Update on Cell Towers - A Call to the Legislature

UPDATE ON CELL TOWERS — A CALL TO THE LEGISLATURE

© 2003 By Ira W. Bloom

With the May 21, 2002, Supreme Court decision in Town of Westport v. Connecticut Siting Councili, the Supreme Court has signaled that the Connecticut Siting Council has exclusive jurisdiction over telecommunication towers, including cellular, noncellular, and towers which combine both. For many municipalities and others who advocate local control, the decision raises problems and the risk of improper tower locations. The effort to change this process must now move to the Connecticut General Assembly.

In interpreting the Public Utility Environmental Standards Act (PUESA), Conn. Gen. Stat. §16-50g through §16-50aa, and the jurisdiction of the Siting Council, the Supreme Court specifically upheld the trial court rulingii that PUESA gives the Siting Council exclusive jurisdiction over telecommunication towers shared by cellular and noncellular carriers. In so doing, they also strongly indicated that towers which are completely noncellular are also under the exclusive jurisdiction of the Siting Council. This case had been anxiously anticipated by both telecommunication companies and municipalities alike. While there are a number of Connecticut cases which have held that the Siting Council has exclusive jurisdiction over purely cellular towersiii, and there have been other Federal cases on the Siting Council's jurisdiction over purely noncellular towersiv, this was the first decision from our State's highest court dealing with the jurisdiction of the Siting Council over towers containing both cellular and noncellular carriers.

As the attorney for Westport in this case, and an advocate of local control, the result was a disappointment to the town. With the jurisdiction of PUESA and the Connecticut Siting Council now seemingly resolved, a legitimate policy question can and must be discussed by the Connecticut General Assembly. Is it good policy to have a centralized state agency deciding these issues? Given the long Connecticut tradition of local zoning control — Connecticut's zoning authorization statute dates back to 1925 in P.A. 25-242 — and the increased emphasis on developing local plans of conservation and development, is this centralized decision-making a desirable system? On the other hand, if siting issues were left to 169 communities, would the result be a disorganized pattern of tower locations? In fact, is the best solution a legislative change creating a system which combines the knowledge of the local jurisdiction along with the technical expertise of the Siting Council? As discussed below, the legislature has had a variety of proposals to revise PUESA since the mid-1990s, but thus far no bill has passed. For those who believe in stronger local control, the Town of Westport case may provide some additional impetus to action.

The Town Of Westport Case

The facts of this case highlight why PUESA now needs review by the legislature. Cellco Partnership d/b/a Verizon Wireless purchased a house and lot located at 2 Sunny Lane in Westport. The house was a ranch-style home surrounded by 22 other homes in the area. Verizon applied to the Siting Council for a 160 feet tall tower to be located on the front lawn of the house — the first tower located on the front lawn of a developed residence in Connecticut. The tower was to be shared by four other telecommunication companies, including cellular and noncellular.

There are a variety of technical differences between cellular carriers and noncellular carriers. For example, cellular carriers operate at a certain megahertz range, while noncellular providers such as Sprint PCS (Personal Communication Services) operate at a higher frequency. The distinction between cellular and noncellular was thought to be legally significant. Each type of technology is covered by a different section of the Code of Federal Regulations (CFR). Conn. Gen. Stat. §16-50i(a)(6) gives jurisdiction to the Siting Council over "such telecommunication towers, including associated telecommunications equipment...used in a cellular system, as defined in the Code of Federal Regulations Title 47, Part 22..." This particular section of the CFR deals only with cellular providers. Part 24 covers PCS, which is noncellular. The Town's unsuccessful argument was that §16-50i(a)(6) did not give exclusive jurisdiction over this tower with both cellular and noncellular systems to the Siting Council, that the Town retained jurisdiction over the noncellular use, and therefore shared jurisdiction over this tower with the Siting Council must exist.

