Richard Civie et al. v. Connecticut Siting Council et al. (2014)

MEMORANDUM OF DECISION RE AGGRIEVEMENT

This administrative appeal, filed on February 15, 2013, challenges a final decision of the Connecticut Siting Council (Council) dated December 27, 2012 (the Decision),¹ which granted to the Connecticut Light and Power Company (CL & P) a certificate of environmental compatibility and public need pursuant to the Public Utility Environmental Standards Act, Conn. Gen.Stat. §§ 16–50g et seq.  (PUESA).  The certificate was sought to permit the construction, maintenance and operation by CL & P of a 345 kilovolt (kV) electric transmission line extending 36.8 miles from CL & P's Card Street Station in Lebanon to the Rhode Island border at Thompson, with related substation modifications, as a part of the Interstate Reliability Project (Interstate), which is designed to facilitate reliable and economic transmission of electricity throughout Connecticut, as well as Massachusetts, Rhode Island and New England as a whole.

The plaintiffs in the instant appeal are the brothers Richard and Victor Civie.   A segment of the proposed transmission line would cross their property in Mansfield using an existing easement in which another 345 kV transmission line is currently located.   They appeal pursuant to the Uniform Administrative Procedure Act (UAPA), specifically Conn. Gen.Stat. §§ 4–180 et seq., and the PUESA, specifically Conn. Gen.Stat. § 16–50q.   Their appeal alleges violations of the PUESA, the UAPA and denial of due process.

The Office of Consumer Counsel (OCC) and CL & P, by way of motion, have intervened as defendants.   The parties filed briefs on the merits and raised the issue of plaintiffs' aggrievement or standing to bring the appeal.   On September 26, 2013, plaintiff Victor Civie filed a motion requesting that the hearing scheduled for November 8, 2013 be limited to the issue of aggrievement.   The court granted the motion on October 25, 2013.   An evidentiary hearing relating to the aggrievement of plaintiffs was conducted on November 8, 2103.   The parties filed simultaneous briefs on January 3, 2014 and January 17, 2014.

At the evidentiary hearing, Mr. Victor Civie stated the grounds on which plaintiffs rely to establish their aggrievement as follows:

Our two grounds for aggrievement [that we] rely on, No. 1, our loss in marketable timberland that's in the CL & P easement.   That is, the Council made a decision.   CL & P now is going to clear that land.   We'll no longer have access to it.   We'll no longer be able to harvest that timber on a periodic basis or take the timber for whatever purposes we wish, and that includes trees and things of that nature.

Second is overburdening.   The lights cause an overburdening of the easement itself.   And those are basically our two grounds.

Tr. at 5, 1.13–22. Accordingly, plaintiffs advance two grounds to establish their aggrievement:  1) loss of the economic value of the 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 constitute an overburdening of the easement.

As more fully explained below, the court finds that plaintiffs have not proven aggrievement (1) because they have not shown 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 monetary harm and (2) because the tower warning lights (a) are authorized by the easements as fixtures or appurtenances, and (b) plaintiffs have failed to prove any specific legal detriment from the lights, which is the “lynchpin of classical aggrievement.”   Accordingly, the court dismisses this appeal for lack of subject matter jurisdiction.

Administrative Findings

The Council filed a record of the administrative proceedings with this court.   This record contains the Council's Findings of Fact in Docket No. 424.   The following findings are relevant here:

127.  The Connecticut portion of Interstate would run between the Card Street Substation in Lebanon, Lake Road Switching Station in Killingly and the Connecticut/Rhode Island border in Thompson—approximately 36.8 miles.   Nearly all would be located within in an existing CL & P transmission ROW [right of way].

128. The proposed 345 k-V transmission lines would be installed adjacent to an existing 345 k-V line (# 330) from Card Street Substation to Lake Road Switching Station, then would follow another existing 345 k-V line (# 3348) from Lake Road Switching Station to Killingly Substation.   From Killingly Substation to the Connecticut/Rhode Island border the proposed transmission line would follow a third existing 345 k-V line (# 347).

