Civie v. Connecticut Siting Council

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 RICHARD CIVIE ET AL. v. CONNECTICUT
SITING COUNCIL
(AC 36628)
Lavine, Alvord and Bear, Js.
Argued April 15—officially released June 16, 2015

(Appeal from Superior Court, judicial district of New
Britain, Lee, J.)
Victor Civie, self-represented, and Richard Civie,
self-represented, with whom, on the brief, was Howard
Altschuler, for the appellants (plaintiffs).
Seth A Hollander, assistant attorney general, with
whom were Robert L. Marconi, assistant attorney gen-
eral, and, on the brief, George Jepsen, attorney general,
for the appellee (defendant).
Lauren Henault Bidra, staff attorney, with whom
were Victoria P. Hackett, staff attorney, and, on the
brief, Elin Swanson Katz, consumer counsel, for the
appellee (intervening defendant Office of Consumer
Counsel).
Anthony M. Fitzgerald, for the appellee (intervening
defendant Connecticut Light and Power Company).
 Opinion

LAVINE, J. The plaintiffs, Richard Civie and Victor
Civie, appeal from the judgment of the trial court dis-
missing their administrative appeal from a decision of
the defendant, the Connecticut Siting Council (siting
council), granting the intervening defendant, Connecti-
cut Light and Power Company (power company),1 a
certificate of environmental compatibility and public
need (certificate).2 See General Statutes § 16-50g et seq.
of the Public Utility Environmental Standards Act (envi-
ronmental act). The court dismissed the appeal after
concluding that the plaintiffs were not classically
aggrieved, as required under the Uniform Administra-
tive Procedure Act (UAPA); General Statutes § 4-166
et seq.; and therefore lacked standing. On appeal, the
plaintiffs claim that the court erred in concluding that
they were not aggrieved by the siting council’s granting
of the certificate to the power company.3 We affirm the
judgment of the trial court.
The following facts and procedural history are rele-
vant to our resolution of the claim on appeal. The plain-
tiffs own property at 160 Beech Mountain Road in
Mansfield. On December 23, 2011, the power company
applied, pursuant to the environmental act, for a certifi-
cate for the construction, maintenance, and operation
of an electric transmission line as part of the Interstate
Reliability Project. A portion of the transmission line
would cross the plaintiffs’ property, utilizing an ease-
ment granted to the power company by the immediate
predecessor in interest on the property. The plaintiffs
were aware of the easement when they bought the
property. The easement provides in relevant part: ‘‘[A]
perpetual easement, privilege and right of way 300 feet
wide for electric lines for the transmission for electric
currents of any character necessary or convenient from
time to time in the conduct of the Grantee’s business.’’
Another transmission line already crosses the property,
which is permitted under the existing easement. The
siting council rendered its final decision on December
27, 2012. Having found that there was a public need for
the proposed Interstate Reliability Project and that its
implementation was not in conflict with policies of the
state, the siting council granted the certificate to the
power company.
The plaintiffs appealed from the final decision of
the siting council to the Superior Court.4 The plaintiffs
alleged that the siting council’s decision violates the
environmental act, the UAPA, and the due process
clause of the United States constitution. In their briefs
on the merits, the defendants claimed that the court
lacked subject matter jurisdiction over the appeal
because the plaintiffs were not aggrieved by the grant-
ing of the certificate. The plaintiffs requested a hearing
on the issue of aggrievement only, which the court
granted. On November 8, 2013, the court held an eviden-
tiary hearing at which the plaintiffs advanced the follow-
ing two grounds to prove aggrievement: ‘‘(1) loss of
economic value of timber that will be cleared for the
second transmission line in the easement and of the
ability to grow and harvest replacement trees in the
future in the new line’s footprint; and (2) a contention
that the red aircraft warning lights to be affixed to the
top of the transmission towers constitutes an overbur-
dening of the easement.’’
