Opinion
HHBCV136021316S
08-22-2016
PMC Property Group, Inc. v. Public Utilities Regulatory Authority
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Carl J. Schuman, Judge.
The plaintiffs, PMC Property Group, Inc. (PMC), and Energy Management Systems, Inc., (EMS), appeal from the decision of the defendant public utilities regulatory authority (PURA) finding that the plaintiffs had engaged in the unauthorized submetering of electricity and, based on that finding, imposing sanctions. The other defendants are the state office of consumer counsel (OCC), the United Illuminating Company (UI), and the Connecticut Light and Power Company (CL& P). For the reasons explained below, the court affirms PURA in part and sustains the appeal in part.
I
On August 17, 2012, OCC and the state attorney general filed a joint petition requesting that PURA investigate possible unauthorized submetering at a multifamily apartment building owned by PMC at 38 Crown Street, New Haven. PURA conducted a hearing on November 19, 2012, and rendered a decision on June 5, 2013.
PURA found the following background facts. The apartment complex has 65 residential apartments and one commercial business. In 2011, the plaintiffs renovated the building and installed a heating, ventilation, and air conditioning (HVAC) system manufactured by Mitsubishi Electric & Electronics USA, Inc. (MEUS). In March 2012, the plaintiffs began billing tenants for HVAC services. (Return of Record (ROR), Exhibit X (Decision), pp. 5, 11.)
The record is not Bates stamped. Based on the page numbering used by the e-filing system, the decision can be found at pages 339-53 of the record. For convenience, the court will cite to the decision as follows: (Dec., p. .)
PURA found the following facts concerning the HVAC system. " Each apartment and the commercial space [has] one indoor unit or air handler. The electricity used to power the air handler is recorded by an UI meter associated with the individual apartment . . . The indoor unit is connected through piping to one of seven outdoor units. Each outdoor unit has an electronic compressor. Sensors and valves are installed in the indoor piping of each apartment and the commercial space and are used with computer software to measure its HVAC thermal use. Every apartment and the business [has] a thermostat to control its HVAC level." (Dec. p. 5.) (Footnotes omitted.)
For reasons that are unclear, PURA's decision contains some facts in a section entitled " Authority Analysis" and some facts in a section entitled " Findings of Fact." The court's decision draws from both sections.
" The MEUS system moves refrigerant between the outdoor unit and the branch circuit controller and from the branch circuit controller to each indoor unit. Each indoor unit requests refrigerant to satisfy the individual's HVAC needs as selected by the tenant." (Dec., p. 5.)
" Each apartment and the commercial space are separately served through its own UI meter. The landlord service is measured through one UI meter that supplies electricity to seven outdoor units and the common areas of the building. In addition, two non-utility meters installed after the landlord's UI meter measure the electricity used by the seven outdoor units and provide an input signal to a HVAC billing program." (Dec., p. 6.)
" Each apartment has an UI account and is served through an UI meter. However, each customer also receives a bill from EMS for a portion of the HVAC compressor's electrical use allocated in proportion to its apartment's HVAC thermal use." (Dec., p. 6.) " The landlord meters the electricity used by the HVAC compressors and EMS rebills this usage to the 65 residential apartments and the one commercial tenant in proportion to each tenant's HVAC thermal use." (Dec., p. 6.)
" The tenant application and lease forms provide that tenants will pay separately for heat and air conditioning." (p. 6.)
" [I]n addition to the two third-party electricity meters and a computer program that determines the electricity used by the seven outdoor units, there are other mechanical devices installed in each tenant's space that make measurement of thermal use and allocates the electricity costs for the seven outdoor units to each apartment in proportion to its thermal use . . . [T]enant bills could not be calculated without the third-party electricity meters and . . . kWh was the only unit of measurement used to calculate tenant bills." (Dec., p. 8.)
" Two non-utility watt meters installed after the landlord's UI meter measure the electricity used by the seven outdoor units and provide an input signal to a HVAC billing program."
" Each customer receives a bill from EMS for a portion of the seven HVAC compressors['] electrical use allocated in proportion to its apartment's HVAC thermal use."
" PMC started billing for HVAC in March 2012."
