Citizens Against Overhead Powerline Construction et al. v. Connecticut Siting Council et al. (2011)

MEMORANDUM OF DECISION

This administrative appeal, filed on May 7, 2010, challenges a March 16, 2010, final decision of the Connecticut siting council (council) which grants to the Connecticut Light and Power Company (CL & P) a certificate of environmental compatibility and public need.   See Chapter 277a, General Statutes, Public Utility Environmental Standards Act. The certificate was sought to permit the placement by CL & P of a 345 kilovolt (kV) electric transmission line through Granby and West Suffield, as a part of CL & P's Greater Springfield Reliability Project (GSRP).

The plaintiff's in the present appeal are:  an unincorporated association entitled Citizens Against Overhead Powerline Construction (Overhead), a local property owner named Richard Legere, and an attorney named Angela Ciottone.¹  The office of consumer counsel (OCC) and CL & P have, by way of motion, intervened as defendants.²

On October 12, 2010, CL & P filed a motion to dismiss.   On November 12, 2010, the plaintiffs filed an objection to this motion.   Oral argument on the motion was heard on December 17, 2010.³  Evidentiary hearings relating to the standing of plaintiff Legere were conducted on March 1, 2011, and March 8, 2011.

I

Administrative Findings

The council filed a partial record of the administrative proceedings with this court at oral argument.   This record contains the council's findings of fact.   The following factual findings contained within this document are relevant to the pending motion:

“280.  The Council's ‘Electric and magnetic Field Best management Practices for the Construction of Electric Transmission Lines in Connecticut’ (EMF BMP's) were revised in December 2007 to address concerns regarding potential health risks from exposure to electric and magnetic fields (EMF)from transmission lines.

“281. Electric fields (EF) and magnetic fields (MF) are two forms of energy that surround an electrical device.   Transmission lines are a source of both EF and MF.

“282.  EF is produced whenever voltage is applied to electrical conductors and equipment.   For the purpose of engineering transmission projects, electric fields are typically measured in units of kilovolts/meter.   As the weight of scientific evidence indicates that exposure to electric fields, beyond levels traditionally established for safety, does not cause adverse health effects, and as safety concerns for electric fields are sufficiently addressed by adherence to the National Electrical Safety Code, as amended, health concerns regarding EMF focus on MF rather than EF.

“283. MF is produced by the flow of electric currents.   The magnetic field at any point depends on the characteristics of the source, including the arrangement of conductors, the amount of current flow through the source, and the distance between the source and the point of measurement.   For the purpose of engineering transmission projects, magnetic fields are typically measured in units of milligauss (mG).

“284. International health and safety agencies, including the World Health Organization (WHO), the International Agency for Research on Cancer (IARC), and the International Commission on Non–Ionizing Radiation Protection (ICNIRP), have studied the scientific evidence regarding possible health effects from MF produced by non-ionizing, low-frequency (60–Hertz (Hz)) alternating currents in transmission lines.   Two of these agencies attempted to advise on quantitative guidelines for mG limits protective of health, but were able to do so only by extrapolation from research not directly related to health:  by this method, the maximum exposure advised by the International Committee on Electromagnetic Safety (part of IARC) was 9,040 mG, and the maximum exposure advised by the ICNIRP was 833 mG. Otherwise, no quantitative exposure standards based on demonstrated health effects have been set world-wide for 60–Hz MF, nor are there any such state or federal standards in the U.S.

“285. ‘EMF and Health:  Review and update of the Scientific Research 2007–June 2008,’ a report by Exponent, Inc., systematically evaluates peer-reviewed research and reviews by scientific panels published from December 14, 2007, through June 16, 2008, to determine if there are new developments that might alter the current scientific consensus as articulated in the Council's 2007 EMF BMPs. The review concluded that no recent studies or consensus-group reports provide evidence to alter the conclusion that the research evidence is insufficient to suggest EF or MF cause cancer or any other disease process, at the levels we encounter in our everyday environment.

“286. The Connecticut DEP, Radiation Division, concurred with the conclusions of the Exponent Update Review.

“287. Studies conducted since the Exponent Update Review have not changed the conclusions of the Review.

“288. Burying transmission lines underground reduces but does not eliminate MF as a source of exposure.   Measurements of magnetic fields for cables are normally in the vicinity of duct banks, and show reductions for undergrounding.   In the vicinity of splice vaults, however, due to the wider spacing of the cables, the magnetic fields are comparable to that of overhead lines.   Directly above cables in a duct bank the magnetic field levels are the same as directly below overhead lines—in some cases greater.

