Mobley v. Metro Mobile CTS of Fairfield County, Inc.
Mobley v. Metro Mobile CTS of Fairfield County, Inc.
Opinion of the Court
The defendant Connecticut Siting Council (Council)
Pursuant to General Statutes § 16-50Z (b),
During July and August, 1988, the parties filed mem-oranda of fact and law and another chambers conference was held on August 16,1988. Metro Mobile moved to dismiss the action, claiming that the trial court lacked subject matter jurisdiction. Metro Mobile argued that since the Council has exclusive jurisdiction over the approval of a cellular telephone tower, the power of the Superior Court is limited to hearing an administrative appeal from a decision of the Council. Metro Mobile argued further that the “plaintiffs ha[d] no independent right to [attack collaterally,] in a separate suit, the jurisdiction, actions and procedures of the Siting Council or to prosecute an independent action to seek to enjoin [its] construction of the cellular tower.” The court, however, by a memorandum of decision dated September 8,1988, ruled that “the failure by defendants to give plaintiffs proper notice constitute[d] a violation of plaintiffs’ constitutional rights and, therefore, plaintiffs [were] irreparably injured.” Thus, the court held that the Council was without jurisdiction to issue Metro Mobile’s certificate, and therefore granted the plaintiffs’ application for a temporary injunction.
On appeal, Metro Mobile argues: (1) that the trial court should not have concluded that the Council lacked jurisdiction to hear and decide its application for a certificate; (2) that the trial court should not have concluded that the plaintiffs’ rights to due process of law were violated; (3) that even if it were assumed that the plaintiffs were “record owners,” their property did not “abut” the proposed site and they were therefore not entitled to notice pursuant to General Statutes § 16-50Z; (4) that the trial court should not have granted a permanent injunction directing Metro Mobile to dismantle its cellular telephone tower, a form of relief that the plaintiffs had not requested and that the trial court had no authority to grant; (5) that the trial court failed to balance the hardship to Metro Mobile claimed by the plaintiffs against the substantial hardship involved in dismantling its cellular telephone tower and facilities; and (6) that its rights to due process of law as guaranteed by article first, § 10, of the Connecticut constitution and by the fourteenth amendment to the United States constitution were violated by the trial court’s
The trial court found that the plaintiffs’ property abuts the tower site property, and, therefore, that the plaintiffs were entitled to receive notice of Metro Mobile’s application for a certificate by certified or registered mail as provided under § 16-50Z (b). The court further concluded that Metro Mobile’s failure to give the plaintiffs certified or registered mail notice “ constitute^] a violation of [the plaintiffs’] constitutional rights, and therefore rendered the Siting Council without jurisdiction to issue Metro Mobile’s certificate.” Because we do not agree that the plaintiffs’ due process rights were violated we conclude that the Council properly had jurisdiction to issue Metro Mobile its certificate. Therefore, it is unnecessary for us to consider the defendants’ other claims since there was no appeal by the plaintiffs from the action of the Council.
Under § 16-50Í (b), an application for a certificate must be accompanied by proof of service of a copy of the application on specified municipal and state agencies and officials designated in parts A through F of the statute. Additionally, notice of such application must be given to the general public by publication, in the form prescribed by the Council’s regulations, in such newspapers as will substantially inform the public of the application. At the same time that notice of the application is given to the general public by publi
The plaintiffs do not claim that they were entitled to receive a copy of the application as required by § 16-50Z for designated municipal and state agencies and officials, nor do the plaintiffs claim that they did not receive the notice given to the general public by publication. Similarly, they do not claim that the notice by publication given by the Council was improper. Nor is there any claim of impropriety in the mailing by the Council of the notice of the hearing to the applicant and each person entitled to receive a copy of the application under § 16-501 (b) (A) through (F).
We agree with the argument of the Council that the only notice of constitutional dimension in this case is the notice of the hearing, not the notice of the filing of the application. If it is assumed for the sake of argument that the plaintiffs were abutters within the meaning of § 16-50Z, and that they were thereby entitled to notice of the filing of the application, the only notice that the plaintiffs did not receive that they were entitled to receive was notice of the filing of the application.
Therefore, under the facts of this case, the plaintiffs’ collateral attack on the Council’s action could only succeed if the Council lacked subject matter jurisdiction because the plaintiffs were deprived of some notice granted them by the principles of due process of law. The purpose of such constitutional notice “ ‘is to advise all affected parties of their opportunity to be heard and to be apprised of the relief sought.’ ” Hartford Electric Light Co. v. Water Resources Commission, 162 Conn. 89, 100, 291 A.2d 721 (1971); see also Wright
All of the cases cited by the plaintiffs for the proposition that the failure to comply with the notice require^ ment of § 16-50Z was a jurisdictional defect involved notice of a hearing. See Hartford Electric Light Co. v. Water Resources Commission, supra; Smith v. F. W. Woolworth Co., supra. None involved, as here, a statutory notice of the filing of an application.