" A software program monitors the two third-party watt hour meter signals that provide the total kWh input for the outdoor units and uses the refrigerant meter results to allocate the determined refrigerant flow in terms of kWh across all the connected indoor units." (Dec., pp. 10-11.)
In its conclusion, PURA ruled that PMC conducted unauthorized submetering at the complex. PURA then entered an order providing that PMC shall immediately stop submetering electricity, EMS shall cease submetering billing to the tenants at the complex, and PMC shall return all payments collected from each tenant for submetering electricity. (Dec., p. 11.)
The plaintiffs now appeal to this court.
II
Under the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq., judicial review of an agency decision is " very restricted." (Internal quotation marks omitted.) MacDermid, Inc. v. Dept. of Environmental Protection, 257 Conn. 128, 136-37, 778 A.2d 7 (2001). Section 4-183(j) of the General Statutes provides as follows: " The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion."
Stated differently, " [r]eview 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 . . . Neither [the appellate] court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Internal quotation marks omitted.) Okeke v. Commissioner of Public Health, 304 Conn. 317, 324, 39 A.3d 1095 (2012). " It is fundamental that a plaintiff has the burden of proving that the [agency], on the facts before [it], acted contrary to law and in abuse of [its] discretion." (Internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343, 757 A.2d 561 (2000).
Our Supreme Court has stated that " [a]n agency's factual and discretionary determinations are to be accorded considerable weight by the courts . . ." (Internal quotation marks omitted.) Longley v. State Employees Retirement Commission, 284 Conn. 149, 163, 931 A.2d 890 (2007). " Even for conclusions of law, [t]he court's ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion . . . [Thus] [c]onclusions 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 . . . [Similarly], this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute's purposes . . . Cases that present pure questions of law, however, invoke a broader standard of review than is . . . involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion . . . Furthermore, 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 . . . We have determined, therefore, that the traditional deference accorded to an agency's interpretation of a statutory term is unwarranted when the construction of a statute . . . has not previously been subjected to judicial scrutiny [or to] . . . a governmental agency's time-tested interpretation . . . [When the agency's] interpretation has not been subjected to judicial scrutiny or consistently applied by the agency over a long period of time, our review is de novo." (Citation omitted; internal quotation marks omitted.) Chairperson, Connecticut Medical Examining Board v. Freedom of Information Commission, 310 Conn. 276, 281-83, 77 A.3d 121 (2013).
III
The principal claim on appeal is that PURA erred in concluding that the plaintiffs engaged in submetering electricity. The resolution of this claim depends largely on the definition of submetering. To support their claim that they were not engaged in submetering, the plaintiffs rely on PURA regulations addressing record retention in submetering cases and defining " submetering customer" and " submetered party." These regulations obviously address the topic of submetering, but they do not provide a clear definition of the term.
Originally, the plaintiffs had also claimed that PURA lacked statutory authority to regulate submetering in the present context. Subsequent to the filing of this appeal, the legislature amended General Statutes § 16-19ff, which is the governing statute, to require expressly that PURA develop an application and approval process for submetering. See Public Acts 2013, No. 13-298, § 36. The plaintiffs submitted applications under the public act for submetering at other buildings, which were also the subject of administrative appeals. After PURA granted the applications, the plaintiffs settled the other administrative appeals and withdrew their claim in this case that PURA lacked statutory authority to regulate submetering.
Regs., Conn. State Agencies § 16-11-238(c) (" Every submetering customer shall provide to the Department, upon request data or records as may be deemed necessary by the Department related to the submetering and furnishing of electric service to submetered parties.")
Regs., Conn. State Agencies § 16-11-100(f) (" 'Submetering Customer' means any recreational campground, or other facility as approved by the Department, whose electric service is furnished by an electric company and who is authorized to submeter the service to other parties within such facility . . .")
Regs., Conn. State Agencies § 16-11-100(g) (" Submetered Party" means any person, partnership, firm, company, corporation or organization whose electric service is furnished by a submetering customer of an electric company . . .")
