ROBINSON, J.
This appeal arises from two petitions for declaratory rulings that the defendant BNE Energy, Inc. (BNE), submitted to the named defendant, the Connecticut Siting Council (council). In the petitions, BNE sought the council's approval for the construction and operation of three electric generating wind turbines at two separate sites in the town of Colebrook. The plaintiffs, FairwindCT, Inc. (FairwindCT), Stella Somers, Michael Somers and Susan Wagner, were granted party status by the council and also intervened in the proceedings on the petitions pursuant to General Statutes (Supp.2014) § 22a-19.
The record reveals the following procedural history and facts that were found by the trial court or that are undisputed. On December 6, 2010, pursuant to § 16-50k (a)
FairwindCT was formed by several Colebrook residents for the purpose of educating the public about the regulation and operation of industrial wind generation projects in Connecticut. Stella Somers and Wagner are officers and directors of FairwindCT. Stella Somers and her husband, Michael Somers, own a resort hotel known as Rock Hall, which is located approximately one-half mile from the Colebrook North project and one and one-half miles from the Colebrook South project.
The council held public hearings on the Colebrook South project during March and April, 2011, and on the Colebrook North project during April and May, 2011. The plaintiffs participated in the hearings and submitted testimony and documentary evidence in support of their position that BNE had failed to establish that the proposed projects would comply with state noise law and governing water quality standards or that the projects would not have an adverse environmental impact. The council ultimately granted both of BNE's petitions, with conditions.
We address each of the plaintiffs' claims on appeal in turn. Additional facts and procedural history will be set forth as necessary.
The plaintiffs first claim that the trial court incorrectly determined that the council had jurisdiction over BNE's petitions because the projects are neither "grid-side distributed resources project[s]" nor "facilit[ies]" for purposes of General Statutes (Supp.2014) § 16-50k (a).
The following additional procedural history is relevant to our resolution of this claim. The council determined that it had jurisdiction over the petitions pursuant to § 16-50k (a) because they were grid-side distributed resource projects with a capacity of not more than sixty-five megawatts and used "wind renewable energy sources." On appeal to the trial court, the plaintiffs contended that the Colebrook North and Colebrook South projects were not "facilit[ies]" for purposes of § 16-50k (a) because "`[f]acility'" is defined by General Statutes § 16-50i(a)(3) to include "any electric generating or storage facility using any fuel," and wind is not a fuel.
We begin our analysis with the standard of review. "Although the interpretation of statutes is ultimately a question of law ... it is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement.... Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts." (Internal quotation marks omitted.) Wheelabrator Lisbon, Inc. v. Dept. of Public Utility Control, 283 Conn. 672, 691, 931 A.2d 159 (2007). It is also well established "that courts should accord deference to an
This court also has held, however, that "when a state agency's determination of a question of law has not previously been subject to judicial scrutiny ... the agency is not entitled to special deference.... Wallingford v. Dept. of Public Health, 262 Conn. 758, 771-72, 817 A.2d 644 (2003); see Bridgeport Hospital v. Commission on Human Rights & Opportunities, 232 Conn. 91, 109, 653 A.2d 782 (1995) (the factual and discretionary determinations of administrative agencies are to be given considerable weight by the courts... [but] it is for the courts, and not for administrative agencies, to expound and apply governing principles of law ...)." (Internal quotation marks omitted.) Wheelabrator Lisbon, Inc. v. Dept. of Public Utility Control, supra, 283 Conn. at 691, 931 A.2d 159. Because the council's interpretation of the phrase "grid-side distributed resources project or facility" as used in § 16-50k (a) is not time-tested and has not previously been subject to judicial review, we conclude that our review is plenary.
In determining the scope of the council's authority under § 16-50k (a), "we are guided by fundamental principles of statutory construction." In re Matthew F., 297 Conn. 673, 688, 4 A.3d 248 (2010); see General Statutes § 1-2z.
The plaintiffs claim that the legislature intended to exclude from the scope of § 16-50i(a)(3) any electric generating facility that does not use fuel. General Statutes § 16-50i(a)(3) (defining "`[f]acility'" to include "any electric generating or storage facility using any fuel, including nuclear materials"). Section 16-50i(a)(3)(iii) expressly excludes from the definition of "`[f]acility,'" however, certain types of electric generating facilities that, "in the case of a facility utilizing renewable energy sources, [have] a generating capacity of one megawatt of electricity or less...." As we have indicated, renewable energy sources are statutorily defined to include wind. See General Statutes (Rev. to 2009) § 16-1(a)(26).
Indeed, it is more rational to conclude that the legislature's intent was to include all electric generating plants in the definition of facility, regardless of how the plant is powered, than to conclude that the legislature's intent was to exclude electric generating plants that do not use fuel, as that term is ordinarily understood, because, when § 16-50i was first enacted in 1971; see Public Acts 1971, No. 575, § 3; it is doubtful that the legislature intended to restrict the definition of fuel to only include combustible material as is argued by the plaintiffs.
This interpretation of § 16-50i(a)(3) is also supported by the legislature's enactment, in 2011, of General Statutes § 16-50kk, which directs the council, in consultation with the Department of Energy and Environmental Protection (department),
We conclude, therefore, that, as used in § 16-50i(a)(3), the word "facility" includes "any electric generating ... facility," in the ordinary sense of that phrase, and the phrase "using any fuel, including nuclear materials," was merely intended to ensure that all electric generating facilities would be included in the scope of the act regardless of the type of fuel that a facility used. It was not intended to ensure that an electric generating facility would be excluded from the scope of the statutory scheme if it used no fuel.