“289. Electrical engineers have numerous options for mitigating the effects of EMF. The Council's EMF BMPs support the use of effective no-cost and low-cost technologies and management techniques to reduce MF exposure to the public while allowing for the development of electric transmission line projects.

“290. The Council requires transmission-line planners to provide a baseline design (the Field Management Design Plan)—with cost estimates—against which effective mitigations can be measured.   The Council defines ‘significant reduction’ as an approximately 15 percent reduction from baseline MF;  and ‘low cost’ as approximately four percent of the project's baseline cost (including related substation work).

“291. CL & P calculated pre-and post-construction EMF levels for a baseline GSRP design.   Such calculation necessarily begin by estimating an amount of current running through the lines, which in turn demands certain assumptions about the overall shape of the electric system and the size of the load it is carrying.   The pre-construction system model was for 2012.   The post-construction system model was for 2017;  it included all four of the NEEWS projects.   Other assumptions built into the calculations are the heights of the lowest conductors, per engineering standards:  30 feet above ground for 115–kV lines, and 35 feet for 345–kV lines.   Finally, calculations are run for three different load conditions:  maximum peak load, peak daily average load, and average annual load.

“292. EMF levels with the 2017 annual average load case for the proposed baseline design H-frame configuration at ROW edges along the section of ROW between North Bloomfield and Granby Junction were calculated to be:

Magnetic Fields (mG) Electric Fields (kV/m)

west/north east/south west/north east/south

ROW ROW ROW ROW

Pre- 16.0 0.5 0.46 0.00

construction

(2012)

Post- 10.2 13.4 0.01 0.18

construction

(2017)

“293.  Underground line variations have been described that would replace portions of Segment 2. (See the ‘Underground Alternatives' section for further facts).   Magnetic fields (in mG) associated with a generic underground variation were modeled at a distance of 25 feet from the cable centerline, and were calculated to be:

West/north ROW East/south ROW

Pre-construction (2012) 8.7 0.1

Post-construction (2017) 23.5 12.6

Post-construction with 17.9 9.8

delta configuration (2017)

In–ROW Variations (2017) 3.2 0.5

In–StreetVariations(2017) 2.6 5.6

“294.  Predictions for underground MF, as shown in the table in Finding # 293 above, are for the duct banks only.   MF levels would be higher in the vicinity of splice vaults because of the wider spacing of the cables.   Near splice vaults, MF levels would be comparable to levels directly beneath the overhead lines.

Based on these factual findings, the council made the following conclusions relevant to the motion currently pending before this court:  “The Council's ‘Electric and Magnetic Field Best Management Practices for the Construction of Electric Transmission Lines in Connecticut’ (EMF BMPs) were revised in December 2007 to address concerns regarding potential health risks from exposure to EMF from transmission lines.   The Council's EMF BMPs support the use of effective no-cost and low-cost technologies and management techniques to reduce magnetic fields (MF) exposure to the public while allowing for the development of electric transmission line projects.

“International health and safety agencies, including the World Health Organization (WHO), the International Agency for Research on Cancer (IARC), and the International Commission on Non–Ionizing Radiation Protection (ICNIRP), have studied the scientific evidence regarding possible health effects from MF produced by non-ionizing, low-frequency (60–Hz) alternating currents in transmission lines.   Two of these agencies attempted to advise on quantitative guidelines for mG limits protective of health, but were able to do so only by extrapolation from research not directly related to health:  by this method, the maximum exposure advised by the International Committee on Electromagnetic Safety (part of IARC) was 9,040 mG, and the maximum exposure advised by the ICNIRP was 833 mG. Otherwise, no quantitative exposure standards based on demonstrated health effects have been set world-wide for 60–Hz MF, nor are there any such state or federal standards in the U.S. The magnetic fields along the edge of the ROW for the GSRP are approximately one-third of one percent of the IARC guideline and approximately three percent of the ICNIRP exposure guideline.

“There is no new evidence that might alter the scientific consensus articulated in the Council's 2007 EMF BMP document.

“The baseline H-frame design for the GSRP—Northern Route, modeled at Average Annual Load for 2017, would produce maximum magnetic fields within the ROW of approximately 270 mG, which is significantly higher than pre-construction conditions.   Since MF declines with distance, this maximum MF would become 10.2 mG and 13.4 mG, respectively, at the western and eastern edges of the ROW for segment 1 (North Bloomfield Substation to Granby junction);  and 23.6 mG and 12.6 mG, respectively, at the western and eastern edges of the ROW for Segment 2 (Granby Junction to the Connecticut/Massachusetts State Border).

