Opinion
No. CV 02-0517272 S
January 15, 2004
MEMORANDUM OF DECISION
This is an administrative appeal from an order of the Connecticut Siting Council, hereafter CSC, finding no changed conditions and affirming a previously issued certificate of environmental compatibility and public need for the operation of a cellular telecommunications facility within the Town of Salem. A preliminary but pivotal issue is what facts should have been considered by the CSC pursuant to the plaintiffs' motion for reconsideration of February 14, 2002, which motion alleged changed conditions. A corollary of that question is what issues the court must now review in the context of this appeal.
An individual landowner and two Towns as well as Attorney General Richard Blumenthal intervening on behalf of the State of Connecticut, argue that the CSC's preliminary grant of the motion for reconsideration pursuant to Connecticut General Statutes § 4-181a(b) and the subsequent hearing constitute a final decision and therefore an agency determination in a contested case, which may be appealed to the Superior Court. Such a decision, they claim, reopens the earlier decision of CSC to issue the certificate and permits its review as well. Therefore, the court is to consider all issues raised in that first decision as well as in the present decision. Defendants, the CSC and the applicants Crown Atlantic Co., LLC, hereafter "Crown" and Cellco Partnership d/b/a Verizon Wireless, hereafter "Cellco," argue that this is a preliminary matter only and therefore not subject to appeal or, in the alternative, that the appeal is limited only to the issues of the existence of changed conditions.
The court, for the reasons set forth in detail below, concludes that the decision appealed from is not a final agency decision in a contested case. See Town of Fairfield v. Connecticut Siting Council, 238 Conn. 361, 679 A.2d 354 (1996). In addition, even if it is a final appealable decision, any appeal is of necessity limited to whether or not the CSC properly determined plaintiffs failed to demonstrate any changed conditions. The court concludes that the CSC had substantial evidence before it to sustain its findings. The court dismisses the appeal.
1. PROCEDURAL BACKGROUND
Pursuant to Connecticut General Statutes § 16-50k, the defendants Crown and Cellco applied to the CSC for a certificate of environmental compatibility and public need for the construction, maintenance, and operation of a cellular telecommunications facility at one of two locations within the Town of Salem. The CSC denied the application without prejudice on March 15, 2001. Shortly thereafter, the CSC reopened its decision and held a hearing on May 23, 2001. On July 25, 2001, the council issued a decision approving a certificate for the proposed primary site and rejecting the proposed alternate site. Notice of the decision was mailed to all parties. An abutting landowner, Peter F. Sielman, a party to the action, appealed the decision to the Superior Court. His appeal was dismissed for late filing on October 15, 2001.
The primary site was located at 399 West Road in Salem and the proposed alternate site was located at 329 West Road in Salem.
On February 14, 2002, almost seven months after the July decision, the plaintiffs filed a petition for reconsideration in accordance with Connecticut General Statutes § 4-181a(b), alleging the existence of changed conditions that would justify a reversal or modification of the July 2001 decision. By notice of hearing dated March 25, 2002, the CSC ordered a hearing conducted on April 25, 2002 and thereafter as necessary. The CSC stated that the hearing was limited to evidence whether "the recent approval of a proposed tower in East Haddam for Nextel in a location known as Honey Hill Road and notification to East Haddam of a proposed telecommunications tower on Mount Pamassus Road are a change in conditions." On September 5, 2002, the CSC issued its written decision, finding no changed conditions.
Connecticut Statutes Sec. 4-181a. "Contested cases. Reconsideration. Modification.
(a) . . .
(b) On a showing of changed conditions, the agency may reverse or modify the final decision, at any time, at the request of any person or on the agency's own motion. The procedure set forth in this chapter for contested cases shall be applicable to any proceeding in which such reversal or modification of any final decision is to be considered."
Notice of Hearing, Return of Record, IV, 3.
The decision, at page 2, reiterates the fact that the hearing was limited to evidence of changed conditions.