133. The proposed supports for the new lines, including angle structures, would typically be 85 feet in height.

134. Since the proposed lines are to be built alongside existing lines, the project design started by matching new structure locations with existing ones.   The new structure locations were then evaluated to account for other factors, including potential environmental effects ․

135.  The Windham Airport in Willimantic is approximately 3,700 feet southeast of the proposed project.   The Federal Aviation Administration (FAA) has issued a Notice of Presumed Hazard (NPH) for five existing and seven proposed structures near Windham Airport ․ An NPH designation means that the structures could potentially interfere with flight safety and would require some mitigating measure.

136. CL & P proposes to coordinate with the FAA to mitigate potential hazards of the existing line to flight safety through modifications to adjacent structures of the proposed line.   Potential modifications include height adjustments, marking and/or lighting of structures or marking the proposed shield wires.

137. Currently, the FAA directs the use of low intensity steady-state lights on transmission structures that require lighting.

544. The Party Civie has a proposed residential development west of Storrs Road. The Civies' property is crossed by the existing CL & P ROW.

Judicial Findings of Fact

As noted above, this court held an evidentiary hearing on the issue of the Civies' aggrievement on November 8, 2013.   Such hearings are a procedurally proper method of determining a court's subject matter jurisdiction.   See Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 882–83 (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 at the hearing, the court makes the following factual findings:

1. In 1992, the Civies purchased property at 160 Beech Mountain Road in Mansfield, CT.

2. The property was classified as forest land under the Section 490 Program in 1993.

3. The property is crossed by a 300 foot wide right of way in favor of CL & P for existing 345 kV power lines.   The house owned by Mr. Victor Civie is located approximately 400 to 600 feet to the south of the existing power lines.

4. The existing right of way across the Civies' property was assembled from two grants of perpetual easements to CL & P:  one from Potter Hall, Inc. dated September 16, 1969 (the “Potter Hall easement”), and the other from May R. Johnson, dated May 16, 1969 (the “Johnson easement”).

5. The Potter Hall easement grants and provides in pertinent part:

[A] perpetual easement, privilege and right of way 300 feet wide for electric lines for the transmission of electric currents of any character necessary or convenient from time to time in the conduct of the Grantee's business and the right at any and all times and from time to time to erect, inspect, operate, use, patrol and permanently maintain the said electric lines ․

Said electric lines may consist of poles, towers, and other supporting structures (which may be substituted one for the other at any time), circuits, cables, wires, crossarms, guy wires, anchors, guy stubs and other overhead and underground appurtenances and fixtures, any or all of which constituent parts of said electric lines may be erected, relocated, replaced, repaired, or changed in number, size or type from time to time.

Together with the right to trim, cut, take down and remove, at any and all times, such trees, parts of trees, limbs, branches, underbrush and structures, within or projecting into the above described right of way, as in the judgment of the Grantee may interfere with or endanger any of said electric lines or their operation whenever they are erected, and right to control the growth of such underbrush by the use of chemicals or otherwise.

* * * *

Reserving, however, to the Grantor and to its successors and assigns the right to use the land, except for structures, beneath said electric lines and elsewhere within said right of way, but no use of the land whatsoever shall interfere with or obstruct the rights herein granted or endanger said electric lines or their operation, whenever they are erected.

6. The Johnson easement contains identical language.

7. The Civies were aware of the easements when they purchased the land in 1993, and had read their terms.   The area on the easement was being used for agricultural purposes.

8. Additional clearing of forest will be required for the new lines to be constructed in the right of way, on the north side of the easements.   A swath, immediately to the north of the existing power lines, approximately 90 feet wide and 2000 feet long, will be cleared.

