author: KATZ, J.

text:
    COX CABLE ADVISORY COUNCIL v. DEPARTMENT OF PUBLIC UTILITY CONTROL ET AL.
    (SC 16538)
    Sullivan, C. J., and Borden, Katz, Vertefeuille and Zarella, Js.
    Argued September 13, 2001
    officially released January 15, 2002

      Edward G. Pizzella, for the appellant (plaintiff).

      Robert L. Marconi, assistant attorney general, for the appellee (named defendant).

      Burton B. Cohen, with whom, on the brief, was Sharon L. Codeanne, for the appellee (defendant Cox-Com Connecticut, Inc.).

      Phyllis J. Trowbridge, with whom, on the brief, were Guy R. Mazza and Melissa Day, for the appellee (defendant office of consumer counsel).
   Opinion

KATZ, J.

The dispositive issue in this appeal is whether the plaintiff, the Cox Cable Advisory Council (advisory council), may appeal from the decision of the defendant franchising authority, the department of public utility control (department), granting to the defendant CoxCom Connecticut, Inc., doing business as Cox Communications Connecticut/Manchester (Cox Cable), a renewal of its franchise. The advisory council appeals from the judgment of the trial court dismissing its appeal from the department’s decision to renew Cox Cable’s franchise. We determine that federal law preempts parties other than the cable operator from appealing the renewal of a cable franchise and that, accordingly, the trial court’s dismissal of the action, albeit on different grounds, was proper.

The record contains the following undisputed facts relevant to this appeal. On April 7, 1998, Cox Cable filed with the department an application, pursuant to General Statutes §§ 16-331 and 16-333, and § 16-333-38 of the Regulations of Connecticut State Agencies, for renewal of its authorization to construct and operate a community antenna television system, pursuant to a franchise or certificate of public convenience and necessity, for the franchise area consisting of the towns of Glastonbury, Manchester, Newington, Rocky Hill, South Windsor and Wethersfield. In accordance with the detailed procedural road map set forth by the Cable Communications Policy Act of 1984 (Cable Act); 47 U.S.C. § 521 et seq.; and under Connecticut’s implementation of this process; see Regs., Conn. State Agencies §§ 16-333-38 (a), 16-333-40 (b); Cox Cable submitted the requisite information to the department. Thereafter, in accordance with General Statutes § 16-331 (d) (5), and §§ 16-333-38 (b) and 16-333-40 of the regulations, the department held a hearing at which it designated Cox Cable and the office of consumer counsel as parties to the proceeding. Additionally, the department designated the advisory council, established pursuant to § 16-333-24 et seq. of the Regulations of Connecticut State Agencies* ** as the council to provide advice to the subject franchise area serviced by Cox Cable, as an intervenor pursuant to § 16-331 (c) (2). Following his request, the mayor of the town of Wethersfield was also granted intervenor status in the administrative proceedings.

Pursuant to § 16-331 (f), the department ordered a community needs assessment, the results of which were provided to the parties as well as the intervenors. Thereafter, Cox Cable submitted its proposal for renewal, which the department considered at several public hearings at which all the parties and the intervenors were afforded the opportunity to present evidence. A draft decision was issued, and the parties and the intervenors were afforded the opportunity to object. Specifically, the department invited all participants to file written exceptions to the draft decision and to notify the department of their intentions to present oral argument regarding the draft decision at a subsequent public hearing. After written objections were filed and oral arguments were presented, the department, on December 22, 1999, issued its final decision offering to renew Cox Cable’s franchise, subject to various terms and conditions. Following Cox Cable’s submission of a revised proposal for renewal that conformed with the department’s decision, Cox Cable and the department executed a final revised franchise agreement.

The advisory council appealed from the decision to the Superior Court, contending that it was aggrieved by the department’s decision renewing Cox Cable’s franchise because the decision violated the Uniform Administrative Procedures Act (UAPA). Cox Cable moved to dismiss the appeal, claiming that, because the question of aggrievement is essentially one of standing and thereby implicates the court’s subject matter jurisdiction, the advisory council’s failure to allege aggrievement deprived the trial court of jurisdiction to hear the appeal. Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674, 701, 780 A.2d 1 (2001) (noting basic principle of law that plaintiff must have standing for court to have jurisdiction). Cox Cable further claimed that the trial court lacked jurisdiction because the advisory council was preempted under federal law from bringing its appeal. Thereafter, the advisory council filed an amended appeal alleging additional facts in order to address the issue of aggrievement. The department then filed its own motion to dismiss based on the advisory council’s failure to establish aggrievement, and the court considered both motions together.

In reliance on Simko v. Zoning Board of Appeals, 205 Conn. 413, 533 A.2d 879 (1987), aff'd, 206 Conn. 374, 538 A.2d 202 (1988), the trial court determined that the amended appeal properly could not be considered by the court because the amendment had been filed after expiration of the forty-five day appeal period set forth in General Statutes § 4-183 (c). The trial court thereafter focused on the original appeal and concluded that the advisory council’s failure to allege facts showing aggrievement warranted dismissal of the appeal. Specifically, the court noted that the mere allegation by the advisory council that a section of the UAPA had not been followed was, in and of itself, insufficient to establish aggrievement. The trial court also noted that the reference in the amended appeal to the fact that the advisory council performs “functions customarily delegated to such councils by the statutes and regulations of the state of Connecticut” would not satisfy the jurisdictional requirement. Accordingly, the trial court dismissed the advisory council’s appeal without addressing Cox Cable’s jurisdictional challenge based on federal preemption. This appeal followed.

The advisory council makes three claims: (1) the present action is not preempted by the Cable Act; (2) the original appeal alleged sufficient facts to establish aggrievement; and (3) the amended appeal cured any deficiencies in the original appeal and should have been considered by the court. Cox Cable both defends the trial court’s decision on the issue of aggrievement and offers federal preemption as an alternate ground for affirmance. We agree with Cox Cable that federal law preempts parties other than the cable operator from appealing the renewal of a cable franchise and that, accordingly, the trial court’s dismissal of the action, albeit on different grounds, was proper.

Our resolution of the dispositive issue in this appeal, that is, whether the state trial court was divested of subject matter jurisdiction to entertain the action by the advisory council, a third party to the underlying franchise renewal application, is guided by the doctrine of federal preemption as disclosed by the application of the appropriate canons of statutory construction.

“The question of preemption is one of federal law, arising under the supremacy clause of the United States constitution. . . . Determining whether Congress has exercised its power to preempt state law is a question of legislative intent. . . . [A]bsent an explicit statement that Congress intends to preempt state law, courts should infer such intent where Congress has legislated comprehensively to occupy an entire field of regulation, leaving no room for the States to supplement federal law ... or where the state law at issue conflicts with federal law, either because it is impossible to comply with both ... or because the state law stands as an obstacle to the accomplishment and execution of congressional objectives .... Dowling v. Slotnik, 244 Conn. 781, 791, 712 A.2d 396, cert. denied sub nom. Slotnik v. Considine, 525 U.S. 1017, 119 S. Ct. 542, 142 L. Ed. 2d 451 (1998).” (Internal quotation marks omitted.) Barbieri v. United Technologies Corp., 255 Conn. 708, 717, 771 A.2d 915 (2001).

Our resolution of this case is also guided by our statutory construction jurisprudence. “The process of statutory interpretation involves a reasoned search for the intention of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case .... In seeking to determine that meaning, 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. . . . Luce v. United Technologies Corp., 247 Conn. 126, 133, 717 A.2d 747 (1998). In construing a statute, common sense must be used and courts must assume that a reasonable and rational result was intended. Kron v. Thelen, 178 Conn. 189, 192, 423 A.2d 857 (1979); accord Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 26, 717 A.2d 77 (1998). Finally, because the question presented [in] this appeal involves an issue of statutory construction, our review is plenary. E.g., Coley v. Camden Associates, Inc., 243 Conn. 311, 318, 702 A.2d 1180 (1997).” (Internal quotation marks omitted.) Schreck v. Stamford, 250 Conn. 592, 596-97, 737 A.2d 916 (1999); accord Connelly v. Commissioner of Correction, 258 Conn. 394, 403, 780 A.2d 903 (2001).