We next address the plaintiffs' claim that the trial court incorrectly determined that the council was authorized to attach conditions to declaratory rulings issued pursuant to § 16-50k (a). The defendants contend that the plaintiffs lack standing to challenge the conditions. We conclude that the plaintiffs lacked standing to challenge the conditions, per se, but our analysis does not end here. We also conclude that the plaintiffs had standing to claim that the imposition of the conditions showed that the council had not determined that the proposed projects complied with the substantive requirements of the act when it approved BNE's petitions. We
The following additional procedural history is relevant to our resolution of this claim. In its decisions approving the petitions for the Colebrook North and Colebrook South projects, the council imposed numerous conditions on the construction of the wind turbine projects. Most significantly, the council required BNE to submit a development and management plan that would include, among other things, "[a] detailed site plan showing the placement and/or extent of vegetative clearing, grading, wetland buffers, access roads, turbine foundations, building specifications, equipment and material laydown and staging areas"; "an open space and conservation plan to protect environmentally-sensitive areas of the property for the life of the project"; "[a]n erosion and sediment control plan, consistent with the 2002 Connecticut Guidelines for Soil Erosion and Sediment Control ... as amended"; a "[s]tormwater [m]anagement [p]lan, consistent with the [department's] 2004 ... Stormwater Quality Manual"; "[a] post-construction noise monitoring protocol describing locations, frequency and methods to be employed for a post-construction noise study"; and implementation of the noise study to determine whether "any mitigation measure should be employed, including turbine operations management, to ensure the project complies with [the department's] noise regulations...."
On appeal to the trial court, the plaintiffs contended that the council had no authority under § 16-50k (a) to impose these conditions on its approval of the declaratory rulings. They further argued that, even if the council had such authority, it exceeded that authority by imposing conditions that allowed BNE to meet the substantive standards for approval after the projects were approved. BNE contended that the plaintiffs lacked standing to contest the imposition of conditions on the approvals because they were not aggrieved by them. The trial court agreed with BNE that the plaintiffs lacked standing to challenge the imposition of conditions but, nevertheless, addressed the merits of the plaintiffs' claim and rejected it on the ground that the council impliedly had the same authority to impose conditions on the approval of declaratory rulings issued pursuant to § 16-50k (a) as it had to impose conditions on the approval of certificates.
Because it implicates the trial court's subject matter jurisdiction, we first address the defendants' claim that the plaintiffs lack standing to challenge the council's imposition of conditions on its approval of BNE's petitions for a declaratory ruling. "[I]n order to have standing to bring an administrative appeal, a person must be aggrieved." (Internal quotation marks omitted.) Moutinho v. Planning & Zoning Commission, 278 Conn. 660, 664, 899 A.2d 26 (2006). "Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share.... Second, the party must also show that the agency's decision has specially and injuriously affected that specific personal or legal interest.... Aggrievement does not demand certainty, only the possibility of an adverse effect on a legally protected interest." (Internal quotation marks omitted.) Id., at 665, 899 A.2d 26.
There is nothing in the record of this case that shows that the plaintiffs have specific, personal interests that were affected by the conditions that the council imposed on its approvals of BNE's petitions. The conditions imposed no costs or burdens on them. Moreover, the plaintiffs lack standing as intervenors pursuant to General Statutes (Supp.2014) § 22a-19 (a)(1) because the conditions themselves do not have "the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state." Accordingly, we agree with defendants that the plaintiffs lacked standing to challenge the council's imposition of the conditions, per se. We therefore conclude that the trial court lacked jurisdiction to entertain the plaintiffs' claim that the council had no statutory authority to impose the conditions.
The defendants do not dispute, however, that the plaintiffs' interests were affected by the council's approvals of BNE's petitions and, therefore, they have standing to challenge them. Accordingly, to the extent that the plaintiffs claim that the council's imposition of the conditions shows that the approvals were improper because the council had not determined that the petitions met the substantive requirements for approval when it issued its rulings or, if it had made such determinations, they were not supported by substantial evidence, we conclude that they have standing to raise those claims.
The standard of review for agency decisions is well established. "Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable.... This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred.... [I]t imposes an important limitation on the power of the courts to overturn a decision of an administrative agency ... and [provides] a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action.... The United States Supreme Court, in defining substantial evidence ... has said that it is something less than the weight of the evidence,
In support of their claim that the council's imposition of conditions on its approval of BNE's petitions shows that the council had made no determination that the petitions met the substantive requirements for approval, the plaintiffs in the present case rely on this court's decision in Finley v. Inland Wetlands Commission, 289 Conn. 12, 959 A.2d 569 (2008). In that case, the defendant Inland Wetlands Commission of the Town of Orange (commission) granted the application of the defendant Stew Leonard's Orange, LLC (Stew Leonard's), for a permit to conduct regulated activities. Id., at 14-15, 959 A.2d 569. The commission imposed a number of conditions on the approval.
The plaintiffs in the present case contend that, just as in Finley, the conditions of approval imposed by the council show that the counsel had not determined that the proposed projects were in compliance with water quality standards when it approved BNE's petitions. Specifically, the plaintiffs point to the following language
"By ordering a [d]evelopment and [m]anagement ... phase for the project, the [c]ouncil will assure that the project would be designed to meet [the department's] water quality standards, in conformance with the 2004 Connecticut Stormwater Quality Manual, the 2000 [Department of Transportation] Drainage Manual and the 2002 Connecticut Guidelines for Soil Erosion and Sediment Control."
