author: Lavery, J.

text:
    State of Connecticut v. Luis Colon
    (13022)
    Lavery, Schaller and Hennessy, Js.
    Argued January 3
    decision released April 25, 1995

      Neal Cone, assistant public defender, for the appellant (defendant).

      Mary Elizabeth Baran, assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, for the appellee (state).
   Lavery, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of assault of an employee of the department of correction in violation of General Statutes § 53a-167c (a) (1). On appeal, the defendant claims that (1) the instructions on the jurors’ duties caused unfair prejudice, (2) during its instructions on the credibility of witnesses, the trial court unfairly emphasized the defendant’s interest in the outcome of the case, (3) the trial court’s instructions on reasonable doubt were improper, and (4) the trial court improperly gave a Chip Smith charge, at least in the language used and under the circumstances of this case. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On September 17,1992, state correction officer Mohammed Redzep was assaulted by a group of inmates at the Manson youth institution in Cheshire. Redzep was twenty-four years old and had been employed by the state as a correction officer for just over three years. While in uniform, Redzep was bringing inmates back into the institution from the outside recreation area at about 7:20 p.m., when he observed a group of inmates huddled in a comer of the dayroom. Noting that this was suspicious conduct on the part of the inmates, he told correction officer Freída Rogers to keep an eye on that group of inmates.

Redzep resumed his duties, but moments later saw Rogers talking to the same group of inmates. Redzep approached them and instructed the inmates to disperse. One of the inmates, Joey Jones, said, “Okay, let’s set it off,” and he tried to punch Redzep. The officer grabbed Jones under his arm. Redzep was then assaulted from behind and knocked to the ground facedown. The officer was kicked and punched from several directions. He was struck on his head and all over his body. Being facedown, he could not see his assailants. He was, however, able to determine that there were more than two assailants because he was being hit and kicked from several directions.

Rogers called an emergency code and all available correction officers were summoned to the scene. Shortly thereafter, Redzep was taken by ambulance to St. Mary’s Hospital in Waterbury. John Magaldi, a physician, examined him and found that he had sustained a mild concussion, a lumbro-sacral strain and abrasions.

Redzep was able to identify only two of the inmates involved in the attack, Gregorio Pizzaro and Jones. There were two other corrections officers, however, who were able positively to identify the others involved, including the defendant.

Rogers was standing close to Redzep and the inmates when the incident took place. She identified all six of the inmates involved, including the defendant. She saw the defendant throwing punches at Redzep. She attempted to get the inmates away from Redzep, but was unsuccessful. She then went to the office and called an emergency code. A number of officers responded to the code. Rogers was instructed by her supervisor immediately to identify all of the inmates who were involved. She did so.

Correction Officer Rafael Delvalle was on duty as a “rover” at the time of the incident. His assignment was to walk around the institution, checking both C and D blocks. He was in D block when the incident took place and observed five or six inmates, including the defendant, assaulting Redzep. He saw the defendant kick Redzep. The emergency code was set off by Rogers subsequent to Delvalle’s arrival on the scene.

Correction Lieutenant Michael Bernier testified that he considered himself an expert on gangs in the prisons and that he did all of the staff training on gang related issues. He said that he considered this incident to be gang related. He testified that the defendant was known to be a member of the Latin Kings gang and that the five other inmates involved in the attack were members of Los Solidos gang. He testified that members of different gangs cooperate at times.

I

The defendant first claims that the trial court’s instruction concerning the jurors’ duties was unfairly weighted in favor of conviction. The instruction was: “The defendant justly relies on you to carefully consider his claims. To carefully consider all the evidence and to find him not guilty if the facts and the law require such a verdict. He rightfully expects fair and just treatment at your hands. The state of Connecticut and its people, on the other hand, look to you as sworn officers of this court to deal fairly, firmly, honestly and justly as strong-minded persons, with the interests of the state in your hands as an arm of the court to aid in upholding the law of the land and to render a verdict of guilty if the facts and the law require such a verdict. It is proper for me to say to you that you are not to be concerned with the punishment to be inflicted in this case if a conviction occurs. That is a matter exclusively within the province of the court under the limitations and restrictions imposed by the statute. You are to find the facts of guilt or innocence uninfluenced by the probable punishment which follows convictions.” The defendant failed to object to this language at trial and thus seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

The defendant argues that the language referring to the jury as an arm of the court in connection with a conviction presents an unbalanced and prejudicial instruction. This claim does not meet the second prong of Golding, as it is not a constitutional issue. Our Supreme Court has held that such language (1) did not raise an issue of constitutional dimension and (2), even if it was considered to have raised such an issue, taking the instructions as a whole, there was no reasonable possibility that the jury was misled into believing it would be performing its duties only if it voted to convict. State v. Francis, 228 Conn. 118, 134, 635 A.2d 762 (1993); State v. Walton, 227 Conn. 32, 62, 630 A.2d 990 (1993). The trial court’s instructions in the present case are almost identical to those upheld in Walton and Francis.The trial court’s charge on the jurors’ duties was not improper.

II

The defendant next claims that the court’s jury instructions on the credibility of witnesses, which included references to his interest in the outcome of the trial, deprived him of a fair trial and impermissibly burdened his right to testify in his own defense.

The jury was given the following charge: “In this case, the accused took the stand and testified. In weighing the testimony of any accused person, you should apply the same principles by which the testimony of other witnesses is tested. And that necessarily involves a consideration of his interest in the outcome of this case. You will consider the importance to him of the outcome of the trial. An accused person, having taken the witness stand, stands before you then just like any other witness. He is entitled to the same consideration and must have his testimony measured in the same way as any other witness, including, however, his interest in the verdict which you are about to render.”

After the jury had been deliberating for about one and one-half days without reaching a verdict, the court reinstructed it on three areas, including the credibility of witnesses. In this portion of the court’s charge, there was no specific mention of the defendant’s interest in the outcome of the case.

The defendant, although acknowledging that “fair comment” on the intent of the accused is permitted, claims that the trial court’s instructions exceeded “fair comment.” The courts of this state have consistently approved the use of this instruction when the defendants have exercised their right to testify. Both this court and our Supreme Court have rejected the claim that such an instruction violates a defendant’s constitutional rights to a fair trial or due process. State v. Williams, 220 Conn. 385, 396-97, 559 A.2d 1053 (1991).

