GRUENDEL, J.
The self-represented plaintiff, Nancy Burton, appeals from the judgment of the Superior Court dismissing, for lack of subject matter jurisdiction, her administrative appeal from a decision of the named defendant, the Connecticut Siting Council (council). The dispositive issue is whether the plaintiff had standing to pursue that appeal. We affirm the judgment of the Superior Court.
This case concerns the construction of an independent fuel storage facility (facility) for spent nuclear fuel at the Millstone Nuclear Power Station in Waterford (Millstone) by the defendant Dominion Nuclear Connecticut, Inc. (Dominion). In 2003, Dominion filed an application with the council for a certificate of environmental compatibility and public need in order to construct a dry storage facility pursuant to General Statutes § 16-50k. Connecticut Coalition Against Millstone v. Connecticut Siting Council, 286 Conn. 57, 61, 942 A.2d 345 (2008). At that time, Millstone utilized "wet storage to store both spent fuel and all the fuel in a reactor core in the event of the need for refueling, maintenance or emergency measures...." Id. Due to "dwindling space in the wet storage facilities," Dominion submitted that the construction of a "dry storage facility was necessary to compensate" therefor. Id.
In 2004, the council approved Dominion's application to complete all subsurface infrastructure work to accommodate 135 horizontal storage modules (modules) on the Millstone site. In addition, the council permitted Dominion to construct a concrete pad large enough to accommodate the installation of forty-nine modules. The council ordered Dominion to install those modules "in numeric order as identified in the record...." The council's approval also provided that Dominion could petition for permission to install additional modules in the future. Two parties who intervened in that proceeding pursuant to General Statutes (Rev. to 2011) § 22a-19 (a),
On October 31, 2012, Dominion filed an application for "certain modifications to the existing [facility] and ... to install all remaining concrete pads to accommodate the full build-out of 135 [modules]." Significantly, Dominion did not seek approval to install any additional modules as part of this application, a distinction the council specifically noted in its findings of fact.
The plaintiff intervened in that administrative proceeding pursuant to § 22a-19 (a) and thereafter participated through the submission of interrogatories, direct testimony, cross-examination, and the introduction of various exhibits and motions. The council held a public hearing over the course of two days, conducted a site visit, and solicited comments from state agencies and nearby municipalities. In its May 2, 2013 decision, the council found that the proposed activity "would have no effect on
From that decision, the plaintiff timely appealed to the Superior Court. The operative complaint, the plaintiff's second amended complaint dated June 7, 2013, alleges that the council acted arbitrarily and capriciously in nine respects.
It is well established that "[a] party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim." (Internal quotation marks omitted.) Lewis v. Slack, 110 Conn.App. 641, 643, 955 A.2d 620, cert. denied, 289 Conn. 953, 961 A.2d 417 (2008). "Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy." (Internal quotation marks omitted.) Sadloski v. Manchester, 228 Conn. 79, 84, 634 A.2d 888 (1993), on appeal after remand, 235 Conn. 637, 668 A.2d 1314 (1995). "[T]he court has a duty to dismiss, even on its own initiative, any appeal that it lacks jurisdiction to hear.... Where a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause."
"To be entitled to invoke the judicial process, a party must have suffered an aggrievement." Kelly v. Dearington, 23 Conn.App. 657, 660, 583 A.2d 937 (1990). "Two broad yet distinct categories of aggrievement exist, classical and statutory.... Classical aggrievement requires
At the outset, we note what is not in dispute. In her complaint, the plaintiff did not specify whether her appeal was brought pursuant to CEPA or the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq. With respect to the latter, our Supreme Court has explained that "[b]ecause the UAPA does not, by itself, render the plaintiffs statutorily aggrieved for standing purposes," a party must establish that it is classically aggrieved. Financial Consulting, LLC v. Commissioner of Insurance, 315 Conn. 196, 227, 105 A.3d 210 (2014); see also Bingham v. Dept. of Public Works, 286 Conn. 698, 704, 945 A.2d 927 (2008) ("the UAPA ... requires that the appealing party be aggrieved in order to bring the appeal"). In its memorandum of decision, the court found that the plaintiff was not classically aggrieved because she failed to allege a specific, personal and legal interest in the subject matter of the decision rendered by the council, rather than a general interest shared by members of the community. See Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 486, 815 A.2d 1188 (2003). The plaintiff in this appeal does not contest the propriety of that determination. Accordingly, our consideration of the question of the plaintiff's standing is confined to whether the allegations of her operative complaint establish statutory aggrievement under CEPA.
Although "[t]raditionally, citizens seeking to protect the environment were required to show specific, personal aggrievement to attain standing to bring a legal action," CEPA waives that requirement by providing that "any person or other entity, without first having to establish aggrievement, may intervene in any administrative proceeding challenging conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state." (Internal quotation marks omitted.) Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 556, 23 A.3d 1176 (2011). With respect to administrative proceedings, § 22a-19 (a) confers such statutory standing on intervening parties.
