Opinion
Nos. CV 00 0501129S, CV 00 0500547S
June 27, 2001
MEMORANDUM OF DECISION
These are consolidated appeals. In Docket No. 501129, the Town of Westport ("the town") appeals from a December 17, 1998 decision of the Connecticut Siting Council ("the council") approving an application for a certificate of environmental compatibility and public need for the construction and operation of a telecommunications tower facility proposed by Cellco Partnership d/b/a Bell Atlantic Mobile ("Cellco"). In Docket No. 500547, Cellco appeals from a July 27, 1999 decision of the defendant, Westport Zoning Board of Appeals ("the ZBA"), upholding its zoning enforcement officer's refusal to approve Cellco's zoning application to construct the tower facility. The first appeal is brought pursuant to General Statutes §§ 16-50q and 4-183, the Uniform Administrative Procedure Act ("UAPA"). The second appeal is brought pursuant to General Statutes §§ 8-8, 8-10. The court decides for the defendants on the town's appeal, Docket No. 501129 and for Cellco on its appeal, Docket No. 500547 for the reasons stated below.
The council, in its final decision of December 17, 1998, made findings of fact that may be summarized as follows:
1. Cellco applied to the council on June 24, 1998, pursuant to General Statutes § 16-50g — 16-50aa, for a Certificate of Environmental Compatibility and Public Need for construction, operation and maintenance of a cellular telecommunications facility in the town. There was identified a "prime site" on 2 Sunny Lane and an alternate site near the intersection of Clinton Avenue and the Merritt Parkway. The purpose of the proposed facility was to provide cellular coverage to existing coverage gaps in the area and to meet the demand beyond the capacity of existing facilities.
2. Notice was given and hearings were held pursuant to General Statutes § 16-50m. The council and its staff made inspections of the proposed prime and alternative sites. During the field inspection, Cellco flew a balloon at each of the proposed sites to simulate the heights of the towers proposed at the two locations.
3. Springwich Cellular Limited Partnership ("Springwich"), the Southern New England Telephone cellular affiliate; Sprint Spectrum ("Sprint"), a personal communications service provider ("pcs provider"); Omnipoint Communications, Inc., ("Omnipoint"), a pcs provider; and Nextel Communicatsion, [Communications] of the Mid-Atlantic, Inc. doing business as Nextel Communications ("Nextel"), an enhanced specialized mobile radio service provider, sought to share the proposed tower, equipment building, generator and associated fuel tank at both of the proposed sites.
4. Cellco has offered to provide space on the proposed tower to the Town of Westport's public safety entities.
5. Existing Cellco facilities in the towns of Westport, Fairfield and Norwalk do not provide adequate service to coverage gaps in the northern Westport area. The primary purpose of the proposed site is to provide coverage to these gaps and additional traffic handling capacity along Routes 33, 53, 57, 136, and 15.
6. Springwich also has gaps under existing coverage. Omnipoint has limited coverage in the northern portion of the town and coverage gaps in excess of five miles along Route 15.
7. Sprint experiences a coverage gap of approximately 3.5 miles along Route 15 and lesser distances on other Routes.
8. Nextel experiences a coverage gap of approximately 4.5 miles along Route 15, and lesser distances on other Routes.
9. Other suggested sites were investigated, but did not prove feasible. The sites were rejected for such reasons as an unwillingness of the property owner to lease land, system performance problems, less favorable channel deployment, and insufficient coverage. One site suggested by the town was the Department of Transportation ("DOT") commuter parking lot off of Exit 41 of the Merritt parkway.
10. Cellco met with town officials in August 1997 and in June 1998, participated in a public hearing.
11. The town does not support the placement of a telecommunications facility at either of the proposed sites. The town has stated that the proposed facilities are commercial in nature, are not appropriate in residentially zoned areas, and are inconsistent with the town's plan of development.
12. The town made recommendations to the council, should it approve the prime site, to protect water resources at or near the site, including Poplar Plains Brook. It made similar environmental recommendations for the alternative site.
13. The town suggested as an alternative to either site expanding the current 180 Bayberry Lane facility by devoting more town land to the site.
14. The proposed prime site is a 1.63-acre parcel located at 2 Sunny Lane in Westport and is owned by Cellco. It is in a town residence AAA district for single-family homes. According to town zoning regulations, communication towers are allowed with a special permit and site plan approval on a ten-acre parcels.
15. The proposed prime site is a developed parcel consisting of a single-family building, an approximately 12-foot wide driveway, maintained lawn, and landscaped trees and shrubs. The existing single family building is the only structure within 160 feet of the base of the proposed tower.
16. The proposed prime site is traversed by the Poplar Plains Brook and contains inland wetlands and a 100-year flood zone located adjacent to the Brook. The proposed prime site tower compound would be located no closer than approximately 75, 110, and 55 feet from the areas designated as a watercourse, inland wetland, and 100-year flood zone, respectfully.
