Legislative Program Review and Investigations Committee

Chapter VI

CSC Interaction With Municipalities and Other Interested Groups

A variety of interested groups including state and local government entities may play a role in the siting process. One prominent entity involved is the proposed municipality. In addition, other interested groups such as citizen coalitions and members of the general public may participate in council proceedings. Chapter VI discusses the major groups and organizations involved in the process and their current interaction with the council.

Municipalities

By law, municipalities have an opportunity to participate in and provide input to all CSC certifications. The municipal role is statutorily dictated by the type of facility and the point in the siting process. The first step in the application process requires an applicant to meet and confer with the proposed municipality at least 60 days before filing an application with the council.

As part of this consultation, the applicant must provide the municipality with any technical reports concerning public need, the site selection process, and the environmental effects of the proposed facility. The municipality then has the opportunity to hold public hearings on the proposed facility and to issue recommendations for consideration by the council within 60 days of the initial consultation. Within 15 days after the application is filed, the applicant must provide to the council all materials given to the municipality and a summary of their consultations including the municipality's recommendations.

Once an application is filed, the role of the municipality changes depending on the type of facility involved. Municipalities are statutorily allowed to restrict and regulate the location of energy facilities. Local authorities have a limited amount of time, varying by the type of energy facility, in which to exercise their authority. If necessary, state law allows the council to override a local regulatory decision.

For CSC regulated telecommunication towers, state law grants the council exclusive jurisdiction. The council is not bound by local regulations. The municipality may participate in the siting proceedings as a party and its regulations may be considered by the council.

One area of review in the committee staff file sample was the extent and nature of municipal input to the siting council process. The review results are highlighted below.

Municipal pre-application consultations. The program review staff examined its random sample of certification dockets to determine how much time passed between the first contact with the municipality and the filing of the application. In the majority of cases, the first consultation occurred within six months to a year before the application was filed. However, in a few instances, mainly electric generating projects, it was substantially more.

Interviews and the case file review indicate these consultations are taking place. Committee staff noted evidence of municipal contact in all the files reviewed. However, only 75 percent of the CSC decisions actually mention it in varied detail. In some cases, it is a general statement the town supports the project.

The program review committee recommends CSC include in each decision a summary of any municipal consultation and recommendations. One comment mentioned frequently in the program review survey of municipalities (described in more detail below) cites insufficient consideration given local concerns. Not only would the program review recommendation promote the sense municipal opinion had been reviewed, it would also underscore the significance of municipalities' statutory role.

Municipal regulation and override. While municipalities have a role in the pre-application process and must issue a recommendation to the siting council, the council need only give consideration to state laws and municipal regulations the council deems appropriate. A council certificate satisfies and is in lieu of all certifications, approvals, and other requirements of state and municipal agencies in regard to any questions of public need, convenience, and necessity for such facility.

The program review analysis found towns supported the proposed projects in 69 percent of the cases. Reviewing the it's sample, staff found the council ultimately approved all but one town-supported project. Conversely, the council approved half of the town opposed projects.

Committee staff also examined these decisions by facility type. Energy facilities seeking council siting approval must also obtain and comply with local permits and regulations. State law permits local authorities such as inland wetland agencies and municipal zoning commissions to regulate and restrict the location of these facilities.⁹ Individuals who are aggrieved by municipal orders may appeal to the council. If necessary, state law allows the council to override a local decision. As mentioned in the briefing report, the council has rarely done this. Since 1995, three appeals of municipal orders were brought to the council. The appeal outcomes are summarized in Table VI-1.

As the table shows, two appeals were filed by citizens seeking to reverse town approval of electric generating plants. Another appeal was brought by the applicant to reverse town denial. The council denied the certificate in one of the citizen appeals in effect nullifying the town's approval. The council approved the project in the second citizen's appeal. Consequently, the citizen's appeal was lost but the municipal order was not reversed. In the applicant appeal of municipal denial, the council denied the project concurring with the municipal order.

For telecommunications projects, council override is not an issue. State law gives CSC exclusive jurisdiction over its telecommunications facilities. Municipalities are relegated to party status. As mentioned previously, the council may consider local regulations in making its decisions. For example, local zoning commissions routinely set height limits for all structures including towers. They frequently restrict towers to certain zones and specify minimum distance betweens towers and property lines.