In Williams, our Supreme Court rejected a challenge to the trial court’s mentioning the defendant’s interest on three different occasions. The court concluded that the continual emphasis was to ensure that the jury evaluate the defendant’s testimony the same as that of other witnesses. “We have repeatedly approved the use of similar language and do not find its use here unduly repetitive or transcending the bounds of even-handedness.” Id., 397.

Similarly, in this case, the instruction used by the trial court is couched in the same commonly accepted language that has been used to ensure that the jury fairly weigh the testimony of witnesses, including that of the defendant. The court correctly instructed the jury that it should consider the defendant’s testimony in light of his interest in the outcome. The trial court’s use of this instruction that has been approved repeatedly did not violate the defendant’s right to a fair trial.

Ill

The defendant next challenges the trial court’s instructions on reasonable doubt. The court’s instructions were: “Now the phrase reasonable doubt has no technical or unusual meaning. You can arrive at the true meaning of it by emphasizing the word reasonable. A reasonable doubt is a doubt for which a valid reason can be assigned. It is a doubt which is something more than a guess or surmise. It is not a conjecture or a fanciful doubt. A reasonable doubt is not a doubt which is raised by someone simply for the sake of raising doubts. Nor is it a doubt suggested by the ingenuity of counsel or a juror which is not warranted by the evidence. It is not hesitation springing from feelings of sympathy for the accused or any other persons who might in anyway be affected by your decision. A reasonable doubt, in other words, is a real doubt, an honest doubt, a doubt which has its foundation in the evidence or the lack of evidence. It is such a doubt as in the serious affairs which concern you in everyday life, you would pay some attention to. It is the kind of doubt which would cause reasonable people such as yourselves to hesitate to act on the more serious and important affairs of your lives. Now, absolute certainty of course in the affairs of life is almost never attainable. And the law does not require absolute certainty on the part of the jury before it returns a verdict of guilty. What the law does require, however, is that after hearing all of the evidence, if there is something in that evidence which leaves in the minds of the jury as reasonable men and women a reasonable doubt of the guilt of the accused, then the accused must be given the benefit of that doubt and found not guilty. Proof beyond a reasonable doubt is proof which precludes every reasonable hypothesis except guilt, is consistent with guilty, and is inconsistent with any other reasonable conclusion. If you can, in reason, reconcile the facts proven with any reasonable theory consistent with the innocence of the accused, then you cannot find him guilty. In other words it is incumbent upon the state to negate every supposition not in itself unreasonable or improbable which is consistent with innocence. The requirement that for conviction that evidence must be such as satisfies you beyond a reasonable doubt does not mean that proof must be beyond a possible doubt or, and a possible supposition of innocence is a far different thing from reasonable hypothesis.” Two days after the original instructions, the court gave further instruction on reasonable doubt to the jury because it was deadlocked.

The defendant raises several claims pertaining to the language used by the trial court in its instructions on reasonable doubt. Because claims almost identical to the defendant’s claims have been previously reviewed and rejected by this court and our Supreme Court, there is no need to conduct more than a cursory review of them.

The defendant’s “valid reason” claim is rejected as it has been held constitutional numerous times. State v. Williams, 231 Conn. 235, 254, 645 A.2d 999 (1994). The “ingenuity of counsel” language has been upheld several times as well. State v. Payne, 31 Conn. App. 370, 379-80, 625 A.2d 231, cert. denied, 227 Conn. 901, 630 A.2d 73 (1993); State v. Harvey, 2,1 Conn. App. 171, 192-94, 605 A.2d 563, cert. denied, 222 Conn. 907, 608 A.2d 693 (1992). The “real doubt, honest doubt” instruction has also been upheld by this court and our Supreme Court. State v. Findlay, 198 Conn. 328, 502 A.2d 921, cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986); State v. Lamme, 19 Conn. App. 594, 607, 563 A.2d 1372 (1989), aff'd, 216 Conn. 172, 579 A.2d 484 (1990). Finally, the “hesitate to act” instruction has been upheld. State v. Johnson, 214 Conn. 161, 177-80, 571 A.2d 79 (1990). Our Supreme Court in Johnson stated its preference for the “causing to hesitate” language used in this case over similar variations. Id.

There is no merit to this claim.

IV

Finally, the defendant challenges the trial court’s Chip Smith charge given after the jury reported that it was deadlocked. The following facts are pertinent. Jury deliberation commenced on September 21,1993, at approximately 3:30 p.m. and continued until about 5 p.m., when the jury was sent home for the night. The next day, after a morning of deliberation, the jury sent the court a note saying that it appeared to be deadlocked. The court addressed the jury as follows: “I have a note that says you appear to be deadlocked. I will say this, that although you’ve deliberated for some time, and you’ve certainly done it very intensely this morning, it probably should be given more time before we reach a conclusion that you may be deadlocked. And this is what I would suggest that we discontinue deliberations until after lunch. Go out. Have a long lunch. Come back at two o’clock. In the meantime, I would urge you to reconsider whatever your position might be. While your own opinion is of the utmost importance, I want you to consider what others have to say. And reflect on that during this period of time. I’m going to ask you to come back then. We’ll let you know when you can begin your deliberation again and get the exhibits in to you. And see what you can do then. I know you have made every effort and that your efforts have been sincere. But again I would ask you to reexamine and reconsider whatever your position might be. I’ll ask that this be marked as a court’s exhibit. And we will adjourn until two o’clock.”

Later that day, the jury sent another note to the court indicating that it was deadlocked. The court again instructed the jury: “Yet in order to bring six minds to a unanimous result, all of the jurors should examine with candor, the question of guilt or innocence with due regard and deference to the opinion of the other jurors in conferring together. The jury ought to pay proper respect to each others opinions and listen with an open mind to each others argument. If much the larger number of the panel are of, are for a conviction rather, a dissenting juror should consider whether the doubt in his or her mind is a reasonable one when it makes no impression upon the minds of so many men and women equally honest, and equally intelligent, all of whom have heard the same evidence with the same attention and with equal desire to arrive at the truth and under the sanction of the same oath. On the other hand, if the majority are for acquittal, the minority ought seriously to ask themselves whether they may not reasonably and ought not to doubt the conclusion of the judgment which is not, at which is not concurred in it by most of those with whom they are associated and distrust the weight of sufficiency or to the weight or the sufficiency of the evidence which fails to carry a conviction to the minds of fellow jurors. Again, asking you to go back, reflect, listen to each other. Try one more time to see if you cannot reach a unanimous verdict.”

