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TOWN OF WESTPORT v. CONNECTICUT SITING
COUNCIL ET AL.
( SC 16600)
CELLCO PARTNERSHIP v. ZONING BOARD OF
APPEALS OF THE TOWN OF WESTPORT
( SC 16601)
Borden, Norcott, Katz, Palmer and Zarella, Js.
Argued March 13— officially released May 21, 2002
Ira W. Bloom, with whom was Michael S. Toma, for
the appellant in each case ( plaintiff town of Westport
and defendant zoning board of appeals of the town
of Westport).
Kenneth C. Baldwin, with whom, on the brief, were
Bradford S. Babbitt and Joey Lee Miranda, for the
appellee in both cases ( Cellco Partnership).
Mark F. Kohler, assistant attorney general, for the
appellee in the first case ( defendant Connecticut Sit-ing
Council).
Richard Blumenthal, attorney general, and Phillip
Rosario and Neil Parille, assistant attorneys general,
filed a brief for the office of the attorney general as
amicus curiae.
Mary- Michelle U. Hirschoff filed a brief for the Con-necticut
Conference of Municipalities as amicus curiae.
Jonathan S. Zorn and Kenneth Ira Spigle, pro hac
vice, filed a brief for Sprint Spectrum L. P. as amicus
curiae.
Opinion
PER CURIAM. This is a consolidated appeal1 emanat-ing
from a decision of the Connecticut siting council
( council), the named defendant in the first case, approv-ing,
subject to certain modifications and conditions, an
application of the defendant Cellco Partnership ( Cel-lco),
doing business as Bell Atlantic Mobile, filed pursu-ant
to the Public Utility Environmental Standards Act;
General Statutes § 16- 50g et seq.; for a certificate of
environmental compatibility and public need for the
construction, operation and maintenance of a telecom-munications
tower facility ( tower) to be located in the
town of Westport ( town). Cellco’s application proposed
to share the tower with four other wireless telecommu-nication
service providers, 2 including both cellular and
noncellular providers. The council approved the appli-cation
following three public hearings held pursuant to
General Statutes § 16- 50m, 3 at which the town partici-pated
and opposed Cellco’s application. In addition, the
four other service providers participated as intervenors
in the council proceedings. 4
The council’s decision approving the application was
predicated on its determination that it had jurisdiction
over the proposed facility because the facility would
be ‘‘ used in a cellular system’’ within the meaning of
General Statutes § 16- 50i ( a) ( 6). 5 Indeed, the council
asserted that, pursuant to General Statutes § 16- 50x ( a), 6
it had exclusive authority, maintaining that the town
does not retain jurisdiction to enforce its own municipal
laws, despite the fact that the proposed tower would
have both cellular and noncellular attachments. In
addressing the merits of whether to issue the certificate,
the council found that Cellco’s existing facilities in the
area did not provide adequate coverage or capacity in
the northern portion of the town and noted similar
deficiencies by the other carriers. The council deter-mined
that shared access to the tower by the cellular
and noncellular service providers would be consistent
with state law and policy promoting shared use. With
regard to the potential environmental impact of the
facility, the council made extensive findings supporting
its conclusions that ‘‘[ d] evelopment of the . . . site
would involve minimal land disturbance and would not
substantially alter the character of the natural resources
including wetlands and watercourse, vegetative compo-sition,
and wildlife habitats. Furthermore, there are no
environmental constraints at this site [ that] would jus-tify
denial of this site.’’ Finally, in response to concerns
raised by the town, in order to minimize the impact on
the residential neighborhood, the scenic quality of the
Merritt Parkway and the Poplar Plains brook that tra-versed
the proposed site, the council ordered that the
tower be reduced in height and relocated on the lot
further away from the inland wetlands and the water-course
than proposed by Cellco.
Following the council’s approval of the application
and grant of the certificate of environmental compatibil-ity
and public need, subject to certain conditions, Cellco
proceeded with plans to construct the approved tower.
It submitted the certificate to the town zoning enforce-ment
officer in order to receive the zoning certification
necessary to obtain a building permit. The zoning officer
informed Cellco that its failure to comply with the
town’s zoning regulations prevented the issuance of the
permit. Cellco appealed from the zoning enforcement
officer’s decision to the zoning board of appeals, which
thereafter denied the appeal.
