, J. This appeal concerns a proviso con-
tained in General Statutes § 16-50p,1 which precludes
the defendant, Connecticut Siting Council, from grant-
ing a certificate of environmental compatibility and pub-
lic need (certificate) for operation of an electric
generating or storage facility unless the council, among
other things, ‘‘considers neighborhood concerns’’ with
respect to specified factors. The plaintiffs, the town of
Middlebury and sixteen residents and entities situated
in Middlebury and adjacent towns,2 appeal from the
judgment of the trial court dismissing their appeal from
the decision of the council granting the petition of CPV
Towantic, LLC (CPV),3 to open and modify a certificate
for an electric generating facility. The plaintiffs’ princi-
pal claim is that the trial court improperly determined
that the council adequately had considered neighbor-
hood concerns, despite the absence of express findings
or analysis in its decision addressing the plaintiffs’ con-
cerns about adverse impacts from the facility. We affirm
the judgment of the trial court.
The record reveals the following undisputed facts
and procedural history. On June 23, 1999, the council
granted CPV’s predecessor a certificate, pursuant to
General Statutes (Rev. to 1999) § 16-50k (a), permitting
the construction, maintenance, and operation of a 512
megawatt electric generating facility in the town of
Oxford. A citizen’s group unsuccessfully challenged
that decision. See Citizens for the Defense of Oxford
v. Connecticut Siting Council, Superior Court, judicial
district of Hartford-New Britain at New Britain, Docket
No. CV-99-0497075-S (November 14, 2000). As of late
2014, the council had granted CPV several extensions
of time to complete construction of the facility, but it
was not yet completed and operational.
On November 3, 2014, CPV submitted a petition to
open and modify the certificate based on changed con-
ditions, pursuant to General Statutes § 4-181a (b). The
changed conditions identified therein included a greater
need for electric capacity, the development of the elec-
tric market, advances in the use of renewable resources
and combustion turbine technology, and more rigorous
environmental regulations. On the basis of the identified
changed conditions, CPV sought permission to update
and upgrade its proposed electric generating facility to,
among other things, provide approximately 50 percent
more electricity (from 512 to 785 megawatts), expand
its site from approximately twenty acres to twenty-six
acres, and reconfigure its buildings and stacks for a
lower profile.
The council granted the petition as to the request to
open the certificate, but opened the original docket in
its entirety and thus did not limit the proceedings to
the changed conditions alleged in CPV’s petition. As a
consequence, the plaintiffs and others sought to oppose
the facility on the basis of other changed conditions that
they claimed weighed against the facility as originally
planned and as proposed. One of the individual plain-
tiffs was designated a party to the proceedings, other
plaintiffs, including the town of Middlebury, were per-
mitted to intervene in the proceedings, and others par-
ticipated in the process by submitting public comments
and/or speaking at the public hearings.
Between January and March, 2015, the council con-
ducted a public inspection of the site and held seven
evidentiary hearings. At the evidentiary hearings, the
parties and intervenors were permitted to submit evi-
dence and question witnesses. In addition, the council
sought information from parties and intervenors
through interrogatories and requests for late-filed
exhibits. The plaintiffs raised a broad range of concerns
on the purported adverse effects of the facility on the
environment and public safety, including, but not lim-
ited to, the impact of harmful pollutants on nearby
residents, the effect of increased pollution, noise, and
traffic on the rural setting of the neighboring localities,
and the proximity of the facility to the Waterbury-
Oxford Airport and its attendant risk to aviation safety.
