Opinion
No. HHB-CV-05-4007974-S
March 1, 2007
MEMORANDUM OF DECISION
INTRODUCTION
The plaintiffs, Frank Rosa ("Rosa"), Georgiana Bianchi ("Bianchi"), Angela Bolus and John Bolus, appeal from a decision of the defendant State of Connecticut Siting Council ("Siting Council") which approved an application filed by Sprint Spectrum, L.P. ("Sprint") for a Certificate of Compatability and Public Need for the construction, maintenance and operation of a telecommunications facility ("cell tower" or "monopole") at 383 Torrington Road in Litchfield, Connecticut. Southwestern Bell Mobile Systems, LLC d/b/a Cingular Wireless, LLC ("Cingular"), and Cellco Partnership, d/b/a Verizon Wireless ("Verizon"), intervened in support of Sprint's application and are defendants in this appeal.
PROCEDURAL BACKGROUND
On or about September 30, 2004, Sprint filed an application calling for a 130-foot tall monopole intended to eliminate an existing wireless phone service gap on Route 202 and surrounding areas in Litchfield. Thereafter, both Verizon and Cingular sought to intervene, and Verizon petitioned to raise the height of the proposed monopole to 140 feet. The Siting Council held hearings on the application for the proposed cell tower on April 21, 2005 and June 14, 2005. On August 24, 2005, the Siting Council issued its final decision approving the 140-foot cell tower.
The plaintiffs filed this appeal on October 12, 2005. The parties submitted briefs on or about September of 2006. The defendant Town of Litchfield filed a brief on September 1, 2006, adopting portions of plaintiffs' statement of facts and the plaintiffs' arguments on the merits relating to the Siting Council's compliance with Connecticut General Statutes (hereinafter section references are to the Connecticut General Statutes) § 16-50j and abuse of discretion claims.In addition to responding to plaintiffs' substantive claims, the remaining defendants challenge the plaintiffs' standing to bring this appeal. While the defendants raise the issue of aggrievement in their briefs, they did not file motions to dismiss the appeal on that basis.
At oral argument, the Town of Litchfield opted to rest on its written submissions. (Transcript of November 20, 2006 at pg. 70). The Town of Litchfield has taken no position on the issue of aggrievement.
The court heard oral argument on the merits of the appeal on November 20, 2006. At oral argument, plaintiffs' counsel requested an opportunity to offer testimony to the court on the issue of aggrievement. (Transcript of November 20, 2006 at pp 4-8, 76-82). The court granted the plaintiffs' request and heard testimony from one of the plaintiffs, Georgiana Bianchi, and Robert Nocera, the plaintiffs' appraiser. (Transcript of December 11, 2006). On December 14, 18 and 22, 2006, the parties filed supplemental briefs on the issue of aggrievement.
DISCUSSION I. JURISDICTIONAL CLAIMS
In their complaint, plaintiffs allege two forms of aggrievernent, statutory and classical aggrievement. Plaintiff Angela Bolus, who resides at 112 East Chestnut Hill Road in Litchfield, asserts that she is statutorily aggrieved by the decision because she is an abutting landowner, and she claims she is classically aggrieved because the value of her property would be adversely affected by construction of the facility. Administrative Appeal, ¶¶ 3 and 54(a). Plaintiff John Bolus, who lives with his mother, Angela Bolus, claims that he is classically aggrieved by the decision because the value of his family's property would decline and the wetlands surrounding the property would be injured by construction of the facility. Administrative Appeal, ¶¶ 4 and 54(b). The remaining plaintiffs, Georgiana Bianchi and Frank Rosa, who reside at 365 Torrington Road in Litchfield, assert that they are classically aggrieved in that the value of their home and their interest in the wetlands and associated endangered species living in the wetlands would be adversely affected by the construction of the cell tower. Administrative Appeal at ¶¶ 1 and 54(c).
A. Test for Aggrievement
"It is well settled that [p]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal . . . It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved . . . Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it . . . [T]he trial court's conclusions on appeal [will not be disturbed] unless those conclusions are unsupported by the subordinate facts or otherwise violate law, logic or reason. Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-39, 833 A.2d 883 (2003).
A plaintiff may allege two types of aggrievement, statutory or classical aggrievement. "Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by legislation." Stauton v. Planning Zoning Commission, 271 Conn. 152, 157-58, 856 A.2d 400 (2004).
