Opinion
No. CV 03 0524145S
August 18, 2004
MEMORANDUM OF DECISION
These are administrative appeals by the City of Norwalk (the city) from two decisions of the defendant Connecticut Siting Council (the council) dated July 14, 2003 and September 9, 2003, permitting the placement of new electric transmission lines in the city. The complaints name several additional defendants, including the applicant, Northeast Utilities Service Company (Northeast), the towns of Redding, Weston, Wilton, Bethel, and the Office of Consumer Counsel.
Northeast was the applicant on behalf of its entity Connecticut Light Power (CLP); some of the documents in the case thus refer to "CLP" and not Northeast.
By way of background, the construction of new electrical transmission lines requires a certificate of environmental compatibility and public need ("a certificate") from the council pursuant to the Public Utilities Environmental Standards Act (PUESA), Chapter 277a, General Statutes § 16-50g et seq. On October 15, 2001, Northeast applied to the council for a certificate for a new overhead 345-kv transmission line between its Plumtree Substation, in Bethel, and its Norwalk Substation, in Norwalk, passing through the towns of Redding, Weston, and Wilton. (Return of Record (ROR), Number I, Section 1.)
Northeast's application proposed to place both the new 345kV line and a reconstructed 115-kV line on an existing Northeast right-of-way from Bethel to Norwalk. The existing configuration was to be replaced with a set of higher voltage lines combining both 345-kV and 115-kV structures. Northeast's proposal became known as "F-1."
Meeting the requirement of PUESA to identify alternatives (General Statutes § 16-501(a) (1(D)), Northeast also discussed in its application other configurations for the power lines, including "F-2" that would have placed the 115-kV line underground and only placing the 345-kV line above ground and "F-3" that would have placed the 345-kV underground for its entire length and left the existing 115-kV line in place.
In 2002, the General Assembly passed P.A. 02-95, effective June 3, 2002. Under subsection 2, a moratorium was imposed on the council, so that it could render a final decision on Northeast's application no earlier than February 1, 2003. During that time period, the Institute for Sustainable Energy was to convene a working group to study the preferred course of the transmission lines as well as issues of need, reliability and safety.
The application was filed on October 15, 2001, and the council was initially required to render a decision within twelve months of the filing. Because it had the consent of Northeast, the council was permitted to take an additional one hundred and eighty days to issue its decision. Thus its deadline was April 15, 2003. § 16-50p(a). This date did not violate the February 1, 2003, date set forth in P.A. 02-95, regarding the moratorium.
On January 1, 2003, the Institute issued its report. It indicated that the Southwest Connecticut area was a "load pocket" or "bottleneck" and needed additional resources to insure reliable transmission of energy. The report noted that Northeast had applied for the Bethel to Norwalk lines (which it called "phase 1") and that a "phase 2" was contemplated from Norwalk to Middlefield. The Institute reported that phase 1 was pending before the council and that additional alternatives were being sought to those proposed by Northeast.
It also noted that an earlier segment of this "loop" had been built from New Milford to Bethel in the 1970s.
The council's proceedings commenced before the moratorium period and continued after the January 1, 2003 Institute report. The council conducted twenty-one hearings (ROR, No. XLIV), where concerns were raised about such matters as aesthetics, adverse effects to properties, wetlands and wildlife, and the feasibility of placing part or all of the 345-kV and 115-kV lines underground. Evidence was taken on Northeast's plan to develop a loop consisting of phase I, phase 2 and the earlier-constructed New Milford line to Bethel line.
In addition to the options submitted by Northeast, the council considered several other configurations that included different combinations of overhead and underground construction of both 345-kV and 115-kV lines. These various alternative configurations were referred to as the "mix and match" options. The parties were asked by the council to rank these configurations to take into account local problems and electric reliability. (ROR, No. XLIV, Section 10, trans. p. 163.)
After the hearings had been concluded, Northeast, the four adjacent towns and the city entered into discussions on a compromise line. These discussions resulted in a motion made by Northeast and the four towns, but not the city, that the council certify a configuration called "Configuration X." (ROR, No. XLV, Section 39.) Since the evidentiary record in the proceedings had closed in January 2003, on March 17, 2003, Northeast and the four towns jointly moved to open the record to present new evidence, and they filed a joint proposal for the certification of Configuration X. As presented to the council, underground construction was contemplated for the electrical transmission lines though the four towns, but no underground construction was to take place in the city.
Bethel, Redding, Weston, and Wilton.
The council stated its concern, on receipt of the Configuration X proposal, that it would not have enough time to consider the proposal thoroughly. As indicated above, under § 16-50p(a), the deadline for their decision was April 15, 2003. Accordingly, at the council meeting of March 20, 2003, the council proposed denying Northeast's application without prejudice and then reopening the proceedings on its own motion pursuant to UAPA § 4-181a(a)(2). The parties were asked for their opinion of this procedure. Northeast indicated that it did not object; the city did not respond. (ROR, No. IV, Section 6.)
