Opinion
No. CV 02-0514127 S
July 3, 2002
Ruling on Motion to Dismiss
The plaintiff, Southeastern Connecticut Water Authority, appeals from the decision of the defendant, Department of Public Health ("the department"), approving exclusive service area boundaries and a coordinated water system plan pursuant to General Statutes §§ 25-33g and 25-33h. Both of these statutes are within part III of chapter 474 of the General Statutes. Although the complaint alleges that the appeal is brought only pursuant to General Statutes § 4-183, the plaintiff briefs the additional claim that the appeal is pursuant to General Statutes § 25-36 (a). In pertinent part, § 25-36 (a) provides: "Except as provided otherwise in this part, any person or corporation aggrieved by any order of the Department of Public Health made under the provisions of part III of . . . chapter [474], may appeal therefrom in accordance with the provisions of section 4-183, except venue shall be in the judicial district in which the source of the water or ice supply is located." Section 4-183 (a) provides in pertinent part: "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 department moves to dismiss the plaintiffs appeal for lack of subject matter jurisdiction.
There is no absolute right of appeal to the courts of this state from a decision of an administrative agency. See Lewis v. Gaming Policy Board, 224 Conn. 693, 699, 620 A.2d 780 (1993). "The [Uniform Administrative Procedure Act, General Statutes §§ 4-166 et seq., (`UAPA')] grants the Superior Court jurisdiction over appeals of agency decisions only in certain limited and well delineated circumstances." (Internal quotation marks omitted.) Lewis v. Gaming Policy Board, supra, 699-700. In the absence of a grant of power from a statute, the court lacks subject matter jurisdiction over an appeal from an agency decision. Id.
Section 25-36 is like other statutes, such as General Statutes §§ 16-35 and 16-50q, that link the right to appeal an agency decision to the provisions of § 4-183. In such situations, the Appellate Court has required that an appealing party satisfy the requirements of § 4-183, including other statutes that define the terms used in § 4-183. Thus, in Southern New England Telephone Co. v. Department of Public Utility Control, 64 Conn. App. 134, 139-43, 779 A.2d 817 (2001), cert. dismissed, 260 Conn. 180, ___ A.2d ___ (2002), the Appellate Court reasoned that, because § 16-35 refers to § 4-183, including the "final decision" component of § 4-183, and because the plaintiff had not appealed from any type of "final decision" as defined in § 4-166 (3), the trial court lacked jurisdiction.
Section 16-35 (a) provides as follows:
Any person, including but not limited to a company, town, city, borough or corporation aggrieved by any order, authorization or decision of the Department of Public Utility Control, except an order, authorization or decision of the department approving the taking of land, in any matter to which such person was or ought to have been made a party or intervenor, may appeal therefrom in accordance with the provisions of section 4-183.
Section 16-50q provides as follows:
Any party may obtain judicial review of an order issued [by the Connecticut Siting Council] on an application for a certificate or an amendment of a certificate in accordance with the provisions of section CT Page 8753 4-183. Any judicial review sought pursuant to this chapter shall be privileged in respect to assignment for trial in the Superior Court.
The final decision rule, in the context of the plaintiffs appeal, requires a "contested case." General Statutes § 4-166 (3)(A). A "contested case," according to the Supreme Court's decision in Summit Hydropower Partnership v. Commissioner of Environmental Protection, 226 Conn. 792, 811, 629 A.2d 367 (1993), is a proceeding "in which an agency is required by statute to provide an opportunity for a hearing to determine a party's legal rights or privileges." (Emphasis in original). A hearing required by regulations or held gratuitously by the agency is not sufficient. Id., 810; Lewis v. Gaming Policy Board, supra, 224 Conn. 700, 704-05.
Section 4-166 (3) provides as follows:
"Final decision" means (A) the agency determination in a contested case, (B) a declaratory ruling issued by an agency pursuant to section 4-176 or (C) an agency decision made after reconsideration. The term does not include a preliminary or intermediate ruling or order of an agency, or a ruling of an agency granting or denying a petition for reconsideration.
Section 4-166 (2) defines "contested case" as:
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 statute to be determined by an agency after an opportunity for hearing or in which a hearing is in fact held, but does not include proceedings on a petition for a declaratory ruling under section 4-176 or hearings referred to in section 4-168.
Contrary to the plaintiffs arguments, the Supreme Court in Town of Fairfield v. Connecticut Siting Council, 238 Conn. 361, 370 n. 7, 679 A.2d 354 (1996), specifically reaffirmed the holding of Summit Hydropower that a hearing held gratuitously by the agency but not required by statute is not sufficient to establish a contested case.
