The plaintiff, Miller's Pond Company, LLC, appeals from the judgment of the trial court dismissing on jurisdictional grounds its appeal from an
The following facts and procedural history are relevant to this appeal. On November 5, 1998, the plaintiff filed an application with the commissioner, pursuant to the Connecticut Water Diversion Policy Act, General Statutes §§ 22a-365 to 22a-378, for a permit to divert water and to remove gravel from Miller's Pond. Most of the land on which Miller's Pond is located is owned by the plaintiff,
The record reflects that, prior to the filing of the application, an official from the department of environmental protection (department) met with the plaintiff's consultant and indicated that a single public hearing would probably be held on the Miller's Pond proposal and a competing proposal filed in February, 1998, by the city of New London for the upstream diversion of
In December, 1998, the department sent a letter to the city of New London entitled "Notice of Insufficiency," in which it stated that the Hunts Brook application was "insufficient for processing" and that the department would halt processing until the insufficiencies described in the notice had been corrected. Meanwhile, the department did not act on the Miller's Pond application.
On September 3, 1999, the plaintiff filed a mandamus action seeking to compel the department to process its application. Approximately six weeks later, on October 20, 1999, the department issued a letter to the plaintiff entitled "Rejection Notice," stating that the plaintiffs application was "insufficient for processing and is hereby rejected pursuant to section 22a-3a-2 (e)
The plaintiff appealed to the Superior Court, claiming, inter alia, that the commissioner improperly failed to deem the application complete or insufficient and to hold a public hearing pursuant to General Statutes § 22a-371 before making a final determination to reject the application. The court concluded, in a memorandum of decision dated April 3, 2001, that the notice of rejection did not constitute a final decision in a contested case and, consequently, the court did not have subject matter jurisdiction to hear the appeal. "The legal right or privilege at issue here is the plaintiffs right or privilege to obtain a permit for water diversion and graveling operations from the [department].... The October 20, 1999 rejection notice, however, did not adjudicate that right. It indicated that the application, as submitted
The court observed that the law provides, pursuant to § 22a-371, that if the commissioner finds that an application is complete, he shall notify the applicant and hold a public hearing before approving or denying the application, but that the provision does not require the commissioner "to hold a hearing on the matter of whether an application is complete.... Accordingly, as the rejection notice was not issued in a contested case, there is no final decision ... from which the plaintiff can appeal."
The court concluded that the plaintiff had an adequate remedy at law because the notice of rejection advised that the applicant could file "`a new application in which the above insufficiencies have been corrected.'... Therefore, the plaintiff has yet to have its application processed and its rights adjudicated through the administrative process of the [department]. Accordingly, the plaintiff ... fails to satisfy the exhaustion requirement of General Statutes § 4-183 (a)."
The court further concluded that it could not consider the merits pursuant to § 4-183 (b), which provides for jurisdiction in exceptional circumstances even if a party has failed to exhaust its administrative remedies, because there were no exceptional circumstances indicating that postponement of the appeal would result in an inadequate remedy. "The plaintiff fails to demonstrate how submitting a new application with the information required by the [department] and postponing
The plaintiff claims that the court improperly dismissed its appeal for lack of subject matter jurisdiction. The plaintiff claims that it appealed from the commissioner's final decision in a contested case and that there is no adequate remedy at law. The plaintiff thus claims that it has met the requirements for an appeal under § 4-183. We agree.
We first consider the applicable standard of review. "A determination regarding a trial court's subject matter jurisdiction is a question of law. When ... the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record." (Internal quotation marks omitted.) Doe v. Roe, 246 Conn. 652, 660, 717 A.2d 706 (1998).
General Statutes § 4-183 (a) provides in relevant 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...." Section 4-166 (3) defines the term final decision as "(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...." Section 4-166 (2) defines a contested case as "a proceeding... in which the legal rights, duties or privileges
Here, the court concluded that the first criterion in determining contested case status was satisfied because "[t]he legal right or privilege at issue here is the plaintiffs right or privilege to obtain a permit for water diversion and graveling operations from the [department]." The court deemed the second two criteria not satisfied, however, when it determined that the provisions of § 22a-371 leave to the commissioner's discretion the decision to hold a hearing on whether an application is complete.
General Statutes § 22a-371 provides in relevant part: "(a) Within one hundred twenty days of receipt of an application for a permit, the commissioner shall determine if there is any additional information that he deems necessary to carry out the purposes of sections 22a-365 to 22a-378, inclusive. The applicant shall provide such information to the commissioner upon request or may request that the application be deemed complete as is.