"`Classical aggrievement . . . requires an analysis of the particular facts of the case in order to ascertain whether a party has been aggrieved . . . (Citations omitted; internal quotations marks omitted.)'" Goldfisher v. Connecticut Siting Council, 95 Conn.App. 193, 197, quoting Shockley v. Okeke, 92 Conn.App. 76, 80, 882 A.2d 1244 (2005). "The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in [the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action] . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." West Farms Mall, LLC v. West Hartford, 279 Conn. 1, 25, 901 A.2d 649 (2006) (citation omitted; internal quotation marks omitted).
In Goldfisher, the Appellate Court held that, when it came to establishing the second prong of the classical aggrievement test, "proof of a possibility of specific harm is not the same as mere speculation regarding harm." Goldfisher, supra, 95 Conn.App. 198. "Although one may establish aggrievement by establishing the possibility of harm, mere speculation that harm may ensue is not an adequate basis for finding aggrievement." Id.
B. Plaintiffs Angela and John Bolus
Plaintiff Angela Bolus claims that, as the owner of a property adjacent to the proposed site, she is statutorily aggrieved by virtue of § 16-50l(b). However, § 16-50l(b) simply requires that abutting landowners receive notice of applications of facilities. Unlike statutes, such as § 8-8(a)(1) and (b), that explicitly deem abutters as "aggrieved" parties, § 16-50l(b) does not address administrative appeals from final decisions of the Siting Council. Rather, appeals of final decisions of the Siting Council are governed by §§ 16-50q and 4-183. Section 16-50q provides that "[a]ny party may obtain judicial review of an order issued on an application for a certificate in accordance with the provisions of section 4-183." Thus, neither § 16-50l nor § 16-50q create an independent statutory right of appeal. See Southern New England Telephone Company v. Department of Public Utility Control, 64 Conn.App. 134, 139-40, 779 A.2d 817 (2001), cert. granted, 258 Conn. 922, 782 A.2d 1252, appeal dismissed, 260 Conn. 180, 799 A.2d 294 (2002); see also City of New Haven v. Connecticut Siting Council, Judicial District of New Britain, No. CV 020513195S and No. CV 020513196S (August 21, 2002) [ 33 Conn. L. Rptr. 187]. In sum, Angela Bolus has failed to establish statutory aggrievement.
Neither Angela Bolus nor John Bolus briefed or presented any evidence before the Siting Council or this court relating to their claims of classical aggrievement. This court specifically afforded Angela Bolus an opportunity to present evidence on classical aggrievement, but she neither testified nor presented evidence in support of her allegations. (Transcript of December 11, 2006 at pp. 2-3). In their supplementary brief, the plaintiffs concede that "[t]he Bolus plaintiffs did not testify or otherwise provide evidence" but claim that, because "their property abuts the site of the approved tower, the court may conclude that their personal and specific property rights are affected by the approval of the Siting Council, by virtue of a diminution in value and impact on the view." (Plaintiffs' Supplemental Brief, 13, n. 8). However, mere allegations of aggrievement are insufficient to afford Angela and John Bolus standing to bring this appeal.
Thus, Angela Bolus and John Bolus have failed to establish either statutory or classical aggrievement, and their appeal is dismissed.
C. Plaintiffs Bianchi and Rosa
Bianchi and Rosa claim that the evidence establishes that they are aggrieved by (1) the decline in market value of their property; (2) the possibility of contamination of their drinking water due to blasting; (3) the effect the cell tower will have on the wetlands and endangered species; and (4) the impact the tower will have on their view.