On May 14, 2015, the council issued a written decision
granting the petition as to the request to modify the
certificate and approving CPV’s proposed modifica-
tions, with certain conditions. The decision was issued
in three parts: ‘‘Findings of Fact’’ (sixty-three pages
containing 314 separate findings); ‘‘Opinion’’ (ten pages
of ultimate findings of fact and legal conclusions); and
‘‘Decision and Order.’’ The council determined therein
that conditions had changed since it issued the original
certificate in 1999, citing most, but not all, of the
changes alleged in CPV’s petition. It acknowledged the
anticipated adverse effects of the facility, but concluded
that such effects were ‘‘not disproportionate either
alone or cumulatively with other effects when com-
pared to [the] benefit’’ and were therefore ‘‘not suffi-
cient reason to deny the proposed project.’’ The council
concluded: ‘‘[T]he current CPV proposal significantly
improves on th[e] original project. CPV’s project utilizes
state-of-the-art combustion technology to increase the
reliability of the power supply. It is equally as protective
of natural resources as the approved project, and, in
a few cases, more so, as the technical standards for
measuring, monitoring and maintaining protection have
risen. Notwithstanding continued public opposition,
which the [c]ouncil both acknowledges and has tried to
use constructively in this decision, it is the [c]ouncil’s
opinion that improvements offered by CPV’s proposal
do provide significant benefit to the public.’’ (Empha-
sis added.)
The plaintiffs appealed from the council’s decision
to the Superior Court pursuant to General Statutes § 4-
183 (a). On appeal, the plaintiffs principally claimed
that (1) the council did not follow its statutory directive
under § 16-50p (c) (1) to consider neighborhood con-
cerns, (2) the council violated the plaintiffs’ due process
rights through numerous decisions during the proceed-
ings that impaired their ability to make their case, and
(3) the council’s decision granting the certificate modifi-
cation was not supported by substantial evidence.
After oral argument, the trial court dismissed the
appeal. The trial court concluded that the council had
‘‘extensively considered neighborhood concerns’’
because ‘‘there can be no genuine dispute that the coun-
cil heard and admitted massive amounts of evidence
about neighborhood concerns and made extensive find-
ings on these matters in its decision.’’ The court deemed
the plaintiffs’ due process and substantial evidence
claims abandoned due to inadequate briefing, but none-
theless explained why those claims failed on the merits.
The trial court concluded that ‘‘[t]he plaintiffs enjoyed
a full opportunity to present their case’’ and, in any
event, had failed to identify any harm flowing from
the rulings they challenged. In addition, the trial court
concluded that there was substantial evidence to sup-
port the council’s decision approving CPV’s modifica-
tions. Accordingly, the trial court rendered judgment
dismissing the plaintiffs’ appeal.
The plaintiffs appealed to the Appellate Court, chal-
lenging the trial court’s decision on the merits of their
neighborhood concerns claim and on the abandonment
of their due process and substantial evidence claims.
We thereafter transferred the appeal to this court pursu-
ant to General Statutes § 51-199 (c) and Practice Book
§ 65-1.
I
The plaintiffs’ principal claim is that the trial court
improperly concluded that the council had discharged
its duty under § 16-50p (c) (1) to consider neighborhood
concerns in granting CPV’s petition to open and modify
its certificate. They disagree that it is sufficient for the
council to entertain their evidence and broadly
acknowledge their concerns. They contend, in effect,
that, in order to ‘‘consider’’ neighborhood concerns, the
council was required to formally acknowledge their
individualized concerns in its decision and to articulate
a response, if not to all of them, at least to their major
concerns. Although they advance a broad attack on
the council’s decision, the plaintiffs specifically identify
only one concern that they claim was ignored by the
council—the possible effect of the facility’s air emis-
sions on local production of hay and timber. We dis-
agree that the council failed to satisfy its statutory
obligation to consider neighborhood concerns.
The present case requires us both to discern the
meaning of a statute and to ascertain whether that stan-
dard was met under the facts of the present case. As
such, our analysis of § 16-50p (c) (1) is guided by Gen-
eral Statutes § 1-2z and well established principles of
statutory construction. See Lieberman v. Aranow, 319
Conn. 748, 756–58, 127 A.3d 970 (2015); see also Indian
Spring Land Co. v. Inland Wetlands & Watercourses
Agency, 322 Conn. 1, 11, 145 A.3d 851 (2016). ‘‘[O]ur
fundamental objective is to ascertain and give effect to
the apparent intent of the legislature.’’ (Internal quota-
tion marks omitted.) FairwindCT, Inc. v. Connecticut
Siting Council, 313 Conn. 669, 680, 99 A.3d 1038 (2014).