At the end of the day, the court excused the jury for the day, commenting: “You have listened very carefully to the court’s instructions and you have taken them to heart. And I am very grateful for that. It would seem to me that everybody ought to go home, get a good night’s rest, come back tomorrow morning. Make one more try at it at that time after you’ve had some chance to put some things in perspective. Reconsider my last instructions which were basically that you listen to one another. . . . Again, you are to use your own conscience and your own judgments in this matter, no matter what I say about trying to reach an agreement. Obviously, we try to avoid having to have a retrial.”

The following morning, the court reinstructed the jury on the presumption of innocence, reasonable doubt and credibility of witnesses. The court made clear in its remarks that its reinstruction on these points of law was intended only to assist the jury in its deliberations.

The defendant now claims that the Chip Smith charge should not have been given more than once and that it was coercive. The defendant failed to preserve this claim at trial but urges this court to review it under State v. Golding, supra, 213 Conn. 233. We conclude that it is not entitled to review under Golding.

“Under Golding, a defendant can prevail on an unpreserved claim of constitutional error ‘only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.’ ” State v. Crosby, 34 Conn. App. 261, 264, 641 A.2d 406, cert. denied, 230 Conn. 903, 644 A.2d 916 (1994), quoting State v. Golding, supra, 213 Conn. 239-40.

“The first two conditions are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself.” State v. Crosby, supra, 34 Conn. App. 264. “In the absence of any one of these conditions, the defendant’s claim will fail.” State v. Golding, supra, 213 Conn. 240.

The court gave the charge when advised that the jurors were deadlocked. The court instructed the jury with the charge first approved by our Supreme Court in State v. Smith, supra, 49 Conn. 386, which has been consistently upheld. State v. Ryerson, 201 Conn. 333, 349, 514 A.2d 337 (1986); State v. Avcollie, 188 Conn. 626, 641, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S. Ct. 2088, 77 L. Ed. 2d 299 (1983). The defendant does not challenge the court’s charge directly but instead claims that the special circumstances of this case rendered the instruction harmful error.

The defendant contends that those special circumstances include that the court gave the Chip Smith instruction more than once. This, however, was not the case. The transcript shows that the court presented the instruction to the jury only once. On the second day of deliberations, prior to the luncheon recess, the jury had communicated by its first note that it was deadlocked. The court acknowledged receipt of this note by sending the jurors to lunch and telling them, in a casual manner, to think of what the other jurors had to say. This was not a formal Chip Smith charge instructing the jurors on deliberation, but rather the court’s informal comment to the jury to relax over a long lunch and for each to think about what the others’ opinions were. The Chip Smith charge was given to the jury on the second day of deliberation in response to its second note. This note said it was deadlocked with a vote. The note did not articulate whether the majority favored conviction or acquittal.

At the close of court that day, the jury was returned to the courtroom prior to adjourning. The court commended the jurors for putting in a hard day, advised them to get a good night’s rest and to return in the morning. The court reminded the jurors of its earlier instructions regarding listening to one another, considering how the majority was leaning and for each to use his or her own conscience and judgment. It also told the jury that “obviously we try to avoid having to have a retrial.”

These brief remarks, part of the court’s comments in recessing court for the day, are not tantamount to a formal Chip Smith charge. They served only as a reminder to the jury of the earlier instructions.

In State v. Avcollie, supra, 188 Conn. 626, the jury sent a note to the court stating that it was deadlocked eleven to one for conviction. Our Supreme Court held that the fact that the court knew that there was a lone dissenter did not make the Chip Smith charge coercive, inasmuch as the nature of the division was disclosed to the court voluntarily, without solicitation. Id., 641.

This court recently held that “[t]he Chip Smith charge . . . resembles those instructions held to be nonconstitutional in nature .... The Chip Smith charge does not concern the elements of a crime, but deals only with the role of the jurors and their duties during the deliberative process.” State v. Lyons, 36 Conn. App. 177, 189, 649 A.2d 1046 (1994). In Lyons, this court concluded that a challenge to a similar charge, given twice, fails the second prong of Golding because it was “not of constitutional magnitude and [did] not allege the violation of a fundamental right.” Id., 187-90. This is also the case here.

The judgment is affirmed.

In this opinion the other judges concurred.

       The Chip Smith charge was developed in the case of State v. Smith, 49 Conn. 376, 386 (1881), to instruct the jury as to its duties in the event of deadlock. The jurors are charged, inter alia, to “pay proper respect to each other’s opinions, and listen with candor to each other’s arguments” in order to arrive at an unanimous verdict. Id.


source: Caselaw Access Project

author: Foti, J.

license: Public Domain

text:
    Diana Moxon v. Board of Trustees of Regional Community Colleges
    (13515)
    O’Connell, Foti and Lavery, Js.
    Argued February 6
    decision released April 25, 1995

      Donna Civitello, with whom, on the brief, was Robert F. Carter, for the appellant (plaintiff).

      Loida John-Nicholson, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and William J. McCullough, assistant attorney general, for the appellee (defendant).
   Foti, J.

The plaintiff appeals from the decision of the compensation review board (board) affirming the findings of the workers’ compensation commissioner (commissioner) and his determination of the plaintiff’s compensation rate. On appeal to this court, the plaintiff claims that the board improperly upheld the commissioner’s finding of the plaintiff’s date of disability and his determination of the base workers’ compensation rate.

The following facts are relevant to this appeal. The plaintiff, a computer specialist, had been employed by the defendant since January 2,1987. On May 27,1987, installation of new carpeting began in the data center where she worked, and continued for up to two weeks. She became ill in June, 1987, from exposure to fumes from the carpet adhesive. In July, 1987, the plaintiff was exposed to fumes when a ground maintenance crew accidently sprayed a pesticide into the air vents. Subsequent to these incidents of exposure, she developed severe acquired angioedema, causing abdominal pain and diarrhea. She also experienced hive-like swellings on the skin and swelling of the upper airways resulting in shortness of breath.

The parties subsequently entered into a voluntary agreement indicating injury to the plaintiff on June 12, 1987, from exposure to chemicals. It also indicated a maximum workers’ compensation rate of $408 per week. This agreement was executed by the parties, filed on November 14,1988, and approved by the compensation commissioner for the first district on November 22, 1988.