PURA's ruling relied instead on a definition of submetering used in its 2007 decision in Docket No. 06-09-1, DPUC Investigation into Sub-Metering Natural Gas. That decision defined a " submeter" in a natural gas case as " any type of meter or metering device that is placed either in the gas stream, on an appliance, or control system located downstream of the local distribution company's (LDC) meter, which is used to bill individual unit owners or apartment tenants for their usage or estimated usage of a portion of the LDC customer's total bill." (Dec., p. 7, quoting Docket No. 06-09-1, DPUC Investigation into Sub-Metering Natural Gas, p. 8.) Because PURA has expertise in this area, which is technical in nature, and there was a least some history of agency reliance on this definition, the court grants deference to PURA's definition of submeter. See Wheelabrator Lisbon, Inc. v. Dept. of Public Utility Control, 283 Conn. 682, 692, 931 A.2d 159 (2007); Celentano v. Rocque, 282 Conn. 645, 653, 923 A.2d 709 (2007).
The decision is not in the record but the court has taken judicial notice of it.
Applying this definition, PURA reasonably concluded that the plaintiffs engaged in submetering. The plaintiffs' principal argument to the contrary is that they are delivering thermal energy in the form of heat or cold air, not electric service or utility service generally. However, the definition of submetering does not focus on the form of energy that the tenants receive. Rather, it focuses on the type of energy billed. That is, under the PURA definition, submetering occurs when landlords who are LDC electrical customers have a system " used to bill individual unit owners or apartment tenants for their usage or estimated usage of a portion of the LDC customer's total bill."
Here, the plaintiffs have a system used to bill tenants for the portion of the plaintiffs' electricity service used to provide heating and cooling to the tenants. PURA found that " each customer . . . receives a bill from EMS for a portion of the HVAC compressor's electrical use allocated in proportion to its apartment's HVAC thermal use." (Dec., p. 6.) In that system, thermal energy in the form of heat and coolant simply serves as a proxy for electrical energy. That is, the amount of thermal use functions to determine the tenant's proportional share of the landlord's overall electrical bill for the HVAC system. Therefore, because the landlord is billing the tenant for the tenant's share of the landlord's electrical bill--and not for oil or freon or any other component of an HVAC system--the landlord is using a submetering system.
This system includes the two " non-utility meters installed after the landlord's UI meter." (Dec., p. 6.) The definition of submetering does not require the landlord to have installed electric meters in every apartment. Rather, the definition broadly encompasses " any type of meter or metering device . . . located downstream of the local distribution company's (LDC) [here the plaintiffs'] meter . . . used to bill individual unit owners or apartment tenants for their usage or estimated usage of a portion of the LDC customer's [--here the landlord's--] total [electrical] bill." (Dec., p. 7.)
This conclusion is consistent with the policy behind regulation of submetering. That policy is to insure that " anyone proposing to sub-meter the supply of a regulated public utility . . . [should] be required to demonstrate the ability to provide the same customer service protections as a regulated company." (Docket No. 06-09-1, DPUC Investigation into Sub-Metering Natural Gas, p. 12.) Here, in theory at least, without PURA regulation, the plaintiffs could take advantage of the tenants' limited options in obtaining the electricity used for heat or air conditioning and charge much higher rates for electricity than those that PURA would allow regulated public utilities. By finding that the plaintiff's system constitutes submetering, PURA has brought the system under its regulatory authority and insured that, with regard to the provision of electricity needed to provide heating and cooling, the tenants will receive the same level of consumer protection that they would receive when purchasing electricity directly from the LDC. For all these reasons, PURA did not act " unreasonably, arbitrarily, illegally or in abuse of its discretion" in concluding that this system constitutes submetering. (Internal quotation marks omitted.) Okeke v. Commissioner of Public Health, supra, 304 Conn. 317.
The court is not bound or persuaded by the New York Public Services Commission decision submitted by the plaintiffs, as that decision relies on a different definition of submetering.
IV
A
The plaintiffs' other significant claim on appeal is a challenge to PURA's orders of relief in this case. As stated above, PURA ordered that PMC shall immediately stop submetering electricity, that EMS shall cease submetering billing to the tenants at the complex, and that PMC shall return all payments collected from each tenant for submetering electricity. (Dec., p. 11.) Of these orders, the plaintiffs' briefs challenge only the rebate component. The plaintiffs do not brief the issue of whether PURA had the authority to order, as a remedy, a cessation of submetering prospectively or, in general, whether PURA has cease and desist powers. The court therefore considers that issue abandoned. See Connecticut Coalition Against Millstone v. Connecticut Siting Council, 286 Conn. 57, 87, 942 A.2d 345 (2008). See also Raynor v. Commissioner of Correction, 117 Conn.App. 788, 796-97, 981 A.2d 517 (2009), cert. denied, 294 Conn. 926, 986 A.2d 1053 (2010) (abandonment rule applies to claims raised in the trial court).