17. Cellco proposed to construct a 160-foot monopole tower enclosed by an eight foot tall security fence with a gate on an approximately 40-foot compound at the proposed prime site. There would be a variety of antennas placed on the tower by the shared users.
18. Vehicular access would be from Sunny Lane along the existing driveway. Utility service would extend from the existing service along Sunny Lane underground for a distance of approximately 170 feet to the building.
19. All the electrical equipment and a 200 kilowatt emergency generator, sized to accommodate five tower users, would be installed within the existing single family structure on the proposed site.
20. The proposed prime site is surrounded by existing residential development and the Merritt Parkway. There are approximately 22 residences within 1000 feet of the proposed site.
21. The proposed site is located approximately 50 feet south of the Merritt Parkway ROW, near the commuter parking area located adjacent to interchange 41 off the Merritt Parkway.
22. The proposed prime site would require the removal of three trees of less than four inches in diameter, but five trees with diameters of 24 inches or greater would be spared.
23. The cost of construction of the prime site was placed at $1,404,000.
24. The alternative site is a 1.238-acre parcel south of the intersection of the Merritt Parkway and Clinton Avenue. It is in a Residence A District, allowing for single family residences and communication towers with special permit.
25. The proposed alternative site is an undeveloped parcel containing mature deciduous trees. It does not contain watercourses, inland wetlands, or 100-year flood zone. A wetland area is located on an adjacent parcel.
26. The alternative site would contain a 180-foot monopole tower, a single-story 12-foot wide L-shaped equipment building, with approximately 1200 square feet of area for four of the five carrier's equipment and the proposed generator, and two concrete pads for the fuel tank and Omnipoint's equipment cabinets, within an approximately 60-foot by 88-foot fenced compound.
27. The carriers would utilize the same antennas at the proposed alternative site as the proposed prime site.
28. Vehicular access to the proposed tower compound would extend from Clinton Avenue along a proposed 12-foot wide gravel driveway. Utility Service would extend underground from existing service along Clinton Avenue a distance of approximately 260 feet to the proposed alternative site compound.
29. The site is surrounded by woodlands, residential development and the Merritt Parkway. There are approximately 79 residences within 1000 feet of the proposed site.
30. Development of the proposed alternative site would require the removal of approximately 24 trees, 24 inches or greater. Approximately 34 cubic yards of cut material would be generated and 98 cubic yards of fill material would be required for the construction of the proposed alternate site.
31. The approximate cost of the construction for the alternative site would be $1,334,000.
32. There are no known existing populations of federal or state endangered species occurring at the proposed prime or alternative sites.
33. Development of the proposed prime site would involve minimal land disturbance and would not substantially alter the character of the natural resources including wetlands and watercourse, vegetative composition, and wildlife habitats. Development of the proposed alternative site would result in an incremental loss of wildlife habitat, lessen the visual screening from the Merritt Parkway, and impair the open space aspect of the site.
34. The State Historic Preservation office states that a 160-foot tower located within the Merritt Parkway ROW would constitute an incompatible and irreparable alteration of the historic landscape design and scenic character of the Merritt Parkway.
35. The town's Historical District Commission stated that the proposed towers would adversely effect the historic and scenic character of the Merritt Parkway.
36. The Samuel Morehouse residence is located 600 feet north of the proposed alternative site and has been placed by the town on a historic resource survey.
37. The proposed prime and alternative sites are underlain by the Saugatuck River Aquifer; however, both sites are not located in the draw-down area of public water supply wells.
38. Post-construction noise generated at the proposed sites would consist of the operation of the heating, air conditioning and ventilation systems, and the back-up emergency generator.
39. The findings of fact finally set forth statistical data for the following matters: electromagnetic radio frequence power densities for the prime and alternative sites, the visibility from various locations of the prime and alternative sites, and proposed coverage for Cellco's and the other shared users' antennas at both sites and other less prime sites.
(Return of Record ("ROR"), Docket No. 501129, Item XXVIII-1, Findings of Fact pp. 1-23.)
Based on these findings of fact, the council concluded that it had jurisdiction over the proposed facility because it would be "`used in a cellular system'" within the meaning of General Statutes § 16-50i (a) (6). (ROR, Docket No. 501129, Item XXVIII-2, Opinion, p. 2.) It found that Cellco's and the other shared users' existing facilities in the area do not provide adequate coverage or capacity in the northern Westport area. (ROR, Docket No. 501129, Item XXVIII-2, pp. 1-2.) The sharing of the tower was consistent with state law and policy promoting shared use. (ROR, Docket No. 501129, Item XXVIII-2, p. 2.)