Thereafter on March 25, 2003, the council proceeded to deny the joint request of Northeast and the towns to open the proceedings. As to Northeast's application for a certificate, the council stated that the joint filing was "different from any configuration seen during the many days of the proceedings . . . [F]urther proceedings will be necessary before a decision can be rendered on the Joint Filing and it is anticipated that this docket will be reopened for that purpose. Without a full record to support consideration of the implications of the Joint Filing, the Council cannot issue any Certificate . . . Therefore, the Council declines to issue a Certificate . . . for the original application in light of the Joint Filing. This final decision is issued without prejudice to the Application including all proceedings in this mailer and the Joint Filing, which may be reconsidered at a subsequent date." (ROR, No. XLV.)
On April 9, 2003, the council reopened its docket to conduct further proceedings on Configuration X and the previously disclosed configurations. (See ROR, No. LXVI, notice of meeting.) The city opposed the approval of Configuration X. On May 7, 2003, the city filed a petition requesting the council to appoint "a neutral expert engineer" to recommend "additional alternatives to `Configuration X' that would result in placement of the new 345-kV line either wholly or at least partially underground within Norwalk." (ROR, Sup. 2.) The council did not, however, appoint a consulting expert.
There was some confusion over this request as the city's mayor seemed to abandon it at a hearing on May 12, 2003. (ROR, No. XLIV, Section 19, pg. 215.) It was again pressed in the city's post hearing brief (ROR, No. XLVLI, Section 4.)
The evidentiary record was closed on May 21, 2003. The city then submitted written comments indicating that the council should issue a certificate either for two 345-kV circuits to be constricted in the public streets for the entire length of the line, including the city, or a modification of Configuration X to include the city, or the construction of four 115-kV lines underground in the city. (ROR, No. LXVLI, Section 4.)
One of the city's concerns with Configuration X was the height of the poles required for the construction of the new 345-kV line in addition to the three 115-kV existing lines. Northeast suggested that the height of the new towers could be lowered by about 22 feet if one of the existing 115-kV lines were removed from the right-of-way and constructed underground instead. Therefore, the council amended the Configuration X proposal to order that one of the existing 115-kV lines be placed underground from Norwalk Junction to Norwalk Substation, thereby lowering the structures and limiting the visibility of the poles to city residents.
On July 14, 2003, the council adopted findings of fact and an opinion, and issued a decision and order approving Configuration X as amended. (ROR, No. LXVLII, Section 1, part 1.) Thereafter, on its own motion, on August 26, 2003, the council again opened the proceedings to revise its opinion. On September 4, 2003, Northeast made suggestions to the council on revisions to its initial opinion. (ROR, No. LXVLI, Sections 25, 27.) The revised opinion, adopted on September 9, 2003, and issued on September 24, 2003, stated as required in § 16-50p(a)(4)(B), that the approved line would "serve the interests of electric system reliability." (ROR, No. LXVLII, Section 1, part 4.)
The city first appealed on September 3, 2003 after the docket had been opened for reconsideration, but before the council had adopted its revised opinion. The city next appealed on November 4, 2003, after the issuance of the revised opinion.
Key points in the council's revised opinion, dated September 9, 2003, may be summarized as follows. Regarding "Need and Reliability," the council noted that Northeast's application raised the crisis of Southwest Connecticut's energy needs. A similar problem had arisen in the 1970s and the council had approved an expansion plan with a 345-ky transmission line between Long Mountain Switching Station in New Milford to Plumtree Substation in Bethel. "Extra high voltage overhead transmission line systems, such as 345-kV or greater, are able to move large amounts of energy over long distances and more efficiently than lower voltage lines." The 345-kV lines are comparable to interstate highways or a large water main. (ROR, id. at page 2.)
"In July of 2000, the Connecticut Department of Public Utility Control (DPUC) investigated electric capacity and distribution and identified SWCT as having operational difficulties and a near term need for reinforcement of the transmission and distribution system. Again in 2002 the Legislature directed the DPUC to conduct an investigation in the possible shortages of electricity in SWCT during periods of summer peak demand The DPUC identified occasions where the existing 115-kV transmission system came precipitously close to failing. This would have resulted in `shedding loads', otherwise known as interruption to service, or the collapse of the transmission grid . . . [Thus] evidence in this proceeding leads the Council to determine there is a need for a 345-kV transmission line between the Plumtree Substation in Bethel and the Norwalk Substation in Norwalk." ROR, id.
In finding of fact 43 the council discussed the projected 345-kV loop that will "unlock" power generation. In finding of fact 40, the council discussed ISO-NE's evaluation of "the performance of the system as it exists today, and as it would be improved by the addition of the proposed 345-kV line on a stand-alone basis, without the completion of the loop . . ." The findings of fact were issued with the decision dated July 14, 2003. ROR, No. LXVLII, Section 1, part 1.
The "no build" option was not a solution when "potential brownouts are imminent." "To continue modifications, reinforcements, and new line construction at [115-kV] would ignore the fact that SWCT is lacking a suitable and stable platform to move electricity efficiently . . . A 345-kV transmission system extensions would yield the most cost-effective system for relieving transmission congestion. However, various proposals for implementing a 345-kV infrastructure are at the basis of this decision." (ROR, Id. at page 3-4.)
