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Town of Preston v. Connecticut Siting Council

Court of Appeals of Connecticut

March 20, 1990

TOWN OF PRESTON
v.
CONNECTICUT SITING COUNCIL et al.

Argued Nov. 1, 1989.

Certification Denied April 25, 1990.

Page 158

Kathleen Eldergill, Manchester, with whom was Frank A. Manfredi, Norwich, for appellants, (plaintiffs).

Robert B. Teitelman, with whom were Phyllis E. Lemell, Asst. Attys. Gen., and, on the brief, Clarine Nardi Riddle, Attys. Gen., and Robert E. Walsh and Robert S. Golden, Asst. Attys. Gen., for appellees (named defendant et al.).

Frances J. Brady, with whom was Mary Adamowicz, Hartford, for appellee (defendant Conn. Resources Authority).

Roger E. Koontz, Hartford, for appellee (defendant S.E. Conn. Regional Resources Authority).

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

Before BORDEN, FOTI and LAVERY, JJ.

BORDEN, Judge.

The plaintiff town of Preston appeals from the judgment of the trial court dismissing its action for a declaratory judgment regarding an application by the three defendant applicants, the Connecticut Resources Recovery Authority (CRRA), the Southeastern Connecticut Regional Resources Recovery Authority (SCRRRA) and the American Ref-Fuel Company (Ref-Fuel), [1] to construct a proposed electric generating resource recovery facility. The dispositive issue is whether the declaratory judgment sought by the plaintiff to interpret Public Acts 1985, No. 85-334, § 6, was rendered moot by the subsequent enactment of Public Acts 1987, No. 87-465. We conclude that it was, and we therefore find no error in the judgment of dismissal.

This case has its genesis in the same regional resource recovery facility described in Preston v. Connecticut Siting Council, 20 Conn.App. 474, 568 A.2d 799 (1990). 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." Id., at 477, 568 A.2d 799.

[21 Conn.App. 87] In October, 1986, the plaintiff filed a petition with the commissioner of environmental protection (commissioner) for a declaratory ruling concerning the facility. The plaintiff claimed that Public Acts 1985, No. 85-334, § 6, [2] codified as General Statutes (Rev. to 1987) § 22a-208b, applied to the facility, and that, therefore, it could not be constructed without a permit from the commissioner issued after local zoning approval. The plaintiff also asserted that the applicants claimed that the facility was governed, not by Public Acts 1985, No. 85-334, § 6, but by General Statutes § 16-50i, and that the only documentation required for it, therefore, was a certificate of environmental compatibility and public need (certificate) from the siting council (council). The petition sought, inter alia, two closely related declaratory rulings: (1) that compliance with the town's local zoning regulations must be established Before a construction permit could be issued by the commissioner; and (2) that a certificate from the council was insufficient documentation to satisfy the requirements of Public Acts 1985, No. 85-334, § 6. In November,

Page 159

1986, the commissioner declined to rule on the petition on the ground that it required him to interpret statutes that were beyond his jurisdiction.

In December, 1986, the plaintiff filed this action for a declaratory judgment seeking essentially the same two determinations that it had sought from the commissioner, namely, (1) that the applicants were required to document that the facility complied with local zoning requirements Before the commissioner could issue [21 Conn.App. 88] a permit to construct it, and (2) that a certificate from the council was insufficient documentation required by Public Acts 1985, No. 85-334, § 6. [3] Meanwhile, the applicants applied to the council for a certificate, and they also applied to the commissioner for a construction permit for a solid waste facility. The council approved the application for a certificate, and we found no error in the dismissal of the plaintiff's administrative appeal from that decision. See Preston v. Connecticut Siting Council, supra. The commissioner granted the application for a construction permit, and the plaintiff appealed from that decision to the Superior Court. That appeal is still pending. See footnote 5, infra. Also, in 1987, the legislature enacted Public Acts 1987, No. 87-465, § 1, amending General Statutes § 22a-208b. [4]

The applicants and the plaintiff filed cross motions for summary judgment. On January 30, 1989, the court dismissed the action for lack of subject matter jurisdiction on the basis that the plaintiff had not exhausted its administrative remedies because the construction permit application was still pending Before the commissioner. [5] This appeal followed.

[21 Conn.App. 89] The plaintiff claims that the court erred by misapplying the doctrine of exhaustion of administrative remedies. We need not consider, however, whether the theory underlying the judgment of dismissal was correct, because we conclude that the issues the plaintiff sought to have the court adjudicate were moot. The court did not err, therefore, in dismissing the action.

It is settled that "in the case of actions praying for a declaratory judgment ... the right to such relief is determined by the situation which has developed at the time of trial and not by that existing at the time the action was begun.... That the court in an action for a declaratory judgment ... will look at the facts existing at the time of trial is more just than unjust. The remedy of a judicial declaration of rights is to inform parties of their rights and duties so that there may be an orderly settlement of their disputes. The dispute should not be settled on the basis of a situation which no longer exists." (Citations omitted.) Edward Balf Co. v. East Granby, 152 Conn. 319, 323, 207 A.2d 58 (1965). "In an action seeking a declaratory judgment, the sole function of the trial court is to ascertain the rights of the parties under existing law." (Emphasis added.) Middlebury v. Steinmann, 189 Conn. 710, 715, 458 A.2d 393 (1983); see also Ginsberg v. Post, 177 Conn. 610, 616, 418 A.2d 941 (1979). [6]

Page 160

In this case, the plaintiff sought, from both the commissioner and the trial court, a declaration interpreting Public Acts 1985, No. 85-334, § 6. The success of the plaintiff's claim hinged on its argument that the proposed facility was a "solid waste facility" within the meaning of Public Acts 1985, No. 85-334, § 6. By the [21 Conn.App. 90] time the case was presented to the trial court, however, the legislature had amended that statute, which had become codified as General Statutes (Rev. to 1987) § 22a-208b by enacting Public Acts 1987, No. 87-465, § 1, codified as General Statutes (Rev. to 1989) § 22a-208b. See footnote 4, supra. That amendment changed the language describing the subject matter of the section from "a solid waste facility" to "a facility for the land disposal of solid waste." Compare footnotes 2 and 4, supra.

Furthermore, it is quite clear from the abundant legislative history of Public Acts 1987, No. 87-465, § 1, that it was meant to clarify, rather than to change, the meaning of Public Acts 1985, No. 85-334, § 1. See, e.g., Conn. Joint Standing Committee Hearings, Environment, Pt. 2, 1987 Sess., pp. 444-46, remarks of Representative William J. Cibes, Jr.; 30 S. Proc., Pt. 13, 1987 Sess., pp. 4674-76, remarks of Senator Michael P. Meotti; 30 S. Proc., supra, pp. 4698-700, remarks of Senator Steven Spellman; 30 H.R.Proc., Pt. 23, 1987 Sess., pp. 8305, 8322, remarks ...


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