The council also expressly found, however, that, with respect to the Colebrook North project, "[t]he proposed project would comply with air and water quality standards" and, with respect to the Colebrook South project, that "[s]tormwater generated at the site would be controlled in accordance with the 2004 Connecticut Stormwater Quality Manual and the 2002 Connecticut Guidelines for Soil Erosion and Sediment Control." In addition, the council expressly found that, for both projects, "the effects associated with the construction, maintenance, and operation of a... wind renewable generating project ... would meet all applicable [United States] Environmental Protection Agency and [department]... [w]ater [q]uality [s]tandards...." This finding was supported in both cases by an extensive and detailed "stormwater management plan with stormwater pollution prevention plan" that BNE had submitted with the petitions.
The plaintiffs contend, however, that, even if the council had made a final determination that BNE's petitions met the substantive requirements for approval, the documents that BNE submitted with the development and management plans after the hearings closed showed that that determination was not supported by substantial evidence. Although the trial court denied the plaintiffs' request to supplement the record with these materials and sustained the defendants' objection to the testimony of the plaintiffs' expert witnesses, William F. Carboni and Michael S. Klein, about the development and management plan, the plaintiffs made an offer of proof of the testimony that Carboni and Klein would have given in support of this claim. Specifically, the plaintiffs' attorney represented to the trial court that Carboni would have testified that information discovered during the development and management phase confirmed his testimony during the hearings before the council that the original drainage plan for the Colebrook South project was inadequate. With respect to the Colebrook North project, Carboni would have testified that it had been discovered that portions of Rock Hill Road had to be rebuilt, which would have an adverse effect on nearby wetlands. In addition, Carboni would have testified that the development and management plan showed twice as much clearing as the original plan. Klein would have testified that, during the development and management phase, vernal pools had been discovered at the Colebrook South site that had required the redesign of the road. In addition, he would have testified that some of the slopes at the Colebrook South site were different than those shown on the original plans, so the road could not be built in accordance with those plans. With respect to the Colebrook North project, Klein would have testified that problems with erosion and stormwater caused by the rebuilding of Rock Hall Road were going to be compounded by the discovery that a culvert under the road had to be rebuilt. In addition, he would have testified that the increased clearing at the site meant increased runoff.
As the trial court recognized during trial, however, this offer of proof does not support the plaintiffs' claim that the council's approvals of BNE's petitions were not supported by substantial evidence in the record that was before the council when it made its decisions. Rather, it merely supports a conclusion that the plans that BNE had submitted to the council with its petitions had to be revised after approval to address unforeseen site conditions. Moreover, if a party can show that newly discovered conditions make it impossible for the project to comply with the substantive requirements for approval or that the revised plans are not in compliance with those requirements, the party is not without recourse. The party may bring this fact to the attention of the council and, if it is not satisfied with the result of such informal proceedings, it may file a petition for a declaratory ruling claiming that the project is not in compliance with the terms of approval,
We conclude, therefore, that the present case is distinguishable from Finley v. Inland Wetlands Commission, supra, 289 Conn. at 12, 959 A.2d 569. In Finley, the commission had approved Stew Leonard's regulated activities permit on the condition that it submit "a `[r]evised and updated erosion control plan that implements all [s]tate [r]egulations....'" (Emphasis added.) Id., at 41, 959 A.2d 569. It was clear, therefore, that "the commission had not determined that the existing erosion control plan met state regulations when it rendered its decision." Id. In the present case, the council expressly found that the existing plans for protecting water quality on each of the proposed projects satisfied water quality standards, and merely required BNE to include those plans in the development and management plan to ensure ongoing compliance. Accordingly, we conclude that the trial court properly concluded that the council had not approved BNE's petitions without first determining that they complied with the substantive requirements for approval. Although the plaintiffs have presented evidence that the plans had to be revised after approval to address newly discovered site conditions, they have not established that the approvals were not supported by substantial evidence in the record before the council when it ruled on BNE's petitions. Accordingly, we reject this claim.
We next address the plaintiffs' claim that the trial court improperly determined that the council was not required to consider the requirements of state noise law when it approved BNE's petitions.
The following additional procedural history is relevant to our resolution of this claim. During the hearings before the council on BNE's petitions, the plaintiffs submitted the written "pre-filed" testimony of their expert, Michael Bahtiarian, regarding the proposed projects' compliance with Connecticut noise control regulations. Bahtiarian testified in both proceedings that, under § 22a-69-3.1 of the Regulations of Connecticut State Agencies, "[n]o person shall cause or allow the emission of excessive noise beyond the boundary of
On appeal to the trial court, the plaintiffs contended that the council improperly ignored state noise law when it approved BNE's petitions. The trial court concluded that, although § 16-50k (a) required the council to consider only air and water quality standards when determining whether BNE's petitions should be approved, because the plaintiffs had intervened in the proceedings pursuant to § 22a-19, and because the council was authorized to give "such consideration to other state laws ... as it shall deem appropriate" pursuant to General Statutes § 16-50x (a),
On appeal to this court, the plaintiffs renew their claim that the council was
We first address the council's claim that the trial court incorrectly concluded that the council had jurisdiction to consider environmental issues other than compliance with air and water quality standards, including noise issues, when considering whether it should approve BNE's petitions.