The committee's file review suggests the council often takes into consideration local zoning ordinances and preferences. Many times the municipality will make requests regarding items such as property setbacks, landscaping, or other measures to diminish visual impact. In 73 percent of the committee staff's sample, municipalities made requests such as painting the structure a certain color or positioning the structure behind a tree line on the property.

Committee staff analysis found the council routinely grants these requests. When issuing a certificate for a telecommunications facility, the council may impose such reasonable conditions as it deems necessary to minimize the visual effects of the tower which may have the most demonstrable effects on the environment.

Frequently, a municipality will suggest alternative locations for the proposed tower. Based on the municipal survey response, some municipalities feel the industry-chosen location is always presumed valid and alternatives are not seriously explored. As discussed in Chapter V, the committee found alternatives to the prime site were always mentioned in the written decisions. However, council opinions usually focused on the feasibility of the prime sites proposed by applicants with limited discussion of the feasibility of alternatives.

The committee acknowledges the council's ultimate decision is on the project proposed before it. Therefore, it is reasonable for an opinion to focus on the merits of the applicant's primary site. However, this approach promotes a sense the council is not listening to town input and favors industry information. This concern further supports the committee's earlier recommendation the council provide fuller written discussion of alternatives.

Municipal view of siting. For local opinion on the state siting process, program review committee staff surveyed the chief elected official of each Connecticut city and town. Completed surveys were received from 121 (72 percent) of the state's 169 municipalities. A copy of the questionnaire and cover letter, along with a tabulation of the responses, are in Appendix C. Survey responses are highlighted below.

Questionnaire respondents were primarily first selectmen or mayors, although other individuals such as planning and zoning representatives, town managers, planners or engineers completed 39 percent of the surveys. Communities of all sizes and from all areas of the state were represented.

Sixty percent of municipalities reported have had some experience with the council process, 83 percent within the last five years. Respondents with experience with the council were asked to evaluate:

· the quality of its work;

· timeliness and fairness of its process;

· objectivity of council members;

· opportunities to present local concerns;

· responsiveness to requests for information;

· follow-up and monitoring of sited facilities;

· consideration of municipal input in its siting decisions;

· disclosure of its policy and criteria to make decisions; and

· overall working relationship with the municipality.

The municipal ratings were generally positive. Almost 70 percent rated the council's overall working relationship with the municipality as good or excellent. Approximately 25 percent indicated it was fair or poor, and the remaining few did not respond to the question.

More than 70 percent rated the council as good or excellent in terms of work quality (72%) and responsiveness to requests for information (79%). The council also received good or excellent ratings in terms of timeliness (63%) and fairness (65%) of its process and providing opportunities to present local concerns (62%).

Only about half of the respondents rated the council as good or excellent in terms of consideration of municipal input in its siting decisions (51%), objectivity of council members (54%), and disclosure of its policy and criteria to make siting decisions (56%).

The council was rated lower on follow-up and monitoring of sited facilities. Less than 40 percent rated the council as good or excellent in this area. A number of municipalities did not rate the council on this item stating they had little or no knowledge about this aspect.

Despite the somewhat mixed ratings of certain agency operations, most (76%) indicated the siting council is fulfilling its goal of balancing the need for a facility with the need to protect the environment and ecology of the state. Many (70%) also felt the council is the best mechanism for balancing the statewide need for facilities and local environmental concerns. It is important to note, however, several mentioned some exceptions - most notably the jurisdiction of telecommunications towers. (This issue is further explored in Chapter VII.)

Conducting this survey provided program review committee staff with a unique opportunity. In 1991, as part of a program review study on siting controversial land uses, municipal officials were surveyed on their opinion regarding the Connecticut Siting Council. Questions on work quality, objectivity of council members, opportunities to present local concerns, and whether the council was the best mechanism for balancing statewide need for facilities and local environmental concerns were included in the survey. Similar questions were used in the current survey so comparisons of municipalities' experiences with and opinions of the council over time could be made.

Similar to the current survey results, the 1991 responses regarding local opinions on the council and the siting process were generally positive. Changes in local opinions of the council since the 1991 survey are negligible. Attitudes about work quality and opportunities to present local concerns improved somewhat; however, opinions concerning the objectivity of council members decreased slightly. In 1991, 60 percent of the municipalities rated the council objectivity as excellent or good compared to 54 percent in the year 2000.

