Woodbridge Newton Neighborhood Envtl. Tr. v. Conn. Siting Council

321 A.3d 363

349 Conn. 619

WOODBRIDGE NEWTON NEIGHBORHOOD ENVIRONMENTAL TRUST et al.

v.CONNECTICUT SITING COUNCIL et al.

(SC 20816)

Supreme Court of Connecticut.

Argued December 14, 2023

Officially Released July 5, 2024 ^*

Joseph P. Mortelliti, for the appellant (named plaintiff).

Robert L. Marconi, assistant attorney general, with whom, on the brief, was William Tong, attorney general, for the appellee (named defendant).

Linda L. Morkan, Hartford, with whom, on the brief, were Kenneth C. Baldwin, Hartford, and Diana E. Neeves, Stamford, for the appellee (defendant Cellco Partnership, doing business as Verizon Wireless, LLC).

Robinson, C. J., and McDonald, D’Auria, Mullins, Ecker, Alexander and Dannehy, Js.

DANNEHY, J.

₆₂₂The present appeal relates to the proposed construction of a 100 foot tall cell phone tower (tower) on a residentially zoned parcel of real property located in the town of Woodbridge (town). The named plaintiff, Woodbridge Newton Neighborhood Environmental Trust,¹ claims that the trial court improperly dismissed its administrative appeal from the decision of the named defendant, the Connecticut Siting Council (council), granting₆₂₃ the application of the defendant Cellco Partnership (Cellco), doing business as Verizon Wireless, LLC, for a certificate of environmental compatibility and public need pursuant to the Public Utility Environmental Standards Act (act), General Statutes § 16-50g et seq. The plaintiff contends that (1) the council was statutorily required, but improperly declined, to weigh the impact of the proposed tower² and its associated equipment on private property values, and (2) the council’s decision was unsupported by substantial evidence and, specifically, overlooked two particular alternative locations for the tower. Assuming without deciding that the first claim is preserved, we conclude that a facility’s impact on property values is not an enumerated or unenumerated "significant adverse effect"; General Statutes § 16-50p (a) (3) (B); that must be considered by the council, and that the plaintiff failed to present any evidence to the council that would have allowed it to determine that such evidence was relevant to its decision whether to grant Cellco’s application. As to the second claim, we conclude that the council’s decision was supported by substantial evidence. Accordingly, we affirm the judgment of the trial court.

The following facts and procedural history are relevant to our consideration of the present appeal. Cellco provides wireless telecommunications services in and around the town through a series of twelve transmission facilities, all but two of which are located in adjoining municipalities.³ The two cell phone towers located in the town are, in turn, both situated near the Wilbur ₆₂₄Cross Parkway at the southern end of the town. Various customer complaints and an in-vehicle drive test led Cellco to conclude that these existing facilities, in light of their relative positions and capabilities, provided inadequate service to the northern portions of the town, "particularly along portions of Route 63 (Amity Road), Route 67 (Seymour Road) and Route 114 (Center Road) …."

These deficiencies led Cellco to consider constructing a new cell phone tower in the area. After investigating twenty-five different locations over a period of approximately six years, Cellco applied to the council for the approval of a new 100 foot cell phone tower capable of transmitting a range of wireless frequencies⁴ on a six acre parcel of residentially zoned property located in the town at 118 Newton Road.⁵ Subsequently, the plaintiff filed an application with the council requesting to intervene in the administrative proceeding pursuant to General Statutes §§ 4-177a, 16-50n (b), and 22a-19. In that application, the plaintiff represented itself as a nonprofit, voluntary association comprised of real property owners "within the visual corridor" of the proposed tower, and stated that it was seeking to prevent unreasonable impacts to nearby "scenic resources ₆₂₅and … scenic vistas …." The council granted the plaintiff's request to intervene a few weeks later.

The council held four evidentiary hearings on Cellco’s application, one every month from July to October, 2021.⁶ At the outset of the first hearing, the presiding officer remarked: "Please be advised that the council’s project evaluation criteria under the statute do not include the consideration of property values." This same statement was, in substance, repeated at the start of each subsequent hearing.