The first proposal by Northeast was "to construct a new 345-kV overhead transmission line and reconstruct the existing 115-kV transmission line within the existing 115-kV line's corridor . . ." from Bethel to Norwalk on single steel monopoles with average heights of 130 feet (the "F-1 proposal"). The F-2 alternative placed a 345-kV overhead transmission line on two structures with heights of 90 feet and 108 feet and a 115-kV cable underground within the existing roadway. The F-3 alternative left the 115-kV line as is and placed 345-kV cables underground in existing roadways. Id. at page 2-3.
Northeast's "first preference" is overhead construction because of its longstanding experience in constructing, operating, maintaining, and improving such transmission systems. Overhead transmission is very reliable because faults can be identified and corrected. With today's technology, underground transmission is reliable as well, and is less affected by external forces. Id. at page 4.
Configuration X makes use of both overhead and underground transmission. The four towns and Northeast contended that this "mix and match" approach would be "reliable, less damaging to the environment, and would eliminate the taking of residences." "Configuration X did not include the City of Norwalk in its settlement to the Council. This proposed transmission line route traverses five municipalities and the Council believes that any settlement proposal should have included all Towns concerned. Consequently, the Council will order that the one of the existing 115-kV lines be replaced underground from Norwalk Junction to Norwalk Substation and the 345-kV cables be constructed on H-Frame structures or on steel poles in a delta configuration to limit visibility to many urban residents . . . Therefore, we conclude that Configuration X, as modified, will serve the interests of electric system reliability, and we see no reason to deny Configuration X as modified." Id. at page 7.
The council then turned to other matters. The cost of the project was given as $177 million with another $20 million for the modification in the city. The council found that this was cost effective and "consistent with the purposes of the Public Utility Environmental Standards Act, the regulations of the Council, and the Federal Energy Regulatory Commission guidelines for the protection of natural, historic, scenic, and recreational values in the design and location of rights-of-way and transmission facilities." In findings of fact 50 and 53, the council stated that, if placed into service by 2007, the costs of the line would be recovered on a New England-wide basis and Connecticut consumers will bear 25% of the costs. (ROR, No. LXVLII, Section 1, part 1.)
The final discussion in the opinion is that of the environment and public health and safety. The council ordered actions to be taken to protect wetlands, architectural resources, and public water supplies. Regarding increased measured levels due to electromagnetic fields (EMF) in the right-of-way corridor, the council stated: "There is insufficient evidence to conclude that exposure to the electric and magnetic fields surrounding the lines would pose any risk to human health. Nonetheless, the Council will order the applicant to comply with the Council's Best Management Practices for Electric and Magnetic Fields." (ROR, No. LXVLII, Section 1, part 4.)
On matters of zoning, Northeast and the city reached agreement to reduce "the area of expansion on the west side, making provision for a bike trail on the site, installing groundwater contamination monitoring wells, additional landscaping, eliminating some new 115-kV line terminations, and enclosing the new gas-insulated substation equipment with a long building . . ." (ROR, id. at pages 9-10.)
In conclusion, the council issued a certificate to Northeast to construct the 345-kV line and to reconstruct the existing 115-kV line as proposed in Configuration X as modified. Northeast was ordered to hire an independent expert to serve as an environmental inspector and a liaison to the towns. The DM plan, to be filed before construction and subject to public comment, was to cover site plans "identifying structure locations and transition stations; an erosion and sediment control plan . . . a Spill Prevention, Control, and Countermeasures Plan; provisions for revegetation and maintenance of the proposed ROW; provisions for inspection and monitoring of the proposed ROW; and pre-construction and post-construction measurements of electric and magnetic fields." (ROR, id. at page 10.)
Work on the DM plan continues to date; while, as indicated, the two appeals are now pending before the court. Prior to reaching the merits of these appeals, the court must address a matter of jurisdiction raised by Northeast and the council, that of aggrievement. Our Supreme Court in Broadnax v. New Haven, 270 Conn. 133, 153-55 (2004), gives the following summary of the law of aggrievement. "The fundamental test for determining aggrievement encompasses a well-settled two-fold determination: First, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in the subject matter of the challenged action, 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 by the challenged action . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected . . .
The other jurisdictional issue of exhaustion of administrative remedies was ruled upon by the court in a decision dated April 19, 2004.
"With respect to whether the plaintiffs have demonstrated some legally protected interest, we often have stated: `Standing concerns the question of whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.'" (Citations omitted; brackets omitted.)
The city introduced the following testimony at a hearing before the court on July 12-13, 2004. The first witness was a state toxicologist, Gary Ginsberg, who testified that the state has advised that EMF dangers arise as the measurement of miligauss increases.
He also advised that a measurement of 10, which is generated in some cases by a 345-kV line, was a genuine concern. The second witness, Richard Linnartz, a city engineer, stated that the burying of the 115-kV power line would cause potential problems with the city's sanitary sewers. The third witness, Leigh Grant, a member of the city planning commission, testified that the last revision of the DM plan showed average tower heights increasing by 20 feet with the new overhead lines. The fourth witness, Michael Greene, a planner for the city, reported that the linear bikeway path would be underutilized by city residents due to the higher EMF readings in the new overhead lines. Finally Ann Carbone, a resident of the Silvermine neighborhood, testified that the project would adversely affect the Silvermine's development plan. Northeast's witness, a project director, stated that the heights of the poles were still under study as part of the DM plan to be submitted to the council.