The plaintiff reached maximum medical improvement as assessed by her treating physician, Robert McLellan, on January 31, 1990. A formal hearing was held before the workers’ compensation commissioner on October 15, 1991. At this hearing, the parties stipulated that the number of weeks of permanent partial disability to be paid was 358.8 weeks. The sole issue before the commissioner was the determination of the applicable average weekly wage and the corresponding compensation rate due to the plaintiff. It was the plaintiff’s claim that her date of incapacity was January 31,1990, the date when her permanent partial incapacity was first assessed by McLellan. She claimed that on the basis of a January 31, 1990 date of incapacity, she was entitled to a workers’ compensation base rate of $631.31 per week. The plaintiff sought to have the voluntary agreement that the parties had entered in November, 1988, modified accordingly.

The commissioner found that the plaintiff’s workers’ compensation rate of $408 per week was the proper rate, and that that rate was properly determined as of June, 1987. The plaintiff appealed that ruling to the compensation review board, which affirmed the findings of the commissioner. The plaintiff now appeals from the board’s decision. We affirm the decision of the board.

As a preliminary matter, we note that when a decision of a commissioner is appealed to the compensation review board, that board may not retry the facts and is obligated to hear the appeal on the record of the hearing before the commissioner. Fair v. People’s Savings Bank, 207 Conn. 535, 538-39, 542 A.2d 1118 (1988). The commissioner, as trier of facts, has the power and duty to determine the facts, and the conclusions drawn from those facts as found “must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Internal quotation marks omitted.) Crochiere v. Board of Education, 227 Conn. 333, 347, 630 A.2d 1027 (1993). Our scope of review of the actions of the board is similarly limited. Vanzant v. Hall, 219 Conn. 674, 677, 594 A.2d 967 (1991).

The relevant date for determining compensation to an injured worker is the date of that worker’s incapacity to work, which might not necessarily be the date of injury. Stevens v. Raymark Corp./Raybestos Manhattan, 28 Conn. App. 226, 228, 610 A.2d 710, cert. denied, 223 Conn. 921, 614 A.2d 830 (1992). In the present case, the commissioner made several findings in support of his conclusion that there was no discrepancy between the plaintiff’s date of injury and date of incapacity to work, and in determining the weekly rate of compensation. In refusing to open and modify the original voluntary agreement signed by the parties and approved by the workers’ compensation commissioner, which established the date of the injury and the rate of compensation, the commissioner noted that the plaintiff had not established any changed conditions of fact necessitating a modification of that agreement pursuant to General Statutes § 31-315.

The board determined that the commissioner’s finding that the plaintiff became ill due to exposure to chemical fumes in June, 1987, and was disabled from work at that time, was supported by the record. On the basis of that date, the board upheld the commissioner’s conclusion regarding the calculation of the compensation rate. We agree that the findings were supported by evidence in the record.

The plaintiff’s injury from specific incidents at work was clearly identified, and resulted in her partial incapacity to work at the time. She immediately had symptoms and signed a voluntary agreement setting forth a compensable episode. This agreement constituted a stipulation that the commissioner was justified in considering. While the stipulation does not agree that the plaintiff was totally disabled for any period of time, neither is it inconsistent with a determination that her work capacity was impaired in 1987. The plaintiff’s treating physicians, Norman Bedard and Mark Cullen, both indicated in their reports that the plaintiff was absent due to illness six to seven times per year due to the fumes from the carpet adhesive and the pesticide exposure. Another treating physician, Robert McLellan, reported in 1990 that although the plaintiff was able to continue full-time work, “she estimates she lost about ten days last year due to this problem.” The stipulation itself states that the plaintiff “did have time lost for medical visits” as a result of her work injury from June 12, 1987.

The plaintiff relies on Stevens v. Raymark Corp./Raybestos Manhattan, supra, 28 Conn. App. 230, as support for her argument that the date of incapacity was the date McLellan first assessed her permanent partial incapacity. The claimant in Stevens suffered from an occupational disease, and the events leading to the claimant’s injury and his incapacity to work did not occur simultaneously. The commissioner, in distinguishing Stevens, recognized that this case was not the case of an injury occurring over a period of time, where the appropriate calculation of benefits would relate to the time of the manifestation of the injury, i.e., the date that incapacity from the injury occurred. Cf. id. In this case, the plaintiff was subjected to specific, identifiable incidents at work that immediately resulted in symptoms and in her partial incapacity to work at that time.

We conclude that the commissioner had before him sufficient facts from which he could conclude as he did. The board reiterated the findings of the commissioner and affirmed his decision regarding the plaintiffs compensation rate.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       Although the board affirmed the commissioner’s determination, it remanded the matter to the commissioner with direction that the commissioner include an order of interest pursuant to General Statutes § 31-295 (c). The parties agree, as do we, that the board’s decision is a final judgment; the appeal is not premature requiring a dismissal. The remand requires only a noncontroversial calculation, the parties having stipulated, prior to the appeal, to the form and method of computation. The remand, therefore, involves only the ministerial function of entering an award of statutory interest. See Vachon v. General Dynamics Corp., 29 Conn. App. 654, 657 n.3, 617 A.2d 476 (1992), cert. denied, 224 Conn. 927, 619 A.2d 852 (1993).

       General Statutes § 31-301b provides: “Any party aggrieved by the decision of the Compensation Review Board upon any question or questions of law arising in the proceedings may appeal the decision of the Compensation Review Board to the appellate court.”

       General Statutes § 31-315 provides: “Any award of, or voluntary agreement concerning, compensation made under the provisions of this chapter shall be subject to modification, upon the request of either party and in accordance with the procedure for original determinations, whenever it appears to the compensation commissioner, after notice and hearing thereon, that the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed, or that changed conditions of fact have arisen which necessitate a change of such agreement or award in order properly to carry out the spirit of this chapter. The commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court. The compensation commissioner shall retain jurisdiction over claims for compensation, awards and voluntary agreements, for any proper action thereon, during the whole compensation period applicable to the injury in question.”


text:
    Town of Fairfield et al. v. Connecticut Siting Council et al.
    (13094)
    Dupont, C. J., and La very and Heiman, Js.

      Argued October 25, 1994
    decision released April 25, 1995

      Linda M. Guliuzza, for the appellants (plaintiff Alliance to Limit Electromagnetic Radiation Today et al.).

      Mark F. Kohler, assistant attorney general, with whom, on the brief was Richard Blumenthal, attorney general, for the appellee (named defendant).

      Anthony M. Fitzgerald, for the appellee (defendant Connecticut Light and Power Company et al.).
   Lavery, J.