Against this background, we begin with a brief history of the pertinent provisions of the governing legislation along with a discussion of the relative roles played by the governing authorities. We begin with the Cable Act, which amended the federal Communications Act of 1934, the purpose of which was to provide a federal framework that would encourage investment in cable television systems and technology on a national level. See 47 U.S.C. § 521. The Cable Act was enacted in order to “provide and delineate within Federal legislation the authority of Federal, state and local governments to regulate cable systems.” (Internal quotation marks omitted.) Cable Television Assn. of New York, Inc. v. Finneran, 954 F.2d 91, 97 (2d Cir. 1992). Particularly relevant to this appeal is the purpose behind the provision addressing franchise renewals, which is intended to “establish an orderly process for franchise renewal which protects cable operators against unfair denials of renewal where the operator’s past performance and proposal for future performance meet the standards established by this subchapter . . . .” (Emphasis added.) 47 U.S.C. § 521 (5). To implement these goals, the Cable Act sets forth a detailed scheme for renewal of cable franchises. See 47 U.S.C. § 546. Federal law both sets forth the terms and conditions with which a renewed franchise must comply; see, e.g., 47 U.S.C. § 552; as well as prohibits the conditioning of a renewed franchise upon other terms and conditions. See 47 U.S.C. § 541 (b) (3) (D). In 1985, in order to conform with federal law, General Statutes § 16-331 was amended to provide for renewals consistent with the Cable Act; Public Acts 1985, No. 85-509, § 6; and, in the present case, pursuant to § 16-331 (d) (5), the department promulgated specific regulations pertaining to cable television franchise renewals. See Regs., Conn. State Agencies § 16-333-38.

For the purposes of the present case, there are three key federal provisions. The first is 47 U.S.C. § 546, specifically, subsection (e) (1), which sets forth the express provision for judicial review: “Any cable operator whose proposal for renewal has been denied by a final decision of a franchising authority made pursuant to this section, or has been adversely affected by a failure of the franchising authority to act in accordance with the procedural requirements of this section, may appeal such final decision or failure pursuant to the provisions of section 555 of this title.” (Emphasis added.) See footnote 10 of this opinion. The second provision is 47 U.S.C. § 555 (a), which provides in part, with regal’d to an action to review determinations by franchising authorities: “Any cable operator adversely affected by any final determination made by a franchising authority under section 541 (a) (1), 545 or 546 of this title may commence an action within 120 days after receiving notice of such determination ... in [either] (1) the district court of the United States for any judicial district in which the cable system is located; or (2) in any State court of general jurisdiction having jurisdiction over the parties.” (Emphasis added.) Because these provisions expressly identify only the incumbent cable operator as the party able to obtain judicial review of a decision of a franchising authority, we conclude that, in light of the third key provision, 47 U.S.C. § 556 (c), which provides in part that “any provision of law of any State . . . which is inconsistent with this chapter shall be deemed preempted and superseded,” no other party may appeal such a decision.

Our determination rests, however, on more than that delineation. We note that the provisions related to a renewal franchise, in specific, 47 U.S.C. § 546 (e) (1) and (2) and 47 U.S.C. § 555, allow for judicial review of a decision or action in a franchise renewal in only three instances, none of which expressly pertains to the advisory council. A cable operator may appeal a decision when (1) it has been affected adversely by a franchising authority’s failure to comply with the procedural requirements of 47 U.S.C. § 546, (2) when its proposal for renewal has been denied, or (3) when its proposal has been granted subject to specified conditions that the operator refuses to accept.

Although those provisions do not expressly prohibit any other party from appealing the department’s decision, the legislative history supports this limited reading of the Cable Act. A report prepared by the House Committee on Energy and Commerce provides: “A cable operator adversely affected by a franchising authority’s failure to comply at any time with the procedural requirements of this section or whose proposal for renewal is denied may appeal to state court or to the U.S. District Court under the provisions of section 636. If a franchising authority grants renewal but subject to specified conditions which the operator refuses to accept, the operator may appeal that decision as if it were a denial.” House Committee on Energy and Commerce, Cable Franchise Policy and Communications Act of 1984, H.R. Rep. No. 98-934, p. 75 (1984) (House Report); see Cable Investments, Inc. v. Woolley, 867 F.2d 151, 155 (3d Cir. 1989) (referring to House Report as “the principal source of legislative history on the Cable Act”). More important, for purposes of this appeal, the House Report expressly explains that where the “incumbent [cable operator] is granted renewal pursuant to his proposal, there is no right of appeal by any other party.” (Emphasis added.) H.R. Rep. No. 98-934, p. 75.

Furthermore, we note that when Congress has intended to provide rights to third parties, it specifically has done so. Compare 47 U.S.C. § 546 with 47 U.S.C. § 532 (d) (person aggrieved by cable operator’s refusal to make channel capacity available may sue in federal court), 47 U.S.C. § 553 (any person harmed by unauthorized interception of cable service may bring civil action), and 47 U.S.C. § 551 (subscriber has private right of action for violation of privacy). “Congress for reasons of its own decided upon the method for the protection of the ‘right’ which it created. It selected the precise machinery and fashioned the tool which it deemed suited to that end. ... In such a case the specification of one remedy normally excludes another.” (Citation omitted.) Switchmen’s Union of North America v. National Mediation Board, 320 U.S. 297, 301, 64 S. Ct. 95, 88 L. Ed. 61 (1943); see Touche Ross & Co. v. Redington, 442 U.S. 560, 572, 99 S. Ct. 2479, 61 L. Ed. 2d 82 (1979) (express availability of certain private actions establishes that, “when Congress wished to provide a private damages remedy, it knew how to do so and did so expressly”).

In view of Congress’ clear intent to limit the parties and circumstances under which review may be sought, we are hard pressed to conclude that there is otherwise an inherent right to appeal the terms and conditions of a franchise renewal in contravention of the intent to the contrary. Indeed, preemption jurisprudence forbids such a conclusion Cable Television Assn. of New York, Inc. v. Finneran, supra, 954 F.2d 98; see Westmarc Communications, Inc. v. Dept. of Public Utility Control, United States District Court, Docket No. CVH89631, 1990 U.S. Dist. LEXIS 20080 (D. Conn. May 4, 1990) (attempt to prohibit cable operators from factoring into basic service rates civil penalty imposed by department preempted by provisions prohibiting regulation of cable systems as utilities); Time Warner Entertainment Co. v. Briggs, United States District Court, Docket No. CV92-40117-GN, 1993 U.S. Dist. LEXIS 1196 (E.D. Mass. January 14, 1993) (town bylaws requiring appointment of arbitrator when cable operator and local franchising authority are unable to agree on amendment provisions to franchise preempted by 47 U.S.C. §§ 545 [b] and 555 permitting operator to seek judicial review when request for modification of franchise has been denied); MediaOne Group, Inc. v. Henrico, 97 F. Sup. 2d 712, 713 (E.D. Va. 2000), aff'd, 257 F.3d 356 (4th Cir. 2001) (requirement for franchise renewal that cable operator provide its cable modem platform facility to any internet service provider preempted by 47 U.S.C. § 541 [C] [3] [D], which prohibits local franchising authority from requiring cable operators to provide telecommunication facilities as condition of franchise renewal).