9. The Civies' first witness was Brennan Sheahan, who is a licensed forester.   He said he had been discussing long-term forest management with the Civies for their land.   Mr. Sheahan calculated the value of the timber to be cleared for the new transmission lines to be $1,658.40.   The surrounding forest is primarily hardwood, sixty to a hundred feet in height.

10. Mr. Victor Civie said that the property had been harvested in the early '90s and late '90s.   Additionally, the Civies have transplanted several types of trees, including junipers and hemlocks, from the easement area, including underneath the existing power line, out to a tree farm for sale at a later date.   Mr. Civie estimates the total value of the activity from their entire property during the period of their ownership to be between ten and fifteen thousand dollars.   He said the market for the tree products is not the best at this time, and future values cannot be predicted.

11. CL & P called Mr. Anthony Johnson, manager for Transmission Vegetation Management Programs for Northeast Utilities, CL & P's parent.   He testified that the Civies' practice of removing juniper and other trees is consistent with the agreement in place regarding approved uses for the Civies' property beneath the transmission lines.   He testified that the Civies probably would be allowed to continue those practices in the expanded clearance area.   Timber to be cut is considered the owner's property and, after clearing, will be left in log shape and accessible to the owner so the owner can sell it.   No future lumber harvest would be possible in the area of the cut, but the Civies might be able to put in a Christmas tree farm or some other use in the easement area.

12. Mr. Victor Civie indicated that he would expect to receive the same amount of money from the timber in the clearance zone, whether CL & P or his forester cleared it.

13. The new transmission towers will be next to, and on the other side of, the existing towers.   The existing towers are seventy-nine feet tall, and the new ones will be eighty-five feet tall.   The existing towers are made of wood and the new towers will be made of dark brown steel.

14. The Federal Aviation Administration (FAA) has directed that warning lights be placed on top of the new transmission towers because of their proximity to the Windham airport.   The double-headed fixture is eighteen inches wide and twelve inches high.   Only one light will be lit at a time.   They will not blink, are red and are equivalent to a sixty watt bulb.   The FAA's Notice of Presumed Hazard relates to five nearby existing towers (Nos. 9066, 9067, 9068, 9069 and 9070) and to the five new towers to be built next to them (Nos. 67, 68, 69, 70 and 71).   The existing towers are approximately 600 feet apart, as will be the new companion towers.   There was testimony that the FAA would require that the lights be placed on the existing towers if the new ones are not built.

15. Mr. Victor Civie indicated that he could see from his house the existing Towers 9068 and 9069 and part of Tower 9067, where the transmission line goes downhill.²  He expects that he will be able to see the red warning lights on the new, adjacent towers from his bedroom windows.   He claims the lights will obscure some stars.   He also claims the lights will change the character of the area and that, when he first bought the property, it was to get away from lights.   He claims that the lights will overburden the existing easement.

Standing or Aggrievement

A. Applicable Standards

In Citibank v. Lindland, 310 Conn. 147, 162 (2013), our Supreme Court recently has set forth the applicable principles regarding standing or aggrievement as follows:

With respect to the applicable legal principles, we have explained that” [s]tanding is the legal right to set judicial machinery in motion.   One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.”  (Internal quotation marks omitted.)  Wilcox v. Webster Ins., Inc., 294 Conn. 206, 214, 982 A.2d 1053 (2009).   Nevertheless, “[s]tanding is not a technical rule intended to keep aggrieved parties out of court;  nor is it a test of substantive rights.   Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented.”  (Internal quotation marks omitted.)   Canty v. Otto, 304 Conn. 546, 556, 41 A.3d 280 (2012).

“These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity.   Such a personal stake in the outcome of the controversy ․ provides the requisite assurance of concrete adverseness and diligent advocacy.”  (Internal quotation marks omitted.)   Pond View, LLC v. Planning & Zoning Commission, supra, 288 Conn. 155.   “Standing [however] requires no more than a colorable claim of injury ․” (Internal quotation marks omitted.)  Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 411, “It is axiomatic that aggrievement is a basic requirement of standing, just as standing is a fundamental requirement of jurisdiction ․ There are two general types of aggrievement, namely, classical and statutory;  either type will establish standing, and each has its own unique features.”  (Citations omitted.)  Soracco v. Williams Scotsman, Inc., supra, 292 Conn. 91–92.

