Attorney General: Daniel F. Caruso, Chairman, Citing Council, Formal Opinion 2007-017, Attorney General State of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

September 5, 2007

Daniel F. Caruso, Chairman
State of Connecticut Siting Council

Ten Franklin Square
New Britain, Connecticut 06051

Dear Chairman Caruso:

 

           Your agency has  asked for an opinion on whether the Connecticut Siting Council (“Council”) has jurisdiction over the siting of municipal towers pursuant to Conn. Gen. Stat. § 16-50i (a)(6).  By the term “municipal tower”, the Council means a tower used, at least in part, for wireless telephone (commonly called “cell phone”) service when that tower is owned by a municipality on municipal property.  Specifically, the Council seeks an opinion as to whether the Council has jurisdiction over proposed towers that are to be owned by a municipality, built on municipal property, and will have one or more antennas to provide commercial cell phone service.  According to the information you have provided, for many years the Council has interpreted its statutory authority to prohibit jurisdiction over such municipal towers.  For the reasons stated below, I conclude that the Council should seek legislative clarification on this issue.1

 

          The Public Utility Environmental Standards Act (“PUESA”), codified at Conn. Gen. Stat. § § 16-50g, et seq., grants exclusive jurisdiction over the siting of certain facilities to the Council.  Such facilities are defined in Conn. Gen. Stat. §  16-50i (a).  Conn. Gen. Stat. §  16-50i (a)(6) defines the term “facility” to include “such telecommunications towers, including associated telecommunications 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.”  The Council’s relevant regulations include Reg. Conn. State Agencies § 16-50j-2a (g), which states, in part, that “facility” includes “telecommunications towers owned or operated by the state, a public service company as defined in section 16-1 of the General Statutes, or used for public cellular radio communications service as defined in section 16-50i of the General Statutes, which may have a substantial adverse environmental effect.”

 

          In recent years, the courts have interpreted Conn. Gen. Stat. § 16-50i (a)(6).  In Sprint Spectrum LP v. Connecticut Siting Council, 274 F.3d 674 (2d Cir. 2001),  the United States Court of Appeals for the Second Circuit held that the Council’s jurisdiction covered both cellular systems regulated by 47 C.F.R. Part 22 and Personal Communications Services (PCS) regulated by 47 C.F.R. Part 24.  In Town of Westport v. Connecticut Siting Council, 47 Conn. Supp. 382, 797 A.2d 6555 (2001), affirmed, 260 Conn. 266, 796 A.2d 510 (2002), it was held that the Council had exclusive jurisdiction over mixed use towers (towers used in part, but not exclusively, for cellular service).   Neither case concerned municipal ownership of towers. 

 

          Conn. Gen. Stat. § 1-2z states:  “The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes.  If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.”  The literal text of Conn. Gen. Stat. § 16-50i (a)(6) gives the Council jurisdiction over all "telecommunications towers. . . used in a cellular system" and does not exempt municipal towers from the Council's jurisdiction.  Without a specific exemption for municipalities in the statute, a municipal tower "used in a cellular system. . . which may have a substantial adverse environmental effect" appears to  fall  within the Council's regulatory authority.  Conn. Gen. Stat. §  16-50i(a)(6). 

 

However, while a reasonable interpretation of Conn. Gen. Stat. § 16-50i(a)(6) places municipals towers within the Council's jurisdiction, other factors make the Council's jurisdiction less clear. First, although the text of the statute does not specifically exempt municipal towers, neither does the statute include municipal towers within the Council's jurisdiction.  Conn. Gen. Stat. § 16-50i(a)(6) specifically gives the Council jurisdiction over towers "owned or operated by the state," but does not give the Council similar specific authority over towers owned by municipalities.  Had the legislature intended to give the Council jurisdiction over all facilities owned by governmental entities "that were used for public cellular radio communications services," the legislature may not have specifically included state owned facilities within the Council's jurisdiction.  The legislature's failure to include towers owned or operated by municipalities within its definition of regulated facilities, while including those owned or operated by the state, may be construed as a legislative decision not to give the Council jurisdiction over municipal towers.  See Gay & Lesbian Law Students Ass'n v. Board of Trustees, 236 Conn. 453, 476 (1996) (citing rule of statutory construction, expressio unius est exclusio alterius, or "the expression of one thing is the exclusion of another");  Hyatt v. Burlington Coat Factory, 263 Conn. 279, 295 (2003).