We conclude that the council has jurisdiction to consider state noise law when ruling on petitions for declaratory rulings. Section 16-50x (a) expressly provides in relevant part that "[i]n ruling on... petitions for a declaratory ruling for facilities ... the council shall give such consideration to other state laws ... as it shall deem appropriate."
Having concluded that the council had jurisdiction to consider whether the proposed projects complied with state noise law, we next consider whether the council had authority to approve BNE's petitions if it determined that the projects did not comply with state noise law. We conclude that it did. As we have already noted, § 16-50x (a) provides that, "[i]n ruling on ... petitions for a declaratory ruling for facilities ... the council shall give such consideration to other state laws and municipal regulations as it shall deem appropriate." This language indicates that the council is not required to give any consideration to state noise law when ruling on a petition.
We also note that, when ruling on applications for certificates, the council is required to consider "the policies of the state concerning the natural environment ... [and] public health and safety"; General Statutes (Supp.2014) § 16-50p (a)(3)(B); but it is not required to deny applications that conflict with those policies. General Statutes (Supp.2014) § 16-50p (a)(3)(C) (council must explain why fact that proposed project conflicts with state's public policies is "not sufficient reason to deny the application"). We can perceive no reason why the legislature would have wanted to impose stricter standards on proposed projects that are eligible for approval by way of a declaratory ruling than on projects that require a certificate.
In support of their claim that the council must enforce state noise law when ruling on petitions, the plaintiffs rely on General Statutes § 22a-72 (c), which provides that "[e]ach ... agency ... (1) having jurisdiction over any property or facility ... shall comply with federal and state requirements respecting control and abatement of environmental noise." The use of the word "comply" in this statute, however, as distinct from the word "enforce," suggests that the state agencies are merely required to comply with state noise law when operating their own properties or facilities,
We conclude, therefore, that the legislature intended to authorize the council to approve petitions for declaratory rulings for proposed projects even if they do not comply with state laws outside of the act itself, including state noise law.
We next consider the plaintiffs' claim that the council's approval of shorter hub heights for the Colebrook North project was not supported by substantial evidence and that, even if it was supported by substantial evidence, they were prevented from testing the reliability of that evidence because the evidence was not presented until the end of the last day of the hearings. We conclude that the approval was supported by substantial evidence and that, even if the council improperly allowed BNE to present evidence without providing the plaintiffs with an opportunity for rebuttal, any impropriety was harmless.
The following additional procedural history is relevant to our resolution of this issue. At the end of the hearing on BNE's petition for a declaratory ruling approving the Colebrook North project, counsel for BNE asked the council how it wanted BNE to respond to concerns that a member of the council, Brian Golembiewski, had raised regarding the relocation of one of the turbines, and asked if BNE should submit a late filed exhibit. When the acting chairman of the council, Colin C. Tait, indicated that he did not think that such a submission would be appropriate because it would involve "redesigning the whole project," Paul Corey, a principal of BNE, asked if he could respond to Golembiewski's concern, and Tait allowed him to do so. Corey stated that, with respect to concerns regarding the visual impact of the wind turbines, it would be possible to reduce the hub height of the wind turbines from 100 to 80 meters. Counsel for the plaintiffs then moved to strike Corey's statement, and Tait responded that the council would "take it for what it's worth." Tait explained that, "sometimes on cell towers when the only question is can it be moved X number of feet and the testimony indicates that it might be and does not involve wetlands and things that require further study, my thought is that at this point we will not require a late file. And if it turns out during discussions that it can be done but it doesn't redo the whole thing, we will consider it at the time and let [counsel for the plaintiffs] know about it...."
In its decision approving the petition for a declaratory ruling for the Colebrook North project, the council ordered that, "[u]nless otherwise approved by the [c]ouncil, the wind turbines shall be constructed
At trial, Bahtiarian testified that if a wind turbine with an 80 meter hub and a wind turbine with a 100 meter hub have the same power output, they will produce the same level of noise. He also testified that "the shorter hub height makes the wind turbine closer to the property, and distance is the big factor in determining what sound is received at an abutter." In combination with the noise tolerance factor that had been discovered in certain documents that BNE had submitted under seal, lowering the hub heights would result in an approximately three decibel increase over previous noise level calculations at certain locations. Bahtiarian further testified that those noise levels would violate applicable noise regulations, under which noise is measured at the property line.
The trial court concluded that, because the plaintiffs had standing only to raise environmental concerns, they could not raise a claim regarding the hub heights. Nevertheless, the court addressed the merits of their claim and concluded that they had failed to establish that lowering the hub heights would have any effect on noise levels. Specifically, the trial court relied on Bahtiarian's testimony at trial that lowering the hub heights would not affect the noise level produced by the wind turbines. Thereafter, the plaintiffs filed a motion for articulation in which they asked the trial court to clarify why it had determined that hub height was not an environmental issue. The plaintiffs also asked the trial court to clarify whether it had considered Bahtiarian's testimony that reducing the distance between the wind turbines and the noise receptor locations would increase noise levels at certain receptor locations. The court issued an articulation in which it stated that it had concluded that hub heights were not an environmental issue because they did not impact the natural resources of the state. The court also referred the plaintiffs to Bahtiarian's testimony that hub heights would have no affect on the noise produced by the wind turbines, and that the major factor affecting noise levels was distance from the turbines.