The council found that the prime site at Sunny Lane was preferable to the alternative site. There were fewer homes in a 1000-foot radius than the proposed alternative site, and would be near a location recommended by the town as an alternative site for the development of a facility (the DOT commuter parking lot). Development of the proposed alternative site would result in an incremental loss of wildlife habitat, lessen the visual screening from the Merritt Parkway, require the removal of a substantial number of mature deciduous trees, and impair the open space aspects of the site. (ROR, Docket No. 501129, Item XXVIII-2, p. 2.)
There were no environmental constraints at the Sunny Lane site. The project would involve minimal land disturbance and would not substantially alter the character of the natural resources including wetlands and watercourse, vegetative composition, and wildlife habitats. (ROR, Docket No. 501129, Item XXVIII-2, p. 2.) The town had raised concerns regarding Popular Plains Brook and the wetlands at the site. This would be resolved by adjusting the location of the tower away from the inland wetland and watercourse. (ROR, Docket No. 501129, Item XXVIII-2, p. 3.) The council did find the tower at a proposed height of 160 feet might impact on the existing residential land use and be visible to motorists on the Merritt Parkway. (ROR, Docket No. 501129, Item XXVIII-2, p. 3.) The council resolved this issue by restricting the tower to a height of 130 feet and suggesting that an existing tower, operated in conjunction with the new tower, would insure coverage. (ROR, Docket No. 501129, Item XXVIII-2, p. 3.)
In its accompanying order, the council approved the application of Cellco for a certificate of environmental compatibility and public need for the construction, operation, and maintenance of the telecommunications tower at the Sunny Lane site, under certain conditions. These conditions included:
1. The tower shall to be constructed as a monopole, sufficient to accommodate the antennas of Cellco, Springwich, Sprint, Omnipoint and Nextel and not to exceed 130 feet.
2. Cellco was to prepared a "Development and Management Plan" for the site under the regulations of the council to be submitted for review by the council.
3. Cellco was to take the site development and construction actions as set forth in the forgoing opinion of the council and in the recommendations of the town.
(ROR, Docket No. 501129, Item XXVIII-3.)
In Docket No. 501129, the town appealed from this final decision. In the meanwhile, Cellco applied for a building permit from the town for the certified facility. The town's zoning enforcement officer refused to issue an opinion of zoning compliance which was needed to obtain the building permit. Cellco appealed that refusal to the ZBA. On July 28, 1999, Cellco was informed by the chairman of the ZBA that "at the work session held by the Zoning Board of Appeals on July 27, 1999, the Board voted 5-0 . . . to DENY your request for Appeal . . . from the denial of a zoning permit for construction of a wireless telecommunications facility approved by the Connecticut Siting Council . . . in a Res. AAA zone. . . ." (ROR, Docket No. 500547, Item 32.) "This Appeal was denied and the Planning and Zoning Director's decision was upheld since the Board determined that the decision not to issue a zoning permit was an appropriate action." (ROR, Docket No. 500547, Item 32.) Cellco has appealed in Docket No. 500547 from this decision.
Whether the town is aggrieved by this final decision is discussed below.
At the hearing of November 21, 2000, Cellco introduced a deed to the Sunny Lane premises and other uncontroverted evidence that Cellco is the owner of the premises and that the ruling of the ZBA was injurious to its interest. Therefore, aggrievement is found Gregorio v. Zoning Board of Appeals, 155 Conn. 422, 426 (1967).
Initially, the court considers the contention made by Cellco that the appeal taken by the town, Docket No. 5-1129, should be dismissed on the jurisdictional ground of lack of aggrievement. "The fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision. . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected. . . ." (Brackets omitted; citations omitted; internal quotation marks omitted.) New England Cable Television Assn., Inc. v. DPUC, 247 Conn. 95, 103 (1998); see also Bethlehem Christian Fellowship, Inc. v. Planning Zoning Commission, 58 Conn. App. 441, 447 (2000) ("[s]tanding is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. . . .") (Citations omitted; internal quotation marks omitted.)
Three witnesses testified at the November 21, 2000 hearing in support of the town's claim of aggrievement. The first witness was the acting conservation director for the town. She stated that the council in the final decision did not adequately consider the various environmental and conservation issues under her jurisdiction. (Transcript of Court Hearing on November 21, 2000, pp. 9-10.) The second witness was the director of planning and zoning for the town. She testified that the final decision of the council violated the zoning laws of the town, particularly in that the approved tower would have a "mixed use." (Transcript of Court Hearing on November 21, 2000, p. 13.) The final witness was the first selectman of the town. She testified that she was responsible under the town's charter to faithfully execute the laws and ordinances of the town and to supervise the conservation director and planning and zoning director. (Transcript of Court Hearing on November 21, 2000, p. 15.)