From the evidence introduced to this court on the issue of aggrievement, the following findings are made with regard to plaintiffs Bianchi and Rosa:
Bianchi resides with her husband, Frank Rosa, at 365 Torrington Road, Litchfield;
Bianchi and her family have owned that property for 75 years;
Bianchi and Rosa built a house on that property in 1996, which is the closest residence to the proposed cell tower and approximately 440 feet to the south of the proposed cell tower;
If Bianchi knew that a tower was going to be constructed on the site which was approved, she and her husband would not have built the house or purchased the property;
Bianchi's property shares wetlands with the property on which the proposed cell tower will be located, and she is concerned about the impact the cell tower will have on the endangered species in the area, such as spotted salamanders, box turtles and yellow lady slippers she has observed in the wetlands on her property;
Bianchi is also concerned that possible blasting associated with the construction of the cell tower will have some impact on the water table of her well water, however, Bianchi would not be opposed to a residential development in the area, provided it conformed to the land use regulations;
Bianchi is not a registered soil scientist, registered geologist, licensed appraiser or professional engineer, and other than retaining Robert Nocera ("Nocera"), a real estate appraiser, and obtaining an informal opinion from a biology professor about the likely presence of vernal pools in the wetlands, Bianchi did not retain the services of or seek the opinion of any other experts with regard to the impact on her property of the proposed facility;
In addition to visiting properties which would be most severely impacted by the proposed development, Nocera conducted an independent survey of 28 homeowners living in Litchfield and surrounding communities to determine their reactions, if any, to having a 130-foot monopole with triangular antenna arrays located in close proximity to their homes;
The defendants claim that Nocera's survey questions inquired about a 195-foot rather than a 130-foot tower and his survey was, therefore, inaccurate. While Nocera acknowledged on cross-examination that a survey document, marked for identification but not admitted into evidence, referred to a 195-foot monopole, there is no evidence to suggest that the surveys conducted by Nocera and upon which he relied on to reach his conclusion inquired about a 195-foot pole. Transcript of December 11, 2006 at 46 and 52-55. His report, which was admitted into evidence, refers to a survey of 28 homeowners about their reactions to having a 130-foot monopole. Plaintiffs' Exhibit 1.
Nocera's survey asked participants their opinions about the impact of such a facility on property values and their decision to own a home in close proximity to such a structure;
The results of the survey revealed that the participants all perceived that there would be a diminution in the value of their property resulting from construction of such a facility;
Nocera did not rely on specific market data because the concept of developing such cellular towers is relatively new and had been primarily limited to highway corridors and commercial industrial areas, and there was little market data available showing sales transaction that might be affected by the placement of such towers in residential neighborhoods; and,
Nocera did not conduct any comparable sales analysis, in part, because his report was prepared two years earlier, and his purpose in preparing the report was not to determine actual dimunition in dollar value but to determine whether there would be any effect, positive or negative, on market value of surrounding properties as driven by perception.
With respect to the claims relating to contamination of the drinking water and the effect of the cell tower on endangered species, the plaintiffs failed to present credible evidence to establish classical aggrievement. Given the close proximity of Bianchi and Rosa's home to the site and the sharing of wetlands with the site, they have met the first prong of the test by establishing that they have "a specific personal and legal interest in the [ruling], as distinguished from a general interest, such as is the concern of all members of the community as a whole." West Farms Mall, supra, 279 Conn. 25.
While Bianchi testified that two back corners of her property abutted the property on which the proposed cell tower would be located, a map of the area submitted by Sprint with its application does not list the Bianchi property as an abutting property. (Record at I. 1). However, the same map does list the Bianchi residence as the "NEAREST EXISTING RESIDENCE" to the tower. This is consistent with the findings of fact of the Siting Council. See Record XXVIII.1, Finding of Fact ("FOF") No. 91.
Rosa's claims of classical aggrievement appear to rely exclusively on the testimony of his wife, Bianchi, who referred to the concerns that she and her husband shared. (Transcript of December 11, 2006 at pp. 7 and 15).
Bianchi and Rosa, however, have failed to meet the second prong of the test. The only evidence that they introduced regarding the specific harm they will suffer from the blasting or the impact of the cell tower on the wetlands is Bianchi's own speculation. Specifically, she fears that the construction of the cell tower would have a negative impact on her well water and the endangered species, such as spotted salamanders, box turtles, and yellow lady slippers she has observed in the wetlands on her property. Bianchi conceded that she was not an expert in the fields of engineering, geology or soil. (Transcript of December 11, 2006 at pg. 9.) Bianchi's concerns were not based on any scientific or empirical data. Further, the defendants introduced expert testimony and evidence during the hearings before the Siting Council which directly contradicted Bianchi and Rosa's fears and claims. (See Record XXVIII.1, Findings of Fact ("FOF") No. 94, 97, 108 and 109; XXI.1, Hearing Transcript of April 21, 2005 at pp. 46, 100-01.)