"(b) If the applicant does not furnish the requested information, the commissioner shall publish notice of his tentative determination on the application in accordance with section 22a-6h
"(c) If the commissioner finds that an application is complete, he shall notify the applicant by certified mail, return receipt requested. The commissioner shall also notify the applicant of the time, date and location of any public hearing to be held on the application.
* * *
"(f) The commissioner shall hold a public hearing before approving or denying an application, except that, when the commissioner determines that the proposed diversion (1) is necessary, (2) will not significantly affect long-range water resource management or the environment, and (3) will not impair proper management and use of the water resources of the state, he may waive the requirement for a hearing...."
The governing statutes in the present case are General Statutes §§ 22a-371, 22a-6n and 22a-6p, and the governing regulation is § 22a-377 (c)-2 (a) (3).
Under the plain language of General Statutes §§ 22a-371, 22a-6h and 22a-6p; see footnote 5; the commissioner was required to give the applicant an opportunity to remedy any identified deficiencies in its application or to request that the application be deemed complete as submitted. If the plaintiff did not furnish the requested information or remedy the deficiencies, the commissioner was required by statute to publish notice of his tentative determination on the application and to hold a public hearing before making a final decision to grant or deny the application. If the applicant requested that the application be deemed complete as submitted, the commissioner was required to hold a public hearing on the application as deemed complete pursuant to subsection (c) of § 22a-371. The only exception to this procedure, not applicable here, is if the hearing requirement is waived in accordance with subsection (f) of § 22a-371. Accordingly, because the commissioner did not give the plaintiff an opportunity to remedy the application's deficiencies, or to request that the application be deemed complete as submitted and have those deficiencies examined in the forum of a public hearing, the plaintiff was aggrieved by the commissioner's failure to hold such a hearing, and the case is contested pursuant to § 4-166 (2).
The commissioner's rejection of the application is also a final decision from which an appeal may be taken pursuant to § 4-183 because the rejection effectively terminated the proceeding. The department's letter to the plaintiff stated that the rejection did not prejudice the plaintiff from filing a new application in which the insufficiencies had been corrected. The court similarly noted in its memorandum of decision that the plaintiff had the option of filing a new application following its receipt of the rejection notice. Absent any other comment in the letter indicating that the plaintiff could
The commissioner nonetheless argues that a hearing must be held for an appeal to lie. He argues that since no such hearing was held before he rejected the application, there is no final decision from which the plaintiff may appeal. We do not agree.
Under the statutory scheme, a hearing need not be held for an appeal to lie. This court has previously stated, in a similar factual and legal context, that contested case status does not depend on whether a hearing has been held; Dadiskos v. Connecticut Real Estate Commission, 37 Conn.App. 777, 782, 657 A.2d 717 (1995) (hearing not statutorily mandated, even if gratuitously held, does not create contested case); or whether a hearing is required by an agency rule, policy or regulation. Terese B. v. Commissioner of Children & Families, 68 Conn.App. 223, 235, 789 A.2d 1114 (2002) (agency rule, policy or regulation that requires hearing does not alone qualify proceedings as contested case). The significant fact from a legal standpoint is whether a hearing is statutorily required. See In re Baby Z., supra, 247 Conn. 491. Here, § 22a-371 (b) unquestionably provides that the commissioner "shall hold" a public hearing before making a final determination on a permit application unless waived in accordance with subsection (f). Subsection (f) does not apply in this
The commissioner also argues that General Statutes § 22a-374 provides a right to appeal only if an application is deemed incomplete for lack of substantive information, and not, as in the present case, if it merely "failed to meet the legal requirements of form." The commissioner argues that the plaintiffs failure to include the city of New London as a co-applicant is the same type of "legal" deficiency as an omission of the applicant's name, address or telephone number, all allegedly matters of incorrect form, and that the plaintiff may not appeal on that basis. This claim has no merit.
Section 22a-369 of the General Statutes provides in relevant part that "[t]he applicant shall submit an application on such form as the commissioner may prescribe and with such information as the commissioner deems necessary...." (Emphasis added.) Section 22a-377 (c)-2 (a) (1) of the Regulations of Connecticut State Agencies similarly requires that "[a]n application for a permit to divert water shall be made on a form available from the Commissioner...." (Emphasis added.)
"[S]tatutory language should be given its plain and ordinary meaning.... We refrain from reading into statutes provisions that are not clearly stated and interpret statutory intent by referring to what the legislative text contains, not by what it might have contained." (Internal quotation marks omitted.) DiBello v. Barnes Page Wire Products, Inc., 67 Conn.App. 361, 368, 786 A.2d 1234 (2001), cert. granted on other grounds, 260 Conn. 915, 796 A.2d 560 (2002) (appeal withdrawn June 26, 2002).