“In Segment 1, due to the future removal of an existing 115–kV transmission line, the modeled level of MF at the western edge of the ROW would ultimately decrease below 13.4 mG after the completion of GSRP. The land abutting the ROW in Segment 1 is primarily forested and agricultural, with few residences and no established public or private schools, licensed child day-care facilities, licensed youth camps, or public playgrounds (Statutory Facilities).   Based on these facts, the Council concludes that no EMF BMPs are warranted.

“Segment 2 of the ROW also has a rural character, but, unlike Segment 1, it passes through a 3.2 mile section where homes are nearby.   This section extends from a point where the ROW comes closest to Country Club Lane in East Granby to a point where the ROW crosses Phelps Road in Suffield.   Over this distance, 25 homes are located within 100 feet of the ROW edge, and an additional 50 homes are located within 101 to 300 feet of the ROW edge.   Due to the presence of these homes in an otherwise rural area, the Council concludes that EMF BMPs are warranted.

“In this section, the pre-construction MF levels at the edges of the ROW are predicted to be 8.7 mG along the western edge and 0.1 mG along the eastern edge.   Post-construction, if the baseline design were used, MF would increase to 23.5 mG at the western edge of the ROW, and 12.6 mG at the east, as stated above.   Seeking to reduce this increase, the Council studied the design and cost of the seven options put forward by CL & P in accordance with the EMF BMPs, noting that CL & P recommends the delta configuration, which would reduce MF by 24 percent (to 17.9 mG) at the western edge of the ROW, and 22 percent (to 9.8 mG) at the eastern edge.

“Although the delta configuration is consistent with the Council's EMF BMPs, which suggest a guideline for cost as 4 percent or less above the baseline design, and a guideline for MF reduction as 15 percent or more below the baseline design at the edges of the ROW, it is important to note that the four percent guideline is not an absolute cap or threshold.   The Council's policy allows, under unique circumstances, for consideration of costlier designs, provided that the additional cost above four percent is justified by reductions in MF comparably above 15 percent, with the cost remaining relatively low.   The split-phase configuration would reduce MF by 90 percent (to 2.3 mG) and 85 percent (to 1.9 mG), respectively, at the western and eastern edges of the ROW. Indeed, the split-phase configuration would result in MF levels lower than those calculated under current pre-construction conditions for the western edge, and, in certain respects, accomplishes even more reduction than undergrounding would.   The Connecticut Department of Public Health recommends installing the lines in a split-phase configuration in this section.

“The Council finds that approximately 2.1 miles of the 3.2 mile section of Segment 2 has few homes adjacent to the ROW compared to the 1.1 mile section of the ROW between proposed structure number 3191 to structure number 3201, which have more homes adjacent to the ROW.⁴ The baseline cost of the 3.2 mile segment is approximately $11.3 million.   Constructing the line in a delta configuration along the same 3.2 mile section would cost an additional $2.2 million.   Further, constructing the line in a split-phase configuration over the 3.2 mile section would cost an additional $13.5 million.   While the split-phase configuration would dramatically reduce MF levels at the edges of the ROW, the increase to cost is also significant.   The Council considered approving the lines in a split-phase configuration along the 1.1 mile portion of the ROW where homes are nearby to provide some MF mitigation while keeping costs low.   The installation of a split-phase configuration along 1.1 miles of the ROW would cost an additional $6.5 million above the baseline H-frame configuration.   Therefore, the Council will order that the line configuration over this 1.1 mile section of ROW be constructed using split-phase from proposed structure number 3191 to proposed structure number 3201 in East Granby as shown in Figure 1 of this document ․

“The facility approved by this Council in the Opinion, Decision and Order will be reliable.

“The nature of the probable environmental impact, including EMF of the facility alone and cumulatively with other existing facilities has been reviewed by this Council in approving this facility.   Included in the review of the probable environmental impact was a review of electromagnetic fields.   The Council has examined the policies of the state concerning the natural environment, ecological balance, public health and safety, air and water purity, and fish, aquaculture and wildlife, together with all other environmental concerns, and balanced the interests in accordance with Conn. Gen.Stat. § 16–50p(a)(3)(B) and Conn. Gen.Stat. § 16–50p(a)(3)(C).