On the first requirement of aggrievement (specific personal and legal interest), there is precedent that "[a]s the representative of the public interests of all its inhabitants, the plaintiff is an aggrieved person. . . ." (Citations omitted.) Milford v. Commissioner of Motor Vehicles, 139 Conn. 677, 681 (1953); Guilford v. Landon, 146 Conn. 178, 179 (1959). "It is the court's finding that the plaintiffs have a specific personal and legal interest in the subject matter of the defendant's decision granting the modified site plan application. The Town of Cromwell is legally required to enforce the provisions of the Inland Wetlands and Watercourses Act. . . . Clearly, the regulated activities which the defendant approved affect wetlands and watercourses which are located in both the city of Middletown and the town of Cromwell. It follows that the Town has a specific legal interest which has been affected by the defendant's decision, and the plaintiffs are aggrieved by it." Cromwell v. In land Wetlands Watercourses Agency, Superior Court, judicial district of Middlesex at Middletown, Docket No. 065192 (September 15, 1993, Gaffney, J.) ( 10 Conn. L. Rptr. 3.) Here, the town's three witnesses demonstrate that town officers had environmental, planning and zoning interests in the siting of the tower and that the town was obliged to insure that these interests were pursued.
The second aggrievement requirement (interest injuriously affected) is more difficult for the town to satisfy. Under General Statutes § 16-50x (a), the council has exclusive jurisdiction over the siting of a telecommunications tower. Preston v. Connecticut Siting Council, 20 Conn. App. 474, 483, cert. denied, 214 Conn. 803 (1990). The statute further provides that the council "shall give such consideration to other state laws and municipal regulations as it shall deem appropriate." It has been held under this statute that the plaintiff town, since it has no direct role in the siting process, "failed to demonstrate how any interest it may have has been specially and adversely affected by the council's decision." East Hartford v. Connecticut Siting Council, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 503484 (November 5, 1993, Barry, J.).
In this case, however, the town argues that the council has in its final decision permitted both cellular and non-cellular providers to make use of the tower. The town claims an error in that the council's jurisdiction does not extend to allowing this "mixed use." Under the town's theory, a mixed use situation still allows the town to apply its local laws and ordinances; as the final decision of the council interferes with the town's rights, it is injured in fact. This assertion, under the standard that standing exists if there is a possibility that legal interests may be affected, is sufficient for the court to find that the town has satisfied this second requirement of aggrievement.
The court must now consider the merits of the issues raised in these consolidated appeals. The first issue in both appeals is that of the exclusive jurisdiction of the council. When the issue was initially briefed, it was assumed, based on a declaratory ruling of the council, that it had no jurisdiction over towers used only PCS systems. Subsequently, just one day before argument in these cases, the United States District Court ruled that the council did have jurisdiction over PCS as well as cellular systems. Sprint Spectrum LP v. Connecticut Siting Council, U.S. District Court, Case No. 3-98-cv-33 (November 20, 2000, Covello, J.), appeal pending 01-17127 (U.S. Court of Appeals, Second Circuit); (Transcript of Court Hearing on November 21, 2000, p. 25.)
The parties have further briefed the effect of this decision on the cases before the court. Cellco argues that the District Court's decision resolves the jurisdictional issue here, while the other parties resist application of the decision. The federal case was appealed on January 22, 2001, and is still pending in the Second Circuit Court of Appeals. In addition, this court is not bound to follow a district court's interpretation of state law. Anderson v. Ludgin, 175 Conn. 545, 551, n. 6 (1978). Therefore, the court will consider the matter without relying on the holding in Sprint Spectrum.
In its first issue, the town argues that, given that the tower will have both cellular and non-cellular attachments, the town, in addition to the council, retains jurisdiction and may enforce its municipal codes. From this, the town claims in its appeal that the council erred in asserting its exclusive authority in locating the tower, and in Cellco's appeal that the ZBA was correct in denying the building permit.
Under the provisions of General Statutes § 16-50x (a), the council has "exclusive jurisdiction over the location and type" of certain statutorily defined facilities. "Facility" is defined by § 16-50i (a) (6) to include "such telecommunication towers, including associated telecommunications equipment . . . used in a cellular system, as defined in the Code of Federal Regulations Title 47, Part 22, as amended. . . ." (Emphasis added.) Thus, the question becomes whether the legislature in employing the phrase "used in a cellular system" intended to give the council exclusive jurisdiction over telecommunication towers that not only are to be developed for use by a cellular carrier, but also have non-cellular equipment thereon.
As stated in Nobs v. Connecticut Siting Council, Superior Court, judicial district of New Britain, Docket No. 492714 (April 28, 2000, McWeeny, J.): "Wireless telephones work by transmitting a low power signal between a wireless telephone and a personal wireless service facility, commonly known as a `cell site,' which consists of antennas mounted on a tower, tall building or similar tall structure. Radio frequency principles and network design require a number of cell sites. The network functions by having the caller signal `handed off' to a cell site in an adjacent area as it moves out of coverage of a cell site, with a goal of providing seamless and continuous mobile telephone service throughout the wireless service providers' licensed area." The non-cellular equipment is attached to these cellular towers so that the separate type of wireless communication may also function seamlessly and continuously.