The court notes only that the issue of cease and desist orders is different from that of rebates because, as the court will discuss, the legislature implicitly limited the power to order rebates to cases involving public utility companies. The legislature did not necessarily impose any limitations on PURA's use of cease and desist orders.
There is no dispute that General Statutes § 16-19ff, which provides statutory authority for PURA to regulate submetering, contains no remedy section. Although PURA did not mention any other statutory basis for rebates in its decision, PURA now relies on General Statutes § 16-41(a). The operative part of this statute provides as follows: " Each . . . (2) electric supplier or person providing electric generation services without a license in violation of section 16-245, and its officers, agents and employees . . . which the authority finds has failed to obey or comply with any such provision of this title, order or regulation shall be fined by order of the authority in accordance with the penalty prescribed for the violated provision of this title or, if no penalty is prescribed, not more than ten thousand dollars for each offense, except that the penalty shall be a fine of not more than forty thousand dollars for failure to comply with an order of the authority made in accordance with the provisions of section 16-19 or 16-247k or within thirty days of such order or within any specific time period for compliance specified in such order."
As noted above, the plaintiffs have withdrawn their claim that § 16-19ff does not provide PURA statutory authority to regulate submetering. See note 3 supra . The legislature has amended the statute to make that authority clearer, but it has not added any remedy provisions. See Public Acts 2013, No. 13-298, § 36. Section 16-19ff(a) now provides: " Notwithstanding any provisions of the general statutes to the contrary, each electric distribution company shall allow the installation of submeters at (1) a recreational campground, (2) individual slips at marinas for metering the electric use by individual boat owners, (3) commercial, industrial, multifamily residential or multiuse buildings where the electric power or thermal energy is provided by a Class I renewable energy source, as defined in section 16-1, or a combined heat and power system, as defined in section 16-1, or (4) in any other location as approved by the authority where submetering promotes the state's energy goals, as described in the Comprehensive Energy Strategy, while protecting consumers against termination of residential utility service or other related issues. Each entity approved to submeter by the Public Utilities Regulatory Authority, pursuant to subsection (c) of this section, shall provide electricity to any allowed facility, as described in this subsection, at a rate no greater than the rate charged to that customer class for the service territory in which such allowed facility is located, provided nothing in this section shall permit such entity to charge a submetered account for (A) usage for any common areas of a commercial, industrial or multifamily residential building, or (B) other usage not solely for use by such account."
Section 16-41(a) provides: " Each (1) public service company and its officers, agents and employees, (2) electric supplier or person providing electric generation services without a license in violation of section 16-245, and its officers, agents and employees, (3) certified telecommunications provider or person providing telecommunications services without authorization pursuant to sections 16-247f to 16-247h, inclusive, and its officers, agents and employees, (4) person, public agency or public utility, as such terms are defined in section 16-345, subject to the requirements of chapter 293, (5) person subject to the registration requirements under section 16-258a, (6) cellular mobile telephone carrier, as described in section 16-250b, (7) Connecticut electric efficiency partner, as defined in section 16-243v, (8) company, as defined in section 16-49, and (9) entity approved to submeter pursuant to section 16-19ff shall obey, observe and comply with all applicable provisions of this title and each applicable order made or applicable regulations adopted by the Public Utilities Regulatory Authority by virtue of this title as long as the same remains in force. Any such company, electric supplier, certified telecommunications provider, cellular mobile telephone carrier, Connecticut electric efficiency partner, entity approved to submeter, person, any officer, agent or employee thereof, public agency or public utility which the authority finds has failed to obey or comply with any such provision of this title, order or regulation shall be fined by order of the authority in accordance with the penalty prescribed for the violated provision of this title or, if no penalty is prescribed, not more than ten thousand dollars for each offense, except that the penalty shall be a fine of not more than forty thousand dollars for failure to comply with an order of the authority made in accordance with the provisions of section 16-19 or 16-247k or within thirty days of such order or within any specific time period for compliance specified in such order. Each distinct violation of any such provision of this title, order or regulation shall be a separate offense and, in case of a continued violation, each day thereof shall be deemed a separate offense. Each such penalty and any interest charged pursuant to subsection (g) or (h) of section 16-49 shall be excluded from operating expenses for purposes of rate-making."