The plain language of General Statutes § 22a-369a clearly contemplates a distinction, not between legal and substantive information, but between the application
Furthermore, the commissioner has cited no statute or regulation that distinguishes between different types of information that may be required in a water diversion permit application, or that would serve as a basis for different levels of department review, and we are aware of none. Had the legislature intended to grant the commissioner discretionary power to make "threshold" determinations of insufficiency without a hearing, it could have done so expressly.
It is a well established principle of statutory construction that the words of a regulation must be interpreted as written.
Finally, the plaintiff had exhausted its administrative remedies under § 4-183 because the commissioner's rejection of the application was a final decision in a contested case. We are mindful that § 22a-374
The judgment is reversed and the case is remanded with direction to remand the matter to the commissioner for further proceedings pursuant to § 22a-371.
In this opinion HENNESSY, J., concurred.
SCHALLER, J., dissenting.
I would affirm the judgment of the trial court dismissing this administrative appeal for lack of jurisdiction because I disagree with the majority conclusion that the commissioner's rejection for insufficiency was a final judgment in a contested case giving the trial court jurisdiction to entertain the appeal.
As a matter of law, I believe the majority's conclusion that a contested case exists and that the applicant was entitled to a hearing is incorrect. The majority states that it was improper for the commissioner to issue a rejection without a hearing because under General Statutes § 22a-371, the commissioner was required to give the applicant an opportunity to remedy any deficiencies or request that the application be deemed complete and then hold a hearing before rendering a final decision. The majority further concludes that the commissioner improperly used § 22a-3a-2 (e), a regulation of "general applicability," in rejecting the application in this case. The majority offers its view that "[t]he commissioner should have made his determination pursuant to § 22a-377 (c)-2 (a) (3) of the regulations because that is a regulation that specifically relates to the Water Diversion Policy Act, General Statutes §§ 22a-365 to 22a-378.
I disagree with both of these conclusions. With regard to § 22a-371, the majority decision, in essence, revokes the authority of the commissioner to make a threshold
On the basis of my reading of the applicable statutes and regulations, I conclude that § 22a-3a-2 (e) provides the commissioner with two options when faced with an insufficient application. The commissioner may reject an application as insufficient if it does not meet governing provisions of law or is so manifestly insufficient, for example, when the applicant does not have sufficient interest or standing, that further proceedings are not possible. Under § 22a-3a-2 (e), the commissioner, however, may also deem the application sufficient or not reject it under this subsection. In that event, the regulation provides that nothing shall preclude the commissioner from requiring additional information from the applicant. Should the commissioner choose not to reject the application, it is implicit that he has
The next step in the analysis is to determine how the commissioner proceeds to procure additional information. I believe that §§ 22a-371 and 22a-377 (c)-2 (a) (3) are applicable here. Section 22a-371, entitled "request for additional information," applies when the commissioner decides to not reject the application but also wants more information. Consistent with § 22a-3a-2 (e), § 22a-371 (a) requires that the commissioner, having received the application, determine within one hundred and twenty days whether he requires more information. Section 22a-377 (c)-2 (a) (3) operates as a corollary to this, providing that if the commissioner requests information pursuant to § 22a-371 (a), the applicant must provide it within four months. It is clear that § 22a-377 (c)-2 (a) (3) serves a different function from the "gate keeping" purpose of § 22a-3a-2 (e). While the majority contends that § 22a-377 (c)-2 (a) (3) specifically governs applications such as the one at issue, I believe that it applies only after an application has passed the threshold determination of § 22a-3a-2 (e). At that point, the commissioner has decided to maintain the application, subject to requesting more information. The commissioner then may request more information, under § 22a-371 (a), as he considers the application. As a counterpart, § 22a-377 (c)-2 (a) is designed to provide the applicant with a limited period of time in which to produce the requested material.
I next address the hearing requirement. I first note that in addition to the functions noted, § 22a-377 (c)-2 (a) (3) goes on to state that if this information is not provided, the commissioner will return the application
I note that this reading of the provisions is also consistent with the appeals provision, General Statutes § 22a-374. This section, in part, allows an appeal to be taken when the commissioner returns an application as incomplete pursuant to § 22a-371 (b). Under this provision, an applicant can appeal from the commissioner's decision regarding the completeness of the application after the commissioner has first decided to maintain the application pursuant to § 22a-3a-2 (e) and then rendered his tentative judgment on it. An appeal is appropriate at that time because the commissioner has already determined that the application is sufficient to enable a decision to be made.