The advisory council suggests that a determination by this court that it is preempted from pursuing this appeal “would be tantamount to a holding that the [sjtate of Connecticut and the [department, its designated regulatory authority, are powerless to establish the procedures for cable franchise renewal.” We first note that nothing in this opinion undermines the legitimate reliance on the department as the state agency authorized to regulate and supervise cable operators requesting renewal of their franchises to hold hearings on the relevant issues and to make determinations regarding whether the operator is qualified to have its franchise renewed. Moreover, it is the right of the advisory council to appeal the renewal that is at issue in this case, not the authority of the department. Because the advisory council has no regulatory authority over Cox Cable, our determination that it is preempted from appealing the department’s decision regarding Cox Cable’s franchise renewal has no impact on the congressionally mandated regime of local authority over the cable franchising process.

Underlying the advisoiy council’s argument is, essentially, the view that its role is tantamount to a second office of consumer counsel, with the power to enforce its advice against the department and local franchises, despite any such grant of authority from the legislature. We disagree with the advisory council’s characterization of its role. The advisory council’s argument, however, does implicate the question of whether the office of consumer counsel may appeal a franchise renewal by the department. That question, although not directly raised in this appeal; see footnote 7 of this opinion; is part of the dispositive issue before this court, that is, whether Cox Cable is the only party able to seek judicial review in this case. On the basis of the legislative intent expressed in 47 U.S.C. §§ 546 and 555, we conclude that General Statutes § 16-2a—the provision of state law that otherwise permits the office of consumer counsel to obtain judicial review—is inconsistent with the scheme set forth in the Cable Act and, therefore, is expressly preempted. See 47 U.S.C. § 556 (c).

We recognize that the office of consumer counsel is designated as “the advocate for consumer interests in all matters which may affect Connecticut consumers with respect to public service companies . . . .” General Statutes § 16-2a (a). Additionally, we appreciate that, whereas there is no statute giving the advisory council the authority to appeal a decision by the department, § 16-2a generally empowers the office of consumer counsel to appeal department decisions to the court. See footnote 3 of this opinion. Such state legislation cannot, however, control because, for the reasons we have already articulated, it conflicts with the clear federal legislative intent to restrict the right to seek review to the cable operator. Barbieri v. United Technologies Corp., supra, 255 Conn. 717.

The judgment is affirmed.

In this opinion the other justices concurred.

       The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred tire appeal to this court, pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c).

       The department is the state agency designated as the franchising authority to grant and renew cable television franchises in Connecticut. See 47 U.S.C. § 522 (10) and General Statutes § 16-331 (a).

       The office of consumer counsel’s responsibility emanates from General Statutes § 16-2a (a), which provides: “There shall continue to be an independent Office of Consumer Counsel, within the Department of Public Utility Control for administrative purposes only, to act as the advocate for consumer interests in all matters which may affect Connecticut consumers with respect to public service companies, electric suppliers and certified telecommunications providers. The Office of Consumer Counsel is authorized to appear in and participate in any regulatory or judicial proceedings, federal or state, in which such interests of Connecticut consumers may be involved, or in which matters affecting utility services rendered or to be rendered in this state may be involved. The Office of Consumer Counsel shall be a party to each contested case before the Department of Public Utility Control and shall participate in such proceedings to the extent it deems necessary. Said Office of Consumer Counsel may appeal from a decision, order or authorization in any such state regulatory proceeding notwithstanding its failure to appear or participate in said proceeding.”
      Although § 16-2a (a) was amended after the administrative proceedings in this case were initiated; see Public Acts 1998, No. 98-28, and Public Acts 1999, No. 99-286; the changes were minor and technical in nature and not relevant to this appeal. For purposes of clarity, references herein to § 16-2a (a) are to the current revision.

       Section 16-333-24 of the Regulations of Connecticut State Agencies provides: “Establishment of cable television advisory council
      “There shall be established a cable television advisory council, hereinafter referred to as advisory council, consisting of representatives of the towns in each area where the Public Utilities Commission has granted a certificate of public convenience and necessity to a cable television company as franchise holder under authority of Chapter 289 of the General Statutes.”

       See General Statutes § 4-166 et seq.

       General Statutes § 4-183 (c) provides in relevant part: “Within forty-five days after mailing of the final decision under section 4-180 or, if there is no mailing, within forty-five days after personal delivery of the final decision under said section, a person appealing as provided in this section shall serve a copy of the appeal on the agency that rendered the final decision at its office . . . .”

       The office of consumer counsel also appealed from the department’s decision approving the renewal of the franchise agreement, and Cox Cable moved to dismiss that appeal, claiming that: (1) the appeal is preempted by 47 U.S.C. §§ 546, 555; (2) the office of consumer counsel is not aggrieved by the decision extending its franchise; and (3) the office of consumer counsel is collaterally estopped from contesting the methodology of the department because ol' its prior failures in other cases to object to the department’s approach. The trial court rejected Cox Cable’s preemption argument, concluding that, because “the [office of consumer counsel] was established as an independent agency in 1975, nine years before the federal Cable Communications Policy Act . . . [it] has a clear place in the regulatory scheme for the approval and renewal of cable franchises.” The court also rejected Cox Cable’s other arguments regarding the office of consumer counsel, thereby allowing the office of consumer counsel’s appeal to proceed to trial.
      Although that appeal did proceed to trial, the trial court ultimately dismissed it based upon its determination that, under the facts of the case, the issue that the office of consumer counsel wanted the court to resolve was not at controversy. No appeal was filed by the office of consumer counsel from that judgment of dismissal.

       Following oral argument before this court, the department and the office of consumer counsel, a party to this appeal pursuant to General Statutes § 16-2a (a); see footnote 3 of this opinion; were ordered to file supplemental briefs on the following issue: “Whether the [advisory council’s] action is preempted by the Federal Communications Act of 1934, as amended by the Cable Communications Policy Act of 1984 (47 U.S.C. § 521 et seq.).”

       Title 47 of the United States Code, § 521, provides: “The purposes of this subchapter are to—
      “(1) establish a national policy concerning cable communications;
      “(2) establish franchise procedures and standards which encourage the growth and development of cable systems and which assure that cable systems are responsive to the needs and interests of the local community;
      “(3) establish guidelines for the exercise of Federal, State, and local authority with respect to the regulation of cable systems;
      “(4) assure that cable communications provide and are encouraged to provide the widest possible diversity of information sources and services to the public;
      “(5) establish an orderly process for franchise renewal which protects cable operators against unfair denials of renewals where the operator’s past performance and proposal for future performance meet the standards established by this subchapter; and
      “(6) promote competition in cable communications and minimize unnecessary regulation that would impose an undue economic burden on cable systems.”

