Middlebury v. Dept. of Env. Protection

927 A.2d 793

283 Conn. 156

TOWN OF MIDDLEBURY et al. v. DEPARTMENT OF ENVIRONMENTAL PROTECTION et al.

No. 17332.

Supreme Court of Connecticut.

Argued December 2, 2005.

Decided July 17, 2007.

Paulann H. Sheets, Groton, for the appellants (plaintiffs).

Alan M. Kosloff, with whom was Mary A. McQueeney, Farmington, for the appellee (defendant Towantic Energy, LLC).

BORDEN, NORCOTT, PALMER, VERTEFEUILLE and ZARELLA, Js.

VERTEFEUILLE, J.

This appeal arises from the decision of the named defendant, the state department of environmental protection (department), granting seven stationary source air permits to the defendant Towantic Energy, LLC (Towantic), over the objection of the plaintiffs, the town of Middlebury, Preservation Middlebury, Citizens for the Defense of Middlebury, William Stowell and Mira Schachne. The principal issue in this appeal is whether the trial court properly determined that it lacked subject matter jurisdiction over the plaintiffs' appeal because the decision of the department was not a "final decision" in a "contested case," as those terms are defined in General Statutes (Rev. to 2003) § 4-166(2) and (3) of the Uniform Administrative Procedure Act (act).¹ We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. In December, 1998, Towantic applied to the department for seven stationary source air permits for the purpose of constructing and operating a combined cycle gas turbine power plant on a twenty acre parcel of land located in Oxford, approximately 500 feet from the Oxford-Middlebury town border.² On April 10, 2000, the plaintiffs intervened in the department's administrative review of Towantic's application pursuant to General Statutes § 22a-19(a).³ Thereafter, the department held a public hearing on Towantic's application as required by federal statute and state regulation. See 42 U.S.C. § 7475(a)(2); Regs., Conn. State Agencies (Rev. to 1998) § 22a-174-3 (j)(5); see also Regs., Conn. State Agencies § 22a-174-2a(c).⁴

On

June 26, 2003, the department granted Towantic's application and issued the stationary source air permits. The plaintiffs appealed from the decision of the department to the trial court pursuant to General Statutes § 4-183(a), which provides in relevant part that a person "who is aggrieved by a final decision [of an administrative agency] may appeal to the Superior Court. . . ."⁵ (Emphasis added.)

The defendants moved to dismiss the plaintiffs' appeal for lack of subject matter jurisdiction, claiming that the decision of the department was not a final decision in a contested case. Specifically, the defendants observed that § 4-166(3)(A) defines a final decision as "the agency determination in a contested case," and § 4-166(2) defines a contested case, in relevant part, as "a proceeding . . . in which the legal rights, duties or privileges of a party are required by statute to be determined by an agency after an opportunity for hearing or in which a hearing is in fact held. . . ." (Emphasis added.) Because the public hearing in the present case was required to be held by federal statute and state regulation, but not by state statute, the defendants maintained that there was no contested case within the meaning of § 4-166(2). The trial court agreed with the defendants and, on July 28, 2004, dismissed the plaintiffs' appeal for lack of subject matter jurisdiction. This appeal followed.⁶

Subsequent to the trial court's dismissal of the plaintiffs' appeal, Public Acts 2004, No. 04-94, § 1 (P.A. 04-94), which amended the definition of a contested case in § 4-166(2), became effective. Public Act 04-94, with the newly added language italicized, provides in relevant part: "(2) `Contested case' means a proceeding, including but not restricted to rate-making, price fixing and licensing, in which the legal rights, duties or privileges of a party are required by state statute or regulation to be determined by an agency after an opportunity for hearing or in which a hearing is in fact held. . . ." Thus, P.A. 04-94 explicitly expands the definition of a contested case to include an agency decision rendered after a hearing required to be held by state regulation.