With respect to the claim that the cell tower will negatively impact on their view, Rosa and Bianchi have failed to introduce credible evidence to establish classical aggrievement. Bianchi claims that because the tower will be visible from her home, she has a specific personal interest and legal interest which will be negatively affected and is sufficient to establish aggrievement. Even assuming such a claim was sufficient to establish the first prong of the test, Bianchi and Rosa have failed to introduce any evidence to establish that their personal view will be negatively impacted by the cell tower. Their claim relating to the impact on their view is speculative and fails to meet the second prong of the test.
With respect to the claim of aggrievement based on the alleged negative impact on property values, Bianchi and Rosa have met both prongs of the classical aggrievement test. The evidence establishes that Bianchi and Rosa, whose home is 440 feet south of and the closest residence to the proposed site, have a specific personal and legal interest in the ruling and its impact on their property value as distinguished from the general interest of all members of the community.
Relying on Goldfisher, defendants claim that Bianchi has failed to establish that there is a possibility, beyond mere speculation, that her property value will be negatively impacted by the challenged action. However, unlike the plaintiff in Goldfisher, whose expert appraiser did not conduct his own investigation, Bianchi and Rosa produced an expert appraiser who conducted and testified about his own survey. Goldfisher, supra, 275 Conn. 199. While Nocera's analysis failed to include a comparison of actual property sales in areas where cell towers have been located, it summarized his research on the opinions of the market participants and the negative effect their perceptions would have on market value of properties surrounding a cell tower.
Further, in Goldfisher, the cell tower applicant submitted testimony from a real estate appraiser that, "based on historic data gleaned from similar towers constructed in other towns and the impact of those towers on the values of surrounding properties, the [proposed] tower would not have a negative impact on the plaintiff's property," which was located two-thirds of a mile from the tower. Id. In this case, defendants' counsel cross-examined Nocera about his failure to conduct comparable sales analysis as well as his knowledge of the existence of other cell towers at three specific locations elsewhere in Connecticut. However, there was no evidence in the record to establish that those cell towers were in existence at the time Nocera conducted his research or that those cell towers were located in residential areas similar to the one proposed here and appropriate for comparative analysis. To establish aggrievement, plaintiffs need to submit proof of the possibility of harm, not actual harm. Undoubtedly, a survey of comparable property sales in residential areas where similar cell towers might have been located would have provided better data to establish, with certainty, Bianchi and Rosa's claim of aggrievement. Nonetheless, the investigation, report and testimony submitted by Nocera, along with Bianchi's testimony, are sufficient to establish the second prong of the test. Bianchi and Rosa have established classical aggrievement based on their claim that there is a possibility the proposed cell tower will negatively impact their property value.
Having found classical aggrievement, the court will address the merits of Bianchi and Rosa's (hereinafter collectively referred to as "plaintiffs") appeal.
II. SITING COUNCIL'S DECISION A. Standard of Review CT Page 3519
The scope of judicial review of decisions of the Siting Council is limited and subject to the provisions of § 4-183. The judicial review section of the Uniform Administrative Procedures Acts ("UAPA") states:
The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that the substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) in violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon lawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
§ 4-183(j).
In administrative appeals, the burden of proof is on the plaintiff challenging the agency's decision. Lovejoy v. Water Resources Commission, 165 Conn. 224, 230, 332 A.2d 108 (1973); Demma v. Commissioner of Motor Vehicles, 165 Conn. 15, 16-17, 327 A.2d 569 (1973); Baker v. Planning and Zoning Commission of the Town of Fairfield, 212 Conn. 471, 478-79, 562 A.2d 1093 (1989). In addition to proving error, the plaintiffs must establish that their substantial rights have been prejudiced. Merchant v. State Ethics Commission, 53 Conn.App. 808, 733 A.2d 287 (1999); see also Tele Tech of Connecticut Corporation v. Department of Public Utility Control, 270 Conn. 778, 812-13, 855 A.2d 174 (2004).
"Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable. Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred. Such a standard of review allows less room for judicial scrutiny than does the `weight of the evidence' rule or the `clearly erroneous' rule. In conducting its review, a court must defer to the agency's assessment of the credibility of the witnesses and to its right to believe or disbelieve the evidence presented by any witness, even an expert, in whole or in part." See Connecticut Light Power Co. v. DPUC, 216 Conn. 627, 639-40, 583 A.2d 906 (1990) (internal quotation marks omitted; internal citations omitted). The function of the trial court is not "to retry the case or substitute its judgment for that of the administrative agency." O'Rourke v. Commissioner of Motor Vehicles, 33 Conn.App. 501, 505-07, 636 A.2d 409, cert denied, 229 Conn. 909, 642 A.2d 1205 (1994), quoting Madow v. Muzio, 176 Conn. 374, 376, 407 A.2d 997 (1978).
