Opinion
AC33362
12-11-2012
CITIZENS AGAINST OVERHEAD POWER LINE CONSTRUCTION v. CONNECTICUT SITING COUNCIL
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DISSENT
BISHOP, J., dissenting. In dismissing this appeal on the ground that the plaintiffs Citizens Against Overhead Power Line Construction (Citizens) and Richard M. Legere did not appeal to the Superior Court from a final decision by the defendant Connecticut Siting Council (siting council), the majority did not reach the issue of whether the trial court properly dismissed the plaintiffs' appeal on the ground that they lacked standing to appeal the decision of the siting council. Unlike the majority, I believe that the plaintiffs timely appealed to the Superior Court from a final decision of the siting council. I believe, as well, that Legere had standing to appeal the siting council's decision. Accordingly, I would reverse the judgment of the Superior Court as it relates to Legere and remand the matter to the Superior Court for a hearing on the merits of Legere's claims.
Because I agree, generally, with the majority's recitation of the procedural facts of this appeal, they need not be reiterated. Instead, I will focus on the issues in which I disagree with the majority.
The majority concludes that the plaintiffs did not appeal from a final decision on the basis of its interpretation of General Statutes § 4-183, concerning administrative appeals to the Superior Court. Specifically, the majority fastens on § 4-183 (c) (4), which sets forth a timeline for taking an appeal and concludes, from its reading of this subsection, that the plaintiffs did not timely appeal to the Superior Court from a final decision of the siting council. While I generally agree with the majority's recitation of the timeline, I do not share the majority's view that this statutory subsection clearly and unequivocally mandates that a would-be appellant wait until the last possible moment to file an appeal. Rather, I believe § 4-183 (c), as amended, serves only to extend the permissive time for taking an appeal. Simply put, our difference boils down to the interpretation of the word ''may'' that is contained in § 4-183 (a), the prefatory sentence to this section.
Section 4-183 (a) provides: ''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.'' (Emphasis added.) Thereafter, the statute sets forth the various time periods following the rendering of a decision by an administrative agency in which an appeal may be taken to the Superior Court. Tracking the statute's timeline enables the reader to understand that the latest time in which an appeal may be taken is forty-five days after the expiration of a ninety day period from the date an administrative agency decides to reconsider its decision but fails to actually render a reconsidered decision. General Statutes § 4-183 (c) (4). Because, in the present case, the plaintiffs appealed after the siting council's initial decision and did not wait until the siting council's reconsidered decision several months later, the majority concludes that the plaintiffs' appeal was premature and, thus, untimely. Such an interpretation of the statute is, in my view, inconsistent with both the terms of the statute, as well as the purpose of the 2006 amendments to the statute, which specifically address the circumstances in which a motion for reconsideration is filed. See Public Acts 2006, No. 06-32 (P.A. 06-32). Indeed, a review of the legislation in question reveals that neither its context nor its purpose suggests the interpretation embraced by the majority.
As our canons of statutory interpretation instruct, I turn first to the language of the statute itself. See, e.g., Thames Talent, Ltd. v. Commission on Human Rights & Opportunities, 265 Conn. 127, 135, 827 A.2d 659 (2003). In common parlance, the word ''may'' denotes permissive behavior while the term ''shall'' implies directory or mandatory behavior. Our court has adopted this common sense approach to plain language. In a footnote to its opinion in Taylor v. Commissioner of Correction, 137 Conn. App. 135, 141 n.4, 47 A.3d 466 (2012), this court affirmed the classic distinction between the terms ''shall'' and ''may.'' Responding to the plaintiff's argument in Taylor that the word ''may'' in General Statutes § 18-91a should be construed to mean ''shall,'' the court responded: ''We disagree. [A]s opposed to [d]efinitive words, such as must or shall, [which] ordinarily express legislative mandates of a nondirectory nature . . . the word may imports permissive conduct and the conferral of discretion. . . . Only when the context of legislation permits such interpretation and if the interpretation is necessary to make a legislative enactment effective to carry out its purposes, should the word may be interpreted as mandatory rather than directory.'' (Emphasis in original; internal quotation marks omitted.) Taylor v. Commissioner of Correction, supra, 141 n.4. Additionally, this court has previously stated that when a statute contains both of the words ''may'' and ''shall,'' those words ''must then be assumed to have been used with discrimination and a full awareness of the difference in their ordinary meanings.'' (Internal quotation marks omitted.) State v. Custodio, 126 Conn. App. 539, 558, 13 A.3d 1119 (2011), aff'd, 307 Conn. 548, A.3d (2012). This court's observation in Custodio is pertinent to a consideration of the statute at hand. Section 4-183 (d), a subsequent subsection in the statute under scrutiny containing the term ''may'' regarding appeals, states that a person appealing, ''not later than fifteen days after filing the appeal, shall file or cause to be filed with the clerk of the court an affidavit . . . .'' (Emphasis added.) Thus, in accord with the holding of Custodio, we should not read the terms "may" and "shall" as synonymous in § 4-183 but, rather, should accord them the different meanings commonly associated with them.