On the first requirement of aggrievement as set forth in Broadnax, that of a specific personal and legal interest, the city has an interest in limiting hazards for those who use the facilities of a public park. Milford v. Commissioner of Motor Vehicles, 139 Conn. 677, 681 (1953) (finding aggrievement). It has an obligation to insure its sewers are properly functioning. McNeil v. Tyson, 37 Conn.Sup. 624, 626, note 3 (1981) ("The cases in which a legal duty has led to standing in a representative capacity involve the duty of a governmental entity to protect the public interest"). Broadnax also requires that the city demonstrate that its claims are within a zone of interests set forth in the Public Utility Environmental Standards Act. Under § 16-50p(a), the council is to consider adverse affects on the natural environment, ecological balance, public health and safety, scenic, historic and recreational value forests and parks, air and water purity, and fish, aquaculture and wildlife. Clearly the city has an interest in making sure that such considerations were properly analyzed both procedurally and substantively. See Guilford v. Landon, 146 Conn. 178, 179-80 (1959): "The real party in interest is the town. There is a definite public interest to be protected in the enforcement of zoning regulations, and the town as a party could properly represent that interest."
The court agrees with Northeast that the city may not assert the interests of the Silvermine neighborhood to establish aggrievement.
The court also finds that the second part of the aggrievement test as set forth in Broadnax has been satisfied by portions of the testimony showing that the city's interest has been "specially and injuriously affected by the [challenged action]." Id. at 154. The council's action will possibly affect the city's sanitary sewer on Main Avenue and the use of the bikeway linear park. The alleged procedural errors of the council constitute a possible injury to the city. See Merrimac Associates, Inc. v. DiSesa, 180 Conn. 511, 520 (1980): "When the plaintiff did not receive the process that was due to him under all the circumstances, he was injured in fact and aggrieved . . ." Therefore the court will find that the city has established aggrievement in this matter, as did the courts in New Haven v. Public Utilities Commission, 165 Conn. 687 (1974) (administrative appeal of application to install overhead transmission lines).
The court rejects Northeast's contention that the city does not have standing due to the doctrine of "invited error." Reasonable minds may differ as to the position taken by the mayor during the council's hearings on Northeast's application. Equitably these statements are insufficient to preclude the city's appeal. Eateries v. J.R. Simplot Co., 346 F.2d 1225, 1229 (10th Cir. 2003).
On finding aggrievement, the court turns to the city's arguments on the merits. There are essentially four claims made by the city in these two appeals: (1) The final decision by the council was not timely; (2) The required finding of "reliability" was not properly made; (3) The council improperly "segmented" its consideration of Northeast's application; and (4) The council failed to adopt the city's request for an expert to assist an evaluation of Configuration X.
These are claims of legal error. On the standard of review, the court in MacDermid, Inc. v. Department of Environmental Protection, 257 Conn. 128, 137 (2001), has stated: "Cases that present pure questions of law [as opposed to those challenging the agency's factual findings], however, invoke a broader standard of review that is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Quoting Connecticut Light Power Co. v. Texas-Ohio Power, Inc., 243 Conn. 635, 642 (1998).) See also Connecticut Light Power Co. v. Department of Public Utility Control, 266 Conn. 108, 117 (2003).
The first issue raised by the city is the timeliness of the council's decision. Under § 16-50p(a), as discussed above, the council was required to "grant" or "deny" the application of Northeast by April 15, 2003. Instead on March 25, 2003, the council "declined" without prejudice to decide on Northeast's application. The city, as a preliminary matter, contends that the council's action on March 25th did not constitute a "denial" and that it only rendered a final decision on July 14th after the reconsideration proceedings concluded. Thus, according to the city, it missed the April 15th deadline.
The court disagrees with this contention. The March 25, 2003 decision resolved Northeast's application, so that it could have then filed an administrative appeal under § 4-183(a) from the council's action as a final decision. The council affirmatively refused to act on the application, called its decision "final," and stated that its obligations to the parties had been concluded. See OCC v. DPUC, Superior Court, judicial district of New Britain, Docket No. CV 99 0497238 S (September 21, 2000, Cohn, J.). The council's action on March 25th may be contrasted with an enforcement letter issued after a final decision of the Department of Public Utility Control. There, the letter was not a final decision. Southern New England Telephone Co. v. DPUC, 64 Conn.App. 134, 141 (2001), dismissed, 260 Conn. 180 (2002).
The council's "final decision" declining to rule on Northeast's application was tantamount to a "denial" under § 16-50p(a). United States v. General Dynamics Corp., 644 F.Sup. 1497, 1505 (C.D.Cal. 1986) ("It would, therefore, appear that for practical purposes a decision has been made, although it was a decision not to decide"); Hyden v. New Mexico Human Services Dept, 16 P.3d 444, 449 (N.M.App. 2000) ("equivalent to a denial"). Cf. Safeway Stores, Inc. v. Brown, 138 F.2d 278, 280 (Emerg. Court of Appeals 1943) (mere failure to take action is not a "denial").