       Title 47 of the United States Code, § 546, provides: “Renewal
      “(a) Commencement of proceedings; public notice and participation
      “(1) A franchising authority may, on its own initiative during the 6-month period which begins with the 36th month before the franchise expiration, commence a proceeding which affords the public in the franchise area appropriate notice and participation for the purpose of (A) identifying the future cable-related community needs and interests, and (B) reviewing the performance of the cable operator under the franchise during the then current franchise term. If the cable operator submits, during such 6-month period, a written renewal notice requesting the commencement of such a proceeding, the franchising authority shall commence such a proceeding not later than 6 months after the date such notice is submitted.
      “(2) The cable operator may not invoke the renewal procedures set forth in subsections (b) through (g) of this section unless—
      “(A) such a proceeding is requested by the cable operator by timely submission of such notice; or
      “(B) such a proceeding is commenced by the franchising authority on its own initiative.
      “(b) Submission of renewal proposals; contents; time
      “(1) Upon completion of a proceeding under subsection (a), a cable operator seeking renewal of a franchise may, on its own initiative or at the request of a franchising authority, submit a proposal for renewal.
      “(2) Subject to section 624 [47 USCS § 544], any such proposal shall contain such material as the franchising authority may require, including proposals for an upgrade of the cable system.
      “(3) The franchising authority may establish a date by which such proposal shall be submitted.
      “(c) Notice of proposal; renewal; preliminary assessment of nonrenewal; administrative review; issues; notice and opportunity for hearing; transcript; written decision
      “(1) Upon submittal by a cable operator of a proposal 1,o the franchising authority for the renewal of a franchise pursuant to subsection (b), the franchising authority shall provide prompt, public notice of such proposal and, during the 4-month period which begins on the date of the submission of the cable operator’s proposal pursuant to subsection (b), renew the franchise or, issue a preliminary assessment that the franchise should not be renewed and, at the request of the operator or on its own initiative, commence an administrative proceeding, after providing prompt public notice of such proceeding, in accordance with paragraph (2) to consider whether—
      “(A) the cable operator has substantially complied with the material terms of the existing franchise and with applicable law;
      “(B) the quality of the operator’s service, including signal quality, response to consumer complaints, and billing practices, but without regard to the mix or quality of cable services or other services provided over the system, has been reasonable in light of community needs;
      “(C) the operator has the financial, legal, and technical ability to provide the services, facilities, and equipment as set forth in the operator’s proposal; and
      “(D) the operator’s proposal is reasonable to meet the future cable-related community needs and interests, taking into account the cost of meeting such needs and interests.
      “(2) In any proceeding under paragraph (1), the cable operator shall be afforded adequate notice and the cable operator and the franchise authority, or its designee, shall be afforded fair opportunity for full participation, including the right to introduce evidence (including evidence related to issues raised in the proceeding under subsection [a]), to require the production of evidence, and to question witnesses. A transcript shall be made of any such proceeding.
      “(3) At the completion of a proceeding under this subsection, the franchising authority shall issue a written decision granting or denying the proposal for renewal based upon the record of such proceeding, and transmit a copy of such decision to the cable operator. Such decision shall state the reasons therefor.
      “(d) Basis for denial
      “Any denial of a proposal for renewal that has been submitted in compliance with subsection (b) shall be based on one or more adverse findings made with respect to the factors described in subparagraphs (A) through (D) of subsection (c) (1), pursuant to the record of the proceeding under subsection (c). A franchising authority may not base a denial of renewal on a failure to substantially comply with the material terms of the franchise under subsection (c) (1) (A) or on events considered under subsection (c) (a) (B) in any case in which a violation of the franchise or the events considered under subsection (c) (1) (B) occur after the effective date of this title unless the franchising authority has provided the operator with notice and the opportunity to cure, or in any case in which it is documented that the franchising authority has waived its right to object, or the cable operator gives written notice of a failure or inability to cure and the franchising authority fails to object within a reasonable time after receipt of such notice.
      “(e) Judicial review; grounds for relief
      “(1) Any cable operator whose proposal for renewal has been denied by a final decision of a franchising authority made pursuant to this section, or has been adversely affected by a failure of the franchising authority to act in accordance with the procedural requirements of this section, may appeal such final decision or failure pursuant to the provisions of section 555 of this title.
      “(2) The court shall grant appropriate relief if the court finds that—
      “(A) any action of the franchising authority, other than harmless error, is not in compliance with the procedural requirements of this section; or

        “(B) in the event of a final decision of the franchising authority denying the renewal proposal, the operator has demonstrated that the adverse finding of the franchising authority with respect to each of the factors described in subparagraphs (A) through (D) of subsection (c) (1) on which the denial is based is not supported by a preponderance of the evidence, based on the record of the proceeding conducted under subsection (c) of this section.
      “(1) Finality of administrative decision
      “Any decision of a franchising authority on a proposal for renewal shall not be considered final unless all administrative review by the State has occurred or the opportunity therefor has lapsed.
      “(g) ‘Franchise expiration’ defined
      “For puiposes of this section the term ‘franchise expiration’ means the date of the expiration of the term of the franchise, as provided under the franchise, as it was in effect on [the date of the enactment of this title] Oct. 30, 1984.
      “(h) Alternative renewal procedures
      “Notwithstanding the provisions of subsections (a) through (g) of this section, a cable operator may submit aproposal for the renewal of a franchise pursuant to this subsection at any time, and a franchising authority may, after affording the public adequate notice and opportunity for comment, grant or deny such proposal at any time (including after proceedings pursuant to this section have commenced). The provisions of subsections (a) through (g) of this section shall not apply to a decision to grant or deny a proposal under this subsection. The denial of a renewal pursuant to this subsection shall not affect action on a renewal proposal that is submitted in accordance with subsections (a) through (g) of this section.
      “(i) Effect of renewal procedures upon action to revoke franchise for cause
      “Notwithstanding the provisions of subsections (a) through (h), any lawful action to revoke a cable operator’s franchise for cause shall not be negated by the subsequent initiation of renewal proceedings by the cable operator under this section.”

       General Statutes § 16-331 (d) (5) provides: “The department shall adopt regulations in accordance with chapter 54, establishing procedures and standards for the renewal of certificates issued to community antenna television companies. Such regulations shall, without limitation, (A) incorporate the provisions of the Communications Act of 1934, 47 USC 546, (B) require the department to consult with the advisory council for the franchise area served by the certificate holder before maMng a decision concerning the renewal of the certificate, (C) require any holder of a certificate which is not renewed by the department to continue to operate the franchise for one year after the end of its term or until a successor is chosen and ready to assume control of the franchise, wMchever is sooner, (D) establish standards for the content of notices sent to cable subscribers concerning public hearings for franchise renewal proceedings which standards shall include, without limitation, the requirements specified in subdivision (6) of this subsection, (E) establish standards to ensure that the costs and expenses of a municipality constructing, purchasing or operating a community antenna television company are accurately attributed to such company, and (F) establish quality standards for the instructional and educational channels. The department shall adopt regulations pursuant to this subdivision in conjunction with the Commission for Educational Technology.”
      A minor technical change that is not relevant to this appeal was made to § 16-331 (d) (5) by Public Acts 2000, No. 00-187. For purposes of clarity, we refer herein to the current revision of the statute.

       Section 16-333-38 of the Regulations of Connecticut State Agencies provides: “Informal renewals
      “(a) A franchise holder may submit an application to the Public Utilities Control Authority for approval of a proposal for the renewal, extension, or transfer of a certificate, pursuant to Connecticut General Statutes section 16-331, at any time. A proposal for renewal, extension or transfer of a certificate submitted under this section of the regulations shall not be complete unless it contains information as required by section 16-333-40 (b) of these regulations. Such information shall be provided either in the statement of application or as exhibits annexed thereto and accompanying the application.
      “(b) Upon submission of the proposal for renewal, extension or transfer of a certificate by a franchise holder pursuant to this section of the regulations, the department may, after holding a public hearing and consulting with the Advisory Council, grant or deny such proposal at any time, including after proceedings pursuant to section 16-333-39 of these regulations have commenced.
      “(c) The denial of a renewal, extension, or transfer of a certificate proposal submitted under this section shall not affect action on any proposal that is submitted in accordance with section 16-333-39 of these regulations.”

       Title 47 of the United States Code, § 555, provides: “Judicial proceedings “(a) Actions to review determinations by franchising authorities.
      “Any cable operator adversely affected by any final determination made by a franchising authority under section 541 (a) (1), 545 or 546 of this title may commence an action within 120 days after receiving notice of such determination, which may be brought in—
      “(1) the district court of the United States for any judicial district in which the cable system is located; or
      “(2) in any State court of general jurisdiction having jurisdiction over the parties.
      “(b) Available relief
      “The court may award any appropriate relief consistent with the provisions of the relevant section described in subsection (a) and with the provisions of subsection (a) of this section.
      “(c) Review of constitutionality of sections 534 and 535 “(1) Notwithstanding any other provision of law, any civil action challenging the constitutionality of section 534 or 535 of this title or any provision thereof shall be heard by a district court of three judges convened pursuant to the provisions of section 2284 of title 28.
      “(2) Notwithstanding any other provision of law, an interlocutory or final judgment, decree, or order of the court of three judges in an action under paragraph (1) holding section 534 or 535 of this title or any provision thereof unconstitutional shall be reviewable as a matter of right by direct appeal to the Supreme Court. Any such appeal shall be filed not more than 20 days after entry of such judgment, decree, or order.”

