Connecticut Air Service, Inc. v. Danbury Aviation Commission

561 A.2d 120, 211 Conn. 690, 1989 Conn. LEXIS 186

• Court: Supreme Court of Connecticut
• Decided: June 27, 1989
• Docket: 13563
• Status: Published

Opinions

Co vello, J.

This is an appeal from a decision of the defendant Danbury Aviation Commission (commission). The dispositive issue is whether a right to appeal from a decision of this commission exists under the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq. We conclude that the record is inadequate to make such a determination and remand the matter for further proceedings.

On November 16, 1987, the commission voted to revoke certain permits that it had issued to the plaintiff Connecticut Air Service, Inc. (ConnAir), which authorized ConnAir to do business as a fixed base operator (FBO) at the Danbury Municipal Airport. ConnAir appealed this decision to the Superior Court. The commission filed a motion to dismiss the action claiming that no statutory basis exists for such an appeal and, therefore, the court was without jurisdiction to entertain the matter. In response to the motion, ConnAir argued that the commission is an “agency” within the meaning of General Statutes § 4-166 (1)¹ and that a right of appeal therefore exists under the provisions of General Statutes § 4-183.² On August 4, 1988, the trial court found that the commission is not an agency within the meaning of § 4-166. Finding no other authority for an appeal, the trial court concluded that it was indeed without jurisdiction, granted the motion to dismiss and rendered a judgment of dismissal. ConnAir appealed that decision to the Appellate Court. We thereafter transferred the matter to ourselves pursuant to Practice Book § 4023.

I

On appeal, ConnAir first renews its argument that the commission is an “agency” within the meaning of § 4-166 (1) and therefore its decisions are appealable pursuant to § 4-183. Specifically, the plaintiff claims that the commission is a “state . . . commission” within the meaning of § 4-166 (1) and, therefore, all of its decisions are appealable as a matter of right under the UAPA. We do not agree that the commission is such an agency.

The responsibility for insuring the general public interest and safety for those traveling in aircraft Connecticut reposes in the commissioner of transportation (commissioner). General Statutes § 15-41.³ In furtherance of this mandate, the commissioner is charged with the enforcement of all statutes, regulations and other laws of this state concerning aeronautics. General Statutes § 15-44.⁴ The commissioner has statutory powers to conduct investigations, inquiries and hearings concerning aeronautical matters. General Statutes 15-45.⁵

Statutes and regulations that the commissioner is required to enforce include those relating to operations of aircraft while either the pilot or the aircraft is not properly licensed; the revocation or suspension of the right to operate aircraft that are not in an airworthy condition; the revocation or suspension of the licenses of unqualified or chemically dependent pilots; the inspection of airports, restricted landing areas, heliports, air schools, flying clubs and air navigational facilities; the unlawful use of, tampering with, or interference with aircraft; tampering with or interference with any airport, heliport landing field or airway and its associated equipment; investigation of aircraft accidents; the careless, negligent or reckless operation of aircraft; the acquisition of land and airspace for the use of aircraft, airports, heliports, restricted landing areas, as well as areas that may be hazardous to airports; the removal of obstructions to air navigation; the establishment and maintenance of clear zones for all public airport runways; the disposition of abandoned aircraft; the operation of aircraft by those who are under the influence of alcohol or drugs or the carriage of passengers who are under the influence of alcohol or drugs; and finally, the establishment of airport approach plans.⁶

It is evident that the commissioner possesses comprehensive powers with respect to the supervision and enforcement of virtually every aspect of aeronautical activity within the state. These obligations and duties are not limited to those activities carried on by the state or those occurring solely on or over state property, but also include aeronautical activities conducted within the confines of any municipality.

For its part, the Danbury Aviation Commission derives its authority from Connecticut Special Act No. 381 of the January session of the 1947 General Assembly.⁷ It is specifically authorized “to make and enforce local rules, regulations and ordinances concerning ground and flying activities on or over town property at airports, and to provide for compliance with the enforcement of federal and state laws, rules and regulations relating to aeronautics. ” (Emphasis added.) 25 Spec. Acts 580, No. 381, § 1 (3). This special act is the only enumeration of the commission’s powers.

General Statutes § 15-80 also authorizes municipalities to establish aviation commissions such as the one here in issue.⁸ Such commissions are only empowered, however, to administer local ordinances that concern airports, landing fields and aeronautics. Danbury has never enacted any local ordinances concerning its airport, landing fields or aeronautics. In fact, the sole reference to the commission in the Danbury Code of Ordinances is found in § 2-40 and states: “Said commission shall have all of the powers and duties established by the statutes of the State of Connecticut and special acts of the State of Connecticut and the ordinances of the Town and City of Danbury pertaining to airports and airport commissions.” Neither General Statutes § 15-80, Special Act No. 381, nor the Danbury Code of Ordinances provides for an appeal from the rulings of the commission.