2. REQUIREMENT OF A FINAL DECISION
Any administrative agency, such as the CSC, may reconsider any final decision upon request of a party under § 4-181a in two different ways. The first is pursuant to a motion filed within fifteen days of notice of any final decision, so within 15 days of the notice of the July 2001 decision, a step which was not taken. The second method is only available to any party upon a showing of changed conditions. § 4-181a(b) provides:
"(b) On a showing of changed conditions, the agency may reverse or modify the final decision, at any time, at the request of any person or on the agency's own motion. The procedure set forth in this chapter for contested cases shall be applicable to any proceeding in which such reversal or modification of any final decision is to be considered." (emphasis added.)
As noted, whatever the characterization, of the hearing held on April 25, 2002, the CSC neither modified or reversed its earlier decision, but affirmed its earlier decision upon finding that no changed conditions existed.
The basic procedure required by the Uniform Administrative Procedure Act (UAPA) under such circumstances is described by the court in Town of Fairfield v. Connecticut Siting Council, p. 368-69;
"There is no absolute right of appeal to the courts from a decision of an administrative agency . . . The appealability of an agency decision is governed by 4-183(a) of the UAPA, which provides in part that a person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the superior court as provided in this section. Accordingly, we have consistently held that the Superior Court has jurisdiction only over appeals from a `final decision' of an administrative agency . . . Under section 4-166(3) the term final decision means (A) the agency determination in a contested case, (B) a declaratory ruling issued by an agency pursuant to section 4-176 or (C) an agency decision made after reconsideration. The term does not include a preliminary or intermediate ruling or order of an agency or a ruling of an agency granting or denying a petition for reconsideration. (emphasis added)." (Citations omitted; internal quotations marks omitted.)
The court in Town of Fairfield held that "[t]he determination of whether an agency's decision on a motion filed pursuant to § CT Page 184 4-181a(b) gives rise to a contested case hinges on whether the agency has conducted a proceeding in which such modification is considered. General Statutes § 4-181a(b)."
Before the court can proceed further in its analysis, a determination of the nature of the hearing of April 25, 2002 is required. Plaintiffs and intervenors argue that by vote of March 7, 2002, the CSC reopened the matter and that the hearing of April 25, 2002 was the second step in the process of reconsideration, that is a proceeding in which a modification of the decision of July 2001 was considered. Defendants argue that it was the first step of the reconsideration process, in which the plaintiffs were required to make their showing of "changed circumstances." The court agrees with the latter description for a number of reasons. While plaintiffs point to the language of the vote taken by the CSC on March 7, 2002, the court is persuaded that the CSC's notice of the hearing as well as the introductory remarks of the CSC Chairman Colin Tait are the crucial determinants of the nature of the hearing. And in his opening remarks, Chairman Tait reiterates the limiting language of the notice.
Return of Record, VIII.I, at 4. The notices stated: "The hearing will be limited to evidence that the recent approval of the proposed tower in East Haddam for Nextel at a location known as Honey Hill Road and notification to East Haddam of a proposed telecommunications tower on Mount Parnassus Road are a change in conditions."
The court is aware that the CSC could have acted on plaintiffs' application without a hearing and simply denied the application. Nonetheless, it is the plaintiffs' burden to make the statutory showing of changed circumstances and the court finds that the hearing gave them such an opportunity. That conclusion is further buttressed by the fact that the Chairman explicitly placed the burden on the plaintiffs to make such a showing. Plaintiffs argue that they were permitted to present evidence at the hearing over objection on issues other than changed conditions. This is support, they claim, for their interpretation that the motion for reconsideration had already been granted. The court cannot give the CSC's conduct so liberal an interpretation. Chairman Tait noted the objection to such evidence and determined to accept the evidence, subject to a later assessment of relevancy. The decision to accept such evidence could well await a careful consideration of all matters before the CSC, rather than requiring an immediate extensive presentation and argument on its admissibility at a time-limited hearing. Its preliminary acceptance cannot, therefore, prove anything with respect to the nature of the hearing.
Return of Record, VIII.1, at 5, 6.
The court's determination is further supported by the fact that the September decision finds no changed conditions. The determination by the CSC that there were no changed conditions may also be described as a decision by the CSC that the plaintiffs failed to meet their burden of the necessary showing of changed circumstances. Having failed to make this showing, they were not then entitled to a hearing at which modification was considered.