Committee staff also conducted numerous cross-tabulations and analysis on the rated items and opinions to determine whether population size, regional location, or number of CSC sited facilities in each municipality impacted the results. The committee staff found no identified statistical relationship among these areas.

Public Participation

As mentioned in Chapter V, an applicant for a CSC certificate must publish a notice of the application in newspapers serving the affected area in time for interested people to prepare for the council's hearing on the application. The siting council is also required to publish a notice of the hearing in local newspapers and send notices of the hearing to statutorily entitled parties within one week of scheduling the hearing.

The council must hold a hearing on the application in the area where the facility would be located. Part of the hearing must be held in the evening to accommodate the general public. Individuals other than the statutorily entitled parties interested in participating in the council proceedings may ask to be recognized as a party or intervenor. The council determines whether such participation will assist the council in resolving the case.

The council in its discretion may limit testimony and provide for the grouping of parties with the same interest to avoid redundant testimony and unnecessary delay in the proceeding. Parties and intervenors are entitled to present oral and documentary evidence and to conduct cross-examinations. They are also subject to cross-examination.

Anyone who is not a party or intervenor may file a written statement explaining facts and concerns at any time during the proceeding or within 30 days after the close of the hearing. Such statements become part of the record for council consideration. The council may allow at its discretion members of the public to present oral statements. However, members of the public cannot cross-examine witnesses.

Almost 90 percent of the cases in the file review had additional parties and intervenors. An examination of the council's documented proceedings indicates general public participation is rare at most hearings. More controversial facilities such as electric power plants tend to generate more public statements.

A concern mentioned at the program review public hearing as well as in comments from the municipal survey is in some CSC cases there have been limited or no opportunities to speak. In addition, the committee was told of specific instances where members of the public felt they were treated inappropriately. A few of the municipalities also commented that the proceedings were too adversial and council members behaved in an intimidating fashion.

To address these concerns, the committee reviewed CSC transcripts and observed a number of council proceedings. Lacking intonation, gestures, and atmosphere, it is difficult to conclude from written transcripts if certain comments or behavior would be generally viewed as inappropriate. Nevertheless, the committee believes the mere perception of mistreatment or bias on the part of the public is problematic.

At one proceeding committee staff observed, there was only one public member offering testimony. He was told to wait his turn and his comments were limited to two minutes. According to the council chairman, the gentleman's oral testimony would be limited because his written comments would be filed. Committee staff also observed the industry representatives at the proceedings were treated in a similar firm manner.

A primary goal of allowing the public to participate in and potentially affect the outcome of siting processes for controversial facilities is to develop a sense of fairness. Public participation helps ensure community concerns are adequately addressed. This is especially critical when local control over decisions is preempted by the state.

The committee recognizes productive participation may be difficult to achieve when a proposed facility provokes strong emotions or when communities have had bad experiences with government agencies in the past. Nonetheless, there should be an awareness of the potential negative impact of a forceful demeanor and what may appear to be arbitrary admonishment of parties. Such behavior whether intentional or not may deter testimony and participation by parties and the public.

On the occasions where CSC may act on its discretion, council members should afford parties and members of the public as much consideration and courtesy as possible. The committee believes this is important for a sense of trust and fairness to be developed and reinforced. Parties and members of the public must not feel or perceive they are unfairly prevented from providing what they view as important evidence from getting into the record or not being allowed to present it as effectively. This may deter other citizens from voicing concerns or offering other potentially important information.

Other Government Entities

There are several government entities with an interest or related charge in the oversight of certain aspects of CSC facilities. For example, the Federal Aviation Administration (FAA) is concerned with tower height for navigability. Regional independent system operators (ISOs), sanctioned by the federal government, manage and oversee the region's electric bulk power generation and transmission systems. The state Department of Environmental Protection (DEP) grants operating permits to control emissions and environmental impact.

For the most part, other government entities have separate and discrete jurisdiction. Many typically play a larger role in the operations of sited facilities after a site has been approved and constructed. A few such as DEP may have a staged or phased in jurisdiction as the facility is being built.

Pursuant to state law, the council must consult with and solicit written comments from relevant state agencies. In fact, commissioners from several state agencies including DEP and DPUC are council members. The committee file review found the council routinely seeks input from these agencies in making its decisions. At times, the council will condition its approval upon a determination by another entity, such as a DEP water diversion permit for an electric generating facility.

