Citizens Against Overhead Power Line Constr. v. Connecticut Siting Council

CITIZENS AGAINST OVERHEAD POWER LINE CONSTRUCTION

v.CONNECTICUT SITING COUNCIL

AC33362

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Dated: December 11, 2012

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DISSENT

BISHOP, J., dissenting. In dismissing this appeal on the ground that the plaintiffs Citizens Against Overhead Power Line Construction (Citizens) and Richard M. Legere did not appeal to the Superior Court from a final decision by the defendant Connecticut Siting Council (siting council), the majority did not reach the issue of whether the trial court properly dismissed the plaintiffs' appeal on the ground that they lacked standing to appeal the decision of the siting council. Unlike the majority, I believe that the plaintiffs timely appealed to the Superior Court from a final decision of the siting council. I believe, as well, that Legere had standing to appeal the siting council's decision. Accordingly, I would reverse the judgment of the Superior Court as it relates to Legere and remand the matter to the Superior Court for a hearing on the merits of Legere's claims.

Because I agree, generally, with the majority's recitation of the procedural facts of this appeal, they need not be reiterated. Instead, I will focus on the issues in which I disagree with the majority.

The majority concludes that the plaintiffs did not appeal from a final decision on the basis of its interpretation of General Statutes § 4-183, concerning administrative appeals to the Superior Court. Specifically, the majority fastens on § 4-183 (c) (4), which sets forth a timeline for taking an appeal and concludes, from its reading of this subsection, that the plaintiffs did not timely appeal to the Superior Court from a final decision of the siting council. While I generally agree with the majority's recitation of the timeline, I do not share the majority's view that this statutory subsection clearly and unequivocally mandates that a would-be appellant wait until the last possible moment to file an appeal. Rather, I believe § 4-183 (c), as amended, serves only to extend the permissive time for taking an appeal. Simply put, our difference boils down to the interpretation of the word ''may'' that is contained in § 4-183 (a), the prefatory sentence to this section.

Section 4-183 (a) provides: ''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. The filing of a petition for reconsideration is not a prerequisite to the filing of such an appeal.'' (Emphasis added.) Thereafter, the statute sets forth the various time periods following the rendering of a decision by an administrative agency in which an appeal may be taken to the Superior Court. Tracking the statute's timeline enables the reader to understand that the latest time in which an appeal may be taken is forty-five days after the expiration of a ninety day period from thedate an administrative agency decides to reconsider its decision but fails to actually render a reconsidered decision. General Statutes § 4-183 (c) (4). Because, in the present case, the plaintiffs appealed after the siting council's initial decision and did not wait until the siting council's reconsidered decision several months later, the majority concludes that the plaintiffs' appeal was premature and, thus, untimely. Such an interpretation of the statute is, in my view, inconsistent with both the terms of the statute, as well as the purpose of the 2006 amendments to the statute, which specifically address the circumstances in which a motion for reconsideration is filed. See Public Acts 2006, No. 06-32 (P.A. 06-32). Indeed, a review of the legislation in question reveals that neither its context nor its purpose suggests the interpretation embraced by the majority.

As our canons of statutory interpretation instruct, I turn first to the language of the statute itself. See, e.g., Thames Talent, Ltd. v. Commission on Human Rights & Opportunities, 265 Conn. 127, 135, 827 A.2d 659 (2003). In common parlance, the word ''may'' denotes permissive behavior while the term ''shall'' implies directory or mandatory behavior. Our court has adopted this common sense approach to plain language. In a footnote to its opinion in Taylor v. Commissioner of Correction, 137 Conn. App. 135, 141 n.4, 47 A.3d 466 (2012), this court affirmed the classic distinction between the terms ''shall'' and ''may.'' Responding to the plaintiff's argument in Taylor that the word ''may'' in General Statutes § 18-91a should be construed to mean ''shall,'' the court responded: ''We disagree. [A]s opposed to [d]efinitive words, such as must or shall, [which] ordinarily express legislative mandates of a nondirectory nature . . . the word may imports permissive conduct and the conferral of discretion. . . . Only when the context of legislation permits such interpretation and if the interpretation is necessary to make a legislative enactment effective to carry out its purposes, should the word may be interpreted as mandatory rather than directory.'' (Emphasis in original; internal quotation marks omitted.) Taylor v. Commissioner of Correction, supra, 141 n.4. Additionally, this court has previously stated that when a statute contains both of the words ''may'' and ''shall,'' those words ''must then be assumed to have been used with discrimination and a full awareness of the difference in their ordinary meanings.'' (Internal quotation marks omitted.) State v. Custodio, 126 Conn. App. 539, 558, 13 A.3d 1119 (2011), aff'd, 307 Conn. 548, A.3d (2012). This court's observation in Custodio is pertinent to a consideration of the statute at hand. Section 4-183 (d), a subsequent subsection in the statute under scrutiny containing the term ''may'' regarding appeals, states that a person appealing, ''not later than fifteen days after filing the appeal, shall file or cause to be filed with the clerk of the court an affidavit . . . .'' (Emphasis added.) Thus,in accord with the holding of Custodio, we should not read the terms "may" and "shall" as synonymous in § 4-183 but, rather, should accord them the different meanings commonly associated with them.

The operative language regarding appeals to the Superior Court from administrative appeals in which motions for reconsideration have been filed was added to the statute in 2006 by the creation of three new subdivisions in § 4-183 (c). P.A. 06-32, § 2. In essence, the 2006 amendments enable a would-be appellant to await an agency's action on a motion for reconsideration before filing an appeal. As a result of the 2006 amendments, one may now bring an appeal to the Superior Court following an agency's agreement to reconsider its decision within a certain time from the agency's agreement to reconsider even in a circumstance in which the agency fails to timely render a decision after agreeing to reconsider its original decision. Nothing in the statute, however, mandates that an appellant await the agency's decision on a motion to reconsider before filing an appeal.¹

The amendments also placed a cap on the amount of time an agency may take in rendering its decision once it has agreed to reconsider its initial decision. P.A. 06-32, § 1 (3). This understanding of the 2006 amendments to the statute is consistent with their stated purpose to permit a litigant to await an agency's decision on reconsideration rather than requiring the litigant to appeal first from the initial opinion and to make finite the time period in which a reconsidered decision must be made for appeal purposes. A review of the history of the 2006 amendments to § 4-183 (c) includes the following summary of the public act by the General Assembly's office of legislative research:

''SUMMARY: This act caps, at 90 days, the maximum time a state agency has to issue a new decision in a contested case it decides to reconsider. By law, agencies can decide to reconsider a final decision in a contested case on their own or pursuant to a petition from a party to the case.

''With one exception, the act provides that a decision an agency issues in a contested case on reconsideration replaces its original decision as the final decision from which an appeal may be taken. The exception applies if an agency fails to render a decision on reconsideration within the 90-day period the act establishes. In this case, the original decision is the final decision for purpose of an appeal. By law, an appeal may be based on a number of issues, including issues the agency (1) decided in its original final decision that were not the subject of the...