In these two cases consolidated before this court, the plaintiffs appeal the decision of the named defendant, the Connecticut siting council (council), dated February 18, 2004, approving the application of the defendant Omnipoint Facilities Network 2, LLC, a subsidiary of the defendant T-Mobile, USA, Inc. (T-Mobile), for a certificate of environmental compatibility and public need for the construction, operation and maintenance of a wireless telecommunications facility on Route 123 in the town of New Canaan.
Based upon the evidence presented at the hearing of this case before this court, the court finds that two of the plaintiffs, Wanda Corcoran and Lewis Bakes, have been financially injured by the decision of the council, and that all of the plaintiffs, including the tovm of New Canaan, were granted party status by the council in the proceedings before it. As a consequence, the court finds that all the plaintiffs have been aggrieved and have standing to prosecute this appeal.
The relevant facts are as follows. Pursuаnt to General Statutes § 16-50k, T-Mobile filed an application with the council for a certificate of environmental compatibility and public need for the construction, operation and maintenance of a wireless telecommunications facility on Route 123 in New Canaan. The facility was intended
The site selected is a twenty-three foot by nineteen foot area located on the property of the Country Club of New Canaan, Inc. (country club), on Route 123. It is adjacent to an existing Southern New England Telephone Company facility compound that is used by the local utility, and it would join the compound to create a 147 foot by nineteen foot compound. The site is located in an area zoned as four acre residential. In the 2003 plan of conservation and development of the town of New Canaan, the site is within a location that is designated a scenic vista. There are eight residences within a 1000 foot radius of the proposed site, the nearest being 200 feet to the east of the proposed site. The tower will consist of a 110 foot steel silhouette pole, using stealth technology to accommodate three sets of antennas contained within the pole. The pole will be painted brown to blend in with the surrounding trees. Tree heights of surrounding trees range from seventy to ninety-five feet above the ground. The proposed tower’s location is thirty-six feet from the edge of Smith Ridge Rоad. The structure will be designed with a midpoint break at the fifty-five foot level so that its fall zone would not extend onto the adjacent property across Smith Ridge Road, but it will still fall onto Smith Ridge Road.
T-Mobile investigated several other potential sites for the construction of the tower within the search ring. One alternate location was within the country club proрerty and the other was on Michigan Road. The location within the country club property would be farther away from Route 123 and from nearby residences but would have a lower ground elevation and require a higher tower. The country club, however, would not lease property to T-Mobile for the tower other than on the designated site. The tower plaсed on Michigan Road would not provide adequate coverage of the target area.
The tower will be visible from sections of Smith Ridge Road (Route 123) to the northwest and southeast of the proposed site, and from a portion of Country Club Road and Oenoke Ridge Road. The tower can be seen from approximately fifteen to twenty homes оn Smith Ridge Road and from approximately ten to fifteen houses on Oenoke Ridge Road. The council made a finding that the silhouette structure of the tower when appropriately colored will not present the typical conspicuous tower appearance. The council did note, however, that a tower located at an intеrior site within the country club property would be aesthetically preferable to the proposed site.
After giving due notice of the application, the council held a public hearing on May 22, 2003, in New Canaan, and two hearings on July 3 and November 20, 2003, at the council’s office in New Britain. The council and its staff made a field inspection of the site and flew a balloon to simulate the height of the tower.
Based upon the foregoing facts found by the council, it concluded that “the effects associated with the construction, operation, and maintenance of a telecommunications facility including effects on the natural environment; ecological integrity and balance; public health and safety; scenic, historic, and recreational value; forest and park; air and water purity; and fish and wildlife are not disproportionate either alone or cumulatively with other effects when compared to need, are not in conflict with the policies of the [s]tate concerning such effects, and are not sufficient reason to deny thе application and therefore directs that the [c]ertificate of [environmental [compatibility and [p]ublic [n]eed ... be issued to . . . [T-Mobile] for the construction,
The plaintiffs appeal that decision on the grounds that it is arbitrary, capricious and in abuse of discretion, аnd that it contains errors of law in light of the whole record, on the following grounds: (1) the decision violates the New Canaan zoning regulations; (2) the decision violates the New Canaan plan of conservation and development by impairing a scenic vista; (3) the decision conflicts with the department of transportation (department) safety standards; (4) the decision violates General Statutes § 16-50p (g) in that the council gave too much weight to the fact that T-Mobile had a lease on the designated site; and (5) there are feasible and prudent alternatives to the approved location.
I
STANDARD OF REVIEW
Pursuant to General Statutes § 16-50q, the standards of General Statutes § 4-183 of the Uniform Administrative Procedure Act; General Statutes §§ 4-166 through 4-189; govern the consideration of this appeal. The principles are well established. It is not the function of the trial court to retry the case or to substitute its judgment for that of the administrative agency.
Connecticut Light & Power Co.
v.