Plaintiffs claim classical aggrievement only.³  With respect to classical aggrievement, the Supreme Court in Citibank v. Lindland, supra, 310 Conn. at 216, explained:

Classical aggrievement requires a two part showing.   First, a party must demonstrate a specific, personal and legal interest in the subject matter of the [controversy], as opposed to a general interest that all members of the community share ․ Second, the party must also show that the [alleged conduct] has specially and injuriously affected that specific personal or legal interest.

(Internal quotation marks omitted.)  Pond View, LLC v. Planning & Zoning Commission, supra, 288 Conn. 156.

Both pleading and proof of aggrievement are prerequisites to subject matter jurisdiction.   See ABC, LLC v. State Ethics Commission, 264 Conn. 812 (2003).  “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 (2006).   The opinion in Goldfisher also states 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. “[M]ere speculation that harm may ensue is not an adequate basis for finding aggrievement.”  Id. at 198.

A. Plaintiffs' Claim of Diminution of Timber Harvesting Revenue Is Insufficient to Demonstrate Aggrievement

The court finds that plaintiffs have demonstrated “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.   However, plaintiffs have failed to establish a colorable claim of direct, cognizable loss sufficient to show aggrievement.   See Brouillard, supra, 52 Conn.Sup. 196, 205 (plaintiff showed specific, personal and legal interest, but failed to prove that interest would be “specially and injuriously affected”).

First, the language of the easements plainly permits CL & P to use the easement for “electric lines for the transmission of electric currents of any character necessary or convenient from time to time in the conduct of Grantee's business.”   The improvements may include “poles, towers, other supporting structures, ․ cables, wires” with the right to trim trees interfering or endangering the lines and the right “to control the undergrowth.”   Thus, the clearing of land underneath the new transmission lines is within the grant of the easement and, as such, plaintiffs do not have a legal interest sufficient to appeal the Council's authorization of the project in this respect.

A very similar fact pattern led to the same result in Citizens Against Overhead Powerline Construction et al. v. Connecticut Siting Council, Index No. CV 10 6004927S (J.D. of New Britain, March 24, 2011) (Cohn, J.) [51 Conn. L. Rptr. 882], affirmed on other grounds, 139 Conn.App. 565 (2012), cert. granted, 308 Conn. 906 (2013) (“Citizens ”).   In that case, plaintiffs challenged the Council's grant of a certificate of environmental compatibility and public need to CL & P's Greater Springfield Reliability Project, which is a companion project to Interstate.   Plaintiffs sought to show aggrievement arising from a 345 kV transmission line to be built in an existing transmission line right of way across one of the plaintiffs' property.   There, the court found,

The evidence at these hearings, as indicated above, found that the 345 kV transmission line will traverse a right of way granted by [plaintiff's] predecessor.   CL & P asserts that [plaintiff], 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[*13], Massachusetts Land Court [2009], 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 [lines].  [Plaintiff] 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, [plaintiff] is not aggrieved.

Although plaintiffs here contend that the warning lights will overburden the easement, see below, they do not assert that the additional transmission lines and towers will do so.   As a result, the clearing underneath them is a permitted use in the easement and they cannot demonstrate that they have a “specific, personal and legal interest” which has been injured sufficient to support a claim of classical aggrievement.

Plaintiffs attempt to distinguish the holding of Citizens, supra, by noting that the alleged harm in that case was exposure to electromagnetic fields (“EMF”), not injury to property.   Additionally, they refer to Judge Bishop's dissent on appeal, 139 Conn.App. at 577, 592, which stated (at 592):

Whether or not increasing the allowable voltage on the transmission lines traversing [plaintiff's] property would overburden the easement granted to the power company does not answer the question of whether the salutary purposes of PUESA would be met by granting the power company's application.   In other words, notwithstanding the existence of rights created by the easement, [plaintiff] retains a legal interest in the protection of his property and his well-being from unreasonably high exposure to radiation, and the state retains the responsibility to maintain the balance that PUESA was intended to achieve.