The judgment of the trial court is reversed.
In this opinion the other justices concurred.
The Council is the state agency that oversees, inter alia, the location, design, construction and maintenance of cellular telephone transmission facilities. See General Statutes § 16-50j.
The trial court also granted the plaintiffs’ request for a temporary and permanent injunction against the Council, requiring the revocation of Metro Mobile’s certificate.
“[General Statutes] Sec. 16-50Í. application for certificate, notice. APPLICATION OR RESOLUTION FOR AMENDMENT OF CERTIFICATE. . . .
“(b) Each application shall be accompanied by proof of service of a copy of such application on: (A) Each municipality in which any portion of such facility is to be located, both as primarily proposed and in the alternative locations listed, which copy shall be served on the chief executive officer of the municipality and shall include notice of the date on or about which the application is to be filed, and the zoning commissions, planning commissions, planning and zoning commissions, conservation commissions and inland wetlands agencies of each sueh municipality, and the regional planning ageneies which encompass each such municipality; (B) the attorney general; (C) each member of the legislature in whose assembly or senate district the facility or any alternative location listed in the application is to be located; (D) any agency, department or instrumentality of the federal government that has jurisdiction, whether concurrent with the state or otherwise, over any matter that would be affected by such facility; (E) each state department, agency and commission named in subsection (g) of section 16-50j; and (F) such other state and municipal bodies as the council may by regulation designate. A notice of such application shall be given to the general public, in municipalities entitled to receive notice under subdivision (A) of this subsection, by the publication of a summary of such application and the date on or about which it will be filed. Such notice shall be published under the regulations to be promulgated by the council, in such form and in such newspapers as will serve substantially to inform the public of such application and to afford interested persons sufficient time to prepare for and to be heard at the hearing prescribed in section 16-50m. Such notice shall be published in not less than ten point, boldface type. A notice of such an application for a certificate for a facility described in subdivision (3), (4), (5) or (6) of subsection (a) of section 16-50Í shall also be
“[General Statutes] Sec. 16-50m. public hearing, notice, (a) Upon the receipt of an application for a certificate complying with section 16-50Z, the council shall promptly fix a commencement date and location for a public hearing thereon not less than thirty days nor more than one hundred fifty days after such receipt. At least one session of such hearing shall be held after six-thirty p.m. for the convenience of the general public. Such hearing shall be held at a location selected by the council, in the county in which the facility or any part thereof is to be located. If the proposed facility is to be located in more than one county, the council shall fix the location for a public hearing in whichever county it determines is most appropriate, provided the council may hold hearings in more than one county.
“(b) (1) The council shall hold a hearing on an application for an amendment of a certificate not less than thirty days nor more than sixty days after receipt of the application in the same manner as a hearing is held on an application for a certificate if, in the opinion of the council, the change to be authorized in the facility would result in any material increase in any environmental impact of such facility or would result in a substantial change in the location of all or a portion of the facility, other than as provided in the alternatives set forth in the original application for the certificate, pro
“(c) The council shall cause notices of the date and location of each hearing to be mailed, within one week of the fixing of the date and location, to the applicant and each person entitled under section 16-501 to receive a copy of the application or resolution. The general notice to the public shall be published in not less than ten point, boldface type.
“(d) Hearings, including general hearings on issues which may be common to more than one application, may be held before a majority of the members of the council.
“(e) During any hearing on an application or resolution held pursuant to this section, the council may take notice of any facts found at a general hearing.”
The Council filed a motion to file an untimely appeal on June 28,1989, which this court granted on September 27,1989. In accordance with that order, the Council filed its appeal on October 6,1989, which was assigned Supreme Court Docket No. 13794. On appeal, the Council argues that the trial court incorrectly found that the Council lacked jurisdiction as a result of defective notice. Thus, our disposition of Metro Mobile’s appeal is necessarily dispositive of the Council’s appeal.
The eases cited by the plaintiffs; Invisible Empire v. West Haven, 600 F. Sup. 1427 (D. Conn. 1985); Westinghouse Broadcasting Co. v. Dukakis, 409 F. Sup. 895 (D. Mass. 1976); Borreca v. Fasi, 369 F. Sup. 906 (D. Hawaii 1974); Cologne v. West Farms Associates, 37 Conn. Sup. 90, 442 A.2d 471 (1982); do not involve a failure to give notice of any kind of agency action.
Reference
- Full Case Name
- Jeffrey W. Mobley v. Metro Mobile CTS of Fairfield County, Inc.
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- 4 cases
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- Published