Town of Fairfield v. Connecticut Siting Council

PALMER, J.

The sole issue raised by this administrative appeal is whether the plaintiffs¹ have a right of appeal from a decision of the named defendant, Connecticut Siting Council (council), denying their motions for a modification pursuant to General Statutes § 4-181a (b)² of the council’s prior final decision granting to the defendants Connecticut Light and Power Company and United Illuminating Company (utilities) a certificate of environmental compatibility and public need (certificate) for the construction of a power line. The trial court, Fuller, J., dismissed the plaintiffs’ appeal, concluding that because the council’s decision on the plaintiffs’ motions under § 4-181a (b) was not a final decision within the meaning of General Statutes § 4-166 (3),³ it was not appealable under General Statutes § 4-183 (a).⁴ The plaintiffs appealed to the Appellate Court, which reversed the judgment of the trial court. Fairfield v. Connecticut Siting Council, 37 Conn. App. 653, 656 A.2d 1067 (1995). We granted the utilities’ petition for certification,⁵ and now reverse the judgment of the Appellate Court.

The relevant facts are set forth in the opinion of the Appellate Court. “In January, 1991, the [utilities] applied to the defendant council for a certificate . . . for the construction of an electric transmission line that would be 15.3 miles in length and extend from Bridgeport to Norwalk within an existing railroad right-of-way. The application was served on all appropriate local and state officials and the hearing date was noticed in the local newspapers. A six hour contested hearing was held in the Westport town hall on April 29,1991. On September 18,1991, the council approved the application pursuant to General Statutes § 16-50k⁶ and limited conditions of construction and operation of the proposed transmission line. No appeal was taken from this decision. The utilities have already completed a substantial portion of the project in reliance on the certificate granted by the council.

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

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

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

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

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

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

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

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

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

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

“The trial court further found that motions for reconsideration, reversal or modification of any final decision are governed by the requirements for contested cases. General Statutes § 4-181a (b). The agency’s consideration of the motions was not a ‘contested case’ under § 4-166 (2) and, since no hearing was required, it was not an ‘agency determination in a contested case’ and not a ‘final decision’ under § 4-166 (3). As previously stated, the definition of ‘final decision’ includes ‘an agency decision made after reconsideration.’ (Emphasis added.) The ruling of an agency granting or denying a petition for reconsideration is, however, expressly excluded from the definition of ‘final decision’ in § 4-166 (3).” Fairfield v. Connecticut Siting Council, supra, 37 Conn. App. 655-59.

On appeal, the Appellate Court concluded, contrary to the determination of the trial court, that the council, in denying the plaintiffs’ request for a modification of its original decision, had considered the merits of the plaintiffs’ motions, thereby giving rise to a proceeding in which the council was required, under § 4-181a (b), to follow the procedure mandated by the Uniform Administrative Procedure Act (UAPA); General Statutes § 4-166 et seq.; for contested cases. The Appellate Court further concluded that the council’s denial of the plaintiffs’ motions constituted an appealable final decision under § 4-166 (3) (A) because the council had conducted a properly noticed hearing on the motions under § 4-181a (b). This certified appeal followed.

The defendants contend that the trial court properly dismissed the plaintiffs’ appeal. The defendants argue that the council’s decision following the July 13, 1993 hearing was not an appealable final decision under the UAPA because the scope of the council’s review of the plaintiffs’ § 4-181a (b) motions was limited to a determination of whether to open and reconsider its earlier final decision. The plaintiffs, on the other hand, contend that the Appellate Court properly concluded that the council had considered the merits of their request under § 4-181a (b) and, therefore, that the decision of the council constituted an “agency determination in a contested case” within the meaning of § 4-166 (3) (A). We agree with the defendants.

“There is no absolute right of appeal to the courts from a decision of an administrative agency.” Lewis v. Gaming Policy Board, 224 Conn. 693, 699, 620 A.2d 780 (1993); see also Summit Hydropower Partnership v. Commissioner of Environmental Protection, supra, 226 Conn. 799; Connecticut Bank & Trust Co. v. Commission on Human Rights & Opportunities, 202 Conn. 150, 154, 520 A.2d 186 (1987). “The appealability of an agency decision is governed by § 4-183 (a) of the UAPA, which provides [in part] that ‘[a] person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the superior court as provided in this section.’ . . . Accordingly, we have consistently held that the Superior Court has jurisdiction only over appeals from a ‘final decision’ of an administrative agency. See, e.g., State v. State Employees’ Review Board, 231 Conn. 391, 400 n.13, 650 A.2d 158 (1994); Summit Hydropower Partnership v. Commissioner of Environmental Protection, supra, 811-12.” (Emphasis in original.) Derwin v. State Employees Retirement Commission, 234 Conn. 411, 418, 661 A.2d 1025 (1995). Under § 4-166 (3), the term “ ‘[f]inal decision’ means (A) the agency determination in a contested case, (B) a declaratory ruling issued by an agency pursuant to section 4-176 or (C) an agency decision made after reconsideration. The term does not include a preliminary or intermediate ruling or order of an agency, or a ruling of an agency granting or denying a petition for reconsideration.” Finally, “[t]he test for determining contested case status has been well established and requires an inquiiy into three criteria, to wit: (1) whether a legal right, duty or privilege is at issue, (2) and is statutorily required to be determined by the agency, (3) through an opportunity for hearing or in which a hearing is in fact held.” (Internal quotation marks omitted.) Summit Hydropower Partnership v. Commissioner of Environmental Protection, supra, 800-801.