Thus, the dissent differs from the conclusion of the trial court on aggrievement because plaintiff had raised an issue, exposure to EMF, which implicated concerns beyond the use of the land in the easement.   This argument is not persuasive here because the harm plaintiffs allege, i.e. the clearing of the vegetation under the new transmission line is specifically permitted by the applicable easements.   In light of this specific grant and the difference in alleged harm, the rationale of Citizens applies a fortiori to the instant situation.⁴  See Prescott v. Northeast Utilities, Index No. CV 9403 15423S, 1998 WL 13942, *2 (CT Super, Jan. 6, 1998) (Rush, J.) (“Given the fact that the towers carrying the electrical lines were placed within the area granted by the easement, the conduct of the utility cannot be said to be wrongful”).

Secondly, plaintiffs have not proven any financial harm to themselves that is not speculative.   Mr. Sheahan, the forester, testified that the value of the timber to be cleared from the right of way for the new lines would be approximately $1,658.40.   Mr. Johnson, NU's manager for transmission vegetation management, testified that the company viewed the cleared wood to be the property of the landowner and that they would leave the wood, cut into logs, at an easily accessible place for the owner to remove and sell.   Mr. Victor Civie testified that the cleared logs would have the same value as the existing timber.   Indeed, it may be that the Civies actually would benefit from CL & P's clearing because they would not have to incur the cost of harvesting the wood.   As to the loss of any future revenues from the land under the new transmission lines, Mr. Victor Civie said that future values cannot be predicted.   Further, Mr. Johnson said that the Civies would likely be permitted to conduct other activities under the new lines, including possibly a Christmas tree farm.   Accordingly, the Civies have not presented sufficient evidence of a non-speculative nature that they would be injuriously affected by the clearance of land under the new transmission lines.⁵  Although Mr. Civie asserts that CL & P could not build the additional transmission line without approval by the Council, that observation does not confer upon plaintiffs a cognizable injury in light of the explicit provisions of the easements.

B. Plaintiffs' Claim That the Warning Lights Will Overburden the Easement is Insufficient to Establish Aggrievement

Plaintiffs claim that the red warning lights that will be affixed to the top of the new towers will overburden the easement because they will be visible from Mr. Victor Civie's house.   However, this does not constitute a cognizable legal interest because the lights are permitted under the language of the easements as “fixtures” or “appurtenances.”   Black's Law Dictionary (9th Ed., 2009) defines a fixture as personal property which is attached to land or a building “and the fastening or connection was done to enhance the utility of the land or the building,” citing a light fixture as an example.   The same source defines an appurtenance is “Something that belongs or is attached to something else ․ Speaking broadly, the word means anything corporeal or incorporeal which is an incident of, and belongs to some other thing as principal.”   In Algonquin Gas Transmission Co. v. Zoning Board, 162 Conn. 50, 57 (1971), our Supreme Court held that a microwave tower and instrument building, which the gas pipeline company proposed to construct in order to better monitor the operation of the pipeline, were appurtenances to the pipeline and, as such, were exempt from local zoning regulations.   The Court reasoned:

There is no question that such equipment is appurtenant.   An appurtenance is something which belongs to another thing.   See Words & Phrases, Appurtenance.   It is an apt term for detached apparatus which is built as an adjunct to a structure, to further its convenient use.  Balch v. Chaffee, 73 Conn. 318, 320, 47 A. 327.