For these reasons, the court concludes that it lacks jurisdiction to hear this appeal, since no appeal was taken from any "final decision" as required by § 4-183(a). In this case, as in the Town of Fairfield, supra, the CSC hearing on the plaintiffs' motion for reconsideration was limited solely to the question of whether the plaintiffs had made a sufficient showing of changed circumstances to warrant a further hearing by the CSC on the merits of the motion. The court therefore dismisses this appeal.
3. REVIEW OF ISSUES ON RECONSIDERATION A. Was the Decision of July 2001 reopened?
Even if the decision of April 2002 is considered a modification hearing subject to appeal, as plaintiffs argue, the court is nonetheless required to dismiss the appeal. A pivotal preliminary issue is whether the CSC modification hearing of April 2002 reopened the decision of July 2001. Plaintiffs and intervenors argue that the hearing reopened the decision of July 21, 2001 and therefore all the issues which the CSC is statutorily required to review prior to issuing a certificate must now be considered again. Defendants argue that the hearing was for the purpose of determining whether changed conditions existed and nothing more. The court finds, as set forth in detail below, based upon a review of the statute and the case law, that the Defendants' position is correct. The court cannot now revisit those issues, which could have been appealed after the July 21, 2001 decision.
As noted in the unreported case of Southern New England Telephone Company v. DPUC, Superior Court, judicial district of New Britain at New Britain, No. CV 00 0502770S, 2001 Ct. Sup. 207, (Cohn, J., January 3, 2001), "[t]here is no question now that under General Statutes §§ 4-183(a) a party in a contested case may appeal . . . from an agency decision rendered after reconsideration pursuant to § 4-181a." Derwin v. State Employees Retirement Commission, 234 Conn. 411, 423, 661 A.2d 1025 (1995). Southern New England Telephone Company v. DPUC was a decision on a motion to dismiss and the court also considered "the further issue of whether a point of the original decision that was not the subject of reconsideration and to which no timely appeal was taken might become a part of the appeal after reconsideration." In that instance, the reconsideration and subsequent appeal had been taken pursuant to § 4-181a(a), providing for the filing of a motion for reconsideration within 15 days as a matter of right. The court, after careful consideration of the legislative history concluded:
"The revisions of Public Act No. 88-317 removed the capability to toll the appeal period by filing a petition for reconsideration with the agency. Cassella v. Department of Liquor Control, 30 Conn. App. 738, 741, cert. denied, 226 Conn. 909 (1993). This legislative action in effect also removed the ability to reserve for judicial review after reconsideration all issues raised by a decision, where only some issues and not all were made part of the reconsideration." (Emphasis added).
The court concurs with this conclusion and hereby adopts it in the context of the present appeal for the reasons below articulated, even though these same issues are raised here pursuant to a different subsection of the same statutory framework, § 4-181a(b) and not § 4-181a(a). First, an agency's ability to reconsider any of its decisions under § 4-181a(b) is more restricted than when requested under § 4-181a(a), because as discussed in detail above, there must be a showing of changed conditions before an agency could act. Second, any reconsideration decisions, which an agency may make, are thereafter governed by § 4-181(a)(3), which requires that "the agency shall proceed in a reasonable time to conduct such additional proceedings as may be necessary to render a decision modifying, affirming or reversing the final decision." And if the reconsideration petition is granted, "the agency's subsequent action affirming, modifying or reversing the final decision is . . . a new final decision to which a new appeal period applies." Cassella v. Department of Liquor Control, 30 Conn. App. 738, 741, n. 5, 622 A.2d 1018 (1993). The CSC itself noted this result in the September 5, 2002 decision, stating "[h]owever, the proceeding was not reopened to reconsider those issues already covered in the Docket No. 198 case."