We first address the plaintiffs' claim that the trial court improperly determined that they lacked standing to challenge the council's order that the hub heights be lowered to eighty meters because the hub height of the wind turbines does not affect air or water quality or any other environmental factor at issue in this appeal. We agree with the plaintiffs. The plaintiffs raised a colorable claim that lowering the hub heights could affect the environment.
We next address the plaintiffs' claim that the council's order that the hub heights on the Colebrook North project be lowered to eighty meters was not supported by substantial evidence. In support of their claim to the contrary, the defendants rely on testimony during the hearings before the council that an eighty meter wind turbine had been installed at a location known as Jiminy Peak. In addition, the defendants point to a product brochure for wind turbines that BNE had submitted with its petitions that referred to "80 and 100 meter tower configurations" and Corey's testimony that 80 meter hub heights would be feasible on the Colebrook North project. We agree with the defendants that this evidence supported the council's finding that the shorter hub heights would be feasible.
We further conclude that, even if the council improperly allowed BNE to raise the hub height issue at the last minute, thereby depriving the plaintiffs of an opportunity to evaluate and respond to the issue in a meaningful way, any such impropriety was harmless. As we have indicated previously in this opinion, the council was not required to consider state noise law when ruling on BNE's petition. A careful review of the record indicates that it is highly improbable that Bahtiarian's opinion that lowering the hub heights would increase noise levels at various locations on the property line by some undetermined amount, but less than three decibels, would have affected its decision.
With respect to the plaintiffs' contention that "the change to shorter hub heights... could ... have implications for other environmental concerns, including water quality, wildlife fatalities and protection of historic resources," they have pointed to no specific evidence or offer of proof that would support this claim.
We next address the plaintiffs' claim that the council deprived them of their right to "fundamental fairness." See Grimes v. Conservation Commission, 243 Conn. 266, 273, 703 A.2d 101 (1997) ("we have recognized a common-law right to fundamental fairness in administrative hearings"). Specifically, the plaintiffs claim that the council improperly: (1) denied their request to cross-examine an employee of the department who had submitted comments on the proposed projects pursuant to § 16-50j (h); (2) denied their request to cross-examine witnesses about the cumulative impact of the projects; (3) allowed BNE to submit certain materials under seal and issued overbroad protective orders; and (4) denied their requests for continuances, thereby depriving them of adequate time to prepare for cross-examination of witnesses. We disagree.
"The right to fundamental fairness in administrative proceedings encompasses a variety of procedural protections.... In a number of administrative law cases ... we have characterized these procedural protections as `due process' rights.... Although the `due process' characterization, at first blush, suggests a constitutional source, there is no discussion in these cases of a property interest in terms of constitutional due process rights. These decisions are, instead, based on a line of administrative law cases and reflect the development, in Connecticut, of a common-law right to due process in administrative hearings ... [that] is not coextensive with constitutional due process." (Citations omitted.) Id., at 273 n. 11, 703 A.2d 101. The scope of the right to fundamental fairness in administrative proceedings, like the scope of the constitutional right to due process that it resembles, is a question of law over which our review is plenary. Megin v. Zoning Board of Appeals, 106 Conn.App. 602, 608, 942 A.2d 511, cert. denied, 289 Conn. 901, 957 A.2d 871 (2008).
As a preliminary matter, we address the council's claim that the plaintiffs lack standing to raise these claims in the appeal from the council's ruling on the Colebrook South petition because, in that proceeding, they do not have standing to appeal by virtue of their status as parties, but only by virtue of their status as intervenors pursuant to § 22a-19,
This court has repeatedly held that "all that is required to invoke the jurisdiction of the Superior Court under
Fort Trumbull Conservancy, LLC, involved an action brought pursuant to § 22a-16, and not an intervention in an administrative proceeding pursuant to § 22a-19. The same principles, however, apply here. See Pond View, LLC v. Planning & Zoning Commission, supra, 288 Conn. at 159, 953 A.2d 1. Thus, "[t]he cases wherein we have permitted standing under § 22a-19 have involved circumstances in which the conduct at issue in the application before this court allegedly would cause direct harm to the environment." (Emphasis in original.) Id., at 159-60, 953 A.2d 1.
In the present case, it is true that, as the defendants claim, the council's alleged conduct, namely, preventing the plaintiffs from cross-examining witnesses, issuing protective orders and not allowing the plaintiffs adequate time to prepare for cross-examination, could have had no direct impact on the environment. It is also true, however, that, if the plaintiffs can prove their procedural fairness claims, they will have established that they were deprived of a full and fair opportunity to participate in the hearings, resulting in an increased risk of an erroneous ruling by the council on the substantive issues before it, including the plaintiffs' claim pursuant to § 22a-19 that BNE's conduct would impair the natural resources of the state. In other words, the alleged deprivation of the plaintiffs' right to fundamental fairness could result in decisions by the council that did not give adequate consideration to environmental issues. It would be absurd to conclude that the plaintiffs had standing to intervene in the hearings before the council pursuant to § 22a-19 because they had made a colorable claim that the proposed projects would harm the environment, but they have no standing to claim that the council refused to provide them with a fair opportunity to present their claim. The right to a fundamentally fair hearing is implicit in the right to intervene pursuant to CEPA. We therefore reject the defendants' claim that the plaintiffs lack standing to raise these claims in the appeal from the council's ruling on the Colebrook South petition. Having reached this conclusion, we address the plaintiffs' procedural claims in turn.