“The environmental effects that are the subject of Conn. Gen.Stat. § 16–50p(a)(3)(B) can be sufficiently mitigated and do not overcome the public need for the facility approved by the Council in the Opinion, Decision and Order.

“Conn. Gen.Stat. § 16–50p(a)(3)(D)(i) requires that the Council specify what part, if any, of the facility approved shall be located overhead.   That is designated in this Opinion, Decision and Order.

“The facility approved by this Council in the Opinion, Decision and Order conforms to a long-range plan for expansion of the electric power grid of the electric systems serving the State of Connecticut and its people and interconnected utility systems and will serve the interests of electric system economy and reliability.

“The overhead portions of the facility approved by this Council in its Opinion, Decision and Order are cost effective and the most appropriate alternative based on a lifecycle cost analysis of the facility and underground alternatives to the facility and complies with the provisions of Conn. Gen.Stat. § 16–50p.   The overhead portions of the facility are approved by this Council in its Opinion, Decision and Order, are consistent with the purposes of Chapter 227a of the General Statutes of Connecticut, and with Council regulations and standards adopted pursuant to Conn. Gen. Stat § 16–50t, including the Council's best management practices for electric and magnetic fields for electric lines and with the Federal Energy Regulatory Commission's “Guidelines for the Protection of Natural Historic Scenic and Recreational Values in the Design and Location of Rights–of–Way and Transmission Facilities” or any successor guidelines and any other applicable federal guidelines.

“The overhead portions of the facility approved by this Council in its Opinion, Decision and Order are contained within the buffer zone, no less in area than the existing right-of-way that protects the public health and safety.   In establishing this buffer zone, the Council took into consideration, among other things, residential areas, private or public schools, licensed child daycare facilities, licensed youth camps or public playgrounds adjacent to the proposed overhead route of the overhead portions and the level of voltage of the overhead portions and any existing overhead transmission lines on the approved route.⁵

“This proceeding was held under a consolidated hearing process with other applications that were common to a request for proposal.   The facility proposed in the subject application represents the most appropriate alternative among such applications based on the findings and determinations pursuant to Conn. Gen.Stat. § 16–50p(a)(3).   The Council's ultimate decision reflects the balance required by Connecticut law to protect the environment, protect the public health and safety of our children, and to secure Connecticut's energy future for generations to come ․

“With the conditions listed above, the Council will issue a Certificate of Environmental Compatibility and Public Need for the construction of an overhead 345–kV electric transmission line along the Northern Route of the GSRP and related construction at the North Bloomfield Substation in Bloomfield and through the Towns of East Granby and Suffield, Connecticut.”

II

Judicial Findings of Fact

This court held evidentiary hearings on the issue of Legere's standing on March 1, 2011, and March 8, 2011.   Such hearings are a procedurally proper method of determining this court's subject matter jurisdiction.   See Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 882–83, 826 A.2d 1102 (2003) (“If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause ․ When issues of fact are necessary to the determination of a court's jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses.”  [Citations omitted;  internal quotation marks omitted.] ).   Based on the evidence presented by the parties in these hearings, the court makes the following factual findings: ⁶

1. Legere purchased the premises at 1204 Newgate Road, West Suffield, in 1997.

2. Presently on the Legere property, CL & P has a right of way (easement) for 115 kV lines;  the 345 kV transmission line is proposed to be built in this same right of way.

3. The right of way traverses Legere's property for four or five acres and is 305 feet wide.

4. The 345 kV line would be at least 30 or 35 feet above the ground.

5. Legere is allowed under the terms of the grant of the right of way to use the land for agricultural purposes, including raising chickens and alpacas and growing crops such as hay and produce.   There is an apple orchard near, but not inside, the right of way.

6. During the winter months, Legere is rarely in the right of way, but during the other seasons, he estimates that he spends four to five hours in the right of way, under the electric wires.

7. Legere's predecessor, Clark, granted the existing easement in 1970.   There had been earlier rights of way granted, taking the same route in 1924 and 1940.   The 1970 right of way was wider than the earlier easements, because at that time it was recognized by CL & P that an up-grade to the 115 kV line was to take place in the future.

8. Under section 4 of the 1970 right of way, CL & P has the right to trim vegetation, other than crops, and keep the right of way without hazards.

9. Under section 2 of the 1970 right of way, CL & P has the right to “erect, construct, repair, maintain, replace, relocate, inspect, operate, and remove upon, over, under and across said right of way, poles, towers, crossarms, guys, foundations, anchors, braces, ducts, manholes, and other structures, wires, cables and other conductors, and other fixtures and appurtenances useful for conducting electricity and/or for providing and maintaining electric and/or communication service, and monuments and signs to locate said right of way.”   Legere conceded at the March 1, 2011 hearing that, due to this provision, the proposed construction of the 345 kV line would not overburden the grant of easement.