       Title 47 of the United States Code, § 556, provides: “Coordination of Federal, State, and local authority
      “(a) Regulation by States, political subdivisions, State and local agencies, and franchising authorities
      “Nothing in this subchapter shall be construed to affect any authority of any State, political subdivision, or agency thereof, or franchising authority, regarding matters of public health, safety, and welfare, to the extent consistent with the express provisions of this subchapter.
      “(b) State jurisdiction with regard to cable services
      “Nothing in this subchapter shall be construed to restrict a State from exercising jurisdiction with regard to cable services consistent with this sub-chapter.
      “(c) Preemption
      “Except as provided in section 557 of this title, any provision of law of any State, political subdivision, or agency thereof, or franchising authority, or any provision of any franchise granted by such authority, which is inconsistent with this chapter shall be deemed to be preempted and superseded.
      “(d) ‘State’ defined
      “For purposes of this section, the term ‘State’ has the meaning given such term in section 153 (v) of this title.”

       We recognize that “the House Report was written before the Senate amended the renewal provision to require public participation in the renewal process.” M. Myerson, “The Cable Communications Policy Act of 1984: A Balancing Act on the Coaxial Wires,” 19 Ga. L. Rev. 543, 583-84 (1985). We read the mandate on the part of the department to consult with the advisory council for the franchise area served by the certificate holder before making a decision concerning the renewal of the certificate, as set forth in § 16-331 (d) (5) (B), not as an expansion of who may appeal, but, rather, as a delineation of a ground upon which to appeal.

       Indeed, the advisory council is a group of volunteers chosen to advise the management of Cox Cable on matters affecting the public, file reports on an annual basis to the department; Regs., Conn. State Agencies § 16-333-30; intervene in contested cases before the department involving the franchises the council advises, and file petitions with the department on behalf of any customer being denied service. General Statutes §§ 16-331a (h) and 16-331 (c) (1). There is no statutory authority to enforce any of the advisory council’s concerns.


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF CONNECTICUT v. THOMAS CENTENO
    (SC 16494)
    Norcott, Katz, Palmer, Vertefeuille and Zarella, Js.
    Argued December 5, 2001
    officially released January 15, 2002

      Joseph Visone, special public defender, for the appellant (defendant).

      Michele C. Lukban, assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Mary Rose Pálmese, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

KATZ, J.

The sole issue in this certified appeal is whether the Appellate Court, in affirming the judgment of the trial court in a per curiam opinion; see State v. Centeno, 61 Conn. App. 906, 763 A.2d 1096 (2001); properly concluded that the trial court had not abused its discretion by failing to inquire into or investigate further the defendant’s allegation, made following his conviction but before sentencing, that he knew one of the jurors in his case from a prior criminal relationship. We conclude that the trial court was required to conduct some inquiry regarding the allegation and, consequently, that the Appellate Court improperly affirmed the judgment.

The record discloses the following pertinent facts. The defendant, Thomas Centeno, was charged in connection with events that occurred in October, 1997, with the crimes of larceny in the third degree in violation of General Statutes (Rev. to 1997) § 53a-124, 2larceny in the third degree by possession in violation of General Statutes (Rev. to 1997) § 53a-124 and General Statutes § 53a-l 19 (8), criminal trover in the first degree in violation of General Statutes § 53a-126a (a), criminal mischief in the third degree in violation of General Statutes § 53a-117 (a), and interfering with an officer in violation of General Statutes § 53a-167a (a). On March 4, 1999, the day his trial was to commence, the defendant was disruptive, combative and threatening, resulting in the trial court removing him from the courtroom and continuing his case to the following day. When court resumed the next day, the defendant was unwilling to assure the court that his disruptive behavior would not continue. As a consequence, the defendant was placed in handcuffs and leg shackles, which the trial court removed on the second day of jury selection following the defendant’s agreement to conduct himself appropriately.

On the third day of jury selection, juror A.G. was questioned on voir dire. She related that she lived in Plainville, that she had never been a victim of a crime and that she did not know of anyone who had been a victim. Additionally, she stated that she was unfamiliar with any of the names of the parties or witnesses, that she knew of no reason why she could not decide the case fairly and impartially, that she would be able to put aside any feelings of sympathy for anyone involved in the case, and, finally, that she could apply the pertinent legal principles properly. Thereafter, juror A.G. was accepted to sit as a juror by both parties.

Following the trial, the jury returned a guilty verdict on the five offenses charged and the case was continued to July 23,1999, for sentencing. At the sentencing hearing, defense counsel alerted the court to the fact that the defendant no longer wanted his representation. Defense counsel then notified the court that the defendant had telephoned him from jail one week earlier to inform him that the defendant had realized during the course of his trial that he knew one of the jurors personally. Specifically, the defendant informed counsel that when he lived in Southington, an acquaintance of his had proposed that he help a woman from Plainville who wanted assistance committing an insurance fraud by vandalizing some property for her. The defendant claimed that he previously had met the woman and that she had given him her telephone number. Defense counsel stated that when he questioned the defendant about his failure to relate this information sooner, the defendant responded that, due to the stress of trial, he had been unable to connect the juror with the incident, but that upon further reflection while in jail, he realized that she was indeed the woman who had wanted his help peipetrating the insurance fraud. The court responded: “[Y]our remarks are noted.” Defense counsel then asked whether, despite this information, the court was going to proceed with sentencing. The court responded: “Yes, I am.”

Thereafter, the trial court canvassed the defendant about whether he wanted defense counsel to represent him at sentencing. The defendant provided the court with a document that he had written and responded that he wanted the court to appoint him another attorney. When the court denied his request, the defendant became verbally abusive and was escorted from the courtroom. During a recess, the court read the document that the defendant had furnished. When court resumed, the defendant, who was in a holding area adjacent to the courtroom due to his disruptive manner, heard the trial court relate its intent to proceed with the sentencing. Following another recess, the defendant was returned to the courtroom. He complained that his attorney had forced him to proceed to trial, but agreed to allow counsel to argue on his behalf at sentencing because he had no one else to represent him. Following counsel’s argument for leniency, the trial court imposed a sentence of ten years, execution suspended after six years, followed by three years probation.

The defendant appealed from the judgment of conviction to the Appellate Court, which, in a per curiam opinion, affirmed the judgment. State v. Centeno, supra, 61 Conn. App. 906. Thereafter, the defendant petitioned this court for certification. We granted his petition, limited to the following issue: “Did the Appellate Court properly conclude that, with respect to the question of whether one of the jurors and the defendant knew each other from a prior, possibly criminal relationship, the trial court did not abuse its discretion in not inquiring or investigating farther?” State v. Centeno, 255 Conn. 950, 769 A.2d 63 (2001).

The defendant claims that the trial court’s failure to hold an evidentiary hearing violated his state and federal constitutional rights. Specifically, he asserts that, pursuant to this court’s opinion in State v. Brown, 235 Conn. 502, 526, 668 A.2d 1288 (1995), the trial court was obligated to conduct a preliminary inquiry, on the record, into the alleged juror misconduct. The state contends in response that an inquiry by the trial court was unnecessary in this case because the defendant’s allegation was “facially incredible.” Essentially, the state contends that “[t]o require the trial court to pursue even a preliminary inquiry in the absence of a facially credible claim would deprive it of its discretion in deciding how to respond to claims of juror misconduct.”