Statutory construction presents a question of law over
which we exercise plenary review. See Indian Spring
Land Co. v. Inland Wetlands & Watercourses Agency,
supra, 11.
Section 16-50p (c) (1), part of the Public Utility Envi-
ronmental Standards Act (act) under chapter 277a of
the General Statutes, provides in relevant part: ‘‘The
council shall not grant a certificate for a facility . . .
either as proposed or as modified by the council, unless
it finds and determines a public benefit for the facility
and considers neighborhood concerns with respect to
the factors set forth in subdivision (3) of subsection
(a) of this section, including public safety.’’ (Empha-
sis added.)
We begin by acknowledging what is and is not at
issue. There is no claim in the present case that the
concerns raised by the plaintiffs failed to relate to the
factors set forth in § 16-50p (a) (3), which focuses on
environmental impact and public safety. See footnote
1 of this opinion. Nor is there a claim that the concerns
raised were not ones affecting the ‘‘neighborhood,’’ a
term that is not defined in the act. Instead, the present
case turns on the nature of the council’s obligation
to ‘‘[consider] neighborhood concerns . . . .’’ General
Statutes § 16-50p (c) (1).
Nowhere in the act is the term ‘‘consider’’ defined,
nor does the act elaborate procedural requirements that
might indicate a meaning specific to this context. ‘‘In
the absence of a definition of terms in the statute itself,
[w]e may presume . . . that the legislature intended
[a word] to have its ordinary meaning in the English
language, as gleaned from the context of its use. . . .
Under such circumstances, it is appropriate to look to
the common understanding of the term as expressed
in a dictionary.’’ (Internal quotation marks omitted.)
Studer v. Studer, 320 Conn. 483, 488, 131 A.3d 240
(2016); see General Statutes § 1-1 (a) (directing courts
to use common meaning). As the trial court observed,
and the plaintiffs themselves acknowledge and accept,
‘‘consider’’ is defined in Webster’s Third New Interna-
tional Dictionary (1986) as ‘‘to reflect on: think about
with a degree of care or caution . . . .’’ The American
Heritage Dictionary of the English Language (5th Ed.
2011) similarly defines consider as ‘‘[t]o think carefully
about,’’ ‘‘[t]o take into account,’’ and ‘‘[t]o look at
thoughtfully . . . .’’ These definitions simply refer to a
deliberative process.
Thus, although the council is required to take neigh-
borhood concerns into account, notably absent from
§ 16-50p (c) (1) is any requirement that the council
expressly articulate any such reflections or delibera-
tions. By contrast, in that same subdivision of the stat-
ute, the legislature has provided that the council cannot
grant a certificate for an electric generating facility
‘‘unless it finds and determines a public benefit for the
facility . . . .’’ (Emphasis added.) General Statutes
§ 16-50p (c) (1). Similarly, § 16-50p (a) (3) (B)—incorpo-
rated by reference in § 16-50p (c) (1)—directs the coun-
cil to ‘‘find and determine . . . [t]he nature of the
probable environmental impact of the facility . . .
including a specification of every significant adverse
effect’’ with respect to a nonexhaustive list of factors.
(Emphasis added.) If the legislature intended for the
council to make specific findings and determinations
regarding neighborhood concerns, it presumably would
have used similar language. Its failure to do so suggests
an intent to place a lesser burden on the council with
respect to neighborhood concerns.
Indeed, in other contexts, the legislature has required
the fact finder both to ‘‘consider’’ specified matters and
to make written findings relating to the considered mat-
ters. See, e.g., General Statutes § 19a-639 (a) (providing
that, in deciding whether to grant certificate of need
with respect to health-care facilities, Office of Health
Care Access ‘‘shall take into consideration and make
written findings’’ concerning enumerated guidelines
and principles); see also General Statutes § 1-110a (b)
(in determining whether public official and state or
municipal employee convicted of crime related to his
or her office should have his or her pension revoked or
reduced, ‘‘the Superior Court shall consider and make
findings’’ on listed factors); General Statutes § 17a-112
(k) (in determining whether termination of parental
rights is in best interest of child, ‘‘the court shall con-
sider and shall make written findings’’ concerning listed
factors). The absence of a similar requirement in § 16-
50p (c) (1) as to neighborhood concerns evidences an
intention that such concerns inform the council’s deci-
sion to the extent that they are material but does not
require the council to articulate how and to what extent
each concern impacted its decision.