Subsequent to its March 25, 2003, decision, the council reopened the docket on April 9, 2003, under the UAPA provision for reconsideration within forty days of the final decision. § 4-181a(2). As required by this statute, the council acted with dispatch to resolve the matter and rendered the decision of July 14, 2003. The July 14th decision is clearly a final decision on the merits after reconsideration, as contrasted with mere proceedings to consider reconsideration. See Town of Fairfield v. Connecticut Siting Council, 238 Conn. 361, 370 (1996). The conclusion maybe drawn that the council acted by April 15th and appropriately reconsidered as allowed by law.
The city argues that the provisions of § 16-50p(a) do not allow the council to employ the reconsideration process that normally is available under the UAPA and that the council was therefore late in its decision. The city failed to object, however, to the reconsideration procedure, when specifically raised by the council, prior to its ruling of March 25, 2003. In addition, the city failed to take advantage of § 4-180(b), a provision that allows a party to seek relief in the Superior Court when an agency does not render its decision within ninety days from the close of the taking of evidence. The city certainly had this remedy available to it subsequent to the decision of March 25, 2003, declining to grant or deny Northeast's application.
No portion of the UAPA or the Public Utility Environmental Standards Act exempts the council from the provisions of § 4-180.
Section 4-180(a) requires the agency to render its decision "within ninety days following the close of evidence or the due date for filing briefs, whichever is later . . ." Here the close of the evidence occurred on January 29, 2003, and the briefs were due on March 6, 2003. ROR, No. XLIV, Transcript, Section 17. Ninety days from January 29, 2003, was April 29, 2003. The council had not rendered its final decision after reconsideration by that date.
In failing to object before the council or to pursue relief in the Superior Court, the city waived its lateness claims. See Jutkowitz v. Department of Health Services, 220 Conn. 86, 95 (1991); Pet v. Department of Health Services, 228 Conn. 651, 674 (1994): "It is fatal to the plaintiff's claim of a due process violation that he failed to utilize the statutory remedies that were available to him to compel a prompt agency decision . . . A litigant who forgoes an available remedy to cure a defect may be found to have waived the right to object thereto . . . This court will not set aside an agency's determination upon a ground not theretofore fairly presented for its consideration." (Citations omitted; quotation marks omitted.)
Of course, were the deadline of § 16-50p jurisdictional, it would take precedence over the provisions of § 4-181a or any failure of the city to take steps prior to or after the council's March 25th decision. Oliphant v. Commissioner of Corrections, 83 Conn.App. 10 (2004); citing Williams v. Commission on Human Rights Opportunities, 257 Conn. 258, 266 (2001). "A conclusion that a time limit is subject matter jurisdictional has very serious and final consequences. It means that, except in very rare circumstances . . . a subject matter jurisdictional defect may not be waived . . . maybe raised at anytime, even on appeal . . . and subject matter jurisdiction, if lacking, may not be conferred by the parties, explicitly or implicitly." Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 32 (2004). There must be, however, "a strong showing of legislative intent to create a time limitation that, in the event of noncompliance, acts as a subject matter jurisdictional bar." Williams at 267.
This "strong showing" is lacking here. The city points to the use of the words "shall render a decision" in § 16-50p, to legislative history noting the use of the word "shall," and to the statement of Northeast in the proceedings that the controlling date for the final decision was April 15, 2003. While these factors may make the date mandatory, they do not make it one of jurisdiction. There is no rational reason why the legislature would make its deadline for a decision so rigid that the council could not engage in the reconsideration process. Nor is there any penalty expressed for an agency that fails to render a timely decision. Indeed, the council is allowed to ask the applicant to extend the deadline at a point in the proceedings. As the court stated in Parkhurst v. Wilson-Coker, 82 Conn.App. 877, 895 (2004): "We agree with the court that the plaintiff did not establish that the legislature intended to attach jurisdictional consequences to a delay in holding an administrative hearing . . . We further agree that the legislature's use of the word "shall" is not a dispositive indicator of legislative intent to make a time limitation jurisdictional." (Citations omitted.) The court concludes that the council did not act illegally in issuing its decision dated March 25, 2003, and its decision on reconsideration dated July 14, 2003.
The next issue concerns both the first and second appeals issued by the city. After having issued its decision of July 14th, the council notified the parties on August 26, 2003, that it "has reopened the final decision with the limited scope of revising the Council's opinion. No changes to the Council's Findings of Fact or Decision and Order is being considered. Enclosed for your information is a copy of the Council's draft revision of the Opinion. Parties and intervenors may submit comments no later than September 4, 2003." Forty days beyond the council's July 14th decision (from the date of issuance) was September 2, 2003. Norwalk filed its first appeal on September 3, 2004. Northeast presented its revisions to the council on September 4, 2003, (ROR, No. XLVLI, Section 27), and included suggested language relating to "reliability." At its meeting of September 9, 2003, the council approved a revised opinion, stating at several points that Configuration X as modified would "serve the interests of the electrical system . . . reliability." (See, e.g., Revised Opinion, ROR, No. LXVLII, Section 1, part 4 at 7.) The city appealed again in a petition dated November 4, 2003.