In furtherance of its special act mandate, the Dan-bury Aviation Commission adopted a comprehensive set of “Rules and Regulations for the Use of Danbury Municipal Airport.” These rules and regulations require written permission before commencement of “any construction on City property or on adjacent property.” (Emphasis added.) Rules and Regulations for the Use of Danbury Municipal Airport § 7.6. Further, all permittees (which includes FBOs) are to “abide by all rules and regulations promulgated by the Commissions or the [Federal Aviation Administration] necessary for the safe operation of the Airport including, but not limited to, flight and ground operations on, or in the vicinity of, the Airport.” (Emphasis added.) Id., § 7.10. The commission, therefore, undertakes to regulate and control not only operations within the airport boundaries, but also operations adjacent to city property and within the vicinity of the airport.

Thus, we are confronted with the anomalous situation that separate legislative enactments empower both the commissioner of transportation and the Danbury Aviation Commission to exercise parallel and overlapping authority in connection with aeronautical activities within the Danbury area. Since the legislature, through its enabling statutes, has charged the commissioner of transportation with the supervision and control of virtually every aspect of aeronautical activity conducted within the state, including that carried out at a municipal level, we conclude that such supervision and control is principally a state function and duty.⁹ See Murphy v. Berlin Board of Education, 167 Conn. 368, 372, 355 A.2d 265 (1974). Since Special Act No. 381 empowered the commission to exercise nearly identical supervisory powers and duties within the Danbury environs, we conclude that to the extent that these powers and duties are congruent, in those areas that do overlap, the local commission’s activities could only be carried out as an agent of the commissioner of transportation. As an agent, the commission, therefore, is not, in and of itself, a “state . . . commission” within the meaning of § 4-166 (1) and, therefore, its decisions do not, per se, qualify for appellate review under the UAPA.

The acts of an agent, however, are ascribable or chargeable to the principal. Robert Lawrence Associates, Inc. v. Del Vecchio, 178 Conn. 1,13, 420 A.2d 1142 (1979); West Haven v. United States Fidelity & Guaranty Co., 174 Conn. 392, 395, 389 A.2d 741 (1978). Therefore, to the extent that the commission was in fact acting as an agent, its decisions made while acting in such a capacity would be chargeable to its principal, the commissioner of transportation, a person who is clearly a “state. . . officer” within the meaning of § 4-166 (1) and from whose decisions an appeal unquestionably lies under the UAPA. See General Statutes § 4-166 (1).

“Although the finding of an agency relationship is ordinarily a question of fact; Beckenstein v. Potter & Carrier, Inc., [191 Conn. 120,133, 464 A.2d 6 (1983)]; Conte v. Dwan Lincoln-Mercury, Inc., 172 Conn. 112, 124, 374 A.2d 144 (1976) . . . unless the statutory scheme permits a finding of an agency relationship, there is no factual question to resolve.” Gordon v. Bridgeport Housing Authority, 208 Conn. 161,184-85, 544 A.2d 1185 (1988).

Such a statutory scheme being evident here, the issue of whether an agency relationship actually exists becomes a question of fact. This relationship must be shown to exist with respect to the precise issue that is the subject matter of the appeal. Murphy v. Berlin Board of Education, supra, 373.

' The complaint alleges that the commission revoked ConnAir’s permits “for the alleged nonpayment of certain fees and charges”; that the commission’s actions were based in part upon the “alleged failure to permit certain inspections of its property for safety purposes”; and that its decision was based in part “on charges which were not specified in the notice of the hearing.” If an evidentiary hearing discloses that the factual basis of the commission’s decision involved aeronautical activities in which the commission was acting as an agent for the commissioner of transportation (such as the use of unsafe airplanes or unqualified pilots), then such a decision could well be appealable under the UAPA. If, however, despite the existence of an agency relationship in certain other areas, the subject matter of the dismissal involved solely a local matter (such as the nonpayment of locally determined charges or fees), then the required agency relationship as to that subject would not exist and access to the appellate process via the UAPA would not be available. Absent a finding as to the factual basis for the commission’s decision, however, we cannot make a determination as to the existence or nonexistence of an agency relationship between the commission and the commissioner of transportation.

II

The commission further contends that even if it is an “agency” within the meaning of § 4-166 (1), ConnAir has no right to appeal under General Statutes § 4-183 (a), which provides, in pertinent part, that “[a] person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review by way of appeal under this chapter . . . . ” In the present case, the commission argues that the proceedings below did not constitute a “contested case.” “Contested case” is defined in § 4-166 (2) 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 . . . . ” According to the commission, the proceedings below did not constitute a contested case because no legal rights were determined and no statutory right to a hearing existed. We do not agree.