"In construing any statute . . . we seek to ascertain and give effect to the apparent intent of the legislature. . . . In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . ." (Brackets omitted; internal quotation marks omitted.) Oxford Tire Supply, Inc. v. Commissioner of Revenue Services, 253 Conn. 683, 690 (2000)
The court must turn first to the statutory language "used in a cellular system" itself. In re Baby Z., 247 Conn. 474, 498 (1999). In the absence of a statutory definition of a term, the term should be given its common meaning as reflected in sources such as dictionaries. Hartford Hospital v. Dept. of Consumer Protection, 243 Conn. 709, 716-17 (1999); General Statutes § 1-1 (a). The dictionary definition of the word "use" is "to put into action or service." Webster's Third New International Dictionary (1966). The common meaning of "used in a cellular system," as it affects the council's jurisdiction, encompasses not only the approved cellular providers, Cellco and Springwich, but also the PDS and ESMR. carriers that are "putting their non-cellular equipment into action" on the cellular tower.
See also Black's Law Dictionary (6th Ed. 1990), defining "use" as follows: "To put or bring into action or service. . . . Beggs v. Texas Dept. of Mental Health and Mental Retardation, Tex. Civ. App. 496 S.W.2d 252, 254 [1973]."
The case of United States Fire Insurance Co. v. Kentucky Truck Sales, Inc., 786 F.2d 736 (6th Cir. 1986) concerned a similar definitional issue. In that case, an insurance policy excluded coverage of "autos while used in any professional or organized racing or demolition contest or stunting activity." Id., 737. At a Kentucky fair, at which there was stunting activity, a death occurred when a truck used to tow racing cars struck a spectator. A declaratory judgment action raised the issue of whether the truck was "used in" the stunting so that there would be no insurance coverage for the incident. The Sixth Circuit quoted from the same dictionary definition set forth above:
The District Court also correctly held that Kentucky Truck's Autocar semitractor was "used in" the stunting activity of the Truck Pull. The court referred to Webster's definition of "use" as "to put into action or service: avail oneself of," and found it clear on the undisputed facts that the tractor was used in the event, within the meaning of the policy exclusion.
Appellants argue that the vehicle was not a participant in the event, was not a competitor in the event, and that all vehicles "connected with" the event should be excluded. None of those questions need be decided, however, because the Kentucky Truck vehicle was used in this stunting activity and was accordingly plainly excluded from policy coverage."
(Emphasis in original.) United States Fire Insurance Co. v. Kentucky Truck Sales, Inc., supra, 786 F.2d 740.
The case is a clear indication that the phrase "used in" is not as narrow in meaning as the town contends. See also Mills v. Colonial Penn Ins. Co., 47 Conn. Sup. 17, 27 (2001) ("use of the automobile was in some way `connected with' the accident . . .") (Emphasis in original.) The court concludes that the council's jurisdiction is broad enough to cover non-cellular equipment placed on a cellular tower.
The legislative history of the phrase is also instructive. Public Act 1984, No. 84-249 added subsection 6 to the definitions of § 16-50i (a). The act as initially passed in the Senate gave the council exclusive jurisdiction to regulate telecommunication towers used for public cellular radio communication services. 27 S.Proc., Pt. 3, 1984 Sess., p. 842. In the House proceedings, Representative Lavine first generally pointed out that the purpose of the legislation was to end ad hoc town-by-town regulation in favor of regulation by the council. He also introduced an amendment that changed the Senate language to the current "used in a cellular system" terminology with a reference to the federal definition of a cellular system. 27 H.R.Proc., Pt. 9, 1984 Sess., pp. 3206-11, especially at 3209-10. The Senate later joined in the bill as amended in the House. Public Act 84-249 as enacted thus contains broader language than as initially proposed.
Moreover, "[s]tatutes are to be construed in a manner that will not thwart [their] intended purpose. . . ." (Citations omitted; internal quotation marks omitted.) Commission on Human Rights Opportunities v. Sullivan Associates, 250 Conn. 763, 778 (1999). If there are two possible interpretations of a statute, the court should adopt more reasonable construction and review the statute as a whole. Ferrigno v. Cromwell Development Associates, 244 Conn. 189, 202 (1998)
Here, the applicant Cellco put forth in its application a use of the tower that included sharing the facility with another cellular carrier and three non-cellular carriers, (ROR, Docket No. 500547, Item I-i, p. 12), and the council agreed by ordering this sharing. (ROR, Docket No. 501129, Item XXVIII-3, p. 1.) These additional users, according to the council, "have been unable to identify existing facilities that would improve their respective coverage and consequently seek to share the proposed tower. . . ." (ROR, Docket No. 501129, Item XXVIII-2, p. 1.)