It is undisputed that there is only one difference between the city's first and second appeal. The first appeal charges that the council failed to make a finding of "reliability" required by § 16-50p(a)(4)(B) while the second charges that the council had no authority to make a reliability finding on reopening the docket.
The first appeal of the city contends that a reliability finding was not made in the council's first decision of July 14, 2003. After the September 9th revised opinion had been issued, there was such a finding and the city does not claim otherwise. See page 14, city's brief, June 4, 2004: "On September 24, 2003, the Council issued the Second Decision, consisting of a revised Opinion [dated September 9, 2003] . . . which now included the Reliability Finding, and leaving in place the pre-existing Decision and Order and Findings of Fact from the First Decision." The city's second appeal contends that the reliability finding was improperly added to the second decision. It is therefore appropriate to consider initially the second appeal before considering whether the July 14th decision in fact contained the requisite reliability finding. Toccaline v. Commissioner of Corrections, 80 Conn.App. 792, 820, note 17 (2004); Rockville Fish Game Club, Inc. v. Inland Wetlands Commission, 231 Conn. 451, 453, note 3 (1994) (not necessary to address an issue under appeal as appellate court agrees with trial court's conclusion on another dispositive issue).
The city points to two errors in the council's adding the reliability finding. The first is that when the council gave notice that it was reopening its opinion, it circulated a draft and asked for comments. Nothing was stated in the draft about adding a reliability finding. On September 2, 2003, the forty days to reconsider set by § 4-181a(2) expired. On September 3, the first appeal was filed. The city then argues that it was only on September 4, 2003, that Northeast first raised the need for a reliability finding in its comments and that Northeast was untimely. It follows, according to the city, that the council in eventually making the finding was illegally adopting Northeast's petition to reargue.
The court rejects the city's analysis. The council acted on its own to reconsider and did it properly on August 26, 2003, within the forty-day period of § 4-181a(2). In the notice to the parties, the council stated that the entire opinion was open for reconsideration and attached a draft to the notice. It also asked for comments by the parties. This is a far cry from the situation in Greco v. Commissioner of Motor Vehicles, 61 Conn.App. 137 (2000), where the plaintiff failed to file a petition for reconsideration within the fifteen-day period of § 4-181a(1). There the Appellate Court held that the missed deadline amounted to a subject matter jurisdictional defect. Here the council on its own, within the permissible forty-day period, opened all the issues in the opinion for further discussion.
The only "limitation" in the notice to reconsider was that the finding of facts and order were not to change. Thus the present situation is distinguishable from Southern New England Telephone Co. v. Department CT Page 14270 of Public Utility Control. Superior Court, judicial district of New Britain, Docket No. 00 0502770S (January 3, 2001, Cohn, J.). In SNET the telephone company was granted reconsideration on one discrete issue and denied reconsideration on two others. After the reconsidered decision, the telephone company sought to appeal from all three issues. The court held that § 4-181a(a)(1) restricted the appeal only to the issue over which the reconsidered opinion had been issued. Based upon an amendment to the statutes in 1988, the court stated: "This legislative action in effect also removed the ability to reserve for judicial review after reconsideration all issues raised by a decision, where only some issues and not all were made part of the reconsideration. Here . . . only [one] issue . . . was subject to reconsideration . . . [I]t was incumbent upon SNET to take an appeal [within the original forty-five day period] as to the issues not subject to reconsideration or lose the fight to appeal from those issues."
The city does not object to the reconsideration on the ground that the council was obliged to add the reliability finding to the "findings of fact" as opposed to the opinion. In any event such a contention would "elevate form over substance." CHRO v. Windsor Hall Rest Home, 232 Conn. 181, 188 (1995) (approving oral decision not executed in form required by § 4-180(c)).
Here, by contrast, the council announced that it was revising "the opinion." The council did not select out certain issues for reconsideration based upon a motion presented by a party. Therefore the council acted timely before the forty-day deadline of § 4-181a(a)(2), and Northeast could permissibly suggest a revision to the opinion in its September 4th memorandum.
The city secondly contends that, because it appealed on September 3, 2003, the council was subsequently barred from reconsidering any issues, including reliability. According to the city, the council lost jurisdiction to issue a revised decision after September 3rd. The case law does not support this conclusion. A party, on receipt of a final decision, may move for reconsideration within the fifteen day period of § 4-181a(a)(1) or the agency may order reconsideration under § 4-181a(a)(2). A party may also chose to take an appeal of a final decision as late as forty-five days from the final decision under § 4-183(c). If the agency renders a new decision while the appeal is pending, the appeal becomes moot.