Our jurisprudence on the issue of the right to an impartial juiy is well settled. “Jury impartiality is a core requirement of the right to trial by jury guaranteed by the constitution of Connecticut, article first, § 8, and by the sixth amendment to the United States constitution. . . . [T]he right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, indifferent jurors. . . . The modem jury is regarded as an institution in our justice system that determines the case solely on the basis of the evidence and arguments given [it] in the adversary arena after proper instructions on the law by the court. . . . State v. Santiago, 245 Conn. 301, 330, 715 A.2d 1 (1998); State v. Myers, 242 Conn. 125, 140, 698 A.2d 823 (1997); State v. Brown, [supra, 235 Conn. 522-23]; see also State v. Cruz, 212 Conn. 351, [364-66] 562 A.2d 1071 (1989). [Article first, § 8, and the sixth amendment require] that a criminal defendant be given a fair trial before an . . . unprejudiced jury .... State v. Woodson, 227 Conn. 1, 30, 629 A.2d 386 (1993); State v. Hernandez, 218 Conn. 458, 463, 590 A.2d 112 (1991); accord State v. Esposito, 223 Conn. 299, 308, 613 A.2d 242 (1992); State v. Brigandi, 186 Conn. 521, 542-43, 442 A.2d 927 (1982).” (Internal quotation marks omitted.) State v. Griffin, 251 Conn. 671, 695-96, 741 A.2d 913 (1999).

In light of the significance of this right, in Brown, exercising our inherent supervisory power over the administration of justice, we concluded that “a trial court must conduct a preliminary inquiry, on the record, whenever it is presented with any allegations of jury misconduct in a criminal case, regardless of whether an inquiry is requested by counsel.” (Emphasis added.) State v. Brown, supra, 235 Conn. 526. Furthermore, we determined that “[although the form and scope of such an inquiry lie within a trial court’s discretion, the court must conduct some type of inquiry in response to allegations of jury misconduct. That form and scope may vary from a prehminary inquiry of counsel, at one end of the spectrum, to a full evidentiary hearing at the other end of the spectrum, and, of course, all points in between. Whether a prehminary inquiry of counsel, or some other hmited form of proceeding, will lead to further, more extensive, proceedings will depend on what is disclosed during the initial hmited proceedings and on the exercise of the trial court’s sound discretion with respect thereto.” Id.; accord State v. Respass, 256 Conn. 164, 190-91, 770 A.2d 471, cert. denied, 534 U.S. 1002, 122 S. Ct. 478, 151 L. Ed. 2d 392 (2001).

By its argument that the trial court properly may reject an allegation by concluding that no further inquiry is warranted, the state appears to blur the distinction between a prehminary inquiry mandated under Brown, and one that involves a more thorough investigation. This distinction expressly was recognized in Brown and again, more recently, in Santiago: “[T]here may well be cases ... in which a trial court will rightfully be persuaded, solely on the basis of the allegations before it and the prehminary inquiry of counsel on the record, that such allegations lack any merit.” (Internal quotation marks omitted.) State v. Santiago, supra, 245 Conn. 332. Therefore, the defendant is not arguing that the trial court failed to conduct an extensive inquiry into his allegations, or that the court did not have the discretion ultimately to assess the seriousness or the credibility of the allegations, but, rather, that it improperly failed to conduct even the most elementary inquiry required to satisfy Brown. In light of the allegation, which we cannot characterize as facially incredible, some inquiry was required. We therefore agree with the defendant and, accordingly, we conclude that the Appellate Court improperly affirmed the judgment of the trial court.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand it to the trial court for further proceedings consistent with this opinion.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1997) § 53a-124 provides in relevant part: “(a) A person is guilty of larceny in the third degree when he commits larceny as defined in section 53a-119 and: (1) The property consists of a motor vehicle, the value of which is five thousand dollars or less ....
      “(b) In any prosecution under subdivision (1) of subsection (a) of this section, evidence of (1) forcible entry, (2) forcible removal of ignition or (3) alteration, mutilation or removal of a vehicle identification number shall be prima facie evidence of a larcenous intent. . . .”

       General Statutes § 53a-119 provides in relevant part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. Larceny includes, but is not limited to . . .
      “(8) Receiving stolen property. A person is guilty of larceny by receiving stolen property if he receives, retains, or disposes of stolen property knowing that it has probably been stolen or believing that it has probably been stolen, unless the property is received, retained or disposed of with purpose to restore it to the owner. A person who accepts or receives the use or benefit of a public utility commodity which customarily passes through a meter, knowing such commodity (A) has been diverted therefrom, (B) has not been correctly registered or (C) has not been registered at all by a meter, is guilty of larceny by receiving stolen property.”

       General Statutes § 53a-126a (a) provides: “A person is guilty of criminal trover in the first degree when he forcibly enters or forcibly removes the ignition of the motor vehicle of another and uses the motor vehicle without the consent of such owner, and such use results in damage to or diminishes the value of such motor vehicle or subjects such owner to economic loss, fine or other penalty.”

       General Statutes § 53a-117 (a) provides: “A person is guilty of criminal mischief in the third degree when, having no reasonable ground to believe that he has a right to do so, he: (1) Intentionally or recklessly (A) damages tangible property of another, or (B) tampers with tangible property of another and thereby causes such property to be placed in danger of damage; or (2) damages tangible property of another by negligence involving the use of any potentially harmful or destructive force or substance, such as, but not limited to, fire, explosives, flood, avalanche, collapse of building, poison gas or radioactive material.”

       General Statutes § 53a-167a (a) provides: “Aperson is guilty ofinterfering with an officer when he obstructs, resists, hinders or endangers any peace officer or fireman in the performance of his duties.”

       The constitution of Connecticut, article first, § 8, as amended by article seventeen of the amendments, provides in relevant part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great; and in all prosecutions by information, to a speedy, public trial by an impartial jury. ...”
      The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . .”
      The due process clause of the fourteenth amendment to the United States constitution extends to state court defendants the sixth amendment right to be tried by an impartial jury. Nebraska Press Assn. v. Stuart, 427 U.S. 539, 551, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976).

       We recognize that the defendant exhibited disruptive behavior throughout his criminal proceedings. We further note that that conduct continued while he was awaiting sentencing, resulting in forty-three disciplinary tickets while in jail. Furthermore, his predilection for delay was obvious. Therefore, while we appreciate the reluctance of the trial court to pursue the defendant’s allegations, as we state in this opinion, some inquiry was required. We therefore remand the case to the trial court, without reversing the judgment of conviction, so that an inquiry into the defendant’s allegations can occur.


author: NORCOTT, J.

text:
    JAMES TIGHE ET AL. v. TOWN OF BERLIN ET AL.
    (SC 16439)
    Sullivan, C. J., and Norcott, Katz, Palmer and Vertefeuille, Js.

      Argued October 23, 2001
    officially released January 22, 2002

      Joseph A. O’Brien, for the appellants (named plaintiff et al.).

      E. Timothy Sullivan, Jr., for the appellee (named defendant).
   Opinion

NORCOTT, J.

The sole issue in this appeal is whether the trial court improperly denied the request for an injunction by the named plaintiff, James Tighe, and the plaintiff, Joyce Tighe, to require the removal of a traffic gate erected to control access to and from an abandoned roadway. The plaintiffs appeal from the judgment of the trial court denying their request for an injunction against the named defendant, the town of Berlin. The plaintiffs argue that the trial court improperly interpreted the scope of General Statutes § 13a-55. The plaintiffs further argue that the trial court improperly concluded that the continued gating of the abandoned road did not cause the plaintiffs irreparable harm. We affirm the judgment of the tiial court.

The following facts and procedural history are relevant to our disposition of this appeal. The plaintiffs own developed and undeveloped property in Middle-town. The plaintiffs’ property abuts Stantack Road, which runs in a north-south direction, with the northern portion in Berlin, and the southern portion in Middle-town. The northern portion of Stantack Road ends at an intersection with Spruce Brook Road, and the southern portion ends at an intersection with Footit Road. Stan-tack Road is an undeveloped roadway and generally requires the use of a four-wheel drive vehicle. On or about March 24, 1995, the defendant formally abandoned, as a public roadway, the entire length of Stan-tack Road that existed within that town.