10. Under section 3 of the 1970 right of way, CL & P has the “right to conduct electricity and to provide electric and/or communication service by means of the same.”

11. The international standard limit for EMF exposure was 833 mG;  but recently it was changed to 2000 mG.

12.  A conservative estimate for EMF exposure in the right of way at the Legere property is 300 mG.

III

Whether Legere Was a “Party” Under General Statutes § 16–50q

CL & P argues that Legere may not avail himself of the administrative appeals process set forth in § 16–50q.⁷  Section 16–50q provides:  “Any party may obtain judicial review of an order issued on an application for a certificate ․ in accordance with the provisions of section 4–183.”   Specifically, CL & P relies on Office of Consumer Counsel v. Dept. of Public Utility Control, 234 Conn. 624, 662 A.2d 1251 (1995), that upheld dismissal of an appeal by the city of Hartford from a rate increase awarded by the Department of Public Utility Control (DPUC).   In that case the Supreme Court concluded that the plaintiff was not a “party,” but merely an intervenor at the DPUC proceedings.   CL & P transposes this argument onto the present case by claiming that in the administrative proceedings Legere was only described as a member of Overhead.⁸

The decision in Office of Consumer Counsel emphasized that the “trial judge” must review the record to “determine whether the DPUC nonetheless should have made the appellant an actual party to the proceedings.”   The denial of the right of appeal implicates due process.  Office of Consumer Counsel, supra, 234 Conn. 647.   In this light, the court concludes that Legere, as a member of Overhead, a party at the council proceedings and an unincorporated member association, has the right to appeal as a “party.”   Moreover, the present case may be distinguished from Office of Consumer Counsel in that the plaintiff in the present case was not a separate intervening entity.   In reaching this conclusion, the court is adhering “to the established principle that ‘every presumption is to be indulged in favor of [subject matter] jurisdiction.’   “ (Citation omitted.)  Killingly v. Connecticut Siting Council, 220 Conn. 516, 527, 600 A.2d 752 (1991) ⁹

IV

Standing

CL & P claims that Overhead and Legere lack standing.  “Standing is the legal right to set judicial machinery in motion.   One cannot rightfully invoke the jurisdiction of the court unless [one] has, in an individual or representative capacity, some real interest in the cause of action ․ Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved ․ The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination:  first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all the members of the community as a whole.   Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the decision.” ¹⁰  (Citation omitted;  internal quotation marks omitted.)  Gold v. Rowland, 296 Conn. 186, 207, 994 A.2d 106 (2010).   Both pleading and proof of aggrievement are subject matter jurisdictional prerequisites.   See ABC, LLC v. State Ethics Commission, 264 Conn. 812, 826 A.2d 1077 (2003).

This general rule applies to appeals from the council under § 4–183(a).  “It is well settled that [p]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction 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 question of fact for the trial court and the party alleging aggrievement bears the burden of proving it.”  (Citation omitted;  internal quotation marks omitted.)  Goldfisher v. Connecticut Siting Council, 95 Conn.App. 193, 196–97, 895 A.2d 286 (2006).  Goldfisher also points out that classical aggrievement “requires an analysis of the particular facts of the case in order to ascertain whether the party” has demonstrated a specific personal and legal interest, as opposed to a general interest in the subject matter of the decision and that the party has been “injuriously affected.”   Id. The Appellate Court affirmed a finding of the Superior Court that Goldfisher had not proved aggrievement.

A. Statutory Aggrievement

CL & P claims that both plaintiffs may not rely on statutory aggrievement even though it has been alleged in their complaint.   At oral argument the plaintiff cited § 16–50q:  “Any party may obtain judicial review [of a final decision of the council] ․” (Emphasis added.)   The plaintiffs, however, have not sufficiently addressed the remainder of this sentence that provides:  “[judicial review is available] in accordance with the provisions of Section 4–183.”