The determination of whether an agency’s decision on a motion filed pursuant to § 4-181a (b) gives rise to a contested case hinges on whether the agency has conducted a proceeding “in which such . . . modification . . . is . . . considered.” General Statutes § 4-181a (b). Thus, as the parties agree, the proper characterization of the proceedings before the council depends upon whether the council actually considered and determined the plaintiffs’ motions on their merits. If the purpose of the hearing conducted by the council was not to decide the substantive issues raised in the plaintiffs’ request but, rather, merely to assist the council in ascertaining whether there was sufficient reason to entertain reconsideration of its prior decision, then the council has not made “an agency determination in a contested case.”⁷

As a matter of statutory construction, the plaintiffs do not dispute the conclusion, predicated on the express language of § 4-181a (b), that a proceeding thereunder does not give rise to a contested case unless the agency decides the merits of the request for modification. It bears emphasis that this reading of the statute is buttressed by the terms of § 4-181a (a),⁸ which, in conjunction with § 4-166 (3); see footnote 3; prescribes the procedure to be followed by a party to a contested case who, within fifteen days of the rendering of a final decision by the agency, wishes to seek reconsideration of that decision. Those provisions, like those under § 4-181a (b), contemplate a two-step procedure for reconsideration requests. Under § 4-181a (a), a party may file a petition for reconsideration with the agency on one of three specified grounds. If the agency grants the request for reconsideration, the agency is then required to conduct additional proceedings “as may be necessary to render a decision modifying, affirming or reversing the final decision.” General Statutes § 4-181a (a). The preliminary decision of the agency whether to grant or deny the reconsideration petition is, however, specifically excluded from the definition of “final decision” under the UAPA and, consequently, that initial determination is not appealable to the Superior Court. General Statutes § 4-166 (3). An agency’s preliminary decision whether to entertain a petition under § 4-181a (b) is, for present purposes, in all material respects identical to an agency’s preliminary decision whether to entertain a petition for reconsideration under § 4-181a (a). Thus, as the trial court noted, there is no reason why, for purposes of appeal, a petition filed under subsection (b) of § 4-181a should be treated differently from a petition submitted under § 4-181a (a).

We now turn to the question of whether the hearing conducted by the council was held for the purpose of rendering a preliminary determination of whether to open its prior final decision, as the defendants claim, or, rather, to consider and decide the merits of the request for modification, as the plaintiffs claim. We agree with the defendants’ characterization of the council proceedings.

Our review of the record reveals that the July 13,1993 hearing was limited solely to the question of whether the plaintiffs had made a sufficient allegation of changed circumstances to warrant a further hearing by the council on the merits of the plaintiffs’ motions to open its prior final decision. In his opening statement at the hearing, the council chairman informed all those who were present that “[a]t this hearing, the Council will receive testimony on the technical and legal reasons to reopen this proceeding.” (Emphasis added.) The council, in its memorandum of decision, described the hearing as one in which “the Connecticut Siting Council . . . considered motions and requests to reopen, stop work, reconsider, revoke or amend the Certificate,” and concluded that “[w]e know of no new information or facts that were not available at that time that would compel us to reopen this case. . . . [W]e must find a showing of changed conditions or a compelling reason to reopen this proceeding. . . . [W]e find no such changed conditions or compelling reasons.” (Emphasis added.) The memorandum further stated that “[e]ven if [the council] were to reopen this proceeding at this time, such a reopening would not be productive because there is no new scientific or technical information that would help resolve this global issue.”⁹ (Emphasis added.) Even the dissenting council member who voted to grant the plaintiffs’ motions to open and reconsider the council’s prior final decision, stated that “[a]n evidentiary hearing should be convened pursuant to [§] 4-181a (b) to re-examine that decision in light of the changed conditions and to modify it appropriately if the evidence warrants.”

In light of these clear and consistent expressions of intent by the members of the council, we are persuaded, as was the trial court, that the hearing held by the council was conducted solely to determine whether reconsideration of its prior final decision was warranted. Once the council resolved that question against the plaintiffs, no further hearing was necessary. Accordingly, we conclude that the proceeding on the plaintiffs’ motions under § 4-181a (b) did not give rise to a contested case within the meaning of the UAPA and, therefore, that the council’s denial of the plaintiffs’ motions was not appealable to the Superior Court.