Such action by the council is in keeping with clear direction from the General Assembly. In General Statutes § 16-50g, the legislature states that one of the purposes of the Public Utility Environmental Standards Act ("PUESA") is "to promote the sharing of towers for fair consideration wherever technically, legally, environmentally and economically feasible to avoid the unnecessary proliferation of towers in the state. . . ."
When the application was presented to the council, it had the duty to investigate the feasibility of whether Cellco might use an existing tower. As Judge McWeeny stated in Nobs v. Connecticut Siting Council, supra, Superior Court, Docket No. 492714: "The sharing of the facilities is encouraged if not required by General Statutes § 16-50p (b)(1) (A)."
In granting a certificate to Cellco, the council was also obliged to examine whether a tower to be constructed might be shared with " any public or private entity which provides telecommunications . . . service to the public. . . ." General Statutes § 16-50p (b)(1)(B). Under General Statutes § 16-50p (b)(2), the council is authorized to impose tower sharing as part of its locational order. These statutes do not limit the scope of the duty to investigate the sharing of towers, or the council's ultimate requirements regarding sharing, to cellular providers only.
In 1993 the legislature also added § 16-50aa (b) which sets forth a definition for existing towers. The argument cannot be made, however, that because the legislature did not change at that time the phrase "used in a cellular system" that it intended to affect the council's jurisdiction over towers with cellular and non-cellular equipment. See 36 H.R. Proc., Pt. 11, 1993 Sess., p. 6997, remarks of Representative Fonfera.
It is only reasonable to conclude that the council's order that Cellco share its tower with non-cellular carriers is in furtherance of the legislative purpose. To hold that the exclusive jurisdiction of the council is destroyed through this sharing process would frustrate the goals of the legislature and is not a rational result. Such a claim is merely a subset of the argument made by the town in Preston v. Connecticut Siting Council, supra, 20 Conn. App. 474 that a planning and zoning commission had jurisdiction to review an application to the council for a certificate. The Appellate Court called this argument an "erroneous hypothesis." Preston v. Connecticut Siting Council, supra, 20 Conn. App. 482. The court therefore rejects the town's jurisdictional argument.
As seen in the legislative history above, the town's home rule argument was rejected in the passage of PUESA. There is no reason why the council cannot reject any application from a provider that appears to be a subterfuge, that is a cellular provider deliberately seeks approval from the council only so that a non-cellular provider might share the tower. Finally, it is legally insignificant that the council has decided not to take direct jurisdiction over non-cellular carriers. As indicated above, the council's jurisdiction over telecommunication towers "used in cellular system" would extend to the non-cellular carrier equipment on a cellular tower.
The court now considers the town's argument in its appeal that the council's actions were both procedurally and substantively illegal. The standard of review of the town's claim "is highly deferential. . . . Ordinarily, this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute's purposes. . . . [A]n agency's factual and discretionary determinations are to be accorded considerable weight by the courts. . . ." (Citations omitted.) Bezzini v. Dept. of Social Services, 49 Conn. App. 432, 436 (1998).
General Statutes § 16-50p of PUESA sets forth the criteria for council decisions and certificate proceedings such as are at issue in this case: "[T]he council shall not grant a certificate . . . unless it shall find and determine: (1) A public need for the facility and the basis of the need; (2) the nature of the probable environmental impact, including a specification of every significant adverse effect, whether alone or cumulatively with other effects, on, and conflict with the policies of the state concerning, the natural environment, ecological balance, public health and safety, scenic, historical and recreational values, forests and parks, air and water purity and fish and wildlife; (3) why the adverse effects or conflicts referred to in subdivision (2) of this subsection are not sufficient reason to deny the application. . . ."
The court's "review of an agency's factual determination is constrained by General Statutes § 4-183 (j), which mandates that a court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are . . . (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record. . . . This limited standard of review dictates that, with regard to questions of fact, it is neither the function of the trial court . . . to retry the case or to substitute its judgment for that of the administrative agency. . . . An agency's factual determinations must be sustained if it is reasonably supported by substantial evidence in the record taken as a whole. . . . Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . This substantial evidence standard is highly deferential and permits less judicial scrutiny than a clearly erroneous or weight of the evidence standard of review. . . . The burden is on the plaintiffs to demonstrate that the [agency's] factual conclusions were not supported by the weight of substantial evidence on the whole record. . . ." (Brackets omitted; citations omitted; internal quotation marks omitted.) New England Cable Television Assn. v. DPUC, 247 Conn. 95, 117-18 (1998).