Cellco introduced documents and testimony during these hearings in order to demonstrate that the proposed tower satisfied its service objectives. A radio frequency engineer employed by Verizon Wireless, LLC, Ziad Cheiban, testified that, although Cellco’s initial computer modeling had indicated that a 140 foot tower would be needed to provide adequate coverage along Route 67, a continuous wave drive test⁷ subsequently demonstrated that a 100 foot tower would suffice.⁸ At ₆₂₆this reduced height, Cellco’s experts estimated that approximately fifteen residences would have at least seasonal views of the proposed tower.

The plaintiff, in response, submitted reports and testimony from its own radio frequency consultant, David Maxson of Isotrope, LLC. Maxson concluded that the placement of the proposed tower on Newton Road would provide "no material improvement to service to and along [Route] 67," and assumed, as a result, that Cellco’s original goal of providing service in that area had been "abandon[ed] …." On the basis of this assumption, Maxson shifted his own analysis to two municipally owned properties located on Meetinghouse Lane, both of which were located near town hall, approximately one mile to the south of 118 Newton Road. According to Maxson, computer modeling and a continuous wave drive test demonstrated that these alternative locations would provide "competitive coverage with significantly less impact to residential neighborhoods." (Emphasis omitted.)

Cheiban disagreed with Maxson’s conclusions. Cheiban emphasized the fact that Cellco’s continuous wave drive test had demonstrated that a 100 foot tower on Newton Road would result in improved wireless services along Route 67.⁹ Cheiban indicated that Maxson ₆₂₇had focused his analysis too narrowly on lower frequencies and that, because the plaintiff’s alternatives were both situated approximately one mile south of 118 Newton Road, those alternatives "would not get the coverage we need for the higher frequencies" in areas located further to the north. Cheiban testified that centrally locating the tower on Newton Road, as proposed, would improve network capacity by splitting data traffic between different frequencies in a process known as carrier aggregation.¹⁰

On the same day as its first evidentiary hearing, the council also held a separate hearing to receive public comments. Before the floor was opened to speakers, the presiding officer repeated: "Please be advised that the council’s project evaluation criteria under the statute do not include consideration of property values." Notwithstanding this admonition, many members of the public did, in fact, comment on the proposal’s impact on property values. Most notably, a real estate agent from the town stated that the proposed location "borders some of [the town’s] highest priced neighborhoods" and expressed her opinion that those homes would need to be priced lower in order to sell in the event that the cell phone tower was constructed. The record contains no indication that the council prohibited anyone from speaking, or that Cellco ever sought to strike any of these comments from the record.

₆₂₈The council released its formal findings of fact on December 16, 2021.¹¹ On the basis of the evidence presented to it, the council found the following facts related to both existing services and the capabilities of the proposed tower: (1) "Cellco currently has a significant reliable wireless service deficiency in its communications network in the northern section of Woodbridge, particularly in the Route 63, Route 67, Route 114, Newton Road, and Prospect Hill areas"; (2) "Cellco conducted [a continuous wave drive] test to confirm the proposed site would provide reliable invehicle service to the Route 67 [and] Route 63 intersection area, given the reduced tower height, [Cellco’s continuous wave drive] test … indicated that Route 63 has adequate coverage to Apple Tree Lane north of the intersection, [and] Route 67 west of the intersection is partially covered, [as] an approximate 0.3 mile coverage gap would occur between Rock Hill Road and [Maple Vale] Drive"; and (3) "[a] potential small cell would be able to serve the coverage gap along Route 67 …." See footnote 8 of this opinion.

The council’s factual findings directly addressed one of the plaintiff’s central contentions, namely, that a tower placed at either of the proposed alternative locations on Meetinghouse Lane would provide coverage comparable to a tower on Newton Road. The council expressly rejected that conclusion on the basis of the evidence presented: "Cellco’s proposed site would offer more coverage to the proposed service area than a site at Meetinghouse Lane because Meetinghouse Lane is at a much lower elevation (approximately 130 feet ₆₂₉lower) and 0.9 miles south of the proposed site. Additionally, the proposed site is near the center of the coverage need area, whereas the Meetinghouse Lane area is on the southern periphery of the coverage need area."¹² The council’s findings continued: "The proposed site allows for the even distribution of network traffic among three antenna sectors. The Meetinghouse Lane area is at the edge of the proposed service area and would not be able to effectively deploy three antenna sectors and therefore would not be effective from a site capacity standpoint."

The council’s formal opinion, which was released on the same date as. its final findings...