This interpretation of § 16-50p (c) (1) is consistent
with how our courts and other courts have interpreted
statutes with similar language mandating consideration
of particular information. See, e.g., Weiman v. Weiman,
188 Conn. 232, 234, 449 A.2d 151 (1982) (under General
Statutes § 46b-82, providing that court ‘‘ ‘shall con-
sider’ ’’ enumerated factors in determining whether to
award alimony, ‘‘[t]he court is not obligated to make
express findings on each of the statutory criteria’’);
Corcoran v. Connecticut Siting Council, 50 Conn.
Supp. 443, 448–49, 934 A.2d 870 (2006) (under General
Statutes § 16-50x [a], providing in relevant part that
council ‘‘ ‘shall give such consideration to other state
laws and municipal regulations as it shall deem appro-
priate,’ ’’ court concluded that council ‘‘did consider the
town zoning regulations because they were presented
to the council as part of [the] application’’ [emphasis
omitted]), aff’d, 284 Conn. 455, 934 A.2d 825 (2007); see
also Gonzalez v. Napolitano, 684 F. Supp. 2d 555,
562–63 (D.N.J. 2010) (collecting federal cases interpre-
ting requirement to ‘‘consider’’ specified matter), aff’d,
678 F.3d 254 (3d Cir. 2012); Central Valley Chrysler-
Jeep v. Witherspoon, 456 F. Supp. 2d 1160, 1173 (E.D.
Cal. 2006) (‘‘a congressional requirement that a decision
maker ‘consider’ a factor . . . requires an actor to
merely ‘investigate and analyze’ the specified factor,
but not necessarily act upon it’’).
In sum, the requirement to consider neighborhood
concerns only obliges the council to reflect on the con-
cerns of the neighborhood and take them into account
when rendering a decision. There is no support for the
more onerous interpretation proffered by the plaintiffs.
Nevertheless, the plaintiffs argue that the council
failed to satisfy its obligations even under this more
limited interpretation because its failure to mention
‘‘neighborhood’’ anywhere in its findings of fact or deci-
sion suggests that the council did not consider neighbor-
hood concerns. We disagree.
We first observe that ‘‘there is a strong presumption
of regularity in the proceedings of a public agency, and
we give such agencies broad discretion in the perfor-
mance of their administrative duties, provided that no
statute or regulation is violated.’’ Forest Walk, LLC v.
Water Pollution Control Authority, 291 Conn. 271, 286,
968 A.2d 345 (2009); see also Brecciaroli v. Commis-
sioner of Environmental Protection, 168 Conn. 349,
356, 362 A.2d 948 (1975) (‘‘[i]t must be presumed . . .
that the defendant’s denial of the application [to con-
duct a regulated activity on wetlands] was based on the
standards set forth in § 22a-33 of the General Statutes,
which requires the hearing officer to ‘consider the effect
of the proposed work with reference to the public health
and welfare, marine fisheries, shell-fisheries, wildlife,
the protection of life and property from flood, hurricane
and other natural disasters, and the public policy set
forth in sections 22a-28 to 22a-35, inclusive’ ’’). This
presumption is supported by the council’s statement in
its decision regarding ‘‘public opposition, which the
[c]ouncil both acknowledges and has tried to use con-
structively in this decision . . . .’’ To place weight on
the fact that the council declined to label the public
opposition as ‘‘neighborhood concerns’’ would elevate
form over substance.