The plaintiffs claim that the trial court improperly dismissed their appeal for lack of subject matter jurisdiction because the public hearing held by the department on Towantic's application was mandated by federal statute and, therefore, was "required by statute" within the meaning of § 4-166(2). The plaintiffs further claim that P.A. 04-94 applies retroactively to their appeal because it is a clarification of the original intent of the legislature, or, alternatively, a procedural, rather than a substantive, change in the law. The defendants respond that the trial court properly dismissed the plaintiffs' appeal because the rationale underlying Morel v. Commissioner of Public Health, 262 Conn. 222, 233-40, 811 A.2d 1256 (2002), overruled on other grounds by Commission on Human Rights & Opportunities v. Board of Education, 270 Conn. 665, 675, 855 A.2d 212 (2004), wherein we concluded that a hearing required to be held by federal regulation does not give rise to a contested case, supports the conclusion that a hearing required to be held by federal statute likewise does not give rise to a contested case. Although the defendants do not dispute that P.A. 04-94, if retroactively applicable to the plaintiffs' appeal, renders the present case a contested case, they claim that P.A. 04-94 does not apply to the plaintiffs' appeal because it implements a substantive change in the law and, therefore, operates prospectively only.⁷ We agree with the defendants.

Before addressing the substance of the plaintiffs' claims on appeal, we review briefly our prior precedent construing the definition of a contested case in § 4-166(2). It is well established that "[t]here is no absolute right of appeal to the courts from the decision of an administrative agency. . . . The [act] grants the Superior Court jurisdiction over appeals of agency decisions only in certain limited and well delineated circumstances." (Citation omitted; internal quotation marks omitted.) Lewis v. Gaming Policy Board, 224 Conn. 693, 699-700, 620 A.2d 780 (1993). Specifically, a party may appeal to the Superior Court only from a final decision in a contested case as provided in §§ 4-183 and 4-166(2) and (3). See footnotes 1 and 5 of this opinion. Section 4-166(2) defines a contested case in relevant part as "a proceeding . . . in which the legal rights, duties or privileges of a party are required by statute to be determined by an agency after an opportunity for hearing or in which a hearing is in fact held. . . ."

"The test for determining contested case status has been well established and requires an inquiry into three criteria, to wit: (1) whether a legal right, duty or privilege is at issue, (2) and is statutorily required to be determined by the agency, (3) through an opportunity for hearing or in which a hearing is in fact held." Herman v. Division of Special Revenue, 193 Conn. 379, 382, 477 A.2d 119 (1984). Under this test, if an agency is not statutorily required to hold a hearing, but nonetheless holds a hearing gratuitously, a contested case does not arise. See New England Dairies, Inc. v. Commissioner of Agriculture, 221 Conn. 422, 427-29, 604 A.2d 810 (1992) (no contested case when commissioner of agriculture held hearing on application for milk license, but was not required by statute to do so); Herman v. Division of Special Revenue, supra, at 386-87, 477 A.2d 119 (no contested case when division of special revenue held hearing on request to reinstate patron at jai alai fronton, but was not required by statute to do so); Taylor v. Robinson, 171 Conn. 691, 696-97, 372 A.2d 102 (1976) (no contested case when board of parole held hearing on inmate's request for parole, but was not required by statute to do so); see also Rybinski v. State Employees' Retirement Commission, 173 Conn. 462, 469-73, 378 A.2d 547 (1977) (no contested case when state employees' retirement commission did not hold hearing on request to change retirement plans and was not required by statute to hold hearing). As this court explained in Summit Hydropower Partnership v. Commissioner of Environmental Protection, 226 Conn. 792, 808, 629 A.2d 367 (1993), "[w]hen § 4-166(2) is read as a whole, it is evident that the phrase `required by statute to be determined by an agency after an opportunity for hearing' cannot be divorced from the phrase `or in which a hearing is in fact held.' If it were otherwise, every time an agency gratuitously conducted a hearing, a `contested case' could be spawned. Such an interpretation of § 4-166(2) would chill, to the detriment of those petitioning the agency, the inclination of an agency to hold any type of an inquiry to gather information when it was not required by statute to do so. We believe, consequently, that the phrase `or in which a hearing is in fact held' was not intended by the legislature to mean that if a hearing, not required by statute, is in fact held by agency dispensation, it will result in a contested case."

Additionally, "[a]lthough [a state] agency rule, policy or regulation may require a hearing, that hearing will not qualify the proceedings as a contested case unless the agency is statutorily required to determine the legal rights or privileges of the party aggrieved in that proceeding." (Emphasis in original.) Lewis v. Gaming Policy Board, supra, 224 Conn. at 704-705, 620 A.2d 780; id., at 709, 620 A.2d 780 (no contested case when gaming policy board held hearing on termination of plaintiff's employment as required by state agency personnel policy). This is because "[t]he `required by statute' language in § 4-166(2), if construed according to its commonly approved usage, can only mean that before a proceeding qualifies as a contested case, an agency must be obligated by...