Sections 25-33g and 25-33h, upon which this case arises, do not require a hearing. Instead, they require the Commissioner of Public Health ("commissioner") to make decisions based on assessments and plans submitted by water utility coordinating committees and "comments" from municipalities, regional planning agencies, other state agencies, and other interested parties. The plaintiff admits in its brief that it requested a public hearing but the department denied the request. (Plaintiff's Brief, p. 5.) Sections 25-33g and 25-33h stand in contrast to several other sections in part III that explicitly require a hearing. See General Statutes §§ 25-32g and 25-34. At oral argument, the plaintiff relied on Nizzardo v. State Traffic Commission, 259 Conn. 131, 788 A.2d 1158 (2002), to avoid the consequences of the absence of a statutorily-required hearing. In Nizzardo, the Supreme Court addressed the meaning of General Statutes § 14-311 (e), which provides that "[a]ny person aggrieved by any decision of the State Traffic Commission hereunder may appeal therefrom in accordance with the provisions of section 4-183. . . ." The Court observed that if it were "to read that provision as encompassing the usual requirement of a hearing required by statute, the provision would be meaningless, because the very statute to which it refers does not require a hearing." Id., 140 n. 11.
Sec. 25-33g provides:
(a) Each water utility coordinating committee, in consultation with the Commissioners of Public Health and Environmental Protection, the Secretary of the Office of Policy and Management and the Department of Public Utility Control, shall develop a preliminary assessment of water supply conditions and problems within the public water supply management area. The committee shall solicit comments on the preliminary assessment from municipalities, regional planning agencies, state agencies and other interested parties and respond to any comment received. The committee shall thereafter prepare a final assessment.
(b) The committee shall establish preliminary exclusive service area boundaries, based on the final assessment, for each public water system within the management area. The committee shall solicit comments on such boundaries from municipalities, regional planning agencies, the Commissioners of Environmental Protection and Public Health, the Department of Public Utility Control, the Secretary of the Office of Policy and Management and other interested persons within the management area and respond to any comment received. If there is no agreement by the committee on such boundaries, the committee shall consult with the Department of Public Utility Control. If there is no agreement by the committee after such consultation, the Commissioner of Public Health shall establish exclusive service area boundaries taking into consideration any water company rights established by statute, special act or administrative decisions. In establishing such boundaries the commissioner shall maintain existing service areas and consider the orderly and efficient development of public water supplies.
Section 25-33h provides:
(a) Each water utility coordinating committee shall prepare a coordinated water system plan in the public water supply management area. Such plan shall be submitted to the Commissioner of Public Health for his approval not more than two years after the first meeting of the committee. The plan shall promote cooperation among public water systems and include, but not be limited to, provisions for (1) integration of public water systems, consistent with the protection and enhancement of public health and well-being; (2) integration of water company plans; (3) exclusive service areas; (4) joint management or ownership of services; (5) satellite management services; (6) interconnections between public water systems; (7) integration of land use and water system plans; (8) minimum design standards; (9) water conservation; (10) the impact on other uses of water resources; and (11) acquisition of land surrounding wells proposed to be located in stratified drifts.
(b) The plan shall be adopted in accordance with the provisions of this section. The committee shall prepare a draft of the plan and solicit comments thereon from the Commissioners of Public Health and Environmental Protection, the Department of Public Utility Control, the Secretary of the Office of Policy and Management and any municipality, regional planning agency or other interested party within the management area. The municipalities and regional planning agencies shall comment on, but shall not be limited to commenting on, the consistency of the plan with local and regional land use plans and policies. The Department of Public Utility Control shall comment on, but shall not be limited to commenting on, the cost-effectiveness of the plan. The Secretary of the Office of Policy and Management shall comment on, but shall not be limited to commenting on, the consistency of the plan with state policies. The Commissioner of Environmental Protection shall comment on, but shall not be limited to commenting on, the availability of water for any proposed diversion. The Commissioner of Public Health shall comment on, but shall not be limited to commenting on, the availability of pure and adequate water supplies, potential conflicts over the use of such supplies, and consistency with the goals of sections 25-33c to 25-33j, inclusive.
(c) The Commissioner of Public Health shall adopt regulations in accordance with the provisions of chapter 54 establishing the contents of a plan and a procedure for approval.
Section 25-32g provides that "[t]he commissioner shall, within ten days after such order [to correct immediate threats to public water supplies], hold a hearing. . . ." Section 25-34 (b) provides "[u]pon receipt of such request the commissioner shall grant a hearing. . . ." concerning investigations of water or ice supplies. There are at least two other statutes in part III that require a hearing but also have their own provision authorizing an appeal. See General Statutes §§ 25-32e (d) through (f); 25-331 (b). Cases arising under these statutes fall under the introductory language "except as otherwise provided in this part" in § 25-36 (a). The department also suggested at oral argument that General Statutes § 25-37d, pertaining to the authority of the commissioner to grant permits for the use of land owned by a water company, may provide a right to a hearing without containing its own provision for appeal. Because there is still some uncertainty whether there is in fact a right to a hearing and whether an order under § 25-37d would otherwise be part of a "contested case" as defined in General Statutes § 4-166 (2), the court cannot conclude at this time that § 25-37d supports the department's interpretation of § 25-36 (a).