The town initially raises a procedural defect in the proceedings, alleged to have been committed by the council's chairman. During the hearing of September 28, 1998, a witness for Cellco was asked by an attorney for the residents of Sunny Lane whether she had submitted applications to local agencies of the town for permit approval. When the residents' attorney sought to follow up on this question, Cellco's attorney objected. (ROR, Docket No. 501129, Item XXVI-2, p. 111.) The residents' attorney then stated: "And what I don't want to have happen here . . . I don't want this application to be evaluated by the Siting Council and approved . . . and then a site development plan presented which is different than the one you're looking at. Now, if this doesn't comply with local zoning, we ought to know that now. It's a central issue in this application. And there's been no attempt to demonstrate that it does comply. . . . I would like to have those questions resolved at this time." (ROR, Docket No. 501129, Item XXVI-2, pp. 113-14.)
At this point, the chairman, who had previously stated that "when [the council] gives permission for that site to be built, when they do the development and management plan, they have to conform to all the local regulations," (ROR, Docket No. 501129, Item XXVI-2, p. 112), indicated as follows:
For a long time we required all these nuts and bolts to come before the Council before we made a decision. And when we turned down an application, those nuts and bolts really wasn't necessary and they went through a lot of work. Now we take the basis of an application, we go through and look at it as carefully as we can. And based upon our considered judgment of everybody involved, we grant them this application. And we grant this applicant with certain provisions that they have to come before us with what we call a development and management plan. And all those things that are critical to the environment, that we believe critical to the environment, the Connecticut Soil and Erosion Guidelines and all the rest of it, have to conform in order for them to get a plan so they can build a site. That's the reason we don't ask them for all the nuts and bolts before we grant the application. But they do have to give us all the nuts and bolts when they give us the development and management plan to build on this site.
(ROR, Docket No. 501129, Item XXVI-2, pp. 114-15.)
The residents' attorney stated that "you're wrong in doing it that way. I think that it violates the statute. I think that it violates the spirit of the law and the letter of the law." (ROR, Docket No. 501129, Item XXVI-2, p. 115.) At this point Assistant Attorney General Kohler states: "Mr. Chairman, just to try to get back on track, I think that the question that was originally posed . . . should be answered by the applicant." (ROR, Docket No. 501129, Item XXVI-2, p. 116.) The Chairman states that the question on submission to the zoning authorities of the town should be answered "right now." (ROR, Docket No. 501129, Item XXVI-2, p. 116.) The question was answered as were further follow-up questions. (ROR, Docket No. 501129, Item XXVI-2, pp. 117-18.)
From this exchange, the town argues that the Chairman of the council, in discussing the procedure to be followed at the hearing, ruled out the presentation of evidence of the town's concerns until after the decision on location was made. Even if the remarks of the Chairman can be read in this manner, the fact is that the question on zoning, and numerous additional questions, were answered as sought by the residents' attorney. The record before the council contains testimony and exhibits from which the council could gather local regulatory concerns including zoning issues. In addition the three documents issued by the council, the findings of fact, the opinion, and the decision and order, each consider the town's concerns. (ROR, Docket No. 501129, Item XXVIII-1, pp. 6-7; Item XXVIII-2, p. 3; Item XXVIII-3, p. 2, ¶ 6.)
It is equally possible to understand the Chairman to be indicating that specific detail in the local regulations only comes into consideration in the management and development plan.
The council recognized the town's concerns regarding the Poplar Plains Brook, and the factors encompassing environmental and the residential objections in the designation of the site. In its decision and order, the council conditioned its approval of the application on Cellco's compliance with the town's recommendations, including abandonment of the septic system, planting of dense vegetation and relocation of the fuel tank. (ROR, Docket No. 501129, Item XXVIII-3.)
In order to show that the chairman's remarks, if interpreted as claimed by the town, justify this court in taking action set aside the council's decision, the town must show prejudice. Grffin v. Muzio, 10 Conn. App. 90, 94, cert. denied, 203 Conn. 805 (1987) (claim of erroneous exclusion of evidence requires showing of substantial prejudice). This record does not support such a finding of prejudice in light of the lengthy record in this case and the full and complete opportunity that the town had to present its case. Concerned Citizens of Sterling, Inc. v. Connecticut Siting Council, 215 Conn. 474, 489 (1990) ("The Council made voluminous detailed findings about the facility's likely effects on water and on the air. These findings consistently indicate that the facility, properly constructed in accordance with the Council's guidelines, would have no significant adverse environmental impact.")
The council concluded that there was sufficient showing of need for the granting of the application. (ROR, Docket No. 501129, Item XXVIII-1, pp. 3-5; Item XXVIII-2, p. 1.) The town contests these findings and conclusions, specifically stating that Cellco did not submit specific percentages of dropped calls. Under the substantial evidence test, there was sufficient evidence in the record for the council to conclude that the need requirement was met. (ROR, Docket No. 501129, Item XXVI-1, pp. 35-38, 41-43, 94; Item XXVI-3, pp. 16, 140-41, 157-58.) Cellco introduced a document and expert testimony showing the percentage of dropped calls in the area of northwest Westport to be four times worse than the system average. The percentage of ineffective attempts (blocked calls) in this area likewise ranged between the system average and four times worse than the system average. (ROR, Docket No. 501129, Item XIII-31.) This evidence on dropped calls in the record supports the council's conclusions.
