No. CV 02 038 96 61
March 8, 2004
MEMORANDUM OF DECISION
This is an appeal from the approval of the defendant planning and zoning commission of the town of Monroe (commission) and Monroe Volunteer Fire Department No. 1 (MVFD) of a special exception permit to construct a "Cell Phone Tower" at 18 Shelton Road in the town of Monroe.
The appeal addresses the following issues:
(1) Whether the commission has jurisdiction to approve the construction of a 185-foot monopole structure (tower) to be used for the placement of both municipal public safety equipment (fire and police) and commercial wireless telecommunications equipment;
(2) Whether the approval of the special exception by the commission violated the Connecticut Environmental Policy Act;
(3) Whether the commission was required to request a review of the application by the State Historic Preservation Officer; and
(4) Whether the commission acted in accordance with its own regulations in approving the MVFD application.
The plaintiffs, Hurley and Deaso, are Monroe residents whose properties are each situated within a radius of one hundred feet of the subject property. As such, they are found to be aggrieved, pursuant to Sec. 8-8, C.G.S. and have the requisite standing to bring this appeal.
STANDARD OF REVIEW
When acting on a special permit, a zoning commission acts in an administrative capacity. Sheridan v. Planning Board of City of Stamford, 159 Conn. 1, 16 (1969).
To justify the grant of the special permit, it must appear from the record before the commission that the manner in which the applicant proposes to use his property satisfies all conditions imposed by the regulations. Abramson v. Zoning Board of Appeals, 143 Conn. 211, 213.
"The appeal to the court from the decision of the board did not require or permit the court, by trial de novo, to substitute its finding and conclusions for the decision of the board. Its functions were limited to a determination whether the board, as alleged by the appeal, had acted arbitrarily or illegally, or so unreasonably as to have abused its discretion. Id., p. 214.
The proposed use, however, must satisfy standards set forth in the zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience, and property values . . . Acting in this administrative capacity, the [zoning commission's] function is to determine whether the applicant's proposed use is expressly permitted under the regulations, and whether the standards set forth in the regulations and the statute are satisfied." Connecticut Resources Recovery Authority v. Planning Zoning Commission, 46 Conn. App. 566, 569 (1997).
"[O]n factual questions . . . a reviewing court cannot substitute its judgment for that of the agency." Timber Trails Corp. v. Planning Zoning Commission, 222 Conn. 380, 401, 610 A.2d 620 (1992). If there is conflicting evidence in support of the zoning commission's stated rationale, the "reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the commission." Whisper Wind Development Corp. v. Planning Zoning Commission, supra, 32 Conn. App. 523. "The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." Huck v. Inland Wetlands Watercourses. Irwin v. Planning Zoning Commission of Litchfield, 244 Conn. 619, 629 (1998).
"Where a zoning authority has expressed the reasons for its decision, a reviewing court `may only determine if the reasons given are supported by the record and are pertinent to the decision,' and the authority's action `must be sustained if even one of the stated reasons is sufficient to support it.' CT Page 3076 Torsiello v. Zoning Board of Appeals, supra, 50, quoting Hoagland v. Zoning Board of Appeals, 1 Conn. App. 285, 290, 471 A.2d 655 (1981)." Connecticut Health Facilities v. Zoning Board, 29 Conn. App. 1, 10 (1992).
The court makes the following findings of fact.
On or about September 6, 2001, the defendant MVFD applied to the defendant commission for special permission to construct a 185-foot monopole tower at 18 Shelton Road, Monroe. The reason given for the tower was to provide better emergency service communication by the MVFD throughout the town and to make provision for future use by the Monroe Police Department
On September 20, 2001, the defendant commission, after due notice, held a public hearing on the application of MVFD for the same purpose thereby substantially improving full emergency coverage throughout the town.
At its January 3, 2002 meeting, the commission voted to grant MVFD's application. Notice of that decision was published on or about January 8, 2002 in the Connecticut Post, a newspaper of general circulation in the area.
The plaintiffs maintain in their appeal that the reasons given by the commission are not supported by the record and they are not consistent with the Monroe Zoning Regulations.
Sec. 8-2, C.G.S. provides that, "the zoning commission of each city, town or borrough (sic) is authorized to regulate, within the limits of each such municipality, the height, number of stories and size of buildings and other structures . . ." The proposed tower is governed by this statute.