Property law concepts of “appurtenant” should not be allowed to confuse the meaning of the term when it is used in other contexts.   Even in property law, however, the term does not require that something be annexed, joined, or attached to be appurtenant.  Waterbury Lumber & Coal Co. v. Asterchinsky, 87 Conn. 316, 320, 87 A. 739;  see Graham v. Walker, 78 Conn. 130, 61 A. 98.   The term denotes a connection between two objects such that one is incident to the other.   Such a connection plainly exists between a communication system reasonably necessary for the safe and efficient transmission of natural gas and the pipelines.   There is no evidence in the record that Algonquin will use it for any purpose other than to monitor its pipeline.   In short, it will have no use independent of, or apart from, its use in connection with the pipeline.   In such a case it may properly be said that the system is appurtenant to the pipeline.   See More v. Indiana & Michigan Electric Co., 229 Ind. 309, 313, 95 N.E.2d 210, in which the Indiana Supreme Court held that the erection of a telephone line for an electric company's own use was incidental to its operation as a power company.

Applying this reasoning to the instant situation, it is apparent that A) the lights will be attached to the transmission towers to enhance their utility by diminishing the danger of collision with an aircraft, thereby satisfying the definition of a fixture;  and B) the lights would also be considered appurtenances because they are important to the safe operation of the transmission line in proximity to an airport, and have no other purpose.   Hence, the warning lights are incident to the transmission towers and are fixtures or appurtenances authorized under the easements.   Although plaintiffs claim that the lights are not authorized by the language of the easements because they are not directly involved in the transmission of electricity, the court finds this position unconvincing.   The lights plainly enhance the safety, utility and maintenance of the transmission facilities.   As discussed above, the easements' authorization of fixtures and appurtenances eliminates any cognizable legal interest plaintiffs may claim relating to the warning lights.⁶

Finally, in Goldfisher v. Connecticut Siting Council, supra, the Appellate Court affirmed a finding by the Superior Court that plaintiff had not proved aggrievement from the construction of a cell tower visible from his house, without credible evidence of its impact on his property value, saying, “Because specific legal detriment to a legal interest is the lynchpin of classical aggrievement, the court properly determined that the plaintiff did not have a cognizable interest in the decision of the siting council.”  Id., 95 Conn.App. at 200.

Similarly, plaintiffs here have presented no non-speculative evidence of any impact on their property value caused by the warning lights or of the impact on their esthetic condition of a red light, equivalent to a sixty watt bulb, four to six hundred feet away from the house.   Indeed, the impact of a red, sixty watt bulb hundreds of feet away is necessarily subjective and speculative.   Other observers might find the red lights in the forest attractive, or reassuring as they reduce the danger from a nearby airport.   Accordingly, plaintiffs also have failed to prove specific legal detriment, which is “the lynchpin of classical aggrievement.”

CONCLUSION

By reason of the foregoing, plaintiffs' appeal is DISMISSED for lack of aggrievement.

Hon. Charles T. Lee

FOOTNOTES

FN1. The Decision was not mailed until January 2, 2013.   As a result, and pursuant to Conn. Gen.Stat. § 4–180(c), the effective date of the Decision is the mailing date of January 2, 2013.   The Council issued a Memorandum Regarding Clerical Corrections to Findings of Fact and Opinion, dated January 9, 2013..  FN1. The Decision was not mailed until January 2, 2013.   As a result, and pursuant to Conn. Gen.Stat. § 4–180(c), the effective date of the Decision is the mailing date of January 2, 2013.   The Council issued a Memorandum Regarding Clerical Corrections to Findings of Fact and Opinion, dated January 9, 2013.

FN2. When identifying the towers visible from his house, Mr. Civie referred to CL & P Exhibit 4 (Mapsheet 8 of 40) and actually identified Tower Nos. 69, 70 and 68, which are the designations for the proposed towers adjacent to existing Tower Nos. 9068, 9069 and 9067;  however, it was clear that he was referring to the existing towers..  FN2. When identifying the towers visible from his house, Mr. Civie referred to CL & P Exhibit 4 (Mapsheet 8 of 40) and actually identified Tower Nos. 69, 70 and 68, which are the designations for the proposed towers adjacent to existing Tower Nos. 9068, 9069 and 9067;  however, it was clear that he was referring to the existing towers.