The plaintiffs point to the fact that § 16-41 expressly authorizes a " fine" but does not mention rebates. The statute also includes the term " penalty, " which in other contexts might include rebates or restitution, but the statute uses " penalty" interchangeably with " fine." Thus, whenever the word " penalty" appears, it refers to a fine up to a certain amount of dollars. Essentially, in this context, " fine" and " penalty" are synonyms.
As noted, the statute provides that a violator " shall be fined by order of the authority in accordance with the penalty prescribed for the violated provision of this title or, if no penalty is prescribed, not more than ten thousand dollars for each offense, except that the penalty shall be a fine of not more than forty thousand dollars . . ." General Statutes § 16-41(a).
The defendants contend that the court should broadly interpret " fine" to mean rebate or refund. There are several difficulties with this approach. First, the legislature expressly used the phrase " refund to its customers" in General Statutes § 16-19(b) and employed that phrase as well as the term " refund" in § 16-19(c), in both cases as a possible remedy that PURA may impose on public utility companies. See also General Statutes § 16-19bb (" The Public Utilities Regulatory Authority shall require that any funds held by an electric distribution company in excess of the company's authorized return on equity, which funds are intended by the authority to offset future rate increases in lieu of a present rate decrease, shall be applied to such rate increases or shall be refunded to the company's customers within one year of receipt"). (Emphasis added.) The use of a term, such as refund, in one statute and its omission in another related statute has importance. " Where a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject . . . is significant to show that a different intention existed . . . That tenet of statutory construction is well grounded because [t]he General Assembly is always presumed to know all the existing statutes and the effect that its action or non-action will have upon any one of them." (Citations omitted; internal quotation marks omitted.) In re Ralph M., 211 Conn. 289, 306-07, 559 A.2d 179 (1989); see also Plourde v. Liburdi, 207 Conn. 412, 416, 540 A.2d 1054 (1988) (" the use of different words [or the absence of repeatedly used words in the context of] the same [subject matter] must indicate a difference in legislative intention"). [Internal quotation marks omitted.] Thus, it is fair to presume that the legislature intentionally excluded refunds or rebates from § 16-41(a).
Section 16-19(b) provides: " If the authority has not made its finding respecting an amendment of any rate within one hundred fifty days from the proposed effective date of such amendment thereof, or within one hundred eighty days if the authority extends the period in accordance with the provisions of subsection (a) of this section, such amendment may become effective pending the authority's finding with respect to such amendment upon the filing by the company with the authority of assurance satisfactory to the authority, which may include a bond with surety, of the company's ability and willingness to refund to its customers with interest such amounts as the company may collect from them in excess of the rates fixed by the authority in its finding or fixed at the conclusion of any appeal taken as a result of a finding by the authority."
Section 16-19(c) provides: " Upon conclusion of its investigation of the reasonableness of any proposed increase of rates, the authority shall order the company to refund to its customers with interest any amounts the company may have collected from them during the period that any amendment permitted by subsection (b) of this section was in force, which amounts the authority may find to have been in excess of the rates fixed by the authority in its finding or fixed at the conclusion of any appeal taken as a result of a finding by the authority. Any such refund ordered by the authority shall be paid by the company, under direction of the authority, to its customers in such amounts as are determined by the authority."
Second, the term " fine" has a settled meaning that does not include a rebate, refund, or restitution. The United States Supreme Court has recognized that there are " two major differences between restitution and a traditional fine. Unlike traditional fines, restitution is forwarded to the victim, and may be calculated by reference to the amount of harm the offender has caused." Kelly v. Robinson, 479 U.S. 36, 51-52, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986).