Additionally, however, C.G.S. Sec. 16-50i et seq., the Public Utility Environmental Standards Act (PUESA) provides at Sec. 16-50x(a), "notwithstanding any provision of the General Statutes to the contrary . . . the [Siting] Council shall have exclusive jurisdiction over the location and type of facilities. That this tower is a "facility" as defined in Sec. 16-50i is not disputed. However, the plaintiffs cited no authority for their claim that a tower which is a town "facility," within the jurisdiction of the commission, never the less falls within the exclusive province of PUESA if it also is used for telecommunications.
The record establishes that the tower will be used for emergency communications by the MVFD and, potentially, by the Monroe Police Department. The court finds that usage to be distinguishable from the facts in Town of Westport v. Siting Council, 260 Conn. 266 (2002), where in that case the proposed use was exclusively for a cell phone service provider and possibly other non-cellular providers. All of the users in that case would be commercial wireless communication providers, unlike the instant case where the town fire and police departments for the public safety of the community. A reading of Sprint Spectrum LP v. Connecticut Siting Council, 274 F.3d 674 (2001), permits the court to find that there was no commercial vs. public safety application issue in that case, either.
The jurisdictional tug of war is inappropriate for the reason that no commercial use involving Siting Committee responsibility exists at this time. The use is exclusively public safety communications. It is conceded that any potential future use of that tower by commercial telecommunication providers will necessarily come before the Siting Committee as per statute.
The court has also considered the plaintiffs' claims that approval of the special exception by the commission violates the Connecticut Environmental Policy Act, Section 22a-14, et seq., C.G.S.
The court finds that, as expressly provided in that act, "The provisions of sections 22a-15 to 22a-19, inclusive, shall be applicable to the unreasonable destruction of historic structures and landmarks of the state, which shall be those properties (1) listed or under consideration for listing as individual units on the National Register of Historic Places . . ." (Emphasis added.)
This court finds that the commission did not abuse its discretion in failing to equate the proposed tower as action by the town which would "adversely effect the surrounding neighborhood" as articulated in Barberino Realty and Development Corp. v. Planning Zoning Commission, 222 Conn. 607 (1992).
Having considered the plaintiffs' claims, the court further finds that there was no legal basis to require an environmental assessment (EA) under the provisions of the Code of Federal Regulations. The respondents are correct in their assertion that the Code provisions authorizing such environmental assessments apply to actions of the Federal Communications Commission (FCC) and not the local land use agencies. No action of the FCC is required to approve the tower in question in the instant case.
The court further finds that the actions of the commission concern property which is not within the Monroe Historical District and, for that reason, Sec. 10-320b(b)13, C.G.S., is not applicable as there is no state or federal action involved in this application.
Additionally, as the respondents point out, any such review by the State Historic Preservation Office is discretionary in the commission by the language of the statute. "The commission may review planned state and federal actions to determine their impact on historic structures and landmarks." Sec. 10-320b(b) (13), C.G.S.
The court has also considered whether the commission acted in accordance with the applicable provisions of its own regulations in approving the application for the special exception permit for the construction of the tower. Having found that the Zoning Regulations of the town of Monroe contain specific standards and requirements with regard to wireless communication facilities (Monroe Zoning Regulations, Article XV), the court further finds that the commission did adhere to those regulations and, by their provisions, the commission could not deny the application if it conformed to the criteria set forth in the regulations. See DeMaria v. Planning Zoning Commission, 159 Conn. 534, 540 (1970), where the court held, "When a zoning commission states the reasons for its action, `the question for the court to pass on is simply whether the reasons assigned are reasonably supported by the record and whether they are pertinent to the considerations which the commission is required to apply under the zoning regulations.'" Citing Zieky v. Town Plan Zoning Commission, 151 Conn. 265, 267 (1963).
The court further finds that the plaintiffs' claim that the commission failed to consider allegations that the tower would have an adverse effect on property values to be unsubstantiated in that while such claims were made, the record contains no compelling evidence that such assertion was in fact true.
Having considered the record and the claims of the plaintiffs, the court finds that they have failed to sustain their burden of proof that the commission's action was inconsistent with the Monroe Zoning Regulations, that it failed to comply with the various state and federal acts concerning the environment and the preservation of historic properties, or that it otherwise acted illegally, arbitrarily or contrary to law and in abuse of its discretion.
For those reasons the appeal of the plaintiffs is hereby denied.
BY THE COURT,
JOSEPH W. DOHERTY, JUDGE