FN3. In Brouillard v. Connecticut Siting Council, 133 Conn.App. 851, 856–7 (2012), the Appellate Court held that an appeal pursuant to Conn. Gen.Stat. § 16–50q must satisfy the requirements of Conn. Gen.Stat. § 4–183, which in turn requires a showing of classical aggrievement, and that no claim of statutory aggrievement is available..  FN3. In Brouillard v. Connecticut Siting Council, 133 Conn.App. 851, 856–7 (2012), the Appellate Court held that an appeal pursuant to Conn. Gen.Stat. § 16–50q must satisfy the requirements of Conn. Gen.Stat. § 4–183, which in turn requires a showing of classical aggrievement, and that no claim of statutory aggrievement is available.

FN4. Similarly, plaintiff Victor Civie contends that his injured interest is “established regardless of what rights are established in the easement” citing Huck v. Inland Wetlands and Watercourse Agency, 203 Conn. 525 (1987) and O'Leary v. McGuinness, 140 Conn. 80 (1953).   These cases are illustrative in their distinct facts:  the former involved a plaintiff who was prevented from building a house on her property;  the latter involved an executor and potential beneficiary protesting, among other things, the admission to probate of a codicil eliminating his contingent interest in the estate.   In contrast, plaintiffs' interest in the timber beneath an additional power line is explicitly extinguished by the language of the easements..  FN4. Similarly, plaintiff Victor Civie contends that his injured interest is “established regardless of what rights are established in the easement” citing Huck v. Inland Wetlands and Watercourse Agency, 203 Conn. 525 (1987) and O'Leary v. McGuinness, 140 Conn. 80 (1953).   These cases are illustrative in their distinct facts:  the former involved a plaintiff who was prevented from building a house on her property;  the latter involved an executor and potential beneficiary protesting, among other things, the admission to probate of a codicil eliminating his contingent interest in the estate.   In contrast, plaintiffs' interest in the timber beneath an additional power line is explicitly extinguished by the language of the easements.

FN5. In post-hearing briefs, plaintiffs also mention in passing that they have taken firewood and lumber from the easement area, without quantification or detail.   This contention fares no better than plaintiffs' claim based on loss of timber harvesting because the clearance is permitted by the deeds of easement, and because no evidence was presented regarding damages, or explaining why this conduct could not continue.   The court finds that plaintiffs have not satisfied their burden of proof in this respect..  FN5. In post-hearing briefs, plaintiffs also mention in passing that they have taken firewood and lumber from the easement area, without quantification or detail.   This contention fares no better than plaintiffs' claim based on loss of timber harvesting because the clearance is permitted by the deeds of easement, and because no evidence was presented regarding damages, or explaining why this conduct could not continue.   The court finds that plaintiffs have not satisfied their burden of proof in this respect.

FN6. Plaintiff Richard Civie contends that the warning lights are for the benefit of the Windham Airport and therefore constitute an improper “expanded use of an easement appurtenant by the dominant estate to benefit a nondominant estate, not owned by the dominant estate owner” as found in Il Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502 (2000).   However, the lights do not constitute a “use” by the airport.   The airport has no right of entry or possessory interest in the easement, and the lights are as much for the benefit and protection of the transmission lines as for the benefit of anyone else..  FN6. Plaintiff Richard Civie contends that the warning lights are for the benefit of the Windham Airport and therefore constitute an improper “expanded use of an easement appurtenant by the dominant estate to benefit a nondominant estate, not owned by the dominant estate owner” as found in Il Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502 (2000).   However, the lights do not constitute a “use” by the airport.   The airport has no right of entry or possessory interest in the easement, and the lights are as much for the benefit and protection of the transmission lines as for the benefit of anyone else.

Lee, Charles T., J.