Nizzardo dealt with a different type of statutory scheme. The grant of appeal in § 14-311 (e) referred only to decisions rendered under that statute, which did not include a provision for a hearing. In contrast, § 25-36 (a) refers to appeals from "any order of the Department of Public Health made under the provisions of part III of this chapter. . . ." As stated, there are several statutes in part III that require a hearing for decisions made thereunder. See supra note 6. Indeed, § 25-34 (b) specifically states that "[a]ny hearing shall be deemed to be a contested case and held in accordance with the provisions of chapter 54 [UAPA]. The request for a hearing shall be a condition precedent to an appeal under the provisions of section 25-36." These statutes give meaning to the language of § 25-36, including its incorporation of the final decision requirements of § 4-183 (a).
The plaintiff points out that the language in § 25-36 (a) authorizing appeals from department orders "under the provisions of part III of this chapter" came about as a result of a 1995 public act that the General Assembly passed only two years after the decision in Summit Hydropower and that replaced prior language authorizing appeals from orders made only under "the provisions of section 25-32, 25-33 or 25-34." Public Acts 1995, No. 95-329, § 2. The essence of the plaintiffs argument is that the 1995 public act had to enlarge the right to appeal department decisions in some way. Regrettably, the legislative history of the 1995 public act does not address the amendment made to § 25-36. But the most logical interpretation of this amendment is that it insured that there would be a right to appeal decisions made under § 25-32g, which pertains to orders to correct immediate threats to public water supplies. Prior to the 1995 amendment, decisions made under § 25-32g, even though made after a hearing provided for by that statute, would not have been a decision under "the provisions of section 25-32, 25-33 or 25-34" and thus would not have been appealable through § 25-36 (a). The 1995 public act expanded the scope of § 25-32g. It would thus have made sense for the legislature also to expand the scope of § 25-36 (a) to include decisions under § 25-32g in its appeal authority. There is no similar rationale for expanding § 25-36 (a) to include decisions, such as those in this case, made under §§ 25-33g and 25-33h.
As amended by Public Acts 2001, No. 01-185, § 2, General Statutes § 25-32g now provides:
If the Commissioner of Public Health finds after investigation that any person is causing, engaging in or maintaining, or is about to cause, engage in or maintain, any condition or activity which violates any provision of sections 19a-36 to 19a-39, inclusive, or sections 25-32 to 25-54, inclusive, as amended by this act, or any regulation or permit adopted or issued thereunder and constitutes an immediate threat to the quality or adequacy of any source of water supply, the commissioner may, without prior hearing, issue an order in writing to such person to discontinue, abate, alleviate or correct such condition or activity. Upon receipt of such an order such person shall immediately discontinue, abate, alleviate or correct such condition or activity. The commissioner shall, within ten days after such order, hold a hearing to provide the person an opportunity to be heard and show that such condition, activity or violation does not exist. The local director of health in the municipality or municipalities in which such violation occurred or that utilize such water shall have the right to be heard in such proceeding. Such order shall remain in effect until ten days after the hearing within which time a new decision based on the hearing shall be made.
Prior to the 1995 amendment, the statute provided for the commissioner to issue an order to cease and desist from any activity likely to result in "imminent and substantial damage to a public water supply." The 1995 public act authorized the commissioner to issue orders to "discontinue, abate, alleviate or correct" activity that violates specific statutes in Titles 19a and 25 or any regulation or permit adopted or issued thereunder and which constitutes an "immediate threat to the quality or adequacy of any source of water supply." Public Acts 1995, No. 95-329, § (9).
Pursuant to General Statutes § 52-473a, a person may seek an injunction to restrain the enforcement of an order issued by the commissioner under § 25-32g. This remedy would involve different legal standards than an administrative appeal of such an order and thus would not eliminate the purpose of a such an appeal.
The 1995 amendment also added the introductory phrase "except as otherwise provided in this part" to § 25-36 (a). See Public Acts 1995, No. 95-329, § 2. The apparent purpose was to exclude statutes such as General Statutes §§ 25-32e (d) through (f) and 25-331 (b) from the new category of appealable orders made under part III. It was not necessary to include these statutes because they have their own appeal provisions. See supra note 6.
Finally, the plaintiff argues that the reference in § 25-36 (a) to § 4-183 incorporates the "procedural" aspects of that statute but not the contested case requirement. This argument fails because all of § 4-183 is procedural. In any event, the plaintiff cannot pick and chose those aspects of § 4-183 that it likes and those that it does not. The legislature has already decided that an appeal under § 25-36 (a) must be "in accordance with the provisions of section 4-183" except for venue. Because the plaintiff cannot satisfy the final decision requirement of § 4-183 (a), this court lacks subject matter jurisdiction.
Accordingly, the court grants the motion to dismiss.
Carl J. Schuman Judge, Superior Court