We first address the plaintiffs' claim that the trial court incorrectly determined
The following additional procedural history is relevant to our resolution of this claim. On February 7, 2011, the council solicited comments on both projects from various agencies, including the department, pursuant to § 16-50j (h). The department submitted its comments, in the form of letters signed by Frederick L. Riese, a senior environmental analyst, on April 6, 2011. The next day, the plaintiffs submitted revised witness lists naming Riese as a witness. The council refused to allow the amendment and barred the plaintiffs from cross-examining Riese about the letters.
In its rulings on the petitions, the council relied on Riese's letter to support several of its findings of fact.
On appeal to the trial court, the plaintiffs contended that they were prejudiced by their inability to cross-examine Riese about the letters that he had submitted to the council. At trial, when counsel for the plaintiffs attempted to question the plaintiffs' expert, Klein, about Riese's qualifications and the letters, counsel for the council objected on the ground that the plaintiffs had failed to present any testimony on that issue in the proceedings before the council. The trial court sustained the objection on the ground that Klein's opinion as to the propriety of Riese's submitting letters to the council that were not subject to cross-examination was irrelevant. Counsel for the plaintiffs then attempted to make an offer of proof regarding the testimony that Klein would have given. Specifically, she stated that Klein would testify that Riese lacked proper qualifications. At that point, the trial court interrupted counsel for the plaintiffs and asked why the plaintiffs could not have presented that evidence to the council. Counsel for the plaintiffs stated that the plaintiffs had not received
In its memorandum of decision, the trial court, relying on General Statutes § 16-50o (a),
We begin our analysis with a review of the governing statutes. General Statutes (Supp.2014) § 16-50j (h) provides in relevant part that "[p]rior to commencing any hearing ... the council shall consult with and solicit written comments from (1) the Department of Energy and Environmental Protection.... Copies of such comments shall be made available to all parties prior to the commencement of the hearing." Section 4-176(g) provides that "[i]f the agency conducts a hearing in a proceeding for a declaratory ruling, the provisions of subsection (b) of section 4-177c, section 4-178 and section 4-179 shall apply to the
These statutes were intended to embody the common-law principles of fundamental fairness that this court recognized in Grimes v. Conservation Commission, supra, 243 Conn. at 273, 703 A.2d 101, by ensuring that hearings on petitions for declaratory rulings are conducted in a manner that will not prejudice the parties and that will result in a full and true disclosure of the facts. Accordingly, the questions that we must address are whether the council reasonably could have concluded that calling Riese as a witness was not required to ensure a full and true disclosure of the facts and, if not, whether the plaintiffs were prejudiced by the council's refusal to allow the plaintiffs to cross-examine Riese.
We recognize that the council did not provide Riese's comments to the plaintiffs before the hearing on the Colebrook South petition commenced, as required by § 16-50j (h). We further recognize that, if the plaintiffs had had access to Riese's comments in a more timely manner, they would have been in a better position to explain to the council why they believed it was necessary to cross-examine him. On the basis of the entire record, however, we conclude that, even assuming that the council's failure to comply with the timing requirements of § 16-50j (h) was improper, that impropriety was harmless. We also conclude that the council was not required pursuant to § 4-178(5) or § 16-50o (a) to allow the plaintiffs to cross-examine Riese.
First, the only items in the record before the council that the plaintiffs have identified as being relevant to this claim are their amended witness lists naming Riese as a witness and the council's conclusions of law explaining their decision to disallow Riese's testimony. Although we recognize that the plaintiffs did not receive Riese's comments until after the hearing on the Colebrook South project had commenced, they have not explained why they could not have informed the council of the reasons that they were concerned about the reliability of Riese's opinions, that they believed it was necessary to call him as a witness and that they could not comply with the council's deadlines for identifying witnesses. The plaintiffs also have not
Second, although the council relied on Riese's comments to support certain findings of fact, those findings were peripheral to the council's rulings. See footnote 51 of this opinion. We therefore do not agree with the plaintiffs' characterization of the council's use of the comments as "heavy reliance" on them. Moreover, a careful review of Riese's comments reveals that they were generally neutral and descriptive. He did not take any position on whether the petitions should be approved. Indeed, if anything, the comments brought attention to the shortcomings of BNE's petitions. Accordingly, we conclude that the council reasonably could have determined, on the basis of the record before it, that cross-examination of Riese was not required to allow the plaintiffs to present a "full and true disclosure of the facts...." General Statutes § 4-178(5); accord General Statutes § 16-50o (a). For the same reasons, we conclude that, even if we assume that the council's failure to comply with the timing requirements of § 16-50j (h) was improper, any such impropriety was harmless. See Klein v. Norwalk Hospital, supra, 299 Conn. at 254, 9 A.3d 364; Hicks v. State, supra, 287 Conn. at 439, 948 A.2d 982. We therefore reject the plaintiffs' claim that the council's denial of their request to call Riese as a witness deprived them of their right to fundamental fairness.
We next address the plaintiffs' claim that the trial court incorrectly determined that the council had properly refused to allow the plaintiffs to cross-examine witnesses about the cumulative impact of the two proposed projects. We conclude that we need not determine whether the council's ruling was improper because, even if we assume that it was, the plaintiffs have not established that they were harmed.