" An administrative agency, as a tribunal of limited jurisdiction, must act strictly within its statutory authority." (Internal quotation marks omitted.) Nizzardo v. State Traffic Commission, 259 Conn. 131, 156, 788 A.2d 1158 (2002). This court cannot rewrite the statute and expand the agency's remedial powers. Indeed, " [this] court is precluded from substituting its own ideas of what might be a wise [policy] in place of a clear expression of legislative will." (Internal quotation marks omitted.) Skindzier v. Commissioner of Social Services, 258 Conn. 642, 661, 784 A.2d 323 (2001). Accordingly, the court concludes that PURA did not have power to order rebates in this case.
PURA argues that it has powers granted to it " by the General Statutes expressly or by necessarily implication." (Internal quotation marks omitted.) Campbell v. Board of Education, 193 Conn. 93, 97, 475 A.2d 289 (1984). The court fails to see how reference to a " fine" necessarily implies a " rebate" or restitution which, as discussed above, is a different remedy. PURA also cites a number of out-of-state cases for the proposition that public utility agencies have implied refund powers. See, e.g., Alaska Public Utilities Commission v. Municipality of Anchorage, 902 P.2d 783 (Alaska 1995). The court has reviewed these cases and does not find them persuasive because they do not address a statutory scheme like ours in which the remedy statute authorizes only a " fine."
B
On August 1, 2013, the court, Cohn, J., issued the following stay order: " The refunds ordered by PURA to the tenants and future amounts paid by the tenants to PMC for HVAC charges shall be placed by PMC in a separate interest-bearing account with a financial institution. This account will be maintained until finally distributed, either to PMC or to the tenants, after resolution of the appeal. Accounting reports shall be distributed periodically to the parties to this appeal." (Dkt. #101.01.) The plaintiffs have never challenged this order by way of motion for review. See Practice Book § 66-6. PURA now contends that, assuming the court has found that the plaintiffs' actions constituted submetering, the court has the authority to order reimbursement of tenants as a condition of the stay, even if it finds that PURA lacks similar powers under its statute.
The court agrees only in part. The court's stay order clearly meant that, if the plaintiffs prevailed on the merits, the escrow account would be distributed to PMC and that, if PURA and the other defendants prevailed on the merits, the tenants would receive the proceeds in the escrow account. The court has ruled that, even though PURA properly found submetering in this case, it lacked statutory authority to order rebates. Thus, the plaintiffs have prevailed on that issue and, under the terms of the stay, the money deposited into the escrow account that represents refunds ordered by PURA should be returned with interest to the plaintiffs. That money should include payments made by tenants and received by the plaintiffs from March 2012, when the plaintiffs started billing for HVAC services, through June 5, 2013, when PURA ordered the plaintiffs to stop submetering.
A different result should apply to tenant funds received by the plaintiffs after June 5, 2013 or deposited in the escrow account after that date. That money represents the proceeds of submetering that PURA, now with the court's approval, has prohibited. As mentioned, the plaintiffs have not properly challenged PURA's remedial authority on this issue.
Further, as PURA correctly argues, the court had and still has authority to order this money returned to the tenants even if PURA lacked statutory power to order rebates. Under the UAPA, the court has the authority to issue a stay on " appropriate terms." General Statutes § 4-183(f). Our Supreme Court has stated that " [t]he provision for 'a stay [on] appropriate terms' gives the court broad authority to fashion appropriate relief to protect the interests of all those involved during the pendency of an administrative appeal." Griffin Hospital v. Commission on Hospitals & Health Care, 196 Conn. 451, 455, 493 A.2d 229 (1985). Here, the court could have just denied the plaintiffs' motion for stay and allowed the tenants to forego making any payments at all for HVAC services. Instead of doing so, the court chose a more moderate course and ordered the monies temporarily placed in escrow and held for return to the tenants only if the defendants prevailed. Surely if the court had the greater power to allow the tenants to withhold all payments, its reliance on the lesser power of ordering payment into an escrow fund contingent on whether the defendants prevailed represents a grant of a stay on " appropriate terms." Because the defendants have now prevailed both on the issue of submetering and the issue of the cease and desist order, the tenants are entitled to the return of their money. Accordingly, the court orders that the parties arrange for the return, with interest, of tenant submetering funds received by the plaintiffs after June 5, 2013 or deposited in the escrow account after that date.
V
The court has reviewed the remaining issues raised by the plaintiff and finds them to be of no merit.
VI
The court affirms PURA in part and sustains the appeal in part in accordance with this opinion.
It is so ordered.