The plaintiffs appealed to the trial court from the defendant Connecticut Siting Council’s (council) denial of their requests for a reversal or modification under General Statutes § 4-181a (b) of the council’s certification of environmental compatibility and public need for the construction of an electric transmission line. The council denied that request because it found no changed conditions. The trial court granted the defendants’ motions to dismiss and the plaintiffs appealed to this court.

The plaintiffs claim that the trial court incorrectly concluded that the council’s decision was not a final decision under the Uniform Administrative Procedure Act (UAPA), General Statutes §§ 4-166 through 4-189, and that the plaintiffs’ requests were petitions for reconsideration. We agree with the plaintiffs and reverse the judgment of the trial court.

The pertinent facts are as follows. In January, 1991, the defendants Connecticut Light and Power Company and United Illuminating Company (utilities) applied to the defendant council for a certificate of environmental compatibility and public need (certificate) for the construction of an electric transmission line that would be 15.3 miles in length and extend from Bridgeport to Norwalk within an existing railroad right-of-way. The application was served on all appropriate local and state officials and the hearing date was noticed in the local newspapers. A six hour contested hearing was held in the Westport town hall on April 29,1991. On September 18,1991, the council approved the application pursuant to General Statutes § 16-50k and limited conditions of construction and operation of the proposed transmission line. No appeal was taken from this decision. The utilities have already completed a substantial portion of the project in reliance on the certificate granted by the council.

Subsequent to September 18,1991, and prior to May 6, 1993, numerous motions and requests seeking to open the granting of the certificate and concerning stop work orders and investigations into alternatives to the proposed construction were submitted to the council. Without holding a hearing, the council denied the motions and requests in a written decision dated May 6, 1993.

The council found that “the subject matter of all motions, requests, and contentions to reevaluate this case and reinvestigate issues, has already been carefully considered by the Council in deciding this application ... on September 18, 1991. No one has introduced new information or facts that were not available at that time.

“Because of a legal expectation of finality of a decision, we must find a compelling reason to reverse our decision or reopen this proceeding. After considering each and every motion, request and contention, we find no such compelling reason.”

Subsequent to the May 6,1993 decision, new motions for modification under General Statutes § 4-181a (b) were filed with the council. These motions claimed that changed conditions, new information, and new technology have occurred since the council’s September 18, 1991 decision.

On June 29,1993, the council announced that it would conduct public hearings on July 13, 1993, on the motions to open and reconsider the construction of the facility. Prior to the hearing, the council solicited written comments and consultation from the state departments of environmental protection, health services, public utility control, economic development and transportation, and the state council on environmental quality and the state office of policy and management. The hearing on July 13, 1993, was limited to the taking of oral statements from the public and parties. The council permitted the submission of evidence and briefs, which were to be filed at the council’s office on or before July 20, 1993. On July 30, 1993, the council issued a written opinion.

It stated in part: “In deciding these motions and requests to reopen, we acted under General Statutes § 4-181a (b) which allows us to reverse or modify a final decision on a showing of changed conditions. ... In conclusion, we find that the subject matter of all motions, requests, and contentions to re-evaluate this case and reinvestigate issues, has already been carefully considered by the Council in deciding this application two years ago, on September 18,1991. We know of no new information or facts that were not available at that time that would compel us to reopen this case. We have not identified any unknown or unforeseen events or any relevant circumstances that would compel us to reopen this case. There have been no scientific or technological breakthroughs that would have altered our analysis. Our analysis remains valid today and consistent with State law and State policy, including policy from the State Department of Public Health and Addiction Services and the Department of Environmental Protection.

“Because of a legal expectation of finality of a decision, we must find a showing of changed conditions or a compelling reason to reopen this proceeding. After considering each and every motion, request, and contention, we find no such changed conditions or compelling reasons.”

Commissioner Paulann H. Sheets filed a six page dissenting opinion concluding that there were changed conditions and that a rehearing should take place. That rehearing she felt should reexamine the decision in light of the changed conditions and modify it appropriately if the evidence warranted.

From the July 30 decision, the town of Fairfield, the Alliance to Limit Electromagnetic Radiation Today (A.L.E.R.T.), Anne Graney, Santo Piro, Christine S. Piro, Jennifer Lindine, Stephen Stout and David S. Parker appealed to the Superior Court alleging that the council, “[i]n denying the motions for revocation, reconsideration, amendment and/or modification, acted illegally, arbitrarily and in abuse of the discretion vested in it in that: a. its decision is clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; b. it failed to adequately notice the public hearing held July 13, 1993, in violation of the federal and state constitutions and state statutory provisions; c. it failed to employ the procedures for contested cases, in violation of General Statutes § 4-181a (b); d. it considered the effect of ‘changed conditions’ in the absence of a full evidentiary hearing; e. it relied, in error, upon the comments of the department of public health and addiction services in rendering its decision; f. it failed to consider the project’s effects upon historic resources, aesthetics, the environment, property values and health; and g. it erred in denying party status to the plaintiffs, A.L.E.R.T., David S. Parker and Town of Fairfield, in violation of State Statutory provisions.”

The council and the utilities then each filed a motion to dismiss. Each motion was based on the trial court’s lack of jurisdiction. The trial court granted each motion ruling that, in a hearing held under § 4-181a (b), there is no automatic right to an appeal and that, even though the council had held a hearing, it had not been required to do so under the statute and could have denied the motions without one. It further found that since no hearing was required by the statute, denial of the motions did not create the right to appeal and cited Summit Hydropower Partnership v. Commissioner of Environmental Protection, 226 Conn. 792, 629 A.2d 367 (1993).

The trial court further found that motions for reconsideration, reversal or modification of any final decision are governed by the requirements for contested cases. General Statutes § 4-181a (b). The agency’s consideration of the motions was not a “contested case” under § 4-166 (2) and, since no hearing was required, it was not an “agency determination in a contested case” and not a “final decision” under § 4-166 (3). As previously stated, the definition of “final decision” includes “an agency decision made after reconsideration.” (Emphasis added.) The ruling of an agency granting or denying a petition for reconsideration is, however, expressly excluded from the definition of “final decision” in § 4-166 (3).

We do not decide whether the plaintiffs’ appeal has any merit but only whether the plaintiffs’ have a right to have their appeal heard.