In its memorandum of decision, the court found that
the plaintiffs failed to prove aggrievement sufficient to
confer standing in order to appeal from the final deci-
sion of the siting council. The court concluded that the
plaintiffs were not classically aggrieved, and, therefore,
it lacked subject matter jurisdiction to hear the plain-
tiffs’ appeal. Specifically, the court found the plaintiffs
lacked aggrievement ‘‘(1) because they have not shown
[a] direct, cognizable loss arising from the clearance of
vegetation beneath the new transmission line because
(a) that activity is authorized by the relevant easements,
and (b) they have not adduced sufficient proof of mone-
tary harm; and (2) because the tower warning lights
(a) are authorized by the easements as fixtures or appur-
tenances, and (b) plaintiffs have failed to prove any
specific legal detriment from the lights, which is the
‘lynchpin of classical aggrievement.’ ’’ Finding that the
plaintiffs were not aggrieved, the court dismissed their
appeal.5 This appeal followed. Additional facts will be
set forth as necessary.
‘‘It is well settled that [p]leading and proof of
aggrievement are prerequisites to a trial court’s jurisdic-
tion over the subject matter of an administrative appeal.
. . . It is [therefore] fundamental that, in order to have
standing to bring an administrative appeal, a person
must be aggrieved. . . . Aggrievement presents a ques-
tion of fact for the trial court and the party alleging
aggrievement bears the burden of proving it. . . . We
do not disturb the trial court’s conclusions on appeal
unless those conclusions are unsupported by the subor-
dinate facts or otherwise violate law, logic or reason.’’
(Internal quotation marks omitted.) Wallingford v. Zon-
ing Board of Appeals, 146 Conn. App. 567, 575, 79 A.3d
115, cert. denied, 310 Conn. 964, 83 A.3d 346 (2013).
‘‘In reviewing a finding of aggrievement, our standard
of review is well settled. Aggrievement presents a ques-
tion of fact for the trial court. . . . We do not, there-
fore, disturb such a finding unless the subordinate facts
do not support it or it is inconsistent with the law. . . .
We will reverse the trial court only if its conclusions
are clearly erroneous and violate law, logic, or reason or
are inconsistent with the subordinate facts.’’ (Citations
omitted; internal quotation marks omitted.) Lewis v.
Planning & Zoning Commission, 62 Conn. App. 284,
287, 771 A.2d 167 (2001).
On appeal, the plaintiffs claim that the court erred
in concluding that they were not classically aggrieved by
the siting council’s decision. Specifically, the plaintiffs
contend that they proved a nonspeculative injury to
their specific, personal, and legal interest in this case.
After reviewing the record on appeal, we are persuaded
that the decision of the trial court should be affirmed.
‘‘Aggrievement is essentially a question of standing;
without it, a court must dismiss an action for want of
jurisdiction. . . . Two broad yet distinct categories of
aggrievement exist, classical and statutory. . . .
‘‘Classical aggrievement requires a two part showing.
First, a party must demonstrate a specific, personal and
legal interest in the subject matter of the decision, as
opposed to a general interest that all members of the
community share. . . . Second, the party must also
show that the agency’s decision has specially and injuri-
ously affected that specific personal or legal interest.’’
(Internal quotation marks omitted.) Brouillard v. Con-
necticut Siting Council, 133 Conn. App. 851, 856, 38
A.3d 174, cert. denied, 304 Conn. 923, 41 A.3d 662
(2012).
In its memorandum of decision, the court found that
the plaintiffs demonstrated that they had a ‘‘ ‘specific,
personal and legal interest’ in the controversy because
the construction of the new transmission line runs in
a right-of-way across their property and will require the
removal of trees which they own.’’ The court reasoned,
however, that the plaintiffs’ appeal failed on the second
requirement that a party must also show the agency’s
decision has specially and injuriously affected that spe-
cific personal or legal interest. Thereafter, the court
concluded that the plaintiffs ‘‘failed to establish a color-
able claim of direct, cognizable loss sufficient to show
aggrievement.’’
‘‘Aggrievement is established if there is a possibility,
as distinguished from a certainty, that some legally pro-
tected interest . . . has been adversely affected. . . .
A fair reading of relevant decisional law makes it clear,
nevertheless, that proof of a possibility of specific harm
is not the same as mere speculation regarding harm.’’
(Citation omitted; internal quotation marks omitted.)
Goldfisher v. Connecticut Siting Council, 95 Conn.