Contrary to the plaintiffs' and intervenors' claims, the issues in the July 2001 decision cannot now be reviewed by this court nor were those issues required to be considered anew by the CSC, given the statute requiring the plaintiffs to first make a showing of changed conditions, the unequivocal limitations and restrictions placed upon the content of the hearing by the CSC, as well as its clear findings in the decision of September 2002. And if the foregoing were not adequate support for the court's conclusion, our strong state policy in favor of the finality of decisions would lend more than adequate support for the same conclusion. It is well established that our courts favor finality in judicial decisions. Meinket v. Levinson, 193 Conn. 110, 113, 414 A.2d 454 (1984); Vogel v. Vogel, 178 Conn. 358, 362, 422 A.2d 271 (1979) "Public policy requires that a term be put to litigation and that judgments, as solemn records upon which valuable rights rest, should not lightly be disturbed or overthrown . . ." Lampson Lumber Co. v. Hoer, 139 Conn. 294, 297, 93 A.2d 143 (1952).
B. The Substantial Evidence In The Record
Having determined what facts were properly before the CSC at the hearing of April 2002, the court turns to a consideration of whether that evidence was substantial and supported the CSC's decision. It is unfortunate that the appeal of the July 2001 decision was untimely, as reconciling its findings with the earlier findings of the CSC denying the Crown and Cellco application is difficult. A comparison of those two decisions raises some of the issues plaintiffs attempt to raise in this appeal. There remain some significant scenic, aesthetic and environmental issues, which could have been explored with greater sensitivity to the needs and concerns of these two impacted towns and its citizens. However, whatever the outcome of a detailed review of such concerns might have been, the policy in favor of the finality of decisions and the limited possibilities of revisiting them upon reconsideration mean any such opportunity was lost before the present appeal was ever commenced.
These are the same factual issues the plaintiffs attempt to raise in this appeal and about which they introduced evidence over objection at the April 2002 hearing. For the reasons set forth in the first part of this decision concerning the limitations of the hearing, the court cannot now consider them anew.
Court review of a decision of the CSC is accomplished through the provisions of § 16-50q and § 4-183. § 16-50q provides that "Any party may obtain judicial review of an order issued on an application for a certificate or an amendment of a certificate in accordance with the provisions of section 4-183." This statute incorporates the provisions of Connecticut General Statutes section § 4-183 as opposed to creating a totally different and independent right of appeal. And under the UAPA, General Statutes § 4-166 et seq., judicial review of an agency decision is restricted. See MacDermid, Inc. v. Department 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, "[j]udicial 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." (Internal quotation marks omitted; emphasis added.) Schallenkamp v. DelPonte, 229 Conn. 31, 40, 639 A.2d 1018 (1994). "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). Assuming that the court found error in the agency proceedings below, it must further consider whether or not "substantial rights of the person appealing have been prejudiced."
The evidence before the CSC at the April 25, 2002 hearing is more than sufficient to support the decision the agency reached on September 5, 2002. Two central matters were claimed by plaintiffs to demonstrate changed conditions and both focused on adequate tower coverage. The general thrust of the plaintiffs' claims is that the two towers, which they claim demonstrate changed conditions, would provide adequate coverage, rendering the certified West Road tower unnecessary.
On the subject of a proposed tower on Mount Parnassus Road, the CSC concluded that the tower had not yet been certified by the CSC and "in fact might never be certified." It is a logical and reasonable conclusion that a proposed tower in the early preliminary planning stages does not constitute a change in circumstances. There was substantial evidence in the record to support the CSC observation and judgment.
Return of Record, X.12 and X.13. Indeed, with the benefit of hindsight, it is now known that the plans for this tower have been abandoned.
The more substantial claim of changed conditions was the approval of the Honey Hill Road tower. In its findings of fact, the CSC noted that the base of the tower would be constructed to be capable of holding six carriers. It further found that "Cellco plans to attach its antennas on the Honey Hill Road Nextel Tower to complement its coverage in the Salem Area. This site is planned to operate in conjunction with the approved West Road tower in Salem." And then it found that "Use of the Nextel Tower on Honey Hill Road in East Haddam would replace Cellco's previous need for a site in the North Lyme area." It concluded that these facts did not demonstrate changed conditions.
Decision, Findings of Fact #9.
The substantial evidence in the record supporting the CSC's decision on this issue is the testimony of Mr. David Crotty, a radio frequency engineer with Verizon Wireless who stated that the Honey Hill site "would work in conjunction with the approved Salem site, but does not eliminate the need for the approved Salem tower." He based his conclusions on certain computerized coverage plots. In support of the same opinions, Mr. David Malco, another engineer, testified that the proposed alternate towers which plaintiffs claimed showed changed conditions would not provide sufficient coverage.