Judge Vacchelli has thoroughly demonstrated in Brouillard v. Connecticut Siting Council, Superior Court, judicial district of New Britain, Docket No. CV 09–5014478 (October 7, 2010, Vacchelli, J.) [50 Conn. L. Rptr. 769], that CL & P's position is correct.   Judge Vacchelli, among other things, found that, under § 1–2z, it is appropriate to consult the legislative history.   This history indicates that § 16–50q was amended in 1977 to add the reference to § 4–183 to indicate that statutory aggrievement was unavailable;  only classical aggrievement is available.   The court relies on the Brouillard opinion.   See also Albuquerque v. State Employees Retirement Commission, 124 Conn.App. 866, 873, 10 A.3d 38 (2010), cert. denied, 299 Conn. 924, 11 A.3d 150 (2011) (statutory aggrievement exists by “legislative fiat” only;  plaintiff must point to specific legislation that grants standing.).   Therefore, this court concludes that neither party is statutorily aggrieved.

B. Classical Aggrievement

This court begins its analysis on this issue by determining whether Legere has been classically aggrieved.   The allegations of the amended complaint, namely that Legere's rights were prejudiced by the council's decision, along with his attaching the council's decision to the amended complaint, sufficiently satisfy the pleading requirement for aggrievement.   See Germain v. Labrie, 108 Conn.App. 587, 949 A.2d 518 (2008).   The remaining question is whether Legere met his burden of proving aggrievement at the hearings of March 1 and March 8, 2011.¹¹

The evidence at these hearings, as indicated above, found that the 345 kV transmission line will traverse a right of way granted by Legere's predecessor.   CL & P asserts that Legere, as the servient estate to this easement, has no standing to contest the council's final decision.   While this issue has not been decided under Connecticut law, there is precedent from other states that agrees with CL & P's contention.   Where the dominant estate's proposed use of the easement is permitted by the terms of the easement, then the servient estate lacks standing to challenge a decision of an agency affecting the right of way.   Compare Titanium Group, LLC v. Zoning Board of Appeals, No. 348898, Massachusetts Land Court, aff'd mem.  923 N.W.2d 1093 (Mass.App.2010) (plaintiff lacks a colorable claim of aggrievement where easement authorized the activity which was to occur on the land) with Southwick v. Planning Board, 839 N.E.2d 351 (Mass.App.2005) (showing that proposed use of easement would cause “overload,” plaintiff servient estate has standing to appeal).   Here, as found above, the intent of the easement granted in 1970 was to allow for an expansion to the 345 kV transmission.   Legere admitted that the 345 kV line would not constitute an overburdening, and this is clear from the terms of the easement.   The court concludes that as the owner of the servient estate under these facts, Legere is not aggrieved.

Even if the court were to evaluate Legere's proof of harm, it consists only of the alleged danger arising from the EMF exposure that he would receive while in or adjacent to the right of way.¹²  The opinion of the council, quoted above, as well as the evidence at the March 1 and March 8 hearings, show that Legere would be exposed to no more than 300 mG in the right of way.   This level of exposure does not exceed any applicable safety standards examined by this court or the council.   Moreover, Legere has not submitted any evidence tending to show that such levels would cause injury to himself or others.   Legere has therefore not met his burden of proving aggrievement and the motion to dismiss is granted as to him.

Turning next to Overhead, as indicated above, it must meet the twin burdens of pleading and proving aggrievement.   If a plaintiff fails to plead aggrievement sufficiently, the matter should be dismissed without further opportunity to prove aggrievement.   See Kelly v. Albertsen, 114 Conn.App. 600, 607, 970 A.2d 787 (2009).   Overhead claims to have alleged representational standing.   This requires allegations that:  (a) its members would otherwise have standing to sue in their own right;  (b) the interests it seeks to protect are germane to the organization's purpose;  and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.   See Connecticut Ass'n. of Health Care Facilities, Inc. v. Worrell, 199 Conn. 609, 616, 508 A.2d 743 (1986).

So far as Overhead's organizational standing draws upon its member, Legere, the analysis and conclusion must be the same as presented above.   Legere has pled, but failed to prove standing.   Even if some other member of Overhead would have had a stronger claim, the complaint contains no allegations to that effect.   Indeed, the amended complaint alleges merely that Overhead is a “group of individuals ․, who own property in the towns of East Granby and West Suffield.”   Such allegations are insufficient to demonstrate organizational standing.   See Wucik v. Planning & Zoning Commission, 113 Conn.App. 502, 509 (2009).   Similar cases have been dismissed for failure to plead the requisites of representational standing.   See Fort Trumbull Conservancy, LLC v. New London, Superior Court, judicial district of New London, Docket No. 4003165 (January 10, 2006, Hurley, J.T.R.) (failure to satisfy the first prong of the associational standing test);  Fairfield County Medical Ass'n. v. Cigna Corp., Superior Court, complex litigation docket at Waterbury, Docket No. X06 CV 07 5007159 (August 19, 2008, Stevens, J.) [46 Conn. L. Rptr. 200].