The operative language regarding appeals to the Superior Court from administrative appeals in which motions for reconsideration have been filed was added to the statute in 2006 by the creation of three new subdivisions in § 4-183 (c). P.A. 06-32, § 2. In essence, the 2006 amendments enable a would-be appellant to await an agency's action on a motion for reconsideration before filing an appeal. As a result of the 2006 amendments, one may now bring an appeal to the Superior Court following an agency's agreement to reconsider its decision within a certain time from the agency's agreement to reconsider even in a circumstance in which the agency fails to timely render a decision after agreeing to reconsider its original decision. Nothing in the statute, however, mandates that an appellant await the agency's decision on a motion to reconsider before filing an appeal.
It is interesting, although I agree not persuasive, that my interpretation of the permissive nature of the 2006 amendments is consistent with Practice Book § 63-1 regarding appeals from the Superior Court. In pertinent part Practice Book § 63-1 (a) provides: ''If a motion is filed within the appeal period that might give rise to a new appeal period as provided in subsection (c) of this rule, the appeal may be filed either in the original appeal period, which continues to run, or in the new appeal period. . . .'' (Emphasis added.) I recite this provision only as a demonstration that such an interpretation of § 4-183 (c) is not absurd or contrary to general jurisprudence.
The amendments also placed a cap on the amount of time an agency may take in rendering its decision once it has agreed to reconsider its initial decision. P.A. 06-32, § 1 (3). This understanding of the 2006 amendments to the statute is consistent with their stated purpose to permit a litigant to await an agency's decision on reconsideration rather than requiring the litigant to appeal first from the initial opinion and to make finite the time period in which a reconsidered decision must be made for appeal purposes. A review of the history of the 2006 amendments to § 4-183 (c) includes the following summary of the public act by the General Assembly's office of legislative research:
''SUMMARY: This act caps, at 90 days, the maximum time a state agency has to issue a new decision in a contested case it decides to reconsider. By law, agencies can decide to reconsider a final decision in a contested case on their own or pursuant to a petition from a party to the case.
''With one exception, the act provides that a decision an agency issues in a contested case on reconsideration replaces its original decision as the final decision from which an appeal may be taken. The exception applies if an agency fails to render a decision on reconsideration within the 90-day period the act establishes. In this case, the original decision is the final decision for purpose of an appeal. By law, an appeal may be based on a number of issues, including issues the agency (1) decided in its original final decision that were not the subject of the reconsideration; (2) was requested, but declined, to address on reconsideration; and (3) reconsidered but did not modify.
''Lastly, the act establishes a deadline for filing an appeal after a petition for reconsideration is filed. The deadline is 45 days after (1) the petition is denied, (2) a decision made after reconsideration is mailed or personally delivered, or (3) the 90-day deadline for the decision.'' Office of Legislative Research, Connecticut General Assembly, Summary of 2006 Public Acts (2006) p. 213.
It appears that the 2006 amendment to § 4-183 making it permissible for an appellant to await an agency's reconsideration of a final decision before filing an appeal would have the effect of overturning the holding of this court in Housing Authority v. State Board of Labor Relations, 76 Conn. App. 194, 819 A.2d 296 (2003), appeal dismissed, 269 Conn. 798, 850 A.2d 142 (2004), in which this court, in a per curiam opinion, upheld the trial court's dismissal of an appeal not timely taken from a final decision in which a motion for reconsideration had been filed by another party on issues of no legal interest to the appellant.