This case is governed by the UAPA and more specifically § 4-181a (b), which allows an agency to modify or reverse a prior final decision of a contested case on a showing of changed conditions. This appeal is the first time this section has come before any appellate court for review. Although there was no prior statutory authority in the UAPA similar to this section, prior case law had recognized changed conditions as a ground for altering an administrative decision. Shea v. State Employees Retirement Commission, 170 Conn. 610, 368 A.2d 159 (1976).

General Statutes § 4-181a (b) provides: “On a showing of changed conditions, the agency may reverse or modify the final decision, at any time, at the request of any person or on the agency’s own motion. The procedure set forth in this chapter for contested cases shall be applicable to any proceeding in which such reversal or modification of any final decision is to be considered. The party or parties who were the subject of the original final decision, or their successors, if known, and intervenors in the original contested case, shall be notified of the proceeding and shall be given the opportunity to participate in the proceeding. Any decision to reverse or modify a final decision shall make provision for the rights or privileges of any person who has been shown to have relied on such final decision.”

The plaintiffs contend that the trial court improperly concluded that the council’s decision was not a final decision under the UAPA. Judicial review of an administrative decision is a creature of statute. Tarnopol v. Connecticut Siting Council, 212 Conn. 157, 163, 561 A.2d 931 (1989). Section 4-183 (a) of the UAPA provides in relevant part: “A person . . . who is aggrieved by a final decision may appeal to the superior court as provided in this section. . . .’’In General Statutes § 4-166 (3), a final decision is defined 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. The term does not include ... a ruling of an agency granting or denying a petition for reconsideration . . . .”

In General Statutes § 4-166 (2), a contested case is defined as “a proceeding, including but not restricted to rate-making, price fixing and licensing, in which the legal rights, duties or privileges of a party are required by statute to be determined by an agency after an opportunity for hearing or in which a hearing is in fact held, but does not include proceedings on a petition for a declaratory ruling under section 4-176 or hearings referred to in section 4-168 . . . .”

Relying on Summit Hydropower Partnership v. Commissioner of Environmental Protection, supra, 226 Conn. 792, the trial court concluded that this is not a contested case and, therefore, the council’s decision was not a final decision under the UAPA. In Summit Hydropower, the plaintiff filed an application with the Federal Energy Regulatory Commission for a license to construct a hydroelectric facility. In accordance with federal regulations, the plaintiff filed a copy of the application with the water management bureau of the Connecticut department of environmental protection, seeking certification indicating that the proposed project was in compliance with state and federal water quality standards. Such state certification is required prior to the issuance of a license by the Federal Energy Regulatory Commission. Id., 796. The commissioner of environmental protection denied the plaintiffs request for certification.

The plaintiff appealed the denial to the Superior Court, which sustained the appeal. The defendants appealed from that decision, and our Supreme Court reversed the trial court’s judgment. Id., 799.

The Supreme Court agreed with the defendant that the proceedings before the agency did not constitute a contested case and the court did not have subject matter jurisdiction over the appeal. That court relied on Herman v. Division of Special Revenue, 193 Conn. 379, 382, 477 A.2d 119 (1984), in stating that “ ‘[t]he test for determining contested case status has been well established and requires an inquiry into three criteria, to wit: (1) whether a legal right, duty or privilege is at issue, (2) and is statutorily required to be determined by the agency, (3) through an opportunity for hearing or in which a hearing is in fact held.’ ” (Emphasis in original.) Summit Hydropower Partnership v. Commissioner of Environmental Protection, supra, 226 Conn. 800-801; see Fraenza v. Keeney, 232 Conn. 401, 655 A.2d 1112 (1995), adopting 43 Conn. Sup. 386, 655 A.2d 1113 (1994).

The court noted that, to ascertain whether a statute requires an agency to determine the legal rights or privileges of a party in a hearing, it is necessary to examine the statutory provisions governing the activities of the agency. Summit Hydropower Partnership v. Commissioner of Environmental Protection, supra, 226 Conn. 802-803. The court proceeded to review the relevant statutory provisions and concluded that they did not require the commissioner of environmental protection to determine the plaintiffs rights in a hearing. Id., 804.

This case differs substantially from Summit Hydropower. There is no dispute that the granting of the certificate on September 18,1991, was a final decision of a contested case from which an appeal could have been taken under the UAPA. General Statutes § 16-50q. The authority for the council to modify or reverse the prior decision on the basis of changed conditions does not come from chapter 277a, which sets forth the duties and powers of the council, but rather from the UAPA § 4-181a (b). General Statutes § 16-50Z (d) provides for a proceeding to amend a certificate, but it may be initiated only by the certificate holder or the council. A public hearing is required under General Statutes § 16-50m on an application for amendment of the certificate. In addition, § 16-50q provides for judicial review on an order issued on an amendment to a certificate.

The provisions of § 4-181a (b) apply not only to the council but to all state agencies’ final decisions. This section gives an agency broad discretion to reverse or modify a final decision, at any time, on a showing of changed conditions. This may be done either by the motion of the agency or by the request of any person.

Our analysis of the plaintiffs’ claim is guided by well established principles of statutory construction. “ ‘ “Our fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” ’ ” Gonsalves v. West Haven, 232 Conn. 17, 21, 653 A.2d 156 (1995).

General Statutes § 4-166 (9) defines person as “any individual, partnership, corporation, association, governmental subdivision, agency or public or private organization of any character, but does not include the agency conducting the proceeding . . . .” The plaintiffs come within the statutory definition of person.

On May 6,1993, the council denied prior requests of the plaintiffs and others by written notice without a hearing. Subsequent to the May 6, 1993 notice, the plaintiffs filed new motions to the council claiming changed conditions, new information, new technology, and technological breakthroughs that had occurred since September 18,1991. The council announced that it would conduct a public hearing on the motions to open and reconsider the construction of the facility.

This hearing became the proceeding contemplated in § 4-181a (b). Since the UAPA does not define proceeding, “the term must be construed according to the commonly approved usage of the language.” Caldor, Inc. v. Heffernan, 183 Conn. 566, 570, 440 A.2d 767 (1981). “Where a statute does not define a term, it is appropriate to look to the common understanding expressed in the law and in dictionaries.” Doe v. Manson, 183 Conn. 183, 186, 438 A.2d 859 (1981). Bouvier’s Law Dictionary defines proceeding as “the form in which actions are to be brought and defended, the manner of intervening in suits, of conducting them of opposing judgments and of executing.” In State v. Ventola, 4 Conn. Sup. 161, 162 (1936), the court stated that “the word ‘proceeding’ is as broad a word as may be used. An examination of the derivation of the word indicates that it is anything that may move forward; and so this word has been applied to business and affairs of many kinds.” In this case, the hearing on July 13, was a proceeding as contemplated by the statute. The hearing was noticed, as was the original hearing, in the Hartford Courant, Connecticut Post, Fairfield Citizen News, Norwalk Hour and the Westport News. Memoranda were sent from the council to the departments of environmental protection, health services, public utility control, economic development and transportation, and to the council on environmental quality and the office of policy and management soliciting written comments and consultation on the motion to open. All parties and intervenors to the original hearings were notified.

