Opinion
No. CV06 4012365 S
April 10, 2007
MEMORANDUM OF DECISION RE MOTIONS TO DISMISS
The plaintiffs appeal from a final decision of the State of Connecticut Siting Council (the council) dated October 31, 2006, and make reference therein to a prior final decision dated April 7, 2005. The defendants, the council, Connecticut Light and Power Company (CLP) and United Illuminated Company, have moved to dismiss the appeal.
On April 7, 2005, the council issued a final decision and order and findings of fact for Docket No. 272, regarding a certificate of environmental compatibility on an application by CLP to construct electrical transmission lines from Norwalk to Middletown. The final decision indicated, at page 2, point 6, that the council approved the right of way proposed by CLP in its application, with the exception that the right of way "shall be shifted farther away from buildings on property owned by Congregation B'Nai Jacob/Ezra Academy."
Finding of Fact 613 was more specific: "[CLP has] offered a deviation from the existing right-of-way to be relocated roughly to the north side of the Ezra Academy and B'Nai Jacob property. The magnetic field would be approximately 0.1 mG at the nearest edge of the building using a split-phase configuration. Based on the evidence, the Council finds relocating the overhead lines away from day care and school facilities as far as possible on the B'Nai Jacob property to be prudent." The council relied on the following items in the record for its finding of fact: "Applicant ex. 73, p. 11; Tr. 10/14/04, p. 69; Applicant 163, aerial photograph, p. 10 of 13."
The materials of record, including the aerial photograph, indicate that in CLP's application, the right of way ran near the plaintiffs' property. After the hearing process and with the final decision and findings of fact, right of way was placed farther away from B'Nai Jacob and seventy feet closer to the plaintiffs' home on their property.
The plaintiffs did not take an appeal from the April 7, 2005 final decision of the council, while other persons, who claimed to have been adversely affected by the council's decision, did take an appeal. In July 2006, the plaintiffs attempted to intervene in an outstanding administrative appeal. This motion was withdrawn as the council, pursuant to General Statutes § 4-181a(b), had decided to re-open its decision.
The plaintiffs agreed to withdraw the motion to intervene and stated that they would be filing another petition if they objected to the re-opened decision. Neither they nor any other party at this court hearing raised the issues of timeliness or aggrievement.
During the re-opened council proceedings, another modification was made in the proposed right of way. The purpose of the modification was to make slight adjustments to the right of way as it impacted on the local Jewish Community Center and B'Nai Jacob properties. The final decision of October 31, 2006 refers to the plaintiffs at Finding of Fact 20: "[The plaintiffs] were admitted as parties during the supplemental proceedings . . . [The plaintiffs] were concerned with the ROW being closer to their home . . . Prior to the April 7, 2005 Council Decision . . . the nearest portion of the ROW to [the plaintiffs'] house was approximately 210 feet. Under the Council Decision [of] April 7, 2005, the nearest portion of the ROW to [the plaintiffs'] house was approximately 170 feet. Under the proposed modification . . . the nearest portion of the ROW to [the plaintiffs'] house remains approximately 170 feet, but the portion of the ROW that is this close to [the plaintiffs'] house is reduced by 70 feet due to the ROW turning away from [their] house at a different location." The closest distance of the ROW to the plaintiffs' property line (as opposed to the plaintiffs' residence) in the application, the April 2005 decision and the October 2006 is approximately 100 feet.
Finding of Fact 20 concluded that the latest modification "is not adverse to [the plaintiffs'] property." Mr. Werth, one of the plaintiffs, agreed with this conclusion during his testimony at the council's July 20, 2006 hearing. He told the council that "[t]he modification doesn't bother me one bit." Further the plaintiffs' attorney stated to this court at the hearing on the motion to dismiss held on March 30, 2007, that his clients could not be bound by the 2005 order because it inadequately defined the right of way regarding the plaintiffs' home. According to the plaintiffs, the first time the right of way was ordered was in the 2006 decision.
Under these circumstances, the defendants' motion to dismiss should be granted on the basis of a lack of aggrievement. In Haynes v. Power Facility Evaluation Council, 177 Conn. 623 (1979), the Supreme Court held that the failure to appeal from a final decision determining the right to a certificate of environmental compatibility could not be cured by an appeal from a later amendment to the certificate. See also Windsor Locks Association v. Planning and Zoning Commission, CT Page 4961 90 Conn.App. 242, 252 (2005) (noting Haynes decision rested on lack of aggrievement). Here, any possible harm to the plaintiffs, and thence a finding of aggrievement, occurred with the April 7, 2005 final decision to move the right of way closer to their home.