The following additional procedural history is relevant to our resolution of this
In the hearing on the Colebrook North petition, counsel for the plaintiffs attempted to question a witness about the Colebrook South project and counsel for BNE objected on the ground that there were two separate proceedings. Counsel for the plaintiffs responded that the council had ruled in the hearing on the Colebrook South petition that the plaintiffs could present evidence about the cumulative impact of the two projects in the hearing on the Colebrook North petition. Counsel for BNE then stated that the council had ruled only that the proper place to discuss the Colebrook North project was in the hearing on that project, not that it would allow evidence about the cumulative effects of the projects. The council's staff attorney stated that, under § 16-50p (a)(3)(B), the council could consider only cumulative effects of existing facilities, not proposed facilities. Stein then corrected his earlier ruling on that basis and sustained BNE's objection to testimony about the cumulative impact of the projects.
In its conclusions of law on the Colebrook North petition, the council stated that "§ 16-50p [(a)(3)(B)] requires the [c]ouncil to consider the environmental impact of a proposed facility alone and cumulatively with other existing facilities.
In their briefs to the trial court, the plaintiffs contended that the council had deprived them of their due process rights by prohibiting them from presenting evidence on the cumulative impact of the two projects. They did not explain, however, in what manner the two projects would have an adverse cumulative effect.
We conclude that we need not decide whether the council properly refused to admit evidence regarding the cumulative impact of the proposed projects because the plaintiffs have not identified any evidence that they would have presented to the council, had the opportunity been afforded, that could have affected the council's determination that the proposed projects would have no cumulative impact. Thus, even if the council's refusal to admit the evidence was improper, the plaintiffs have not established that they were harmed by it. See Klein v. Norwalk Hospital, supra, 299 Conn. at 254, 9 A.3d 364; Hicks v. State, supra, 287 Conn. at 439, 948 A.2d 982; see also In re Lukas K., supra, 300 Conn. at 473-74, 14 A.3d 990; State v. Lopez, supra, 280 Conn. at 790, 911 A.2d 1099. Accordingly, we reject this claim.
We next address the plaintiffs claim that the trial court incorrectly determined that the council properly allowed BNE to submit certain materials under seal and that the council's protective orders were not overbroad. We conclude that we need not determine whether the council acted properly because, even if we assume that it did not, the plaintiffs have not met their burden of proving harm.
The following additional procedural history is relevant to our resolution of this claim. During the hearings on BNE's petitions, BNE asked the council for permission to file certain "confidential and proprietary business data" under seal and also asked the court to issue protective orders for the data. The plaintiffs objected to the motions to the extent that they related to "data regarding wind resources, wind speeds, and wind generation," information regarding setback recommendations and information regarding the "mechanical loads assessment" of the proposed turbines and certain noise emission characteristics. The plaintiffs contended that the materials were "public records" for purposes of General Statutes (Supp.2014) § 1-210
The council explained its decision to issue the protective orders in its rulings on the petitions. The council observed that, pursuant to § 16-50o (c), "[t]he applicant shall submit into the record the full text of the terms of any agreement ... entered into by the applicant and any party to the certification proceeding ... in connection with the construction or operation of the facility. This provision shall not require the public disclosure of proprietary information or trade secrets." The council noted that, under its procedures, proprietary information includes trade secrets and concluded that the protected materials constituted trade secrets as defined by this court in Town & Country House & Homes Service, Inc. v. Evans, 150 Conn. 314, 318-19, 189 A.2d 390 (1963).
On appeal to the trial court, the plaintiffs again claimed that the protective orders had been overbroad and unduly restrictive.
Klein testified at trial that it was also his understanding that he could not review the protected materials during the hearings on BNE's petitions. After the council issued its rulings, however, he reviewed notes taken by counsel for the plaintiffs regarding the sealed materials. Klein testified that the equipment specified in the notes "would have the potential to affect the design of the onsite improvements and offsite infrastructure improvements that would be necessary to get that equipment onto the site and to safely move it around the site. Those improvements have a reasonable likelihood of having an environmental impact with respect to wetlands and water quality." Klein also admitted, however, that he did not know whether the roads would have to be widened, which was within Carboni's area of expertise, and that, if they did, he believed that BNE would be required to obtain certain construction permits to ensure that the construction met applicable water quality standards.
The trial court concluded that the council had properly entered the sealing orders and that, even if those orders or the terms of the protective orders had been improper, the plaintiffs had not established that they were harmed because the materials had been available for review by the plaintiffs' experts, and none of the experts had testified at trial that the sealed documents would have affected their opinions.
On appeal to this court, the plaintiffs claim that the council improperly sealed the protected materials because they were filed with a public agency and, pursuant to § 1-210, there is a presumption that documents filed with a public agency are public records, and the materials do not contain trade secrets for purposes of § 1-210(b)(5)(A). They further contend that their lack of access to the sealed documents prejudiced them because the sealed documents: (1) revealed that there was a two decibel tolerance factor for the wind turbines that the council had not considered when it found that the projects would not exceed levels allowed by state noise law at the residential receptor locations; and (2) contained information suggesting that the area of site clearance required to ensure that large trucks and cranes would have access to the sites may have been larger than the areas shown in the plans that BNE submitted with its petitions, which in turn, could have had an effect on water quality.