The defendants’ arguments that the council did not consider reversal or modification are without merit. In its decision, the council stated: “On July 30, 1993 the Connecticut Siting Council . . . considered motions and requests to reopen, stop work, reconsider, revoke or amend the Certificate, and to modify the construction of this 115kv transmission line facility.” It further stated in the opinion of July 30, 1993, that “[e]ven if we were to reopen this proceeding at this time, such a reopening would not be productive because there is no new scientific or technical information that would help to resolve this global issue.” At the opening of the hearing, the chairman said on page four of the transcript, “At this hearing, the Council will receive testimony on the technical and legal reasons to reopen this proceeding. The chairman announced at the end of the hearing that all evidence must be filed with the Council no later than July 20, 1993 and that all state agencies desiring to submit additional comments do so by the same date.”

Pursuant to the statute all the parties and intervenors to the “original contested case” were notified of the proceeding and were given the opportunity to participate in the proceeding.

Because of the vested rights of the utilities, the issue of “changed conditions” must be subject to the adversarial proceeding of a contested hearing. Section 4-181a (b) represents a departure from case law that existed prior to its enactment because it allows an agency, to a certain extent, to reverse or modify a decision at any time. Under prior case law, an agency had the power to reverse its decision only if no vested rights had arisen. Shea v. State Employees’ Retirement Commission, 170 Conn. 610, 615-16, 368 A.2d 159 (1976); St. Patrick’s Church Corp. v. Daniels, 113 Conn. 132, 138, 154 A. 343 (1931).

To reverse or modify there must be a “showing of changed condition.” Showing is defined in Webster’s Third New International Dictionary as “an act of putting something on view.” It is clear from the plain language of § 4-181a (b) that the hearing held was subject to the “contested case” provision of the UAPA. Our conclusion is substantiated by an article in the Connecticut Bar Journal by Joseph C. Lee, an attorney who was an advisor to the law revision commission, which recommended this section to the legislature. “An agency enjoys broad discretion to reverse or modify a final decision, at any time, on a showing of changed conditions. Such action may be taken in response to an agency’s own motion or the request of any person. Procedurally, the agency is bound to notify all parties who were the subject of the original order or their successors, if known, and all intervenors in the original contested case, to give them the opportunity to participate in the proceeding. The proceeding itself must be conducted in accordance with the contested case provisions. Furthermore, an agency is bound to consider the interests of any person who has been shown to have relied on a final decision being reversed or modified.” J. Lee, “Administrative Law in Connecticut — An Overview of the Administrative Procedure Act,” 64 Conn. B.J. S.I. 259, 271 (1990).

The plaintiffs’ appeal alleges that they were not afforded a hearing in accord with the UAPA procedures for contested cases and that the council considered the effect of changed conditions in the absence of a full evidentiary hearing.

In § 4-166 (2) a contested case is defined in part as “a proceeding ... in which the legal rights, duties or privileges of a party are required by statute to be determined by an agency after an opportunity for a hearing . . . .”

Among the allegations in the appeal is the denial of party status to A.L.E.R.T., David S. Parker and the town of Fairfield in violation of General Statutes § 4-177a (a), the failure to give adequate notice in violation of statutory provisions (General Statutes § 4-177 has specific notice requirements in contested cases), the failure to have a full evidentiary hearing (General Statutes §§ 4-177b, 4-177c and 4-178 cover conduct of hearings under contested cases), and the general failure to employ the procedures for contested cases as required by § 4-181a (b).

The statute clearly allows a final decision from a contested case to be opened and modified upon a showing of changed conditions. It is clear that once the agency initiates a proceeding, it must conform to the contested case provisions because it not only protects the person alleging the changes and seeking modification but it gives to those who have vested rights all the due process procedures of the contested case provisions to contest the allegation of changed conditions and to protect what they received in the original final decision from being modified or reversed. The right of appeal from a proceeding under § 4-181a (b) protects not only the persons petitioning the modification or reversal of the prior decision but those that have vested rights from the prior decision.

We agree with the plaintiffs’ second claim that a proceeding under § 4-181a (b) is not excluded from the definition of “final decision” in § 4-166 (3).

Petitions for reconsideration under the UAPA are governed by § 4-181a (a). This section permits a party in a contested case to file a petition for reconsideration within fifteen days of delivery or mailing of the final decision. Unlike requests made pursuant to § 4-181 (b), petitions for reconsideration may not be made “at any time” or “at the request of any person.” None of the plaintiffs was a part in the original contested case decided in 1991. A petition for reconsideration does not stay the time to appeal under General Statutes § 4-183 (c) from the final decision of the original contested case. Cassella v. Dept. of Liquor Control, 30 Conn. App. 738, 622 A.2d 1018, cert. denied, 226 Conn. 909, 628 A.2d 983 (1993).

In Cassella, we stated: “The failure to file an appeal from an administrative decision within the time set by statute renders the appeal invalid and deprives the courts of jurisdiction to hear it. Ierardi v. Commission on Human Rights & Opportunities, 15 Conn. App. 569, 574, 546 A.2d 870, cert. denied, 209 Conn. 813, 550 A.2d 1082 (1988).” (Internal quotation marks omitted.) Cassella v. Dept. of Liquor Control, supra, 30 Conn. App. 740. The procedure for appeals from administrative agency decisions pursuant to § 4-183 have been substantially changed over the past four years. Prior to 1988, a request for reconsideration under General Statutes (Rev. to 1987) § 4-183 (b), “postpone[d] the running of the appeal period . . . until the decision thereon ... so long as the request is filed with the agency within the period for the commencement of an administrative appeal by service upon the proper parties thereto.” (Citations omitted; internal quotation marks omitted.) Ierardi v. Commission on Human Rights & Opportunities, supra, 575.