Pursuant to General Statutes § § 4- 183 and 16- 50q, 7 the
town appealed from the council’s decision approving
Cellco’s application for the certificate of environmental
compatibility, and pursuant to General Statutes § § 8- 8
and 8- 10,8 Cellco appealed from the zoning board of
appeals’ decision denying its appeal from the zoning
officer’s denial of its application for a certificate of
zoning compliance. See Westport v. Connecticut Siting
Council, 47 Conn. Sup. 382, A. 2d ( 2001).
Because the claims overlapped, the trial court consoli-dated
the appeals.
The trial court first considered Cellco’s claim that,
because the council has exclusive jurisdiction over the
siting of a telecommunications tower, pursuant to the
Public Utility Environmental Standards Act, and the
town had no direct role in the siting process, the town
was not aggrieved and, therefore, the court did not
have jurisdiction to consider the town’s appeal. See
Connecticut Business & Industry Assn., Inc. v. Com-mission
on Hospitals & Health Care, 214 Conn. 726,
729, 573 A. 2d 736 ( 1990) ( party must be aggrieved to
have standing to bring administrative appeal). The trial
court rejected that contention, however, concluding
that, because, under the town’s theory, a mixed use of
cellular and noncellular providers, as in this case, would
allow the town to apply its local laws and ordinances,
the decision of the council interfering with the town’s
rights made it an aggrieved party.
Turning to the merits of the consolidated appeals, the
trial court addressed the issue of whether the council
improperly asserted its exclusive authority in locating
the tower and, concomitantly, whether the zoning board
of appeals improperly denied Cellco’s appeal from the
denial of its application for a certificate of zoning com-pliance
necessary for the issuance of a building permit.
The trial court determined, based upon its reading of
§ § 16- 50x ( a) and 16- 50i ( a) ( 6), 9 in conjunction with
General Statutes § 16- 50p ( b) ( 1) ( B) and ( b) ( 2), 10 that
the legislature intended to give the council exclusive
jurisdiction over telecommunication towers, including
those that are shared by cellular and noncellular carri-ers.
The trial court next considered the town’s argument
that the council’s actions were procedurally and sub-stantively
illegal. Applying a limited standard of review
pursuant to § 4- 183 ( j), the court examined whether
the council’s findings were supported by substantial
evidence in the record and whether its decision approv-ing
the application subject to certain modifications
reflected a proper application of the pertinent statutory
factors set forth in the Public Utility Environmental
Standards Act. Concluding that the council’s actions
were proper, the trial court next turned to the town’s
procedural claim that the council had acted improperly
by deferring any consideration of the town’s zoning
regulations until after the council’s approval of the
application for the certificate of environmental compat-ibility
and public need. Following its examination of
the record before the council, which included testimony
and exhibits relating to the town’s zoning and other
regulatory concerns, the court rejected the town’s pro-cedural
claim, concluding that the council had recog-nized
the town’s concerns, including the factors
encompassing environmental and residential objec-tions,
prior to the application approval, as evidenced,
in part, by it conditioning its approval on Cellco’s com-pliance
with some of the town’s recommendations.
Accordingly, the trial court, in separate judgments, dis-missed
the town’s appeal and sustained Cellco’s appeal.
This appeal followed.
Our careful examination of the record, coupled with
the briefs and arguments of the parties, persuades us
that the judgments of the trial court should be affirmed.
The question of aggrievement, and the issues pertaining
to whether the council’s jurisdiction was exclusive and
whether there existed any prejudicial procedural impro-priety,
were properly resolved in the thoughtful and
comprehensive memorandum of decision filed by the
trial court. See Westport v. Connecticut Siting Council,
supra, 47 Conn. Sup. . Because that memorandum
of decision fully addresses the arguments raised in the
present appeal, it would serve no useful purpose for us
to repeat the discussion therein contained. Accordingly,
we adopt the trial court’s well reasoned decision. See
Walsh v. National Safety Associates, Inc., 241 Conn.
278, 282, 694 A. 2d 795 ( 1997); Molnar v. Administrator,
Unemployment Compensation Act, 239 Conn. 233, 235,
685 A. 2d 1107 ( 1996); Greater Bridgeport Transit Dis-trict
v. State Board of Labor Relations, 232 Conn. 57,
64, 653 A. 2d 151 ( 1995); Advanced Business Systems,
Inc. v. Crystal, 231 Conn. 378, 380– 81, 650 A. 2d 540
( 1994).