Paragraph 12 of that complaint contains nine distinct allegations of arbitrary and capricious action by the council. See footnote 4 of this opinion. Paragraph 12(C) alleges that "[t]he council failed to adequately consider the environmental and health implications and consequences of the application as required by law...." Bereft of any factual allegations of environmental harm, subparagraph (C) merely asserts a legal conclusion, and thus plainly is inadequate.
The remaining eight allegations of impropriety set forth in paragraph 12 of the complaint all allege procedural error. Subparagraphs (A), (B), and (H) challenge the sufficiency of the evidence submitted by Dominion, while subparagraphs (D) and (E) allege bias on the part of the council.
Our Supreme Court "consistently [has] acknowledged ... that an intervenor's standing pursuant to § 22a-19 strictly is limited to challenging only environmental issues covered by the statute and only those environmental concerns that are within the jurisdiction of the particular administrative agency conducting the proceeding into which the party seeks to intervene." (Internal quotation marks omitted.) Pond View, LLC v. Planning & Zoning Commission, 288 Conn. 143, 157, 953 A.2d 1 (2008); see also Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 490, 400 A.2d 726 (1978) (intervenor that has filed verified pleading at administrative level pursuant to § 22a-19 has standing to appeal on basis of that pleading "limited to ... environmental issues only"). The court nevertheless has carved a limited exception to that general rule involving cases in which an intervenor alleges that it was denied the right to fundamental fairness in the administrative proceeding.
As with any standing issue, it remains that the plaintiff must plead facts sufficient to substantiate such an allegation. For example, in FairwindCT, Inc., the plaintiffs claimed that the defendant violated their right to fundamental fairness by "preventing [them] from cross-examining witnesses, issuing protective orders and not allowing [them] adequate time to prepare for cross-examination...." Id., at 713, 99 A.3d 1038. In contrast, the operative complaint in the present case contains no such allegations, nor does it reference the right to fundamental fairness. Rather, the complaint acknowledges that the plaintiff "intervened in the proceedings ... and participated through the submission of interrogatories, cross-examination, direct testimony and the introduction of various exhibits and motions." None of the allegations of the complaint, including the nine claims of the arbitrary and capricious conduct on the part of the council, set forth any factual allegation of specific conduct that would support a finding that the council violated the plaintiff's right to fundamental fairness. Accordingly, the narrow exception outlined in FairwindCT, Inc., is inapposite to the present case.
The plaintiff also claims that her status as an intervenor in the proceeding before the council conferred "automatic statutory standing" for purposes of her appeal to the Superior Court. That contention is contrary to well established law.
Section 16-50j-17 of the Regulations of Connecticut State Agencies addresses the status of intervenors before the council. It provides in relevant part that "[n]o
Furthermore, our appellate courts consistently have "held that [m]ere status ... as a party or a participant in a hearing before an administrative agency does not in and of itself constitute aggrievement for the purposes of appellate review. Hartford Distributors, Inc. v. Liquor Control Commission, 177 Conn. 616, 620, 419 A.2d 346 (1979); see also New England Rehabilitation Hospital of Hartford, Inc. v. Commission on Hospitals & Health Care, 226 Conn. 105, 132, 627 A.2d 1257 (1993); Milford v. Local 1566, 200 Conn. 91, 96, 510 A.2d 177 (1986); Bakelaar v. West Haven, 193 Conn. 59, 66, 475 A.2d 283 (1984); Fox v. Zoning Board of Appeals, 84 Conn.App. 628, 637, 854 A.2d 806 (2004); Olsen v. Inland Wetlands Commission, 6 Conn.App. 715, 718, 507 A.2d 495 (1986)." (Internal quotation marks omitted.) Concerned Citizens for the Preservation of Watertown, Inc. v. Planning & Zoning Commission, 118 Conn.App. 337, 344, 984 A.2d 72 (2009), cert. denied, 294 Conn. 934, 987 A.2d 1028 (2010). Our courts similarly have held that "[t]he mere statement that the appellant is aggrieved, without supporting allegations as to the particular nature of the aggrievement, is insufficient." (Emphasis added; internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 542-43, 833 A.2d 883 (2003). We decline to depart from that settled precedent.
Under Connecticut law, "[t]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.... A plaintiff has the burden of proof with respect to standing.... To establish aggrievement ... the plaintiff [must allege] facts which, if proven, would constitute aggrievement as a matter of law...." (Citations omitted; internal quotation marks omitted.) Emerick v. Glastonbury, 145 Conn.App. 122, 128-29, 74 A.3d 512 (2013), cert. denied, 311 Conn. 901, 83 A.3d 348 (2014); see also Martin v. Brady, 261 Conn. 372, 376, 802 A.2d 814 (2002) (reviewing court must examine pleadings to decide if plaintiff has alleged sufficient facts to establish subject matter jurisdiction); New England Rehabilitation Hospital of Hartford, Inc. v. Commission on Hospitals & Health Care, supra, 226 Conn. at 120, 627 A.2d 1257 ("[p]leading and proof of facts that constitute aggrievement are essential prerequisites to the trial court's subject matter jurisdiction over an administrative appeal"). With respect to matters brought pursuant to § 22a-19, to survive a motion to dismiss for lack for standing, the plaintiff's "complaint ... must set forth facts to support an inference that unreasonable pollution, impairment or destruction of a natural resource will probably result from the challenged activities unless remedial measures are taken." (Internal quotation marks omitted.) Finley v. Inland Wetlands Commission, supra, 289 Conn. at 35, 959 A.2d 569. It therefore was incumbent on the plaintiff to allege such facts in her operative complaint to establish standing to maintain her appeal before the Superior Court.