This court finds that Overhead has failed to show aggrievement and therefore grants CL & P's motion to dismiss as to Overhead.

V.

CONCLUSION

CL & P's motion to dismiss is therefore granted in full as to all parties.¹³

Henry S. Cohn, Judge

FOOTNOTES

FN1. Ciottone filed a motion with this court to be added as a plaintiff on July 23, 2010.   That motion was granted by the court on August 2, 2010.   At the hearing of March 8, 2011, Ciottone informed the court that she had appeared as a party only to have the right to attend pre-trial proceedings and that she would not participate in a response to the pending motion of CL & P..  FN1. Ciottone filed a motion with this court to be added as a plaintiff on July 23, 2010.   That motion was granted by the court on August 2, 2010.   At the hearing of March 8, 2011, Ciottone informed the court that she had appeared as a party only to have the right to attend pre-trial proceedings and that she would not participate in a response to the pending motion of CL & P.

FN2. These motions were granted by the court on June 11, 2010, and June 15, 2010, respectively..  FN2. These motions were granted by the court on June 11, 2010, and June 15, 2010, respectively.

FN3. On that date, the court denied the motion to dismiss to the extent that it was contended that the plaintiffs' complaint was subject to dismissal as premature and not a “final decision.”   An articulation of the court's reasoning was issued on January 21, 2011.   The court summarizes the articulation as follows:  A motion to reconsider by CL & P was granted by the council with regard to the Manchester portion of the project, and another final decision was issued by the DPUC subsequent to the final decision appealed from.   Under § 4–183, as amended, the plaintiff's were permitted to wait until the DPUC issued its final decision on reconsideration to bring their administrative appeal, but they were not jurisdictionally required to wait.   Thus, this appeal was not premature..  FN3. On that date, the court denied the motion to dismiss to the extent that it was contended that the plaintiffs' complaint was subject to dismissal as premature and not a “final decision.”   An articulation of the court's reasoning was issued on January 21, 2011.   The court summarizes the articulation as follows:  A motion to reconsider by CL & P was granted by the council with regard to the Manchester portion of the project, and another final decision was issued by the DPUC subsequent to the final decision appealed from.   Under § 4–183, as amended, the plaintiff's were permitted to wait until the DPUC issued its final decision on reconsideration to bring their administrative appeal, but they were not jurisdictionally required to wait.   Thus, this appeal was not premature.

FN4. Legere apparently lives in this section..  FN4. Legere apparently lives in this section.

FN5. The plaintiffs' complaint challenges this conclusion of the council..  FN5. The plaintiffs' complaint challenges this conclusion of the council.

FN6. These facts were germane to the motion to dismiss only as far as Legere was concerned.   As seen below, due to lack of aggrievement, the court does not consider other evidence offered by the plaintiff Overhead.   This would include the fact that at the time CL & P sought its certificate a daycare center was about to be certified along the GSRP right of way..  FN6. These facts were germane to the motion to dismiss only as far as Legere was concerned.   As seen below, due to lack of aggrievement, the court does not consider other evidence offered by the plaintiff Overhead.   This would include the fact that at the time CL & P sought its certificate a daycare center was about to be certified along the GSRP right of way.

FN7. At oral argument on December 17, 2010, CL & P appeared to contend that Legere had not sufficiently stated a claim for relief.   The allegations of the complaint and amended complaint set forth Legere's address, refer to an attachment of the findings of fact and decision by the council in Docket No. 370, and relate alleged errors made by the council.   These were sufficient allegations for the purposes of stating a claim..  FN7. At oral argument on December 17, 2010, CL & P appeared to contend that Legere had not sufficiently stated a claim for relief.   The allegations of the complaint and amended complaint set forth Legere's address, refer to an attachment of the findings of fact and decision by the council in Docket No. 370, and relate alleged errors made by the council.   These were sufficient allegations for the purposes of stating a claim.

FN8. On June 4, 2009, Overhead was designated as a party.   See partial administrative record, entry# 123..  FN8. On June 4, 2009, Overhead was designated as a party.   See partial administrative record, entry# 123.