In my view, the majority's interpretation of § 4-183 is also not consonant with the statute's broader legislative context. Section 4-183 must be read in conjunction with the provisions of General Statutes § 4-181a concerning the reconsideration of decisions in contested cases. Section 4-181a (a) (3) contains the following pertinent provision: ''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, provided such decision made after reconsideration shall be rendered not later than ninety days following the date on which the agency decides to reconsider the final decision. If the agency fails to render such decision made after reconsideration within such ninety-day period, the original final decision shall remain the final decision in the contested case for purposes of any appeal under the provisions of section 4-183.'' (Emphasis added.) The import of this language is that an agency's original decision is, when entered, a final decision for appeal purposes, but, if the agency later reconsiders its decision, its action on the motion to reconsider replaces the original decision and becomes the final decision for appeal purposes. Nothing in that language suggests that a party who wants to immediately appeal an agency's final decision must await the agency's determination on a motion for reconsideration filed by another party on an issue of no interest to the appealing party. Such is the circumstance we presently face. As the majority correctly illuminates, the siting council had treated, as one case, applications by the defendant Connecticut Light and Power Company (power company) relating to two distinct geographic areas. While the siting council's decision affected both geographic areas, only one area was of interest to the appellants. The motion for reconsideration was filed by the power company in response to the siting council's denial of its application regarding a geographic area of no immediate interest to the appellants. To suggest that the appellants should be required to await the siting council's determination on the power company's motion to reconsider its decision of no pertinent interest to the appellants appears, to me, to turn the statute on its head. Rather than extending the time an appellant has to file an appeal and fixing that time despite any latent inactivity by an administrative agency, the majority reads the statute as requiring an appellant to await, possibly for several months, the outcome of postdecision litigation in which it has no legal interest. I do not believe such a reading of the statute is warranted either from its language or its stated purpose.
Having concluded that the plaintiffs did timely appeal to the Superior Court from a final decision of the siting council, I must also consider whether the court properly determined that the plaintiffs lacked standing on the ground that they were not aggrieved by the siting council's decision. In this regard, I agree with respect to Citizens but not as to Legere.
''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 controversy. . . . Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved. . . . Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation.'' (Citations omitted; internal quotation marks omitted.) RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 229, 32 A.3d 307 (2011). ''[T]o determine whether a party has standing to make a claim under a statute, a court must determine the interests and the parties that the statute was designed to protect. . . . Essentially the standing question in such cases is whether the . . . statutory provision on which the claim rests properly can be understood as granting persons in the plaintiff's position a right to judicial relief. . . . The plaintiff must be within the zone of interests protected by the statute. . . . It has been [noted] that the zone of interests test bears a family resemblance to the scope of the risk doctrine in the law of torts. . . . In tort law, it is not enough that the defendant's violation of the law caused injury to a plaintiff. The defendant must also owe that plaintiff a duty. Similarly, with respect to the law of [statutory] standing, it is not enough that a party is injured by an act or omission of another party. The defendant must also have violated some duty owed to the plaintiff." (Emphasis in original; internal quotation marks omitted.) Albuquerque v. State Employees Retirement Commission, 124 Conn. App. 866, 873-74, 10 A.3d 38 (2010), cert. denied, 299 Conn. 924, 11 A.3d 150 (2011).