The Appellate Court found support for its contrary conclusion in the fact that the council had caused notice of the hearing to be served on interested parties and, in addition, had solicited comments from other agencies. That the agency conducted a hearing to consider the question of whether to open its prior final decision does not transform its review of the matter into a contested case. Indeed, as we have stated in a similar context; see, e.g., Derwin v. State Employees Retirement Commission, supra, 234 Conn. 423-24 n.14; to hold otherwise would discourage agencies from voluntarily holding hearings on petitions for modification under § 4-181a (b) lest the agency’s preliminary determination be deemed to create an appealable contested case.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to affirm the judgment of the trial court.

In this opinion PETERS, C. J., and BORDEN and NORCOTT, Js., concurred.

1 The plaintiffs are Anne Graney, Jennifer Lindine, Santo Piro, Christine S. Piro, Stephen Stout, David S. Parker and the Alliance to Limit Electromagnetic Radiation Today. The town of Fairfield, a plaintiff in the trial court, did not appeal from the judgment rendered by that court and, accordingly, it is not a party to this appeal.

2 General Statutes § 4-181a (b) provides: “On a showing of changed conditions, the agency may reverse or modify the final decision, at any time, at the request of any person or on the agency’s own motion. The procedure set forth in this chapter for contested cases shall be applicable to any proceeding in which such reversal or modification of any final decision is to be considered. The party or parties who were the subject of the original final decision, or their successors, if known, and intervenors in the original contested case, shall be notified of the proceeding and shall be given the opportunity to participate in the proceeding. Any decision to reverse or modify a final decision shall make provision for the rights or privileges of any person who has been shown to have relied on such final decision.”

3 General Statutes § 4-166 provides in relevant part: “Definitions. As used in this chapter . . .

“(2) ‘Contested case’ means a proceeding, including but not restricted to rate-making, price fixing and licensing, in which the legal rights, duties or privileges of a party are required by statute to be determined by an agency after an opportunity for hearing or in which a hearing is in fact held, but does not include proceedings on a petition for a declaratory ruling under section 4-176 or hearings referred to in section 4-168;

“(3) ‘Final decision’ means (A) the agency determination in a contested case, (B) a declaratory ruling issued by an agency pursuant to section 4-176 or (C) an agency decision made after reconsideration. The term does not include a preliminary or intermediate ruling or order of an agency, or a ruling of an agency granting or denying a petition for reconsideration . . .

4 General Statutes § 4-183 provides in relevant part: “Appeal to superior court, (a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the superior court as provided in this section. The filing of a petition for reconsideration is not a prerequisite to the filing of such an appeal. . .

5 We granted the defendants’ petitions for certification limited to the following issue: “Under the circumstances of this case, did the Appellate Court properly conclude that the decision of the Connecticut Siting Council was a final decision in a contested case under the Uniform Administrative Procedure Act?” Fairfield v. Connecticut Siting Council, 234 Conn. 911, 660 A.2d 355, 356 (1995).

6 General Statutes § 16-50k provides in relevant part: “(a) 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, or commence the construction or supplying of a facility, or any modification of a facility, that may, as determined by the council, have a substantial adverse environmental effect, in the state without first having obtained a certificate of environmental compatibility and public need . . . issued with respect to such facility or modification by the council. 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.”

7 It is undisputed that the council conducted a hearing on the plaintiffs’ motions under § 4-181a (b). As we have previously stated, however, the hearing does not give rise to a contested case unless the holding of a hearing was statutorily required. See Summit Hydropower Partnership v. Commissioner of Environmental Protection, supra, 226 Conn. 811. The plaintiffs have not identified any statutory provision mandating a hearing on their motions. They claim, rather, that the matter is entitled to contested case status because, under § 4-181a (b), the council considered the merits of their motions in rejecting them.

8 General Statutes § 4-181a provides in relevant part: “Contested cases. Reconsideration. Modification, (a) (1) Unless otherwise provided by law, a party in a contested case may, within fifteen days after the personal delivery or mailing of the final decision, file with the agency a petition for reconsideration of the decision on the ground that: (A) An error of fact or law should be corrected; (B) new evidence has been discovered which materially affects the merits of the case and which for good reasons was not presented in the agency proceeding; or (C) other good cause for reconsideration has been shown. Within twenty-five days of the filing of the petition, the agency shall decide whether to reconsider the final decision. The failure of the agency to make that determination within twenty-five days of such filing shall constitute a denial of the petition. (2) Within forty days of the personal delivery or mailing of the final decision, the agency, regardless of whether a petition for reconsideration has been filed, may decide to reconsider the final decision. (3) If the agency decides to reconsider a final decision, pursuant to subdivision (1) or (2) of this subsection, the agency shall proceed in a reasonable time to conduct such additional proceedings as may be necessary to render a decision modifying, affirming, or reversing the final decision. . . .”

9 The mere fact that the councE heard testimony concerning changed conditions does not alter the fundamental purpose of the hearing as expressed by its members.