B. Siting Council's Compliance with § 16-50o and the Requirement to Produce Agreements.
Plaintiffs claim that the Siting Council violated § 16-50o by not requiring Sprint to provide the full terms of its agreements with Verizon, Cingular or Nextel. Section 16-50o(c) provides:
The applicant shall submit into the record the full text of the terms of any agreement, and a statement of any consideration therefor, if not contained in such agreement, entered into by the applicant and any party to the certification proceeding, or any third party, in connection with the construction or operation of the facility. This provision shall not require the public disclosure of proprietary information or trade secrets.
The record establishes that Sprint, in accordance with this provision, produced the unredacted copy of its lease agreement with the property owner and records relating to the compensation between the owner and the various carriers. (See Record IV(24) and XXII(8)).
The agreements that plaintiffs assert were not submitted are co-location master agreements between the carriers. It is unclear whether Section 16-50o applies to such general industry agreements, in existence well before Sprint's application for a certificate. Absent an in-camera review of the co-location master agreements, this court is not in a position to determine now whether they would be agreements entered into by the parties "in connection with the construction and operation of the facility," and therefore covered by Section 16-50o(c).
According to the statements of counsel, admitted as evidence absent objection, the agreements in question are Sprint's Master Sublease Agreement with Verizon, dated April 20, 2001, and Sprint's Master Antenna Site Lease Agreement with Cingular, dated July 26, 2004. Record IV(17).
Given their existence prior to Sprint's application, it is unlikely that the master co-location agreements were "entered into by the applicant and any party to the certification proceeding, or any third party, in connection with the construction or operation of the facility." § 16-50o(c).
When the issue was raised before the Siting Council, the defendants offered to place the agreements in the record under a protective order due to their confidential nature. (See Record XXI.1, Hearing Transcript of April 21, 2005 at pp. 85-6). However, after further discussion between the parties, an agreement was reached whereby counsel for the defendants would review the agreements and inform plaintiffs' counsel whether they contained information relating to a financial benefit in not using existing towers. Id. at pp. 89; 98-102. If the agreements contained the financial information that the plaintiffs sought, the issue of whether the agreements were covered by the statutory provision would be briefed by the parties. Id. The Siting Council would then review the agreements and the parties' briefs to determine if they would be covered by the statute. Id. At the conclusion of the hearing on April 21, 2005, plaintiffs' counsel consented to proceed in this manner and the parties agreed on a disclosure and briefing schedule. At the continued hearing on June 14, 2005, plaintiffs' counsel accepted the representation of defendants' counsel that the agreements did not contain relevant information but, for the first time, noted the plaintiffs would, nonetheless, not waive compliance with the statutory requirements. (See Record XXI.1, Hearing Transcript of June 14, 2005 at pp. 6-11.)
Plaintiffs claim that the Siting Council abused its discretion and acted illegally when it failed to require the defendants to submit the co-location agreements. Plaintiffs fail to cite any legal or statutory support for their position. The statutory provision states that the " applicant shall submit into the record," and does not impose a requirement on the Siting Council. § 16-50o(c) (emphasis added). Nor is there a penalty for non-compliance. See City of Norwalk v. Connecticut Siting Council, Judicial District of New Britain, NO. CV030524145S (August 18, 2004) (upholding Siting Council's decision while noting the lack of penalty provision for agency's failure to issue a timely decision under § 16-50p). In this case, the Siting Council afforded plaintiffs an opportunity to raise an objection as to the absence of the agreements and was willing to address the issue on the merits if the agreements contained information deemed relevant by plaintiffs. The Siting Council did not abuse its0 discretion or act illegally by not requiring the applicant to submit agreements that the parties conceded did not contain relevant information.