Dept. of Public Utility Control,
II
DISCUSSION
A
The Issue of Violation of the New Canaan Zoning Regulations
Section 60-30.7 C (2) (a) of the New Canaan zoning regulations mandates that all towers be set back a minimum of “one hundred and twenty-five percent (125%) of the height of the tower from an adjoining lot line.” The T-Mobile tower, as approved by the council, will be 110 feet high and located only thirty-six feet from Route 123. Sections of Route 123 and neighboring residential properties are lоcated within the fall zone of the tower. As a consequence, the plaintiffs complain that the tower violates a specific section of the New Canaan zoning regulations. However, General Statutes § 16-50x (a) provides in relevant part: “Notwithstanding any other provision of the general statutes to the
The courts have interpreted this provision as giving the council the power to override municipal zoning provisions.
Westport
v.
Connecticut Siting
Council, 47
Conn. Sup. 382, 394,
B
The Issue of Impairing the Scenic Vista in Violation of the New Canaan Plan of Conservation and Development
Seсtion 16-50p (a) (3) (B) provides that in reaching a decision as to the public need for a facility, the council should take into account the “scenic” values to determine why the adverse effects upon such values are not sufficient reason to deny the application.
The New Canaan plan of conservation and development designаtes the area where the tower is to be located as a “scenic viewpoint” for a “scenic vista.” The council considered a good deal of evidence as to the impact of the tower in the residential area and specifically its location as a scenic vista. The council imposed conditions as to its design and cоlor to minimize the tower’s visibility. The council had to balance these factors against the public need for the telecommunications facility, and in the end concluded that the effects on scenic values were not disproportionate “when compared to need” and “are not sufficient reason to deny the application,” as statеd in its decision and order. The council thus performed its statutory obligation under § 16-50p (a) to balance competing concerns against the need for the coverage, and did not abuse its discretion.
c
The Issue of the Council’s Decision Conflicting with the Department’s Safety Standards
General Statutes § 16-50j (h) provides in relevant part: “Prior to commencing any hearing рursuant to section 16-50m, the council shall consult with and solicit written comments from the . . . Department of Transportation. . . . Subsequent to the commencement of the hearing, said [department] . . . may file additional written comments with the council within such period of time as the council designates. All such written comments shall be made part of the record provided by sеction 16-50o. . . .”
The department submitted a comment to the council that provided as follows: “The placement of a telecommunication tower must be far enough away from a State of Connecticut roadway to protect the travelling public should the tower ever collapse. A minimum distance from the roadway of the tower height is required.”
The application does not propose to install the tower on state property within a highway right-of-way or propose a new curb cut access point from a state highway; rather the tower is located on private property outside of the Route 123 highway right-of-way. Thus, while the council is obligated to consult with and to solicit comments from the department, nothing in the statute requires the council to abide by the comments of the department. In fact, there can be no doubt that the department’s written comments in this matter are not controlling on the council because General Statutes § 16-50w specifically provides that “[i]n the event of any conflict between the provisions of this chapter and any provisions of the general statutes, as amended, or any special act, this chapter shall take precedenсe.”
Moreover, the record reveals that there are many tower facilities all over Connecticut that are safely being maintained and operated by wireless carriers and tower operators adjacent to, and in some cases even within, state highway rights-of-way. As a consequence, the council’s decision to take into account the department’s comments but not to abide by them, was not an abuse of discretion.
D
The Issue of the Council’s Decision Violating the Statutory Mandate that Its Decision Not be Unduly Influenced by the Lease Agreement
Section 16-50p (g) provides: “In making its decision as to whether or not to issue a certificate, the council shall in no way be limited by the fact that the applicant may already have acquired land or an interest therein for the purpose of constructing the facility which is the subject of its application.” The plaintiffs argue that the council’s approval of the application rested heavily on the fact that T-Mobile held a lease for the site and could not negotiate an alternаte site on the property with the country club. Section 16-50p (g) specifically forbids the council from allowing a property interest to influence its decision, and the plaintiffs claim that this is precisely what the council did, which constituted an abuse of its discretion.
The plaintiffs misconstrue the statute. The phrase “in no way be limited” contained in § 16-50p (g) implies that the lеgislature did not want the council to be bound by an applicant’s alleged acquisition of an interest in land, but the council was
In this case, the plaintiffs would like the tower located on other property of the country club. The country club refused to lease a portion of its interior property, and the plaintiffs paint the country club as the bete noire for this refusal. The council has no power to compel it to do so. Moreover, the council was not overly induced to approve the location because T-Mobile had leased the particular site. The evidence was that, in order to provide coverage to the area and eliminate a coverage gap that existed in the heavy traveled portion of New Cаnaan, the tower had to be placed within a certain radius, and that the specific location chosen met that requirement.
E
The Issue of Feasible and Prudent Alternatives to the Approved Location
The plaintiffs argue that the location of the tower on other property of the country club would have less impact on the traveling public to use Route 123 and “represents a feasible and prudent alternative to the approved location.” The council itself conceded in its findings that the “tower located at an interior site within the [c]ountry [c]lub property would be aesthetically preferable to the proposed site.” The council also found, however, that T-Mobile “cоuld not reach an agreement with the [c]ountry [c]lub regarding an alternate interior location for a facility.” Since T-Mobile and the country club could not reach an agreement and since the council has no power to force the country club to agree, the country club’s property was not a feasible alternative.
The court finds no merit to all of the plaintiffs’ contentions and, as a consequence, dismisses the appeals.