The judgments are affirmed.
1 The plaintiff in the first case, the town of Westport, and the defendant
in the second case, the zoning board of appeals of the town of Westport,
appealed from the trial court’s judgments to the Appellate Court. We then
transferred the consolidated appeal to this court pursuant to Practice Book
§ 65- 1 and General Statutes § 51- 199 ( c).
2 The other providers are: Springwich Cellular Limited Partnership
( Springwich); Sprint Spectrum L. P., doing business as Sprint PCS ( Sprint);
Nextel Communications of the Mid- Atlantic, Inc., doing business as Nextel
Communications ( Nextel); and Omnipoint Communications, Inc. ( Omni-point).
Springwich, like Cellco, is a federally licensed provider of cellular
service. Sprint and Omnipoint are federally licensed providers of wireless
service known as personal communications service, and Nextel is a federally
licensed provider of wireless service known as enhanced specialized mobile
radio service.
3 General Statutes § 16- 50m provides: ‘‘( a) Upon the receipt of an applica-tion
for a certificate complying with section 16- 50l, the council shall promptly
fix a commencement date and location for a public hearing thereon not less
than thirty days nor more than one hundred fifty days after such receipt.
At least one session of such hearing shall be held at a location selected by
the council in the county in which the facility or any part thereof is to be
located after six- thirty p. m. for the convenience of the general public. After
holding at least one hearing session in the county in which the facility or
any part thereof is to be located, the council may, in its discretion, hold
additional hearing sessions at other locations. If the proposed facility is to
be located in more than one county, the council shall fix the location for
at least one public hearing session in whichever county it determines is
most appropriate, provided the council may hold hearing sessions in more
than one county.
‘‘( b) ( 1) The council shall hold a hearing on an application for an amend-ment
of a certificate not less than thirty days nor more than sixty days after
receipt of the application in the same manner as a hearing is held on an
application for a certificate if, in the opinion of the council, the change to
be authorized in the facility would result in any material increase in any
environmental impact of such facility or would result in a substantial change
in the location of all or a portion of the facility, other than as provided in
the alternatives set forth in the original application for the certificate, pro-vided
the council may, in its discretion, return without prejudice an applica-tion
for an amendment of a certificate to the applicant with a statement of
the reasons for such return. ( 2) The council may hold a hearing on a resolu-tion
for amendment of a certificate not less than thirty days nor more than
sixty days after adoption of the resolution in the same manner as provided
in subsection ( a) of this section. The council shall hold a hearing if a request
for a hearing is received from the certificate holder or from a person entitled
to be a party to the proceedings within twenty days after publication of
notice of the resolution. Such hearing shall be held not less than thirty days
nor more than sixty days after the receipt of such request in the same
manner as provided in subsection ( a) of this section. ( 3) The county in
which the facility is deemed to be located for purposes of a hearing under
this subsection shall be the county in which the portion of the facility
proposed for modification is located.
‘‘( c) The council shall cause notices of the date and location of each
hearing to be mailed, within one week of the fixing of the date and location,
to the applicant and each person entitled under section 16- 50l to receive a
copy of the application or resolution. The general notice to the public shall
be published in not less than ten point, boldface type.
‘‘( d) Hearings, including general hearings on issues which may be common
to more than one application, may be held before a majority of the members
of the council.
‘‘( e) During any hearing on an application or resolution held pursuant to
this section, the council may take notice of any facts found at a general
hearing.’’
4 Residents of Clinton Avenue and Residents of Sunny Lane, two interested
groups representing residents in the areas likely to be affected by the pro-posed
construction and operation of the tower, also participated in the pro-ceedings.
5 General Statutes § 16- 50i ( a) provides in relevant part: ‘‘ ‘ Facility’ means
. . . ( 6) such telecommunication towers, including associated telecommuni-cations
equipment, owned or operated by the state, a public service company
or a certified telecommunications provider or used in a cellular system, as
defined in the Code of Federal Regulations Title 47, Part 22, as amended,
which may have a substantial adverse environmental effect, as said council
shall, by regulation, prescribe . . . .’’ ( Emphasis added.)