The council also properly evaluated the issue of need as regards Springwich, Omnipoint, Sprint and Nextel. (ROR, Docket No. 501129, Item XX-2; Item XV-3; Item XV-4; Item XV-7; Item XIX-2; Item XIV-3; Item XXVI-4, pp. 89-98, 111-15.) The council further found that the proposed site would improve coverage for Cellco and the other carriers. (ROR, Docket No. 501129, Item XXVIII-1, pp. 15-23.) On this record, these findings must be accepted. Nobs v. Connecticut Siting Council, supra, Superior Court, Docket No. 492714.
As indicated above, the council must determine whether there are environmental impacts in locating the facility and whether such impacts justify denial of the issuance of a certificate by the council. General Statutes § 16-50p (a)(2) and (3). The town claims that the council's findings on the environment impacts are flawed, especially because it relied on the testimony of Cellco's expert, Klein. The town charges that Klein could not describe his visit to Sunny Lane, was unaware of the term "waterways protection line," and had no knowledge of the wetlands map for the property. It points out that the town conservation officer was concerned that Cellco had not thoroughly studied the effects of the tower on the property.
It has been stated numerous times by our Supreme Court that it is the agency's role to evaluate the evidence before it and the trial court may not re-try the matter in an administrative appeal. Samperi v. Inland Wetlands Agency, 226 Conn. 579, 588 (1993). "The question is not whether the trial court would have reached the same conclusion, but whether the record before the agency supports the decision reached. . . ." (Citations omitted.) DeBeradinis v. Zoning Commission, 228 Conn. 187, 198 (1994). The council did have evidence before it indicating that Klein had studied the environmental impacts, including the effects on wetlands, even if he was unfamiliar with town regulations. (ROR, Docket No. 501129, Item XXVI-1, pp. 82-93; Item XXVI-2, pp. 123-25.) The council in its order took into account environmental concerns in placing the tower at a distance from the brook and the wetlands. (ROR, Docket No. 501129, Item XXVIII-3, ¶¶ 2, 6.)
In addition, the record included more than Cellco's submissions and Klein's testimony. It included an expert's report submitted by the Clinton Avenue residents at a town zoning hearing, and then later submitted by the town to the council, showing that the project would not affect the environment to any great degree. (ROR, Docket No. 501129, Item XXVI-26, Exhibit 15; Item XXVI-33.) The council also made its own inspection of the premises. The cases have noted the significance of an agency inspection on its determination. Grimes v. Conservation Commission, 243 Conn. 266, 277 (1997).
The council evaluated the environmental findings and decided that they did not require the denial of the certificate. (ROR, Docket No. 501129, Item XXVIII-2) ("[T]he need for the facility outweighs the environmental effects of the facility after a detailed analysis of the effects on scenic resources, land use, ecological resources, and human health. . . .") The council also took into account, as seen its opinion, that the alternative site, Clinton Avenue, was more likely to present environmental difficulties than Sunny Lane. (ROR, Docket No. 501129, Item XXVIII-2, pp. 2-3.)
The town also appeals on the ground that the council did not take into account the effect of the location of the tower on real estate values at or around the approved site. Under General Statutes § 16-50p, as quoted above, the council is not obliged to take into account the status of property values directly. The council must make use of property values in connection with its analysis of the environmental, scenic, historical and recreational values. The council has more than adequately considered these topics.
The final claim of the town is that the council did not adequately consider the status of the private residence on the premises. Such consideration, however, may be made, when appropriate, under the continuing jurisdiction of the council. General Statutes § 16-50u. Under certain circumstances that need not be decided now, the house may well be subject to the joint jurisdiction of the town and the council.
The council had substantial evidence for the decision that it reached. As the Appellate Court stated in Preston v. Connecticut Siting Council, supra: "[The Town's] arguments are not borne out by the record. The council found that the potential adverse impacts were ameliorated by the design and efficiency of the facility, and the requirement that the facility meet other state laws and regulations prior to and during operation." Preston v. Connecticut Siting Council, supra, 20 Conn. App. 490-91. Based upon the foregoing, the appeal of the town is dismissed, Docket No. 501129, and the appeal of Cellco is sustained, Docket No. 500547, as the ZBA did not have jurisdiction to enter its July 27, 1999 order.
The town shall comply with the council's orders by supplying the appropriate legal documents sought by Cellco.
Council condition number 6 intends that the recommendations of the town be observed by Cellco in the construction process. (ROR, Docket No. 501 129, Item XXVIII-3, p. 2.) This is the avenue for town imput, not through enforcement of municipal zoning regulations.
Henry S. Cohn, Judge