The Appellate Court approved this procedure in Towbin v. Board of Examiners of Psychologists, 71 Conn.App. 153, cert. denied, 262 Conn. 908 (2002). The Appellate Court stated: "In 1996, the board rendered a decision, concluding that the department had proved that the plaintiff had violated standards of professional conduct . . . In response to the decision, the plaintiff filed an appeal in the Superior Court, pursuant to General Statutes § 4-183(a), and petitioned the board to reconsider its decision . . . The board, on its own motion and on the basis of a petition by the plaintiff, granted the plaintiff's request for reconsideration." Id. at 157. In a footnote, the court states: "The plaintiff's appeal from the 1966 decision therefore became moot." Id., footnote 6. Similarly, it has been noted that "[t]he interests of judicial economy and fairness do not require that a person must choose between the mutually exclusive options of appealing an agency's final decision in court and requesting reconsideration of the decision by the agency since, if a request for reconsideration is granted, and the reason for appeal to the superior court become moot due to subsequent agency action, the appeal may be dismissed for mootness." Truglia v. CHRO, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. CV95 0554068 (April 7, 1997, McWeeny, J.). Town of Killingly v. Connecticut Siting Council, 220 Conn. 516 (1991), does not hold otherwise. The trial court had held that since the request for reconsideration was pending at the time of the filing of the appeal, the plaintiffs had not appealed from a final decision. The Supreme Court reversed, holding that the appeal was final and not dependent on the action at the agency. It did not hold, however, that the agency lost jurisdiction to consider the motion to reconsider. See 220 Conn. 526.
Therefore, the court concludes, on the city's second claim, that the reliability finding was properly added to the decision dated September 9, 2003, in the council's reconsideration of the decision of July 14th. That being the case, the court does not have to resolve the sole issue of the first appeal that differs from the second appeal — whether the reliability finding was properly made in the July 14th decision.
The third issue raised by the city is that of "segmentation." The city claims that the transmission line that is the subject of this appeal was irrationally chosen by Northeast, thereby adversely affecting the entire power "loop" to be constructed by Northeast. The courts have held that "impermissible segmentation" occurs where there are two proposed actions and "the proposed component action has little or no independent utility and its completion may force the larger or related project to go forward notwithstanding the environmental consequences . . . Courts have also required that environmental effects of multiple projects be analyzed together when those projects will have a cumulative effect on a given region . . . Finally, multiple stages of a development must be analyzed together when the dependency is such that it would be irrational, or at least unwise, to undertake the first phase if subsequent phases were not also undertaken." Hirt v. Richardson, 127 F.Sup.2d 833, 842 (W.D.Mich. 1999) (citations omitted; quotation marks omitted).
Under this test, the city is, in the greater instance, alleging that the council failed in its review concerning the portion of the loop extending from Norwalk to Middletown, the so-called "phase 2." To follow the city's argument, the alleged irrational segmenting of the Bethel to Norwalk line forecloses a proper consideration of the phase 2 line. There are two errors in this analysis. First the city does not have the standing to argue on behalf of those towns affected beyond its borders. In addition, the legislature has taken up the issue of phase 2, holding hearings and passing legislation on its construction. See Hearing before Energy Technology Committee, February 26, 2004; P.A. 04-246 (effective from passage as to applications for a certificate of environmental compatibility and public need that was filed on or after October 1, 2003, for which the council has not rendered a decision). The council is in the process of considering this new legislation and the docket is still pending before it. The city has failed to demonstrate that the action taken by the council on the Bethel to Norwalk transmission line will lead to only one conclusion in the second phase.
The real question is whether the Bethel to Norwalk line is irrational and would not have been authorized if the transmission loop had been considered as a whole. The city cannot sustain this argument. General Statutes § 16-50i defines the word "facility" as including "[a]n electric transmission line of a design capacity of sixty-nine kilovolts or more, including associated equipment . . ." Section 16-50i required that the application submitted by Northeast include "a statement and full explanation of why the proposed transmission line . . . is necessary and how the facility conforms to a long-range plan for expansion of the electric power grid serving the state and interconnected utility systems, that will serve the public need for adequate, reliable and economic service." Northeast set forth the rationality of the segment and included material on the full loop in its application. Northeast is also required to make a report annually on planned transmission lines where applications are pending. § 16-50r(a)(6).
See application at 1: "Ultimately, [Northeast] expects to construct a 345-kV `loop,' similar to those already serving the central and eastern parts of the state, to better serve customers in southwestern Connecticut with bulk power from two directions — from the north (i.e. from this line) and from the central/eastern part of the state. In the near term, the proposed Plumtree-to-Norwalk 345-kV transmission project alone will provide added capacity to serve the growing demands for electricity in the southwestern portion of the state, and will provide better opportunities for moving power to customers within the state and for access to power from other Northeastern states . . ."; at 2: "A logical location for the proposed line was the existing CLP transmission corridor between those two substations, which is approximately 20 miles long; at 43: "Completion of the `345-kV Loop' is not an alternative to the construction proposed in this application, but a planned complement to it. In order not to incur the delay that would attend the detailed planning and siting of this much longer part of the `345-kV Loop,' [Northeast] has proposed the Plumtree-to-Norwalk line as a separate project." ROR, No. I, Section 1.
The council made findings of fact that the city does not contest, as follows:
1. There is in existence a power line running from New Milford to the Plumtree substation (#24).
2. The long-range plan of Northeast was a loop consisting of three segments — New Milford to Plumtree, Plumtree to Norwalk and Norwalk to Wallingford (#24).