Return of Record, IV, 11.
Return of Record, VIII, Transcript of hearing, pages 85 to 91.
Countering this evidence was a field test performed by the plaintiff Peter Sielman on his cell phone driving through the areas in question, which test demonstrated that there was actual coverage. The plaintiffs claim this actual test performed in the field is more accurate than the computerized models of Crown and Cellco. While a trier of fact could conclude that such a test was more accurate, the CSC in this instance did not. The record reflects that the plaintiffs did not object to the introduction of the engineers' testimony concerning the coverage needs of the applicants. And it is an admitted tenet of administrative law that "an agency is not required to use in any particular fashion any of the materials presented to it so long as the conduct of the hearing is fundamentally fair." Dore v. Commissioner of Motor Vehicles, 62 Conn. App. 604, 611, 771 A.2d 962 (2001.) Our appellate court has held that "in determining whether an administrative finding is supported by substantial evidence a court must defer to that agency's right to believe or disbelieve the evidence presented by any witness, even an expert, in whole or in part." Id., 62 Conn. App. at 610-11. The court finds, therefore, that the CSC had substantial evidence before it from which it could make the findings listed above and conclude that neither the Mount Parnassus Road tower nor the Honey Hill tower demonstrated changed conditions. Having properly reached that conclusion, the CSC properly determined that a reconsideration of the CSC's earlier certification of the West Road tower was not required.
C. Subsidiary Claims
One subsidiary claim raised in this case by an intervenor, the Town of East Haddam, is that it was not consulted when the application by Crown and CelIco was filed in 2000. The CSC decision of July 2001 is silent concerning such consultation, which is mandated by Connecticut General Statutes § 16-501(e) when a proposed tower is located within 2500 feet of another town's boundary. Plaintiffs claim the consequence of Crown and Cellco's failure to abide by the statutory consultation requirement is that the CSC lacked authority to grant the application of Crown and Cellco. The first answer to this claim is that any failure of the applicant to consult should have been raised in the appeal addressed to the decision of July 2001 and is now foreclosed from being raised a second time. A second point is that the plaintiffs presented evidence over objection at the April 25, 2002 hearing that the East Haddam Land Use Administrator had discussions with Cellco "on the original application when they first applied, but not on the part of East Haddam, they never came back to us at that point." As CSC points out in its brief, it is unclear what is meant by this statement, whether there were discussions during the first round when the application was denied or the second round when it was granted. It is the plaintiffs' burden to raise this issue in such a fashion that the trier of fact could determine what the facts were and to act on it. This they did not do. Given the limitations the CSC placed on the April 25, 2002 hearing as well as plaintiffs' failure to appeal this issue after July 2001, the court concludes that the time to take any corrective action has passed.
Return of record, VIII, Transcript, p. 49.
A second series of subsidiary issues concern the claimed negative impact of the towers on the scenic and recreational values of the Eightmile River basin and the enactment, on November 6, 2001, of Public Law 107-6 calling for a study of the area. Since the CSC accepted this evidence into the record over objection at the hearing and limited the hearing to a consideration of the two alternate towers as changed conditions, these claims suffer the same infirmity as the claimed failure to consult East Haddam concerning the application. The scenic and recreational values of the Eightmile River and the tower's impact on them were part of the 2001 decision and were not appealed. They may not now be resurrected. In addition, the CSC did not accept the enactment of Public Law 107-6 as evidence of changed conditions when they limited the evidence to be considered at the April 2002 hearing. Having restricted the hearing to the above reviewed issues, new issues cannot now be added on appeal. Both subsidiary issues do not assist the plaintiffs' claims.
A related issue concerns conversations between a federal Park Service employee and the Chairman of the CSC concerning a federal study of the Eightmile River. The court finds that this claim, as articulated in Count Two of the complaint, was abandoned in this appeal.
The court notes that a public act requiring a study of an area has no particular import until the study is completed and certain recommendations are made.
For all the foregoing reasons, the appeal is dismissed.
BY THE COURT
BARBARA M. QUINN, JUDGE.