In the mid-1990s, a residential subdivision was built on the property bordering the western edge of Stantack Road and the southern edge of Spruce Brook Road in Berlin. The developers, Louis Valentine and Louise Valentine (Valentine), constructed a new roadway that runs through the middle of the subdivision. The new road, Lamentation Drive, provides access to homes in the development from Spruce Brook Road. Lamentation Drive was constructed so that a portion of it intersects and runs on top of the abandoned Stantack Road.

At some point during the construction of the development, the Berlin planning and zoning commission requested that Valentine erect a gate near the intersection of Lamentation Drive and Stantack Road to prevent motor vehicles from entering Lamentation Drive. The gate was installed after residents in the subdivision complained about excessive noise and the use of motorized, all-terrain vehicles, motorcycles and other four-wheel drive vehicles in the area, which often involved speeding and other reckless driving. Residents also complained about the use of the land off of Stantack Road for parties. Moreover, residents in the Valentine subdivision complained to the Berlin police that, on one occasion, they had confronted several intoxicated men who were attempting to ride their motorcycles in the area.

A gate was installed by the developer, but eventually was knocked down, and, in 1998, because of continued complaints from residents, the defendant erected a stronger gate. The gate was erected within the right-of-way of Lamentation Drive. It was equipped with a lock and keys were made available to all the owners of abutting property to Stantack Road, including the plaintiffs. While the Stantack Road property owners have unimpeded access to their properties from the south, via Footit Road, access from the north can be obtained only by unlocking the gate.

The plaintiffs commenced this action seeking to enjoin the defendant from maintaining this gate. More specifically, the plaintiffs asked the court to order the removal of the gate so that access from Lamentation Drive onto Stantack Road, and vice versa, would not be impeded. A bench trial was held on March 23, 2000, and on August 1, 2000. On August 9, 2000, the trial court rendered judgment denying the plaintiffs’ request for an injunction to require the defendant to remove the gate. The court, however, did order the defendant to expand the distribution of keys to the gate to include family members of the property owners of land abutting Stantack Road, as well as any legitimate guests accompanied by one of these property owners. The plaintiffs appeal from this judgment.

We begin with “the governing principles for our standard of review as it pertains to a trial court’s discretion to grant or deny a request for an injunction: A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law. ... A prayer for injunctive relief is addressed to the sound discretion of the court and the court’s ruling can be reviewed only for the purpose of determining whether the decision was based on an erroneous statement of law or an abuse of discretion. . . . Walton v. New Hartford, 223 Conn. 155, 165, 612 A.2d 1153 (1992). Therefore, unless the trial court has abused its discretion, or failed to exercise its discretion; Wehrhane v. Peyton, 134 Conn. 486, 498, 58 A.2d 698 (1948); the trial court’s decision must stand. . . . Advest, Inc. v. Wachtel, 235 Conn. 559, 562-63, 668 A.2d 367 (1995). The extraordinary nature of injunctive relief requires that the harm complained of is occurring or will occur if the injunction is not granted. Although an absolute certainty is not required, it must appear that there is a substantial probability that but for the issuanee of the injunction, the party seeking it will suffer irreparable harm. Karls v. Alexandra Realty Corp., 179 Conn. 390, 402, 426 A.2d 784 (1980).” (Internal quotation marks omitted.) AvalonBay Communities, Inc., v. Orange, 256 Conn. 557, 566, 775 A.2d 284 (2001). We note also that, “[i]n exercising its discretion, the court, in a proper case, may consider and balance the injury complained of with that which will result from interference by injunction.” Moore v. Serafin, 163 Conn. 1, 6, 301 A.2d 238 (1972).

We first consider the plaintiffs’ argument that pursuant to § 13a-55, they have more than a mere right of passage as abutting landowners to an abandoned highway. The plaintiffs contend that under § 13a-55, an abandoned road is the private equivalent to a public highway and, therefore, the defendant is interfering with the rights of the abutting landowners to have Stantack Road remain ungated and open for use by members of the public who are not abutting owners to the abandoned Stantack Road. The defendant contends that it is exercising municipal powers granted to it by the legislature and is not impermissibly interfering with the rights granted to property owners under § 13a-55. We agree with the defendant.

We previously have stated that “[t]he effect of § 13a-55 is to alter the common law consequences of the discontinuance of a public highway. While, before the statute, discontinuance extinguished both the public easement of travel and the private easement of access . . . after the statute, the public easement ceases but the private easement remains. The abutting owners now continue to have an easement of access over the discontinued highway.” (Citations omitted.) Luf v. Southbury, 188 Conn. 336, 344, 449 A.2d 1001 (1982). Therefore, when the portion of Stantack Road that existed in Berlin was abandoned by the defendant, property owners such as the plaintiffs who own land abutting Stantack Road continued to have a private right of access over the abandoned portion of Stantack Road. The public right of travel over the abandoned portion of Stantack Road terminated when the defendant formally abandoned that segment of the roadway. Section 13a-55 does not purport to reinstate that right of public access.

The plaintiffs argue, however, that a 1990 amendment to § 13a-55 suggests that the legislature intended that “abutting property owners [would now] have a right to maintain a discontinued highway as the private equivalent of a public highway.” In 1990, the legislature amended § 13a-55 so that the right-of-way provided to abutting owners would be “for all purposes for which a public highway may be now or hereafter used . . . .” Public Acts 1990, No. 90-142, § 1. The plaintiffs suggest that by this amendment, the legislature conferred a continuing right of public travel over abandoned stretches of road. We disagree.

We are guided in our understanding of the meaning of the 1990 amendment by familiar principles of statutory construction. “Statutory construction . . . presents a question of law over which our review is plenary. . . . According to our long-standing principles of statutory [interpretation], our fundamental objective is to ascertain and give effect to the intent of the legislature. . . . In determining the intent of a statute, 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.” (Internal quotation marks omitted.) Gartrell v. Dept. of Correction, 259 Conn. 29, 39, 787 A.2d 541 (2002). The actual language of the statute, as amended by the legislature in 1990, does not illuminate our inquiry. We examine, therefore, the relevant legislative history concerning the 1990 amendment.

A review of this legislative history leads us to conclude that the 1990 amendment was intended to provide property owners, such as the plaintiffs, with the ability to use the private right-of-way along the abandoned stretch of road in order to carry utility services. The amendment was not intended to reintroduce public travel along a road that a town previously has abandoned. Before this language was added to § 13a-55, it was unclear whether a property owner could bring water service or sewer service or other utility services to his property over the abandoned road. The 1990 amendment clarifies a property owner’s right to do just that. The 1990 amendment, therefore, does not alter the fact that public access to a discontinued roadway ends when a town formally abandons the road, although the private right of access for abutting landowners continues.

This conclusion, however, merely begs the question of whether the defendant impermissibly interfered with the plaintiffs’ private easement access rights when it installed the gate at the intersection of Lamentation Drive and the former Stantack Road. The plaintiffs argue that the grant of municipal powers from the legislature to the defendant does not include the ability to restrict use of Stantack Road to a limited class of persons, which, in this case, comprises the owners of land abutting Stantack Road. The defendant claims that it has appropriately exercised its municipal powers. We agree with the defendant.

“When municipal authorities are acting within the limits of the formal powers conferred upon them and in due form of law, the right of courts to supervise, review or restrain them is necessarily exceedingly limited.” McAdam v. Sheldon, 153 Conn. 278, 281, 216 A.2d 193 (1965). General Statutes § 7-148 (c) contains a list of the various powers delegated to municipalities. Among them are the ability to regulate and prohibit traffic; General Statutes § 7-148 (c) (7) (B) (i); to prohibit and abate nuisances, including the right to prohibit and abate “all things detrimental to the health, morals, safety, convenience and welfare” of the municipality’s inhabitants; General Statutes § 7-148 (c) (7) (E); to keep streets and other public places free from undue noise; General Statutes § 7-148 (c) (7) (F) (i); to prevent trespassing on public and private lands; General Statutes § 7-148 (c) (7) (F) (iv); and to regulate the use of highways. General Statutes § 7-148 (c) (7) (H) (xii). A municipality is also authorized to make its streets safe for public use and travel. General Statutes § 7-148 (c) (6) (C) (ii).