A legal right was determined in the proceedings below as ConnAir’s complaint alleges that its permits, until revoked, authorized it to conduct its business and carry out a livelihood on airport premises. A determination with respect to one’s right to earn one’s occupation or means of livelihood constitutes a determination with respect to a “property right”; see Connecticut Education Assn. v. Tirozzi, 210 Conn. 286, 295, 554 A.2d 1065 (1989), citing Bell v. Burson, 402 U.S. 535, 539, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971); Pet v. Department of Health Services, 207 Conn. 346, 353-54, 542 A.2d 672 (1988); Leib v. Board of Examiners for Nursing, 177 Conn. 78, 83, 411 A.2d 42 (1979); Hart Twin Volvo Corporation v. Commissioner of Motor Vehicles, 165 Conn. 42, 45, 327 A.2d 588 (1973); and, therefore, involves a legal right. Moreover, to the extent that an agency relationship is found to exist between the commission and the commissioner, the proceeding that was held below would qualify as a hearing required under § 4-166 (2).

Accordingly, if, on remand, an agency relationship is found to exist between the commissioner and the commission, a hearing involving the determination of a legal right will be deemed to have taken place thereby making the proceeding below a “contested case” within the meaning of § 4-166 (2). As a contested case, it will qualify for appellate review under § 4-183 (a) of the UAPA.

There is error, the judgment is set aside and the matter is remanded for further proceedings in accordance with this opinion.

In this opinion, Peters, C. J., Callahan and Glass, Js., concurred.

1 General Statutes § 4-166 (1) provides in relevant part: “ ‘Agency’ means each state board, commission, department or officer ... authorized by law to make regulations or to determine contested eases.”

2 General Statutes § 4-183 provides in part: “APPEAL TO SUPERIOR COURT, (a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review by way of appeal under this chapter . . . .”

3 General Statutes § 15-41 provides: “The commissioner may perform such acts, issue and amend such orders, and make and amend such reasonable general or special regulations and procedure and establish such minimum standards, consistent with the provisions of this chapter, as he deems necessary or appropriate, and which are commensurate with and for the purpose of protecting and insuring the general public interest and safety, the safety of persons receiving instruction concerning, or operating, using or traveling in, aircraft, and of persons and property on land or water, and to develop and promote aeronautics in this state. No regulation of the commissioner shall apply to airports or other air navigation facilities owned by the federal government within this state.”

4 General Statutes § 15-44 provides: “The commissioner and aeronautics inspectors of the department, and each state, county and municipal officer charged with the enforcement of state and municipal laws shall enforce and assist in the enforcement of this chapter and of all regulations made pursuant thereto, and of all other laws of this state relating to aeronautics.”

5 General Statutes § 15-45 provides: “The commissioner may hold investigations, inquiries and hearings concerning matters covered by the provisions of this chapter, aircraft accidents or orders and regulations of the commissioner.”

6 See appendix for relevant General Statutes.

7 Special Act No. 381 of the January session of the 1947 General Assembly provides: “Section 1. The aviation commission of the town of Danbury shall have power: (1) To negotiate leases of land, facilities and buildings owned by the town of Danbury and used for airport purposes, and, upon the completion of such negotiations, to make recommendations as to the terms of such leases to the selectmen of said town; (2) to examine the qualifications of applicants for the position of airport manager and other personnel deemed necessary for the operation and maintenance of the town’s airports and to make recommendations to the board of selectmen of said town for the hiring of such manager or other personnel; (3) to make and enforce local rules, regulations and ordinances concerning ground and flying activities on or over town property at airports, and to provide for compliance with the enforcement of federal and state laws, rules and regulations relating to aeronautics; (4) to plan the present and future development of airports within and for the town of Danbury and to negotiate with state and federal authorities regarding such development; and (5) to issue permits for flying and other aeronautical activities in connection with the use of the Danbury Airport and to fix the fees for such permits, which fees shall be paid to the selectmen of the town of Danbury, and shall be deposited into the town’s general fund.

“Sec. 2. No airport manager or other personnel shall be removed after appointment except with the approval of said commission.

“Sec. 3. The commission shall, annually, prepare a budget for submission to the town board of finance with respect to all items involving expenditures at airports and for other aeronautical purposes within and for the town of Danbury.”

8 General Statutes § 15-80 provides in part: “(a) Any town . . . may, at any annual or special meeting . . . vote to establish an aviation commission ....

“(b) Such aviation commission shall be charged with the administration of such local ordinances as may, from time to time, be enacted, concerning airports, landing fields and aeronautics.”

9 We are not confronted here with the circumstance wherein the General Assembly has articulated certain principles and policies and then delegated their implementation to local officials and agencies making it clear that their enforcement has been made a local function and duty. See, e.g., General Statutes § 7-148 et seq., “Municipal Powers”; § 8-1 et seq., “Zoning”; § 14-236, “Multiple-lane highways”; § 29-252, “State building code”; § 29-298, “Certification of local fire marshals”; § 29-404, “Local building official to administer state demolition code”; § 47a-l et seq., “Rights and Responsibilities of Landlord and Tenant.”