Even assuming procedural error occurred in the Siting Council's failure to require the production of the co-location agreements, the plaintiffs were not prejudiced by the absence of such agreements. As noted above, plaintiffs accepted the representations of defendants' counsel that the agreements did not contain the type of information the plaintiffs sought. At the hearing, plaintiffs counsel noted that "without looking at the documents, [he couldn't] articulate a ground for prejudice, but he [couldn't] say that there isn't one." (See Record XXI.3, Hearing Transcript of Transcript of June 14, 2005 at pg. 10). Absent a showing of prejudice, this court will not vacate the Siting Council's decision. See Merchant v. State Ethics Commission, 53 Conn.App. 808, 826-27, 733 A.2d 287 (1999); Tele Tech of Connecticut Corporation v. Department of Public Utility Control, 270 Conn. 778, 812-13, 855 A.2d 174 (2004).
On appeal, plaintiffs now claim they were prejudiced by the absence of those agreements because they could not challenge the defendants' claims and Siting Council's finding (FOF 37) that Nextel's coverage and equipment was inadequate to satisfy Sprint customers' needs. Plaintiffs did not raise this issue as a basis for their request for disclosure of the agreements or, more importantly, in response to the Siting Council's request for articulation of a ground for prejudice. Nor do the plaintiffs articulate how master agreements relating to how carriers share existing telecommunications facilities affect the differing use of spectrum of merged companies. As noted in plaintiffs' brief, plaintiffs were aware of the proposed merger as early as February 4, 2005 and, as such, sought information about Nextel's Litchfield Wireless Coverage. Plaintiffs' Memorandum of Law at pg. 4. On March 7, 2005, Sprint responded by noting both that the merger was not complete and its customers could not use Nextel's technology. Yet, plaintiffs did not cite the need to challenge Sprint's claim regarding the effect of the merger as a basis for disclosure of the agreements or that they were prejudiced by their absence. Thus, plaintiffs have failed to sustain their burden of showing that their substantial rights were prejudiced by the alleged procedural error.
Specifically, the Siting Council found that "because of the different technologies used by the two respective companies, a Sprint/Nextel merger would not mean the customers of one company's network would be able to have their phones use the frequencies of the other company's network." (FOF 37).
Plaintiffs claim that the Siting Council's decision regarding the need for the cell tower was erroneous for the following reasons: (1) failed to consider alternate proposed sites and the feasibility of those sites as required by § 16-50p;1 (2) concluded that the need outweighed any adverse environmental effects; and (3) was otherwise not supported by any findings of fact.
With respect to the claim of failure to consider alternate sites, plaintiffs specifically contend that the Siting Council failed to address the feasibility of using existing towers or multiple sites to achieve the same coverage. This claim is not supported by the record.
In reaching its decision, the Siting Council examined alternate sites from water tanks (FOF 78) to utilizing the steeple of the First Congregational Church (FOF 77) and another property in the Town of Litchfield (FOF 76). The Siting Council considered approximately 19 existing structures investigated by Sprint, as well as, an additional "eight other properties as potential raw facility sites." (FOF 72 and 73.) Most of the existing structures were not appropriate due to insufficient height and the remaining alternate sites were not appropriate or were otherwise unavailable. (FOF 71 to FOF 80.) There is substantial evidence in the record to support the Siting Council's conclusion that "an unusual number of different sites, or combinations of sites, were offered as alternatives to the proposed site . . . [b]ut none of these sites and their various combinations could replicate the coverage available from [the proposed] site." Siting Council Opinion at pg. 2; FOF 71 to FOF 80.
Plaintiffs point to Sprint's mischaracterization that some property owners were not interested in having their properties considered as alternate sites as evidence that the Siting Council ignored its statutory obligation to examine alternatives and to avoid the unnecessary proliferation of towers. The Siting Council heard evidence and expressed concern "by a seemingly inaccurate characterization by the applicant that owners of [three] potential alternative sites were `not interested' in having their properties considered when, in fact, there was some question as to whether [those] owners had received any solicitation of interest." However, the Siting Council also heard expert evidence that the three sites in question would not work in terms of meeting the coverage objective. (See Record XXI.3, Hearing Transcript of June 14, 2005 at pg. 188.) Thus, while appropriately admonishing Sprint for this alleged discrepancy, the Siting Council fully examined the feasibility of alternate sites.