The plaintiff has not met that burden. Absent from her operative complaint is any colorable claim of probable environmental harm or deprivation of her right to fundamental fairness before the council. Perhaps cognizant of that deficiency, the plaintiff argues that the Superior Court improperly confined its review to the operative pleadings before it at
First and foremost, the plaintiff has provided no legal authority in support of that novel contention, which runs contrary to our law. Connecticut is a fact pleading jurisdiction. See Practice Book § 10-1; Florian v. Lenge, 91 Conn.App. 268, 274, 880 A.2d 985 (2005). In the context of administrative appeals brought pursuant to § 22a-19, our Supreme Court has held that a plaintiff's "complaint ... must set forth facts to support an inference that unreasonable pollution, impairment or destruction of a natural resource will probably result from the challenged activities unless remedial measures are taken." (Internal quotation marks omitted.) Finley v. Inland Wetlands Commission, supra, 289 Conn. at 35, 959 A.2d 569; see also Connecticut Independent Utility Workers, Local 12924 v. Dept. of Public Utility Control, supra, 312 Conn. at 273, 92 A.3d 247 (noting that reviewing court "must examine the complaint to determine whether it contains allegations" sufficient to establish aggrievement [emphasis in original]); Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 545, 427 A.2d 822 (1980) ("[w]e must examine each count of the complaint ... to determine whether [the] plaintiff ... has standing to sue"). Indeed, General Statutes (Rev. to 2011) § 22a-19 (a) expressly requires an intervening party to file "a verified pleading" that specifies "conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state." As we already have discussed, the operative complaint in the present case lacks such factual allegations.
Second, the operative complaint does not reference the plaintiff's December 7, 2012 notice of intervention in any manner, and it was not appended thereto. Moreover, at the time that Dominion moved to dismiss the appeal for lack of subject matter jurisdiction on July 29, 2013, that notice of intervention was not in the record before the Superior Court. It is well settled that if "the plaintiff's standing does not adequately appear from all materials of record, the complaint must be dismissed." (Internal quotation marks omitted.) Burton v. Dominion Nuclear Connecticut, Inc., supra, 300 Conn. at 550, 23 A.3d 1176. Because the December 7, 2012 notice of intervention was neither referenced in the operative complaint nor submitted into the record at the time that the defendants moved to dismiss the appeal, we cannot agree with the plaintiff's assertion that the Superior Court made a "deliberate decision to disregard the notice of intervention," as she argues in her appellate brief.
The judgment is affirmed.
In this opinion the other judges concurred.
"(B) The council improperly and illegally relied upon information submitted by Dominion which it knew to be deliberately misleading and inaccurate;
"(C) The council failed to adequately consider the environmental and health implications and consequences of the application as required by law;
"(D) The council manifested bias, prejudice and predetermination of the application;
"(E) Edward C. Wilds, the Connecticut Department of Energy and Environmental Protection's designee on the council [in this proceeding], suffered from a conflict of interest which he failed to disclose, bias and prejudgment and, upon information and belief, he improperly influenced other members of the [council] in favor of the application;
"(F) Without adequate justification, and in the absence of demonstrated need for speedy action on the part of Dominion, the council acted prematurely to approve the application in light of the fact that the [United States] Nuclear Regulatory Commission (NRC), under orders of the [United States] Court of Appeals for the District of Columbia Circuit, is embarking for the first time on creating an Environmental Impact Statement, required by the National Environmental Protection Act, to examine the environmental consequences of on-site storage of high level nuclear waste at all the nation's commercial nuclear power plants, including Millstone, an undertaking the NRC anticipates it will complete in the year 2014 and which will have significant implications for spent fuel storage at Millstone;
"(G) The [council's] decision violates [its prior decision in 2004] insofar as it allows a permanent spent nuclear fuel storage site and it is inconsistent with the council's findings of fact in [that prior decision], paragraph 25, as follows: `The [facility] is neither a long term... storage site nor permanent repository for the storage of spent fuel.' Insofar as it allows long term and/or permanent storage of spent nuclear fuel at Millstone and it is therefore illegal and in conflict with state policies;
"(H) Dominion failed to demonstrate a legally or factually sufficient basis for the council to find a justifiable need for the modification;
"(I) The decision is in conflict with the council's own analysis that concludes that the state of Connecticut has sufficient surplus power over the next decade to negate the need for Millstone generation of electricity and thus continued generation of high level nuclear waste and the need for expanded nuclear spent fuel storage."