Both Legere and Citizens claim statutory aggrievement on the basis of the Public Utility Environmental Standards Act (PUESA), General Statutes § 16-50g et seq. The introductory portion of PUESA sets forth the General Assembly s legislative findings and the purpose of PUESA. In pertinent part, it states: ''The legislature finds that power generating plants and transmission lines for electricity and fuels, community antenna television towers and telecommunication towers have had a significant impact on the environment and ecology of the state of Connecticut; and that the continued operation and development of such power plants, lines and towers, if not properly planned and controlled, could adversely affect the quality of the environment and the ecological, scenic, historic and recreational values of the state. The purposes of this chapter are: To provide for the balancing of the need for adequate and reliable public utility services at the lowest reasonable cost to consumers with the need to protect the environment and ecology of the state and to minimize damage to scenic, historic, and recreational values; to provide environmental quality standards and criteria for the location, design, construction and operation of facilities for the furnishing of public utility services at least as stringent as the federal environmental quality standards and criteria, and technically sufficient to assure the welfare and protection of the people of the state; to encourage research to develop new and improved methods of generating, storing and transmitting electricity and fuel and of transmitting and receiving television and telecommunications with minimal damage to the environment and other values described above; to promote energy security . . . ." General Statutes § 16-50g. In subsequent parts, PUESA defines a facility as: ''An electric transmission line of a design capacity of sixty-nine kilovolts or more General Statutes § 16-50i (a) (2).
PUESA also establishes the siting council and sets forth the siting council's duties as well as the procedures for the siting council and applicants regarding applications for certificates of environmental compatibility and public need such as occurred in the case at hand. PUESA additionally includes statutory provisions setting substantive parameters for the siting council's decisions on applications regarding transmission wires. General Statutes § 16-50p (i) provides in relevant part: ''For a facility described in subdivision (1) of subsection (a) of section 16-50i, with a capacity of three hundred forty-five kilovolts or greater, there shall be a presumption that a proposal to place the overhead portions, if any, of such facility adjacent to residential areas . . . is inconsistent with the purposes of this chapter . . . .'' Finally, in this regard PUESA includes the following provision: ''Any party may obtain judicial review of an order issued on an application for a certificate or an amendment of a certificate in accordance with the provisions of section 4-183. . . .'' General Statutes § 16-50q.
PUESA, therefore, sets policy and procedures for the process by which the state responds to efforts by utility companies to provide services within the state. In doing so, the legislation attempts to strike a balance between the need for the availability of cost effective and technologically efficient utility services and protection of the environment and the ecology. Notably, PUESA also provides for judicial review of administrative orders made under the statutory scheme. See General Statutes § 16-50g et seq.
Although § 16-50q states that ''[a]ny party'' may obtain judicial review, I do not believe that PUESA operates to permit any person, no matter how tenuous the person's interest may be in the subject matter, to appeal a decision of the siting council. Rather, and consistent with our well established jurisprudence regarding statutory aggrievement, I believe that, in order to have standing to appeal from an order of the siting council, a person must demonstrate that he or she falls within the zone of interest PUESA is intended to protect. In this regard, I believe Legere enjoys a status that is not shared by Citizens.
A review of the complaint reveals that Citizens claims to be comprised of members who own property in the towns of Suffield and East Granby and whose property ''benefits in value and desirability from its location in a scenic and historic district, which is part of and/or adjacent to the federally-recognized . . . Metacomet-Monadnock-Mattabesett trail.'' Notably, Citizens makes no claim in the complaint that would, either expressly or by implication, place its members within the protections afforded by the statutory scheme regarding the siting council's response to the power company's application.
Legere, however, alleges, and the court found, that he owns real property that is subject to an easement in favor of the power company and over which the proposed transmission line is intended to pass. As a property owner over whose property the proposed transmission lines would pass, Legere argued that he was entitled to the protections of the provisions of§ 16-50p (i) that ''[f]or a facility described in subdivision (1) of subsection (a) of section 16-50i with a capacity of three hundred forty-five kilovolts or greater, there shall be a presumption that a proposal to place the overhead portions, if any, of such facility adjacent to residential areas . . . is inconsistent with the purposes of this chapter. . . .'' General Statutes § 16-50p (i). Legere claims that the proposed 345 kilovolt transmission line would cause harm to his well-being and the enjoyment of his property. Whether or not he may ultimately succeed on the merits, I believe Legere's allegations are sufficient to place him within the zone of protection intended by § 16-50p. In short, Legere has standing because he is statutorily aggrieved. It is difficult to envision a circumstance in which a property owner over whose property transmission lines are intended to pass would not have standing to seek judicial review of an agency's order that relates directly to the passage of transmission lines over the subject property.