More fundamentally, it is plain that the council did
address specific neighborhood concerns presented by
the parties and intervenors in its 314 findings of fact
and detailed decision. The council made specific find-
ings with respect to the factors in § 16-50p (a) (3) (B)
that would have the most profound effect on persons
and entities from the surrounding localities, including
on issues of air emissions, visibility, noise, traffic, wet-
lands, wildlife, and public safety. In addition, the council
noted that it tried to incorporate those concerns raised
in the public opposition to improve the project. Indeed,
the only concern that the plaintiffs specifically identify
that the council purportedly ignored was the possible
effect of air emissions from the facility on the local
production of hay and timber. In its air quality and
vegetation impact analysis, however, the council specif-
ically found that the deposition rates of pollutants were
considerably less than the United States Environmental
Protection Agency’s screening criteria for protection of
deposition to soils and vegetation uptake, and that the
deposition rates were lower than what was associated
with the previously approved project.
Simply put, the plaintiffs have not met their burden
of proving that the council acted contrary to law and
ignored the neighborhood concerns that were pre-
sented to it. See Murphy v. Commissioner of Motor
Vehicles, 254 Conn. 333, 343–44, 757 A.2d 561 (2000).
Accordingly, we conclude that the trial court properly
concluded that the council considered neighborhood
concerns in accordance with § 16-50p (c) (1).
II
The plaintiffs also claim that the trial court improp-
erly concluded that they had abandoned their due pro-
cess and substantial evidence claims due to inadequate
briefing. CPV contends, however, that this court cannot
afford any practical relief on this claim because the
plaintiffs have failed to challenge the trial court’s alter-
native conclusions rejecting the claims on the merits.
We agree with CPV. Consequently, we cannot review
the plaintiffs’ claim related to inadequate briefing, as it
is moot.
‘‘Mootness is a question of justiciability that must be
determined as a threshold matter because it implicates
[a] court’s subject matter jurisdiction . . . .’’ (Internal
quotation marks omitted.) In re Jorden R., 293 Conn.
539, 555, 979 A.2d 469 (2009). It is well settled that ‘‘[a]n
issue is moot when the court can no longer grant any
practical relief.’’ (Internal quotation marks omitted.)
Wyatt Energy, Inc. v. Motiva Enterprises, LLC, 81
Conn. App. 659, 661, 841 A.2d 246 (2004). ‘‘In determin-
ing mootness, the dispositive question is whether a suc-
cessful appeal would benefit the plaintiff or defendant
in any way.’’ (Internal quotation marks omitted.) In re
Jorden R., supra, 556.
‘‘Where an appellant fails to challenge all bases for
a trial court’s adverse ruling on his claim, even if this
court were to agree with the appellant on the issues
that he does raise, we still would not be able to provide
[him] any relief in light of the binding adverse finding[s]
[not raised] with respect to those claims.’’ (Internal
quotation marks omitted.) State v. Lester, 324 Conn.
519, 526–27, 153 A.3d 647 (2017). In such cases, the
challenged ground is rendered moot. See Doe v. Hart-
ford Roman Catholic Diocesan Corp., 317 Conn. 357,
379 n.23, 119 A.3d 462 (2015) (‘‘where alternative
grounds found by the reviewing court and unchallenged
on appeal would support the trial court’s judgment,
independent of some challenged ground, the challenged
ground that forms the basis of the appeal is moot
because the court on appeal could grant no practical
relief to the complainant’’ [internal quotation marks
omitted]); State v. Abushaqra, 151 Conn. App. 319, 326,
96 A.3d 559 (2014) (writ of error dismissed as moot
where plaintiff in error failed to contest alternative hold-
ing of trial court).
In the present case, the trial court decided the plain-
tiffs’ due process and substantial evidence claims both
on procedural grounds and on the merits. In their brief
before this court, the plaintiffs do not challenge the
trial court’s conclusions that they had failed to establish
the existence of a due process violation and that there
was substantial evidence in the record to support the
council’s determination. As such, we cannot afford the
plaintiffs any practical relief because, even if we were
to agree that the trial court abused its discretion in
concluding that they had abandoned their due process
and substantial evidence claims due to inadequate brief-
ing, the trial court’s unchallenged decision on the merits
would stand. Accordingly, the plaintiffs’ claim is moot,
and this court lacks subject matter jurisdiction to con-
sider it.