Over the Town of Westport's objection, the Siting Council approved the location of the Sunny Lane tower, although reducing it to 130 feet and providing for a number of conditions. The Town appealed the decision to the Superior Court, resulting in the trial decision referenced above. The Trial Court (Hon. Henry S. Cohn) ruled for the Siting Council, finding that the words "used in a cellular system" allowed for exclusive jurisdiction in the Siting Council over towers to be used by both cellular and noncellular carriers. The Supreme Court affirmed the Trial Court in a per curiam decision. Most importantly, the Supreme Court concluded that "the trial court determined...that the legislature intended to give the council exclusive jurisdiction over telecommunication towers, including those that are shared by cellular and noncellular carriers." Although the facts of the Westport case are specific — a tower containing both cellular and noncellular carriers — this statement by the Supreme Court strongly suggests exclusive jurisdiction by the Siting Council over all towers, including entirely noncellular towers. Indeed, even before the Town of Westport ruling, the Siting Council had taken the position after the Federal decision in Sprint Spectrum L.P. v. Connecticut Siting Council, 274 F.3d 674 (2d. Cir. 2001) that all applications now went directly to them. This is apparently the route all new tower applications will now take.

The General Assembly

With the jurisdiction of the Connecticut Siting Council being effectively resolved, the focus must now return to the Connecticut legislature for those who believe in the importance of municipal control. In fact, there have been bills modifying PUESA which have been reported out of the General Assembly's Planning and Development and Energy and Technology Committees since at least 1997. While some sought to increase the Siting Council's exclusive jurisdiction, others returned the authority to the local planning and zoning commissions. For instance, in 1997 Substitute House Bill No. 6019 sought to amend PUESA to grant jurisdiction over noncellular towers to the Siting Council. In 1998 Substitute House Bill No. 5589 sought to remove jurisdiction from the Siting Council over telecommunication towers if a municipality has adopted zoning regulations covering towers. Neither proposal passed both houses of the General Assembly. Differing versions of both proposals have been proposed in more recent years, but nothing has passed.

The General Assembly has obviously been split on this issue between those who desire more centralized decision-making over location of towers versus those who advocate municipal control. Perhaps some legislators were content to leave the existing two-level system in place. In fact, for many years noncellular carriers such as Sprint PCS applied directly to local towns and cities for their approvals, while cellular providers such as Verizon applied to the Siting Council. This system will now likely change, with all applications — cellular, noncellular, and mixed — going to the Connecticut Siting Council.

Is there a legislative compromise solution between the competing perspectives? One attempt was made in the most recent February 2002 session of the General Assembly. In H.B. 5407, approved by both the Planning and Development and Energy and Technology Committees, a local municipality would review a new tower proposal under local regulations, subject to a right of appeal to the Siting Council, which could "affirm, modify or revoke such order or make any order in substitution thereof by a vote of majority of the council." The report from the Energy and Technology Committee noted that this was an effort to address the "bifurcated and somewhat disjointed mechanisms that have evolved to site wireless telecommunications facilities in the State of Connecticut. The underlying issue was (and is) striking a strong balance between the physical deployment of these facilities and serving/protecting the public and local community interest."

Advocates of municipal control objected to this proposal, since it ultimately gave jurisdiction to the State. Perhaps a change in this bill providing an override by the Siting Council of seventy percent — the so-called "super majority" — would improve the balance. Those who support the long Connecticut tradition of local land use planning will continue to emphasize the important benefits derived when local officials make land use decisions. After all, local officials are in the best position to consider alternatives such as tall buildings or other structures, as well as proper implementation of a town's plan of development. The Siting Council has resources and expertise to offer, but many cities and towns maintain that communities must be central to the decision-making process. In any event, after Town of Westport it is now clear that supporters of local zoning control must work towards a legislative compromise which attempts to achieve a fair balance in the siting of telecommunication towers. Without some legislative changes, a tower on the front lawn of a home such as 2 Sunny Lane in Westport may occur again.

Ira W. Bloom is a partner in the Westport law firm of Wake, See, Dimes & Bryniczka. He is also Town Attorney for Westport. The above article first appeared in the October, 2002 issue of Connecticut Lawyer and is reprinted here with their permission.

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i 260 Conn. 266 (2002). The author represented the Town of Westport in this case.
ii 47 Conn. Sup. 382 (2001)
iii See, for instance, Tarnopol v. Conn. Siting Council, 212 Conn. 157 (1989).
iv See, for instance, SBA Communications v. Zoning Commission of Franklin, 164 F. Supp. 2d 280 (D. Conn. 2001); Sprint Spectrum L.P. v. Connecticut Siting Council, 274 F. 3d 674 (2d. Cir. 2001).