Finally, in regard to statutory aggrievement, it appears that the trial court determined that, by the reference in § 16-50q to § 4-183, the legislature intended that only those who are classically aggrieved have the right to appeal a siting council decision. I do not agree. Rather, I believe the reference in § 16-50q, regarding judicial review, to the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq., simply establishes that anyone who is statutorily aggrieved may appeal in accordance with the procedures set forth in § 4-183 et seq. regarding administrative appeals generally. A contrary reading would render § 16-50q redundant, as one who is classically aggrieved by an administrative agency decision already has, without the benefit of § 16-50q, the right to appeal pursuant to the terms of § 4-183.
At first blush, this court's opinion in Brouillard v. Connecticut Siting Council, 133 Conn. App. 851, 38 A.3d 174, cert. denied, 304 Conn. 923, 41 A.3d 662 (2012), would appear to provide support for the view that, notwithstanding the provisions of § 16-50q, an appellant must demonstrate classical aggrievement in order to have standing to appeal from a decision of the siting council. Closer scrutiny reveals, however, that the appellant in Brouillard argued that § 16-50q conferred the right to appeal to anyone regardless of whether the person's rights and interests were within the zone of interest protected by the statute. In such case, the Brouillard court held that § 16-50q does not provide an automatic right to appeal and that such an applicant would be required to demonstrate classical aggrievement in order to have standing to appeal. Because, in my view, Legere's legal interests are well within the zone of interests PUESA is intended to protect, the holding in Brouillard is inapposite.
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Even if it could reasonably be determined that neither Citizens nor Legere is statutorily aggrieved, I would find, nevertheless, that Legere has standing on the basis of classical aggrievement. I would find, as did the trial court, that Citizens is not classically aggrieved.
Regarding classical aggrievement, and in the context of an appeal from a land use agency, our Supreme Court has observed: ''To be entitled to an appeal, the [plaintiffs were] required to allege and prove that [they were] aggrieved by the decision of the commission.'' Fletcher v. Planning & Zoning Commission, 158 Conn. 497, 501, 264 A.2d 566 (1969). ''The fundamental test by which the status of aggrievement . . . is determined encompasses a well-settled twofold determination. First, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected bythe decision.'' (Internal quotation marks omitted.) Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 307, 592 A.2d 953 (1991). To prove aggrievement, however, one need not prove harm on the merits. Rather, ''[a]ggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected.'' (Internal quotation marks omitted.) Bakelaar v. West Haven, 193 Conn. 59, 66, 475 A.2d 283 (1984); see also New England Cable Television Assn., Inc. v. Dept. of Public Utility Control, 247 Conn. 95, 103, 717 A.2d 1276 (1998). Regarding the quality of proof one must present to demonstrate adverse affects, our Supreme Court has previously opined: ''When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue and not whether the controversy is otherwise justiciable, or whether, on the merits, the plaintiff has a legally protected interest that the defendant's action has invaded.'' (Internal quotation marks omitted.) Steeneck v. University of Bridgeport, 235 Conn. 572, 579, 668 A.2d 688 (1995). In other words, to demonstrate standing, one need not prove his case on the merits. Rather, standing entails a consideration of whether there is a possibility that some legally protected interest of the person asserting a claim has been adversely affected by the actions of the defendant.
In the complaint, Citizens did not allege a ''specific, personal and legal interest in the subject matter'' of the siting council's decision as distinguished from a ''general interest, such as is the concern of all members of the community as a whole,'' as is required to demonstrate classical aggrievement. (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674, 702, 780 A.2d 1 (2001). Because the pleadings filed by Citizens did not allege a specific, personal and legal interest in the proposed transmission lines, they failed to satisfy the pleading component required to demonstrate classical aggrievement.
Contrary to Citizens' general claims of concern regarding the power company's proposed transmission lines, Legere alleged that he and his wife own real property located at 1204 Newgate Road, West Suffield, and that their personal and legal interests were directly affected by the power company's proposed activity. The court found, and I agree, that these pleadings were sufficient to establish Legere's direct and personal interest in the siting council's proposed activity beyond a mere general concern. See St. Germain v. LaBrie, 108 Conn. App. 587, 949 A.2d 518 (2008). Notwithstanding the pleadings, the court found that Legere's proffer was inadequate to establish classical aggrievement.