3. When completed, the loop would "serve SWCT from two directions" (# 29).
4. "If interruption occurs on one of the lines to an area served by a loop system, service can still be provided to the area from the other end of the loop" (#39).
5. ISO-NE investigated whether the proposed 345-kV line on a stand-alone basis would improve conditions (#40, setting forth a chart of results).
The factual findings and the record thus support that the choice of the segment under review was logically determined and appropriately reviewed by the council. Therefore, the city's contention on improper segmentation is rejected. See Preston v. Connecticut Siting Council, 20 Conn.App. 474, 487 (1990) (council's determination as to "facility" to be accorded "considerable weight"); Citizens For The Preservation of Floyd County, Inc. v. Appalachian Power Co., 248 S.E.2d 797, 801 (Va. 1978) (court approves commission's finding that starting point for segment of "loop" was reasonable).
The city makes a similar claim regarding segmentation on due process grounds. To the extent that the claim is made as a violation of procedural due process, it fails because the provisions of the UAPA "exceed the minimal procedural safeguards mandated by the due process clause." Pet v. Department of Health Services, 207 Conn. 346, 356-57 (1988); Towbin v. Board of Examiners of Psychologists, supra at 173. The city does not dispute that the council provided the city with the process required by the UAPA. See also Concerned Citizens of Sterling v. Connecticut Siting Council, 215 Conn. 474, 487 (1990) (no due process violation). An argument based on substantive due process in this context is identical to the city's legal argument on segmentation which the court rejects above. Wiseman v. Armstrong, 269 Conn. 802, 832 (2004). Under substantive due process, there has been no showing of unreasonableness in the segmentation. Bower Associates v. Town of Pleasant Valley, N.Y.3d 2004 N.Y. Slip Op. 03856 (May 13, 2004); Clark v. City of Hermosa Beach, 56 Cal.Rptr.2d 223 (Cal.App. 1996).
As an alternative to the segmentation argument, the city also claims statutory and due process violations. The city alleges that the council placed too much emphasis in its factual findings and opinions on the entire loop and not enough on the segment at issue. It is true that, among other things, § 16-50p(a) requires that the council discuss both the public need and the environmental impact of the proposed facility. See Nobs v. Connecticut Siting Council, Superior Court, judicial district of New Britain, Docket No. 98 0492714S (April 28, 2000, McWeeny, J.); Westport v. Connecticut Siting Council, 47 Conn.Sup. 382, 401, aff'd. 260 Conn. 266 (2002). See also P.A. 02-95, § 2 requiring that the decision of the council be evaluated in light of the report of the Institute for Sustainable Energy.
However, the council is also mandated by § 16-50p(a)(4)(B) to consider whether the proposed facility "conforms to a long-range plan for expansion of the electric power grid of the electric systems serving the state and inter connected utility systems . . ." See also New Haven v. Connecticut Siting Council, Superior Court, judicial district of New Britain, Docket No. CV 02 0513195S, discussing findings that the siting council must make under its statutes.
The city has failed to demonstrate that the council gave undue weight in its analysis to the full loop as opposed to the transmission line extending from Bethel to Norwalk. A review of both the findings of fact and the revised decision of September 9, 2003, shows that the council had before it the specific problem of Southwest Connecticut, the proposed "stand-alone" solution and the projected construction of the entire loop. Therefore, the court agrees with Northeast and the council that it did not err in analyzing each of the mandatory factors for granting a certificate set forth in § 16-50p.
In the findings of fact, the council made findings about the individual project (e.g. ##20, 21, 27, 38, 40, 61, 68, 116-17, 146-47) and the total loop (e.g. ##24, 29, 30, 39, 43). In the revised opinion, the council discussed the comprehensive project at page 2, and the Bethel to Norwalk segment at various times, including pages 4 and 8-10. See ROR, LXVLII.
The city's final argument is that the council erred in not adopting its suggestion, made on May 7, 2003, to assign an independent consultant to review Configuration X and any further alternatives. The court must review the council's decision not to appoint an outside expert for abuse of discretion. In general, an agency holding a hearing is not required to believe any witness, even an expert. Manor Development Corporation v. Conservation Commission, 180 Conn. 692, 697 (1980). "[N]or is it required to use in any particular fashion any of the materials presented to it so long as the conduct of the hearing is fundamentally fair." Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 542 (1987).
At the time the city made its motion, the council had analyzed the preferred transmission line as proposed by Northeast along with the alternatives it had suggested, alternatives previously suggested by the four towns, alternatives suggested by the attorney general's office, alternatives suggested by the office of consumer council, alternatives suggested by the city itself, and several alternatives referred to as "mix and match." Even if Configuration X was, in the words of the council chairman, "not normal" or "different," based on the above course of events, the court cannot find that the council abused its discretion in deciding to analyze the new configuration solely with its own resources.
Having discussed the errors assigned by the city, the court concludes that the council did not act illegally, arbitrarily or in abuse of discretion. Therefore the appeals are dismissed.
Henry S. Cohn, Judge