A minor technical change, which is not relevant to this appeal, was made
to § 16- 50i ( a) ( 6) in 1999, after the council had rendered its decision in this
case. See Public Acts 1999, No. 99- 286, § 8. References herein are to the
current revision of the statute.
6 General Statutes § 16- 50x ( a) provides: ‘‘ Notwithstanding any other provi-sion
of the general statutes to the contrary, except as provided in section
16- 243, the council shall have exclusive jurisdiction over the location and
type of facilities and over the location and type of modifications of facilities
subject to the provisions of subsection ( d) of this section. In ruling on
applications for certificates for facilities and on requests for shared use of
facilities, the council shall give such consideration to other state laws and
municipal regulations as it shall deem appropriate. Whenever the council
certifies a facility pursuant to this chapter, such certification shall satisfy
and be in lieu of all certifications, approvals and other requirements of
state and municipal agencies in regard to any questions of public need,
convenience and necessity for such facility.’’
7 General Statutes § 4- 183 ( a) provides in relevant part: ‘‘ A person who
has exhausted all administrative remedies available within the agency and
who is aggrieved by a final decision may appeal to the Superior Court as
provided in this section. . . .’’
General Statutes § 16- 50q provides: ‘‘ Any party may obtain judicial review
of an order issued on an application for a certificate or an amendment of
a certificate in accordance with the provisions of section 4- 183. Any judicial
review sought pursuant to this chapter shall be privileged in respect to
assignment for trial in the Superior Court.’’
8 General Statutes § 8- 8 ( b) provides: ‘‘ Except as provided in subsections
( c), ( d) and ( q) of this section and sections 7- 147 and 7- 147i, any person
aggrieved by any decision of a board may take an appeal to the superior
court for the judicial district in which the municipality is located. The appeal
shall be commenced by service of process in accordance with subsections
( e) and ( f) of this section within fifteen days from the date that notice of
the decision was published as required by the general statutes. The appeal
shall be returned to court in the same manner and within the same period
of time as prescribed for civil actions brought to that court.’’
In 1999, a minor technical change, not relevant to this appeal, was made
to § 8- 8 ( b). See Public Acts 1999, No. 99- 238. References herein are to the
current revision of the statute.
General Statutes § 8- 10 provides: ‘‘ The provisions of sections 8- 8 and 8-
9 shall apply to appeals from zoning boards of appeals, zoning commissions
or other final zoning authority of any municipality whether or not such
municipality has adopted the provisions of this chapter and whether or not
the charter of such municipality or the special act establishing zoning in
such municipality contains a provision giving a right of appeal from zoning
boards of appeals or zoning commissions and any provision of any special
act, inconsistent with the provisions of said sections, is repealed.’’
9 See footnotes 5 and 6 of this opinion.
10 General Statutes § 16- 50p ( b) provides in relevant part: ‘‘( 1) Prior to
granting an applicant’s certificate for a facility described in subdivision
( 5) or ( 6) of section 16- 50i, the council shall examine, in addition to its
consideration of subdivisions ( 1) to ( 5), inclusive, of subsection ( a) of this
section . . . ( B) whether such facility, if constructed, may be shared with
any public or private entity which provides telecommunications or commu-nity
antenna television service to the public, provided such shared use is
technically, legally, environmentally and economically feasible at fair market
rates, meets public safety concerns, and the parties’ interests have been
considered . . . .
‘‘( 2) When issuing a certificate for a facility described in subdivision ( 5)
or ( 6) of subsection ( a) of section 16- 50i, the council may impose such
reasonable conditions as it deems necessary to promote immediate and
future shared use of such facilities and avoid the unnecessary proliferation
of such facilities in the state. The council shall, prior to issuing a certificate,
provide notice of the proposed facility to the municipality in which the
facility is to be located. Upon motion of the council, written request by a
public or private entity which provides telecommunications or community
antenna television service to the public or upon written request by an
interested party, the council may conduct a preliminary investigation to
determine whether the holder of a certificate for such a facility is in compli-ance
with the certificate. Following its investigation, the council may initiate
a certificate review proceeding, which shall include a hearing, to determine
whether the holder of a certificate for such a facility is in compliance with
the certificate. In such proceeding, the council shall render a decision and
may issue orders which it deems necessary to compel compliance with the
certificate, which orders may include, but not be limited to, revocation of the
certificate. Such orders may be enforced in accordance with the provisions of
section 16- 50u.’’