The judgment is affirmed.
In this opinion the other justices concurred.
* This case originally was scheduled to be argued before a panel of this
court consisting of Chief Justice Rogers and Justices Palmer, Eveleigh,
McDonald, Espinosa and Robinson. Although Chief Justice Rogers was not
present at oral argument, she has read the briefs and appendices, and has
listened to a recording of oral argument prior to participating in this decision.
1
General Statutes § 16-50p provides in relevant part: ‘‘(a) (1) In a certifica-
tion proceeding, the council shall render a decision upon the record either
granting or denying the application as filed, or granting it upon such terms,
conditions, limitations or modifications of the construction or operation of
the facility as the council may deem appropriate. . . .
‘‘(3) The council shall file, with its order, an opinion stating in full its
reasons for the decision. The council shall not grant a certificate, either as
proposed or as modified by the council, unless it shall find and determine:
‘‘(A) Except as provided in subsection (b) or (c) of this section, a public
need for the facility and the basis of the need;
‘‘(B) The nature of the probable environmental impact of the facility alone
and cumulatively with other existing facilities, including a specification of
every significant adverse effect, including, but not limited to, electromagnetic
fields that, whether alone or cumulatively with other effects, impact on, and
conflict with the policies of the state concerning the natural environment,
ecological balance, public health and safety, scenic, historic and recreational
values, forests and parks, air and water purity and fish, aquaculture and
wildlife;
‘‘(C) Why the adverse effects or conflicts referred to in subparagraph (B)
of this subdivision are not sufficient reason to deny the application . . . .
‘‘(c) (1) The council shall not grant a certificate for a facility described
in subdivision (3) of subsection (a) of section 16-50i, either as proposed or
as modified by the council, unless it finds and determines a public benefit
for the facility and considers neighborhood concerns with respect to the
factors set forth in subdivision (3) of subsection (a) of this section, including
public safety. . . .’’
Although § 16-50p has been amended by the legislature several times since
the events underlying the present case; see, e.g., Public Acts 2016, No. 16-
163, §§ 8 and 9; the amendments have no bearing on the merits of the appeal.
In the interest of simplicity, we refer to the current revision of the statute.
2
In addition to the town of Middlebury, the plaintiffs are: Raymond Pietror-
azio, Marian R. Larkin, Wayne McCormack, Paul Coward, Peter Polstein,
John D. Retartha, Jay Halpern, Greenfields, LLC, Middlebury Land Trust,
Inc., Oxford Greens Association, Inc., Naugatuck River Revival Group, Inc.,
Chester Cornacchia, Lake Quassapaug Association, Inc., Lake Quassapaug
Amusement Park, Inc., Middlebury Bridle Land Association, Inc., and Oxford
Flying Club, Inc. We note that some of the plaintiffs were made parties to
the proceeding before the council, others were permitted to intervene in the
proceeding, and others simply submitted comments or offered statements at
the public hearing. Whether all of these plaintiffs are aggrieved by the
council’s decision is unclear. Nonetheless, we note that one of the plaintiffs,
the town of Middlebury, had been determined to be aggrieved in two prior
proceedings involving the proposed electric generating facility at issue. See
Middlebury v. Connecticut Siting Council, Superior Court, judicial district
of New Britain, Docket No. CV-07-4013143-S (November 1, 2007) (44 Conn.
L. Rptr. 432, 433); Middlebury v. Connecticut Siting Council, Superior Court,
judicial district of New Britain, Docket No. CV-01-0508047-S (February 27,
2002). In the present case, one brief was filed on behalf of all of the plaintiffs.
Accordingly, we need not consider whether all of the plaintiffs are aggrieved.
See Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc.
v. Planning & Zoning Commission, 220 Conn. 527, 529 n.3, 600 A.2d 757
(1991) (declining to resolve whether all plaintiffs were aggrieved when one
plaintiff’s standing to appeal is established).
3
CPV was given permission to intervene as a party defendant after the
plaintiffs appealed from the council’s decision granting CPV’s petition.