In 1989, the UAPA underwent major revisions. Among those were the procedures for the appeal of an administrative agency decision pursuant to § 4-183 (c). These revisions removed the tolling of the appeal period by the filing of a petition for reconsideration with the agency. The legislative history of the revisions as contained in the report and recommendations of the law revision commission states that “[a] petition for reconsideration is not a prerequisite for seeking judicial review (section 24) and does not stay the time to appeal. ” (Emphasis added.) Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 1988 Sess., p. 384.

The best explanation of the revision of the UAPA with reference to the creation of § 4-181a (a), (b) and (c) comes from the report of the Connecticut law revision commission to the Connecticut General Assembly entitled “Report and Recommendation of the Law Revision Commission concerning the Uniform Administrative Procedures Act,” Senate Bill 209, February 1988.

“Section 22. (NEW), contested case: reconsideration AND MODIFICATION OF FINAL DECISION. Under section 4-183 (b), the UAPA currently mentions reconsideration of a final decision only in context of determining the time for seeking judicial review. Under section 4-183 (e), the UAPA currently addresses agency modification of its decision only if an agency is considering additional evidence at the direction of a court on appeal. The act permits easier applications of these procedures by setting detailed standards for reconsideration of final decisions and by allowing modification of a decision in two new circumstances.

“Subsection (a) of the act permits reconsideration of a final decision to correct a problem discovered within fifteen days of the mailing or delivery of the decision. After receiving a timely petition for reconsideration, the agency uses a two-step process. The agency has twenty-five days after the filing of a petition to decide whether to reconsider the final decision. If the agency decides to reconsider, it then has a reasonable time to issue a new final decision affirming, modifying or reversing the original final decision.

“A petition for reconsideration is not a prerequisite for seeking judicial review (section 24) and does not stay the time to appeal. If, however, the reconsideration petition is granted, the agency’s subsequent action affirming, modifying, or reversing the final decision is, under section l (3), a new final decision to which a new appeal period applies.

“If, at some later date, conditions change, subsection (b) permits modification of the decision at that time. Any such modification, must, of course, adequately consider the rights of persons who have acted in reliance on the original final decision. Subsection (c) permits an agency to make clerical corrections in the final decision.”

The judgment is reversed and the case is remanded with direction to deny the defendants’ motions to dismiss and for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       The appeal to this court was filed by the plaintiffs Alliance to Limit Electromagnetic Radiation Today, Anne Graney, Jennifer Lindine, Santo Piro, Christine S. Piro, Stephen Stout and David S. Parker. The town of Fair-field did not appeal. As used in this opinion, the term plaintiffs refers to the appealing plaintiffs only.

       General Statutes § 16-50Í (d) provides: “An amendment proceeding may be initiated by an application for amendment of a certificate filed with the council by the holder of the certificate or by a resolution of the council. An amendment application by a certificate holder shall be in such form and contain such information as the council shall prescribe. A resolution for amendment by the council shall identify the design, location or route of the portion of a certificated facility described in subdivisions (1) or (2) of subsection (a) of section 16-50Í which is subject to modification on the basis of stated conditions or events which could not reasonably have been known or foreseen prior to the issuance of the certificate. No such resolution for amendment of a certificate shall be adopted after the commencement of site preparation or construction of the certificated facility or, in the case of a facility for which approval by the council of a right-of-way development and management plan or other detailed construction plan is a condition of the certificate, after approval of that part of the plan which includes the portion of the facility proposed for modification. A copy and notice of each amendment application shall be given by the holder of the certificate in the manner set forth in subsection (b) of this section. A copy and notice of each resolution for amendment shall be given by the council in the manner set forth in subsection (b) of this section. The council shall also provide the certificate holder with a copy of such resolution. The certificate holder and the council shall not be required to give such copy and notice to municipalities and the commissions and agencies of such municipalities other than those in which the modified portion of the facility would be located.”

       General Statutes § 16-50m provides: “(a) Upon the receipt of an application for a certificate complying with section 16-501, 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 at a location selected by the council in the county in which the facility or any part thereof is to be located after six-thirty p.m. for the convenience of the general public. After holding at least one hearing session in the county in which the facility or any part thereof is to be located, the council may, in its discretion, hold additional hearing sessions at other locations. If the proposed facility is to be located in more than one county, the council shall fix the location for at least one public hearing session in whichever county it determines is most appropriate, provided the council may hold hearing sessions 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, provided the council may, in its discretion, return without prejudice an application for an amendment of a certificate to the applicant with a statement of the reasons for such return. (2) The council may hold a hearing on a resolution for amendment of a certificate not less than thirty days nor more than sixty days after adoption of the resolution in the same manner as provided in subsection (a) of this section. The council shall hold a hearing if a request for a hearing is received from the certificate holder or from a person entitled to be a party to the proceedings within twenty days after publication of notice of the resolution. Such hearing shall be held not less than thirty days nor more than sixty days after the receipt of such request in the same manner as provided in subsection (a) of this section. (3) The county in which the facility is deemed to be located for purposes of a hearing under this subsection shall be the county in which the portion of the facility proposed for modification is located.
      “(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 16-50Í 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. ’ ’

       General Statutes § 4-166 (3) provides: “ ‘Final decision’ means (A) the agency determination in a contested case, (B) a declaratory ruling issued by an agency pursuant to section 4-176 or (C) an agency decision made after reconsideration. The term does not include a preliminary or intermediate ruling or order of an agency, or a ruling of an agency granting or denying a petition for reconsideration . . . .”

       General Statutes § 4-181a (a) provides: “(1) Unless otherwise provided by law, a party in a contested case may, within fifteen days after the personal delivery or mailing of the final decision, file with the agency a petition for reconsideration of the decision on the ground that: (A) An error of fact or law should be corrected; (B) new evidence has been discovered which materially affects the merits of the case and which for good reasons was not presented in the agency proceeding; or (C) other good cause for reconsideration has been shown. Within twenty-five days of the filing of the petition, the agency shall decide whether to reconsider the final decision. The failure of the agency to make that determination within twenty-five days of such filing shall constitute a denial of the petition. (2) Within forty days of the personal delivery or mailing of the final decision, the agency, regardless of whether a petition for reconsideration has been filed, may decide to reconsider the final decision. (8) If the agency decides to reconsider a final decision, pursuant to subdivision (1) or (2) of this subsection, the agency shall proceed in a reasonable time to conduct such additional proceedings as may be necessary to render a decision modifying, affirming, or reversing the final decision.”