 

Second, Conn. Gen. Stat. § 16-50l (e) requires prior consultation with the chief elected official of a municipality by an applicant before filing an application with the Council, and permits the municipality to conduct public hearings.  If the legislature had intended that municipal towers fall within the Council's jurisdiction, the process set forth in Section 16-50l (e) would require the town to consult with itself prior to filing an application with the council:  "[w]e presume that the legislature intends sensible results from the statutes it enacts . . .  Therefore,  we read each statute in a manner that will not thwart its intended purpose or lead to absurd results."  Collins v. Colonial Penn. Ins. Co., 257 Conn. 718, 728-29 (2001) (citations omitted; internal quotation marks omitted.)  Finally, the Council itself has never interpreted this statute to give it jurisdiction over municipal towers and continues to recognize that it has no jurisdiction over towers constructed by a town on town property that do not contain cell phone antennas, even if the town installs such antennas after the tower is constructed.  Courts accord "considerable deference to the construction given a statute by the administrative agency charged with its enforcement, particularly when the agency has consistently followed its construction over a long period of time." Sutton v. Lopes, 201Conn. 115, 120 (1986).

 

          The legislative history does not clarify whether municipal towers are facilities under Conn. Gen. Stat. §  16-50i (a)(6) as it contains no reference to municipal towers.  As the Superior Court in Town of Westport v. Connecticut Siting Council, supra, noted:

 

Public Acts 1984, No. 84-249 added subsection 6 to the definitions of § 16-50i(a).  The act as initially passed in the Senate gave the council exclusive jurisdiction to regulate telecommunications towers used for public cellular radio communication services.  27 S.Proc., Pt. 3, 1984 Sess., p. 842, remarks of Senator John B. Larson.  In the House proceedings, Representative David Lavine first generally pointed out that the purpose of the legislation was to end ad hoc town-by-town regulation in favor of regulation by the council.  He also introduced an amendment that changed the Senate language to the current ‘used in a cellular system’ terminology with a reference to the federal definition of a cellular system.  27 H.R.Proc., Pt. 9, 1984 Sess., pp. 3206-11, especially pp. 3209-10.  The Senate later joined in the bill as amended in the House.  Public Act 84-249 as enacted thus contains broader language than as initially proposed.

 

Town of Westport v. Connecticut Siting Council, supra, 47 Conn. Supp. at 398-399.2

 

While the legislative history supports granting the Council exclusive jurisdiction over the siting of cellular towers, in contrast to town-by-town regulation, it does not clarify the Council's jurisdiction over towers owned by municipalities themselves.   Both the language of Conn. Gen. Stat. § 16-50i (a)(6), and its legislative history are ambiguous as to the Council's jurisdiction over municipal towers and legislative clarification of this matter is, therefore, appropriate.

 

          Please advise me if any further clarification is required.

 

Very truly yours,

 

 

 

RICHARD BLUMENTHAL

ATTORNEY GENERAL

 

 



1 It should be noted that this opinion request does not include towers built by a municipality for municipal communications that have sufficient space for cell phone antennas, but are initially built without such antennas.  You have informed this office that the Council maintains that it has no jurisdiction over such towers.  For example, if a municipality wishes to build a tower for police and fire department communications on town land and there is no cell antenna on the tower, the Council continues to hold that it has no jurisdiction over the siting and building of such a tower, even if such a tower could, at a later date, accommodate a cell antenna.

2  Note that the Connecticut Supreme Court essentially adopted the Superior Court’s decision.  Town of Westport v. Connecticut Siting Council, 260 Conn. 266, 796 A.2d 510 (2002).


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