Because it is not our function to find facts in assessing the correctness of the court's ruling on a motion to dismiss, but, instead, to take the facts as reasonably found by the court, it is appropriate to note some of the pertinent facts found by the court. The court made the following relevant findings of fact: (1) Legere purchased the premises at 1204 Newgate Road, West Suffield, in 1997; (2) the power company has a right-of-way (easement) for 115 kilovolt (115 kV) electric transmission lines; (3) the 345 kilovolt (345 kV) transmission line is proposed to be built in this same right-of-way; (4) the right-of-way traverses Legere's property for four or five acres and is 305 feet wide; (5) the 345 kV line would be at least thirty or thirty-five feet above the ground; (6) Legere is allowed under the terms of the grant of the right-of-way to use the land for agricultural purposes, including raising chickens and alpacas, and growing crops such as hay and produce; (7) there is an apple orchard near, but not inside, the right-of-way; (8) during the winter months, Legere is rarely in the right-of-way, but during the other seasons, he estimates that he spends four to five hours a day in the right-of-way, under the electric wires; and (9) under § 2 of the right-of-way, which was granted in 1970 by Legere's predecessor in interest, the power company has the right to erect, construct, repair, maintain, replace, relocate, inspect, operate, and remove upon, over, under and across the right-of-way, poles, towers, crossarms, guys, foundations, anchors, braces, ducts, manholes, and other structures, wires, cables and other conductors, and other fixtures and appurtenances useful for conducting electricity and/or for providing and maintaining electric and/or communication service, and monuments and signs to locate the right-of-way. The court found, as well, that Legere had conceded that, due to this provision, the proposed construction of the 345 kilovolt line would not overburden the grant of easement. Finally, the court found that the international standard limit for electric and magnetic field (EMF) exposure had been 833 units of milligauss but had recently been changed to 2000 milligauss and that a conservative estimate for EMF exposure in the right-of-way at the Legere property is 200 milligauss.
The court appears to have determined that Legere was not classically aggrieved on two bases: (1) the power company already had an easement over Legere's real property that would not be overburdened by the construction of the proposed 345 kV line, and (2) Legere did not prove that the proposed 345 kilovolt transmission lines posed a health risk to him or threatened his use and enjoyment of his property.
Whether or not increasing the allowable voltage on the transmission lines traversing the Legere property would overburden the easement granted to the power company does not answer the question of whether the salutary purposes of PUESA would be met by granting the power company's application. In other words, notwithstanding the existence of rights created by the easement, Legere retains a legal interest in the protection of his property and his well-being from unreasonably high exposure to radiation, and the state retains the responsibility to maintain the balance that PUESA was intended to achieve.
As to the second basis for the court's determination that Legere is not classically aggrieved, it appears that the trial court made a decision on the merits rather than on whether Legere made a sufficient demonstration of potential harm to allow him to be heard on the merits. In rejecting Legere's claim, the court commented: ''Even if the court were to evaluate Legere's proof of harm, it consists only of the alleged danger arising from the EMF exposure that he would receive while in or adjacent to the right-of-way. The opinion of the [siting] council, quoted above, as well as the evidence at the March 1 and March 8 [2011] hearings, show that Legere would be exposed to no more than 300 [milligauss] in the right-of-way. This level of exposure does not exceed any applicable safety standards examined by this court or the [siting] council. Moreover, Legere has not submitted any evidence tending to show that such levels would cause injury to himself or others. Legere has therefore not met his burden of proving aggrievement While I understand the general jurisprudence that, in order to show classical aggrievement, one must provide a basis greater than speculation, a would-be appellant need not, however, prove his case on the merits in order to have standing to contest an agency decision. Contrary to the trial court's conclusion, I believe Legere has demonstrated ''a possibility, as distinguished from a certainty,'' that his legally protected interest in the use and enjoyment of his property and his personal well-being have been adversely affected by the decision of the siting council. (Internal quotation marks omitted.) New England Cable Television Assn., Inc. v. Dept. of Public Utility Control, supra, 247 Conn. 103. Accordingly, because I would remand this matter to the trial court for a hearing on the merits of Legere's appeal from the decision of the siting council, I respectfully dissent.