FN9. It is important to note that one's status as a “party,” while related to the issue of standing, constitutes a wholly separate inquiry from the issue of aggrievement.   Indeed, in Office of Consumer Counsel, our Supreme Court stated:  “In summary, we conclude that ․ the appellant [bears the burden of establishing] in the Superior Court that it was made an actual party or that it should have been made an actual party to the proceedings of the DPUC from which it seeks to appeal.   Like the issue of satisfaction of the aggrievement requirement, compliance with this [statutory requirement] is first a threshold question of fact for the trial court.   In this case, it is undisputed that Hartford was granted intervenor, but not party, status in the rate-making proceedings conducted by the DPUC. Thus, in order to have standing to appeal the decision of the DPUC ․ Hartford was required to have alleged in the Superior Court that it should have been made a party to the proceedings.”  Office of Consumer Counsel, supra, 234 Conn. 648..  FN9. It is important to note that one's status as a “party,” while related to the issue of standing, constitutes a wholly separate inquiry from the issue of aggrievement.   Indeed, in Office of Consumer Counsel, our Supreme Court stated:  “In summary, we conclude that ․ the appellant [bears the burden of establishing] in the Superior Court that it was made an actual party or that it should have been made an actual party to the proceedings of the DPUC from which it seeks to appeal.   Like the issue of satisfaction of the aggrievement requirement, compliance with this [statutory requirement] is first a threshold question of fact for the trial court.   In this case, it is undisputed that Hartford was granted intervenor, but not party, status in the rate-making proceedings conducted by the DPUC. Thus, in order to have standing to appeal the decision of the DPUC ․ Hartford was required to have alleged in the Superior Court that it should have been made a party to the proceedings.”  Office of Consumer Counsel, supra, 234 Conn. 648.

FN10. In this administrative appeal, the requirement of standing is imposed by § 4–183(a) that requires that an appellant be “aggrieved by a final decision.”.  FN10. In this administrative appeal, the requirement of standing is imposed by § 4–183(a) that requires that an appellant be “aggrieved by a final decision.”

FN11. As stated above, such an evidentiary hearing is within the discretion of this court.   See Wucik v. Planning & Zoning Commission, 113 Conn.App. 502, 508–09.   On February 4, 2011, the court sent notice to the parties that the affect of the granting of the easement was to be raised at the March 1, 2011 continued hearing on the motion to dismiss.   At that time the plaintiff had the opportunity to prove that CL & P was violating the terms of the easement..  FN11. As stated above, such an evidentiary hearing is within the discretion of this court.   See Wucik v. Planning & Zoning Commission, 113 Conn.App. 502, 508–09.   On February 4, 2011, the court sent notice to the parties that the affect of the granting of the easement was to be raised at the March 1, 2011 continued hearing on the motion to dismiss.   At that time the plaintiff had the opportunity to prove that CL & P was violating the terms of the easement.

FN12. Legere failed to offer any evidence tending to show that his property values had been diminished.   Moreover, he has not shown that his crops are in danger of destruction.   His allegations regarding impairment of views of the scenic Metacomet Trail were speculative.   His claims that the council did not properly apply the need for a “buffer zone” in § 16–50p(a)(2)(D), or consider such mitigation as undergrounding or using split phasing, § 16–50p(i) do not affect standing, but are issues for the merits.   See Park City Hospital v. Commission on Hospitals & Health Care, 14 Conn.App. 413, 418, 542 A.2d 326 (1988), aff'd, 210 Conn. 697, 556 A.2d 602 (1989).   Merely because Legere participated in the council proceedings does not give him standing.   See Windham Taxpayers Association v. Board of Selectmen, 234 Conn. 513, 662 A.2d 1281 (1995)..  FN12. Legere failed to offer any evidence tending to show that his property values had been diminished.   Moreover, he has not shown that his crops are in danger of destruction.   His allegations regarding impairment of views of the scenic Metacomet Trail were speculative.   His claims that the council did not properly apply the need for a “buffer zone” in § 16–50p(a)(2)(D), or consider such mitigation as undergrounding or using split phasing, § 16–50p(i) do not affect standing, but are issues for the merits.   See Park City Hospital v. Commission on Hospitals & Health Care, 14 Conn.App. 413, 418, 542 A.2d 326 (1988), aff'd, 210 Conn. 697, 556 A.2d 602 (1989).   Merely because Legere participated in the council proceedings does not give him standing.   See Windham Taxpayers Association v. Board of Selectmen, 234 Conn. 513, 662 A.2d 1281 (1995).

FN13. See note 1, supra, concerning plaintiff Ciottone..  FN13. See note 1, supra, concerning plaintiff Ciottone.

Cohn, Henry S., J.