The failure to take an appeal from the April 2005 decision justifies a finding of lack of aggrievement. The court in Sielman v. Connecticut Siting Council, Superior Court, judicial district of New Britain, Docket No. CV 020517272S (January 15, 2004, Quinn, J.) [ 36 Conn. L. Rptr. 400] faced an identical issue of an attempted appeal from the council after a modification. In dismissing the appeal, the court stated: "[O]ur strong state policy in favor of the finality of decisions would lend more than adequate support for the same conclusion. It is well established that our courts favor finality in judicial decisions . . . `Public policy requires that a term be put to litigation and that judgments, as solemn records upon which valuable rights rest, should not lightly be disturbed or overthrown . . .' Lampson Lumber Co. v. Hoer, 139 Conn. 294, 93 A.2d 143 (1952)."
The plaintiffs attempt to distinguish Haynes on several different grounds. First they argue that the April 7th decision and order did not establish the direction for the right of way, pointing to paragraph 6 which states in general terms that the right of way in the area of B'Nai Jacob will be "shifted." According to the plaintiffs, the line only became certain in the October 31, 2006 final decision; thus an appeal raising the placement of the line is not merely from a minor modification. The plaintiffs do not consider that the council issued, as is its custom, findings of fact with the April 7th decision. As quoted above, these findings clearly spell out the path of the right of way and set forth the record evidence, including a photograph, to indicate that the right of way has been moved closer to the plaintiffs' home than in the original application.
Secondly, the plaintiffs argue that at the time the decision was issued in April 2005, they had not employed counsel. They tried by calling their town officials to learn where the right of way was placed in April. According to the plaintiffs, they were informed by the town that although a final decision had been issued, the town was still suggesting modifications and the situation was fluid. The plaintiffs did not obtain the final decision from the council, however. Non-parties, even if trying to resolve administrative matters without an attorney, have the duty to examine the final decision and take timely action. They cannot fault the agency for failure to give them notice. Green Oaks Condominium Association v. State Traffic Commission, Superior Court, judicial district of New Britain, Docket No. CV 03 05191545 (May 20, 2003, Cohn, J.); Brown v. Rocque, Superior Court, judicial district of Tolland/Rockville, Docket No. 98 65924S (June 22, 1998, Sullivan, J.).
Finally, the plaintiffs claim that since the April 2005 decision was under appeal and the D M plan was being developed, the forty-five day appeal period of General Statutes § 4-183 had not commenced to run for them until the summer of 2006. The court, however, considers the April 7th decision as final as to these plaintiffs, even though the town and other parties were seeking refinements in it. See City of Norwalk v. Siting Council, Superior Court, judicial district of New Britain, Docket No. 03 0524145S (August 18, 2004, Cohn, J.) [ 37 Conn. L. Rptr. 862].
There is no question that the appeal from the October 31, 2006 final decision of the council is timely. Turning to that decision itself, without considering the prior decision, the plaintiffs cannot prove aggrievement. The plaintiffs must demonstrate a "specific personal and legal interest in the subject matter of the decision" and must show that "this interest has been adversely affected." Goldfisher v. Connecticut Siting Council, 95 Conn.App. 193, 197 (2006); Westport v. Connecticut Siting Council, 47 Conn.Sup. 382, aff'd 260 Conn. 266 (2002).
The plaintiffs have, on this motion to dismiss, merely relied on their allegations in the complaint, paragraph 20, to establish that they have a specific personal and legal interest. These include depreciation in value of the property, health risks, diminution of view, and the implication that the defendant electrical transmission companies may trespass on their properties.
There is precedent that claims of depreciated property values do not supply the specific interest necessary for aggrievement. City of New Haven v. Public Utilities Commission, 165 Conn. 687 (1974). In addition, the plaintiffs did not file a counter-affidavit or make an offer of proof as to the allegations of aggrievement. See Weihing v. Dodsworth, 100 Conn.App. 29 (2007); Barde v. Board of Trustees, 207 Conn. 59 (1988). The defendants have filed an affidavit which indicates that the plaintiffs admit not being affected by the movement of the right of way in the October 31st decision. Further the council on October 31st found that its decision was not adverse to the plaintiffs. Therefore the plaintiffs have not met either of the tests for aggrievement and the motion to dismiss must be granted.
In their second count the plaintiffs claim the benefit of the Connecticut Environmental Protection Act, § 22a-19. This provision requires that the intervenor have standing due to the agency action having environmental impacts. Nizzardo v. State Traffic Commission, 259 Conn. 131 (2002). Only the decision of April 7th had such impacts, not the October 31st decision. Thus the court is without jurisdiction to consider this count.
So Ordered.