Contrary to plaintiffs' claims, the record establishes that the Siting Council considered the potential adverse environmental effects of the proposed site. Plaintiffs claim that the Siting Council's decision simply "parrots the language of the statute" and fails to state in full its reasons for the decision. The Siting Council, however, considered all of the environmental detriments that plaintiffs raised including negative effects on wildlife, existing wetlands and the visual impact on Litchfield's historic district. See FOF 94-128. Based on the2 substantial evidence before it, the Siting Council accurately concluded that "the effects associated with the construction, operation, and maintenance of the proposed telecommunications facility, including the effects on the natural environment; ecological integrity and balance; public health and safety; scenic, historic and recreational values; forests and parks; air and water purity and fish and wildlife are not disproportionate either alone or cumulatively with other effects when compared to need . . . and are not sufficient reason to deny this application." See Siting Council Opinion at pg. 2.
While the owner of the proposed site had constructed an access road without permission from the Litchfield Inland Wetland Commission and was the subject of violation notices, the Siting Council considered any further impact in developing the facility and ordered Sprint to incorporate wetlands mitigation measures. See Siting Council Decision and Order at pg. 1. In accordance with Conn. Gen. Sta. § 16-50x, the Siting Council has "exclusive jurisdiction over the location and type of facilities . . . [and] in ruling on applications for certificates . . . shall give such consideration to other state laws and municipal regulations as it shall deem appropriate." Further, section 16-50w gives the council the power to override local agencies when it states "[i]n the event of any conflict between the provisions of this chapter and any provisions of the general statutes . . . this chapter shall take precedence."
The substantial evidence in the record supports the Siting Council's finding of a public need for the facility and the basis of that need. The Siting Council made a number of factual findings, based on documentary and testimonial evidence, relating to the existing cell coverage in the area available to Sprint and other carriers' customers and their coverage objectives. (FOF 24-27; 29; 32-35; 37; 42-43; 48; 50; 53; and 57). The Siting Council was free to believe and accept the carriers' testimony and exhibits regarding the need for the cell tower, most, if not all of which, were admitted absent objection. Schallenkamp, 229 Conn. at 41. Further, the Siting Council considered not only the environmental impact of the cell tower but also its continued need in the event of the Nextel/Sprint merger. (FOF 37.) The Siting Council also heard testimony about the municipal services' need, potentially life-saving in one case, for wireless communication coverage in that section of Litchfield. (See Record XXI.3, Hearing Transcript of Transcript of June 14, 2005 at pp. 60-61). In sum, the Siting Council's finding of public need is supported by substantial evidence in the administrative record and will not be reversed by this court.
D. Siting Council's Denial of Plaintiffs' Motion to Reopen.
Plaintiffs claim that the Siting Council's decision to deny their request to reopen the proceedings to receive evidence of the Sprint/Nextel merger violated their due process rights. Specifically, plaintiffs argue that the Siting Council erred in refusing to reopen the proceedings and then in concluding that Sprint customers could not use Nextel's frequencies by relying solely on the comments of counsel.
"Reopening an evidentiary hearing is a matter of agency discretion . . . and is reserved for extraordinary circumstances." Cities of Campbell and Thayer, Missouri v. Federal Energy Regulatory Commission, 770 F.2d 1180, 1191-92 (D.C. Cir. 1985) (citations omitted). In reaching its conclusion, the Siting Council relied on Sprint's Exhibit 6, entitled Sprint's Supplemental Filing #2, which constituted pre-filed testimony submitted by Sprint's counsel. The filing, however, contained statements later sworn to by Sprint's expert witnesses. (Transcript of April 21, 2005 at 11-12 and 117). These statements were admitted absent objection, and the witnesses were subject to cross-examination. Id. Having knowledge of the impending merger as early as February of 2005, plaintiffs had ample opportunity to present evidence of the impact of the anticipated merger or request additional time to rebut Sprint's claims. The record establishes that the impact of the proposed merger on Sprint's need was considered and found by the Siting Council not to negate3 Sprint's need for the tower. Thus, the Siting Council did not deny plaintiffs' due process rights by rejecting their request to reopen the proceedings to consider an issue that the parties had a full opportunity to address during the hearing.
CONCLUSION
For the reasons set forth above, the court finds that the Siting Council's decision is reasonably supported by substantial evidence in the record, and the Siting Council did not act unreasonably, arbitrarily, illegally or in abuse of its discretion. Thus, Bianchi and Rosa's appeal is dismissed.