On the basis of the foregoing, I conclude that when the commissioner rejects an application outright under § 22a-3a-2 (e), § 22a-371 does not come into play. No hearing, therefore, is required in that situation. Furthermore, the § 22a-374 right to appeal is not implicated in such a case because it rests upon § 22a-371. This interpretation falls within our well settled canon of statutory construction that statutes, and regulations, in
I also disagree on a procedural level with the majority resolution of this case. I begin by noting that at its core, the plaintiffs appeal actually challenges the failure of § 22a-3a-2 (e) to provide for a hearing when the commissioner decides to reject an application as insufficient. On appeal, however, the plaintiff has failed to raise a due process challenge to the regulation, or to attack § 22a-3a-2 (e) by any other means. Instead of challenging § 22a-3a-2 (e), the plaintiff has launched an indirect attack on the regulation. It contends that there is no meaningful distinction between an insufficiency rejection pursuant to that regulation and an incompleteness determination pursuant to § 22a-371, and that the right to a hearing overrides the regulation.
While the majority apparently accepts that assertion, I do not believe that the plaintiffs implicit attack gives us license to determine the validity or viability of § 22a-3a-2 (e). Absent a specific claim challenging the applicability of § 22a-31-2 (e) or the failure of § 22a-3a-2 (e) to provide for a hearing, these issues are not before us. Since the plaintiff has not challenged § 22a-3a-2 (e) in this proceeding, our function is only to provide an interpretation based on our well settled rules of statutory construction that makes sense of the regulation, considered in light of the entire statutory and regulatory scheme. See id. Consistent with our responsibility under these circumstances, I interpret § 22a-3a-2 (e) to enable the commissioner to reject an application that fails to meet the fundamental requirements for consideration.
Despite the importance of § 22a-3a-2 (e) as a regulation dealing with threshold requirements, it would appear that under the majority opinion, no rejection of any application can take place without a public hearing because the result of the decision is to bypass and effectively to eliminate the commissioner's discretion. I believe that this result is incorrect because the commissioner's discretion is properly vested in him by virtue of the applicable statutes through § 22a-3a-2 (e) and is essential to enable the commissioner to carry out the purposes of the Water Diversion Policy Act.
Moreover, I believe it is improper to require the commissioner to hold public hearings on fundamentally deficient applications before rejecting them because such a hearing creates General Statutes § 4-183 appeal rights for applicants who have failed to conform to even the basic requirements for administrative action. Applicants who fail to provide the information necessary
I would also note that this concern is borne out in the present case, in which the plaintiff has failed to show that it can satisfy the application requirements without joining the New London Water and Water Pollution Control Authority (NLWWPCA). The plaintiff has failed to do so because of the evident practical problem it faces in this case, namely, that the proposed user whose signature is required on the application, the NLWWPCA, is a competitor and unlikely to join voluntarily in the application. The plaintiff undoubtedly suspects that if it must join that entity in the application process, it will not be able to obtain a determination on the merits of its application. I do not believe that such problems can legitimately be dealt with in the present appeal.
Despite my present concerns, the majority states that my construction is "an invitation to reject as insufficient any application not consonant with department policy." The majority further contends that the return without rejection of the NLWWPCA's application and the rejection of the plaintiffs application illustrate the inequitable exercise of discretionary authority by the commissioner under § 22a-3a-2 (e). To the contrary, the actions considered together constitute consistent and
For all the foregoing reasons, I conclude that the rejection of the plaintiffs application for insufficiency did not confer jurisdiction on the trial court for purposes of an appeal under the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq. I would affirm the judgment of the trial court.
General Statutes § 22a-6p is entitled "Time frames for issuance of permits. Regulations." That section provides in relevant part: "The Commissioner of Environmental Protection shall adopt regulations ... establishing schedules for timely action for each application for a permit for activity regulated under this title.... Each such schedule shall contain the following:
"(1) A provision that the schedule shall begin when an application is received by the Department of Environmental Protection, any public notice requirements have been fulfilled and the application fee is paid;
"(2) One or more periods of reasonable length, based on the nature and complexity of the review required of the department, at the end of which time the department shall issue a decision to grant or deny the permit or identify deficiencies in the application, provided the schedule may also reasonably limit the amount of time in which the applicant may remedy such deficiencies;
"(3) A period of reasonable length, based on the nature and complexity of the review required of the commissioner, beginning with receipt of materials submitted by the applicant in response to the commissioner's identification of deficiencies, at the end of which time the commissioner shall issue a tentative determination to grant or deny the permit;
"(4) A period of reasonable length after such tentative determination and the conclusion of any public hearing held with regard to such decision...."
General Statutes § 22a-373 (a) provides in relevant part: "The commissioner shall, within one hundred and twenty days of the close of the hearing, make a decision either granting or denying the application as deemed complete in section 22a-371...."