App. 193, 197–98, 895 A.2d 286 (2006).
The plaintiffs claim they are injured by the removal
of trees. They argue that their ‘‘personal property, the
forest, will be destroyed, a renewable resource will be
lost forever, and there will be no future timber har-
vests.’’ The court found, however, that the plaintiffs’
claim of diminution of its harvesting timber revenue was
insufficient to prove aggrievement because the claimed
harm is explicitly permitted under the applicable ease-
ment. The existing easement provides in relevant part
that the power company has: ‘‘[T]he right to trim, cut,
take down and remove, at any and all times, such trees,
parts of trees, limbs, branches, underbrush and struc-
tures, within or projecting into the above described
right of way . . . .’’
The plaintiffs contend that their injury was nonspecu-
lative because they presented evidence of the value
of the harvested timber from the forest, which was
approximately $1658. This evidence was countered by
the defendants’ evidence that the cleared wood would
be left for the plaintiffs to remove and sell. In addition,
the plaintiffs testified that any future values of the tim-
ber could not yet be predicted.
Lastly, the court found that the plaintiffs’ claim that
the warning lights on the new towers will overburden
the easement was insufficient to establish
aggrievement. The Federal Aviation Administration
directed that warning lights should be placed on top of
the new transmission towers because of their proximity
to a local airport. The court concluded that ‘‘the warning
lights are incident to the transmission towers and are
fixtures or appurtenances authorized under the ease-
ment.’’ The plaintiffs also failed to present nonspecula-
tive evidence of any impact the warning lights would
have on their property value or its esthetic condition.
Because the existing easement explicitly allows the
construction of the new transmission line and the plain-
tiffs failed to prove a specific legal detriment, the court
properly concluded they were not classically aggrieved.
In coming to this conclusion, the court made factual
findings that are supported by the record and the plain-
tiffs have failed to demonstrate that the court’s findings
were clearly erroneous. Accordingly, we conclude that
the court properly dismissed the plaintiffs’ appeal.
The judgment is affirmed.
In this opinion the other judges concurred.
1
On February 26, 2013, the trial court granted the Office of Consumer
Counsel’s motion to intervene in the administrative appeal because it is the
statutory advocate for consumer interest that may affect the state’s utility
ratepayers. On February 28, 2013, the court also granted Connecticut Light
and Power Company’s motion to intervene. References herein to the defen-
dants are to the siting council, the power company and the Office of Con-
sumer Counsel, collectively.
2
The Public Utility Environmental Standards Act (environmental act)
states one of its purposes is to ‘‘provide for the balancing of the need for
adequate and reliable public utility services at the lowest reasonable cost
to consumers with the need to protect the environment and ecology of the
state and to minimize damage to scenic, historic and recreational values
. . . .’’ General Statutes § 16-50g. The power company was required to apply
for a certificate before commencing the construction of the new electric
transmission line pursuant to the environmental act. General Statutes
§ 16-50k.
3
In their appellate brief, the plaintiffs also claim that they were statutorily
aggrieved because their ‘‘interest in the destruction of their personal prop-
erty, the trees and forest, is regulated by [the environmental act] and falls
within the zone of the interests protected by the statute.’’ They raised no
such claim before the trial court. The trial court found that the ‘‘[p]laintiffs
claim classical aggrievement only.’’ Because the plaintiffs never presented
to the trial court the claim of statutory aggrievement that they now pursue
on appeal, we decline to afford it review. See Practice Book § 60-5; see also
Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 444 n.10, 685 A.2d
670 (1996) (claims ‘‘neither addressed nor decided’’ by trial court not prop-
erly before Appellate Court).
4
Appeals to the Superior Court from the final decisions of the siting
council are governed by the UAPA. See General Statutes §§ 16-50q and 4-183.
5
The plaintiffs moved for an articulation and raised, inter alia, two ques-
tions relating to why the court found they were not aggrieved. On September
9, 2015, the court granted the articulation and stated that the ‘‘plaintiffs are
attempting to raise an argument directed to the merits of the [siting council’s]
decision’’ and the hearing was limited to the issue of jurisdiction, i.e.,
aggrievement.