We conclude that the defendant was appropriately engaged in exercising the powers delegated to it to control and regulate traffic at the intersection of Stan-tack Road and Lamentation Drive, as well as to curtail excessive noise in the general area. The record includes sufficient findings by the trial court, which are confirmed by an examination of the testimony and evidence upon which they are based, that the intersection had become unsafe and that use of the land around Stantack Road had generated many complaints from residents in the area. It was a reasonable measure, therefore, for the defendant to erect a gate at the intersection, the presence of which has resulted in improved safety conditions and decreased noise.

Because the plaintiffs sought an injunction in the trial court, the trial court was acting pursuant to its equitable powers in determining whether to order the defendant to remove the gate. In making this determination, the trial court properly balanced the plaintiffs’ continuing right of private access, as afforded by § 13a-55, against the defendant’s right and responsibility to ensure the safety and security of its residents. As a reviewing court, we cannot conclude that, in the exercise of its equitable powers, the trial court, in denying the plaintiffs’ request for an injunction, abused its broad discretion or based its decision on an erroneous statement of the law.

Finally, the plaintiffs claim that the trial court improperly concluded that removal of the gate was not warranted because the plaintiffs had not suffered irreparable harm from its erection and continued use. Specifically, the plaintiffs contend that the continued gating of Stantack Road constitutes irreparable harm because it interferes with their development rights. The defendant contends that the trial court correctly concluded that the plaintiffs had not suffered irreparable harm because their claims regarding this issue are speculative and unsupported by the record. We agree with the defendant.

The gate currently does not prevent development of the plaintiffs’ properties; rather, it merely serves to limit travel between Lamentation Drive and the abandoned Stantack Road in Berlin. Should the plaintiffs, at some future date, seek to develop their properties abutting Stantack Road, they could seek an injunction to require removal of the gate. At that point, a court weighing the equities might find the property owners’ request for unimpeded access more compelling than did the trial court under the present circumstances. We agree with the trial court, however, that the plaintiffs’ current use of Stantack Road is minimal and, therefore, outweighed by the defendant’s need to provide a safe environment for its residents.

We note also that future development of the plaintiffs’ property would likely necessitate improvements to Stantack Road for the portion of it that exists in Middle-town. As noted by the trial court, such development and road improvement would likely address many of the acknowledged safety problems in the area. The plaintiffs contend that this “puts the cart before the horse,” because there can be no development without prior access. Under the trial court’s decision, however, the plaintiffs continue to have access to Stantack Road by use of a key to the locked gate. Moreover, the plaintiffs’ properties can be reached from the south, via Footit Road and Stantack Road in Middletown, so that the restriction on access from the north does not totally deprive the plaintiffs from accessing their properties. For the foregoing reasons, we conclude that the trial court properly found that the continued use of the gate does not cause the plaintiffs irreparable harm and, therefore, properly denied the plaintiffs’ request for an injunction requiring removal of the gate.

The judgment is affirmed.

In this opinion the other justices concurred.

       The plaintiffs originally appealed to the Appellate Court. We transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

       This action originally was brought by multiple plaintiffs against multiple defendants. James Tighe and Joyce Tighe are the only remaining plaintiffs and the town of Berlin is the sole remaining defendant. Hereinafter, references to the plaintiffs are to James Tighe and Joyce Tighe, and references to the defendant are to the town of Berlin.

       General Statutes § 13a-55 provides: “Property owners bounding a discontinued or abandoned highway, or a highway any portion of which has been discontinued or abandoned, shall have a right-of-way for all purposes for which a public highway may be now or hereafter used over such discontinued or abandoned highway to the nearest or most accessible highway, provided such right-of-way has not been acquired in conjunction with a limited access highway.”

       The complaint originally was brought in four counts. The parties stipulated to judgment in favor of the named defendant, as well as in favor of the other defendants no longer apart of this appeal, on the third and fourth counts. At oral argument before this court, the plaintiffs admitted that the second count of their complaint may be considered withdrawn. The only remaining count at issue in this appeal, therefore, is the first count of the complaint.

       Hon. Frances Allen, judge trial referee, originally presided over this matter. Before a decision was issued, however, Judge Allen passed away. The matter was thereafter transferred to Judge Rittenband for further proceedings and a decision.

       Comments by legislators regarding the 1990 amendment indicate that the purpose of the amendment was to permit the right-of-way to be used for utilities. For example, Senator Anthony V. Avallone stated: “The purpose of [the new language] was to allow lights, sewer use, water to go through an abandoned road to other pieces of property as was intended.” 33 S. Proc., Pt. 4, 1990 Sess., p. 1022. Representative Anthony J. Nania summarized the general purpose of the new language: “This issue arose after we had the first go in 1985 in which we gave property owners along [an] abandoned right-of-way, [a] right to get to the highway. But the language we created then had been interpreted by a variety of [people] to include only the physical right of access so that whereas a property owner could drive his car to the highway, it wasn’t clear whether he had the right to tell the power company that you can bring your line in [or] to tell the water company that you can bring me water, or the phone company or the cable company and so forth.” 33 H.R. Proc., Pt. 15, 1990 Sess., p. 5184.
      Representative Douglas C. Mintz’ comments indicate that the 1990 amendment was not intended to provide members of the public with any right to use of the abandoned road: “I would state, though, that the intent was to limit this right to the abutting property owners. There is no right for any third party to use this right-of-way .... [The amendment says] the right-of-way may be used for the purposes of a public highway. It does not say the right-of-way is a public highway, it’s just that the use of the right-of-way is for all of those uses that a public highway [may be used], which would include utilities . . . .” Id., pp. 5179-80.

       The plaintiffs suggest that the trial court’s decision, taken to its logical conclusion, means that a town will now be able to limit the use of any of its roads to a specific class or classes of individuals. We disagree. We note that this case involves the continuing rights of property owners whose land abuts an abandoned road or a road any portion of which has been abandoned. There is, therefore, nothing in these facts, or the law, to suggest that a town will now be able to limit the use of its nonabandoned, public roads to certain groups of individuals.

       The trial court explicitly balanced these concerns as follows: “Under these circumstances, with the safety of the residents ... at risk without the gate, and the access that the plaintiffs do have to their property by way of Footit Road and Stantack Road in Middletown and the fact that a key to the gate is available to all of the plaintiffs, this court concludes that the inconvenience of stopping to unlock the gate when compared to the personal safety of residents or visitors is reasonably minimal and not an undue obstruction or interference with the plaintiffs’ right-of-way.”

       Because travel on Stantack Road generally was limited, by the fact of its undeveloped condition, to four-wheel drive and off-road vehicles, we emphasize the gate’s limited impact on the plaintiffs’ general use of the roadway. We also agree with the trial court’s conclusion that there is “no evidence that [the plaintiffs] made much use of Stantack Road prior to the erection of the gate.”

       Of course, as noted, the portion of Stantack Road that exists in Berlin, and upon which the gate is located, has been abandoned by the defendant. It would be up to the defendant to determine whether development of the plaintiffs’ properties necessitates reactivating or otherwise reconfiguring the abandoned Stantack Road and improving it for regular travel.

       The plaintiffs contend that Middletown also could place a gate across the southern portion of Stantack Road, which would result in the plaintiffs being required to unlock a gate to gain access to their property either from the north or the south. This possibility, the plaintiffs claim, malees development of their property impossible. We note first the speculative nature of such a claim. We also do not agree that the mere fact that Middle-town could erect a gate makes development of the plaintiffs’ property impossible. If, at some future point, Middletown took action to erect such a gate, the plaintiffs obviously could seek appropriate relief.