In any event, even if the council improperly allowed BNE to submit the protected materials under seal and the overbroad terms of the protective orders prevented the plaintiffs from discovering this information in a timely manner, any impropriety was harmless because the plaintiffs have not established that the council would likely have made different decisions if the plaintiffs had been able to examine or cross-examine witnesses about the information. See Klein v. Norwalk Hospital, supra, 299 Conn. at 254, 9 A.3d 364; Hicks v. State, supra, 287 Conn. at 439, 948 A.2d 982. With respect to the noise issue, the plaintiffs have pointed to no evidence or offer of proof in the record regarding the effect of the two decibel tolerance factor on noise levels at the residential receptors, which were the noise levels that the council considered when ruling on the petitions. With respect to the road width issue, Carboni testified that the technical equipment specifications in the protected materials were "in the same general range" as the publicly available specifications that he relied on to support his testimony before the council. Thus, the sealed information would have been merely cumulative of information that he already had.
The plaintiffs also contend, however, that, "without the assistance of their experts to more fully examine the contents of some of the more technical information, including the [mechanical load assessments] and the wind data, [they] simply do not know the total extent of the prejudice they suffered by not being permitted to properly analyze and cross-examine witnesses regarding these documents." Even if we assume that the plaintiffs' experts did not have sufficient access to the protected materials to testify about them intelligently or to assist the plaintiffs to prepare for cross-examination of BNE's witnesses in the hearings before the council, however, the plaintiffs have not explained why their expert witnesses could not have examined the documents during those hearings to determine whether they had been prejudiced by not having greater and more timely access to them. Accordingly, we reject this claim.
Finally, we address the plaintiffs' claim that the trial court incorrectly determined that the council did not deprive them of their right to fundamental fairness by denying
The following additional procedural history is relevant to our resolution of this claim. Before and during the hearings before the council, BNE, on several occasions, asked for extensions of time to respond to interrogatory responses and to file prefiled testimony and new evidence, which the council granted. On several occasions, the plaintiffs did not receive the newly filed materials, some of which were voluminous, until shortly before the hearing was to be conducted. In response to these late filings, the plaintiffs made several written and oral requests for continuances so that they would have adequate time to review the materials and prepare for cross-examination of BNE's witnesses. The council denied all of the plaintiffs' requests for continuances.
In its rulings on the petitions, the council concluded that its procedures had been consistent with due process requirements. In support of this conclusion, it observed that "constitutional principles permit an administrative agency to organize its hearing schedule so as to balance its interest in reasonable, orderly and nonrepetitive proceedings against the erroneous deprivation of a private interest and it is not unconstitutional for the [c]ouncil, in good faith, to balance its statutory time constraints against [the plaintiffs'] desire for more time to present their objections to a proposal." See Concerned Citizens of Sterling, Inc. v. Connecticut Siting Council, 215 Conn. 474, 485-86, 576 A.2d 510 (1990). The council also stated that it had allowed the plaintiffs to submit additional information after the hearings had closed.
The trial court concluded in its memoranda of decision that "[t]he plaintiffs fail to demonstrate an unconstitutional abuse of discretion by the council in regards to its denial of the plaintiffs' continuance requests. The plaintiffs had ample opportunity prior to and during the hearings to obtain and present evidence to the council.... The council stated in its conclusions of law that the plaintiffs received ample time for cross-examination.... The court finds such denial of continuance requests properly within the discretion of the council." (Citations omitted.)
On appeal to this court, the plaintiffs renew their claim that the council's denial of their requests for continuances deprived them of their right to fundamental fairness. We need not decide whether the council abused its discretion in denying the requests for continuance, however, because the plaintiffs have identified no evidence that they would have produced, arguments that they would have made or questions that they would have posed to BNE's witnesses if the council had granted their requests that likely would have affected the council's decisions.
The judgments are affirmed.
In this opinion the other justices concurred.
We note that, although the plaintiffs sought party status pursuant to § 4-177a, that statute governs contested cases, which do not include proceedings on petitions for declaratory rulings. See General Statutes (Supp.2014) § 4-166(4). Rather, General Statutes § 4-176(d) authorizes agencies to grant party status to certain persons in proceedings on petitions for declaratory rulings.
Bahtiarian's estimate of a three decibel increase noise levels at the property line was based, however, on the combined effects of lowering the hub heights and the noise tolerance factor that had been discovered after the council issued its rulings. Bahtiarian testified that the noise tolerance factor was two decibels, meaning that the noise produced by the wind turbines could be two decibels louder than the level stated in the documents that BNE submitted with its petition. Therefore, in and of itself, the effect of lowering the hub heights on noise levels at certain locations on the property line would be less than three decibels. The plaintiffs have pointed to no evidence concerning the effect that lowering hub heights would have on noise levels at nearby residences, which were the noise levels that the council considered.
We also disagree with the plaintiffs' contention that they were deprived of an opportunity to establish prejudice because the trial court denied their motion to supplement the record with their attorney's affidavit. See footnote 52 of this opinion. The council was entitled to rely on the record before it when deciding whether the plaintiffs would be prejudiced if it did not allow Riese to testify, and the affidavit concerned events that occurred long after the council issued its rulings.
After the parties submitted their trial briefs to the trial court, the trial court asked the council to submit record citations regarding the cumulative impact of the projects. The plaintiffs submitted a response to the council's submission in which they argued that the citations provided by the council did not support its conclusion that there would be no cumulative impact. They did not point to any evidence, however, that would support a finding that the projects would have a negative cumulative impact.
