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Town of Preston v. Connecticut Siting Council

Court of Appeals of Connecticut

January 16, 1990

TOWN OF PRESTON et al.
v.
CONNECTICUT SITING COUNCIL et al.

Page 800

Argued Nov. 1, 1989.

Page 801

[20 Conn.App. 475] Kathleen Eldergill, with whom, on the brief, was Frank A. Manfredi, for appellants (plaintiffs).

Phyllis E. Lemell, Asst. Atty. Gen., with whom, on the brief, was Clarine Nardi Riddle, Atty. Gen., for appellee (named defendant).

Francis J. Brady, with whom were Mary Adamowicz and, on the brief, David F. Weber, for appellee (defendant Connecticut Resources Recovery Authority).

William H. Narwold, with whom was Karen L. Goldthwaite, for appellee (defendant American Ref-Fuel Company).

Roger E. Koontz, for appellee (defendant Southeastern Connecticut Regional Resources Recovery Authority).

Philip M. Small and Cynthia Brodhead filed a brief for appellee (defendant Connecticut Light and Power Co.).

Before BORDEN, FOTI and LAVERY, JJ.

[20 Conn.App. 476] BORDEN, Judge.

The plaintiffs [1] appeal from the judgment of the trial court, Koletsky, J., dismissing their administrative appeal challenging a decision of the named defendant, the Connecticut siting council (council). [2] That decision approved an application by three defendant applicants [3] to locate a proposed electric generating regional resource recovery facility in Preston.

The plaintiffs claim that the trial court erred in dismissing the appeal because (1) the applicants failed to comply with the service and notice requirements of General Statutes § 16-50l of the Public Utility Environmental Standards Act (PUESA), (2) the council's revocation of the decision of the Preston planning and zoning commission denying site plan approval exceeded its jurisdiction and was based on an improper standard [20 Conn.App. 477] of review, (3) the proposed facility was not subject to the council's jurisdiction because it was an exempt "facility" within the meaning of General Statutes § 16-50i(a)(3) of PUESA, and (4) the

Page 802

council erred in finding that a public need existed for the proposed facility and in failing to consider the facility's significant adverse environmental effects. We find no error. [4]

The applicants filed an application with the council pursuant to PUESA; General Statutes §§ 16-50g et seq.; for a certificate of environmental compatibility and public need (certificate) to construct and operate a regional resource recovery facility in Preston. The proposed facility was designed to incinerate approximately 180,000 tons per year of municipal solid waste in order to produce steam that would be used solely to generate electricity. After public hearings, the council approved the application.

The applicants also filed an application with the Preston planning and zoning commission for zoning approval of the proposed facility and for approval of a coastal site plan. After the commission issued its decision denying the application, the applicants appealed to the council. The council revoked the commission's decision in connection with the issuance of the certificate and substituted its own decision and order.

The plaintiffs appealed the council's decisions to the trial court, which dismissed their appeal. This appeal followed.

[20 Conn.App. 478] I

The plaintiffs first claim that the council should have denied the application because the applicants failed to comply with the service and notice requirements of General Statutes § 16-50l (b) [5] of PUESA. We disagree.

On August 29, 1986, the applicants filed with the council an application for a certificate. The council assigned docket number seventy to this application. This application was accompanied by proof of service [20 Conn.App. 479] of a copy of the application on the governmental parties specified in General Statutes § 16-50l (b)(A) through (F). See footnote 5, supra. On November 7, 1986, the applicants withdrew the August 29, 1986 application and simultaneously refiled an

Page 803

identical one so that they would be in compliance with a recent amendment to § 16-50l (b) requiring that notice of an application for a certificate also be sent to abutting owners of record. See footnote 5, supra. The council assigned docket number seventy-four to this refiled application. The proof of service accompanying the refiled application consisted of a copy of the prior proof of service of the initial application on those entities listed in § 16- 50l (b)(A) through (F), and a certification that the listed entities received notice that the application they had previously received had been withdrawn and an identical one refiled.

The plaintiffs argue that the receipt of notice of the refiled application in lieu of a copy of the refiled application itself did not comply with the service requirements of § 16-50l (b). The plaintiffs base their contention on the distinction in the statute between those entities that must be served a copy of the application, namely, the governmental entities listed in § 16-50l (b)(A) through (F), and those entities entitled only to notice that an application has been filed, namely, the general public by publication in newspapers, and abutting property owners by certified or registered mail. See footnote 5, supra.

The initial service of copies of the August application on the § 16-50l (b)(A) through (F) entities fully satisfied the statutory service requirement, and the applicants were not required to serve them with copies of the identical November refiled application. We disagree with the plaintiffs' characterization of the refiled application as a "new" application for purposes of § 16-50l, simply because the council assigned it a new [20 Conn.App. 480] docket number. For purposes of the statutory service requirements, these two applications were one and the same. It is undisputed that the refiled application was identical to the first. It is also undisputed that all of the entities requiring copies of the application received notice that an identical copy of the application already in their possession was refiled with the council. The plaintiffs' argument would elevate form over substance, and would serve neither the letter nor the purpose of § 16-50l (b).

The plaintiffs also claim that the applicants failed to comply with General Statutes § 16-50l (b) because they did not send notice to Theodore Schulz, an abutting owner, at the same time they gave notice to the general public by newspaper publication. This claim is without merit.

Schulz was not identified as an abutting landowner when the applicants refiled their application in November, 1986, and, therefore, was not served. When the applicants learned of this omission, they moved and the council ordered that Schulz be served, that the hearing be stayed for thirty days following service on him in order to provide him with the same minimum amount of time to prepare for the hearing as any other party, and that the docket be opened to him regarding all prior proceedings concerning the application. Although Schulz requested and was granted party status, he subsequently informed the council in writing that he ...


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