The statutes authorize the council to take reasonable steps to insure each facility for which a certificate has been issued is constructed, maintained, and operated in compliance with council orders. The council confirms compliance with its orders through field investigations and approval and on-going review of detailed development and management plans. The development and management plans are finalized documents consisting of professionally engineered designs, site plans, construction schedules, and site inspection reports. Enforcement of council orders and state law is performed by the Office of the Attorney General, which provides the council with legal assistance.

The committee's review of case files indicates the council routinely requires a certified applicant to submit a development and management plan including some type of periodic progress report. According to council staff, follow-up inspections are typically conducted after the filing of mandated progress reports or if the council staff is in the general vicinity of the site during a field visit for another project. During the inspection, the staff will tour the premises verifying the status of council orders. The staff will then meet and discuss any issues with the site manager and, if necessary, bring any identifiable concerns to the attention of the council.

Although the council reports few problems with compliance, the committee finds that the current system provides limited follow-up and monitoring. Therefore, the program review committee recommends the council staff increase its efforts in this compliance phase. There should be a more structured schedule for inspections and as much as possible incorporate other interested government agencies such as local municipal planning and zoning authorities or the state Department of Environmental Protection.

As mentioned earlier, municipalities responding to the committee survey indicated little to no knowledge of council follow-up and monitoring of approved facilities. By keeping municipalities informed and involved in the monitoring process, the council would foster good relations and allow developers to demonstrate good faith effort to address the community and local concerns. In addition, it would reinforce the council orders for the proposed project and state agencies especially in conditioned approvals.

One area where the committee noted a need for stronger coordination was between the council and the regional ISO. Sanctioned by the federal government, ISO New England is a not-for-profit, private corporation responsible for managing the region's electric bulk power generation and transmission system. It assesses each new electric generation facility requesting connection to the electric grid for transmission system reliability. It identifies and plans transmission improvements that need to be made to ensure electrical system reliability on a regional level. In a few CSC decisions, the council required the completion of an ISO transmission impact study before approval of any grid interconnection. The council itself has recently acknowledged the importance of collaboration with the ISO during its 2000 Forecast of Loads and Resources hearings. The need for timely information exchange and future planning documents between the council and ISO New England was underscored during those hearings.

Concurring with council sentiment, the program review committee believes the Connecticut Siting Council should take steps to strengthen and more actively pursue coordination and collaboration with other interested groups such as the ISO New England. Although other entities play little to no role in the actual siting of a facility, each might ask similar questions and seek the same information which may provide input and value to each other's processes. Therefore, the committee believes stronger collaboration and communication between these agencies would benefit the interests which they all seek to protect and promote.

Conclusions. Despite their social benefits, CSC facilities may arouse controversy of real or perceived negative effects on the proposed community, such as health and safety risks, diminished property values and other economic harm, or adverse environmental impact. In addition, a municipality may fear that by accepting one facility, it will be targeted for more.

A review of siting literature suggests participants will consider a siting process successful if it fosters fairness and trust. Local resistance frequently results from a lack of trust the state will act fairly or adequately to protect the public from possible health, safety, or economic harm.

At times, local opposition may become so strong and widespread the state must intervene and, if necessary, preempt or override municipal control to insure that needed facilities are developed. When a community feels forced by state action to accept an unwanted facility, resentment over the loss of local control in determining their character and future development can cause even greater conflicts. Siting problems are compounded if the process used to select locations is viewed as biased, flawed, or unresponsive to local concerns.

In the committee's opinion, current opportunities for municipal and public participation during the siting process are, in general, sufficient. To the extent these opportunities are not now used, communities should be encouraged and welcomed by the council to participate. Municipalities and interested parties must be confident their positions are being fully heard, and considered fairly.

Given the contested case nature of the process, there will always be inherent tension in the proceedings. However, some of the municipal and public comments raise an additional issue. The committee attributes some tension to municipal and public misconception or perhaps resistance to what the council's role is. From the survey results, it appears towns expect or desire a partnership with the council. This is exacerbated by the changing role of municipalities in the CSC process depending on the facility type.

The council is a state regulatory agency with responsibility over facilities whose effects have statewide significance and transcend municipal boundaries. The council and locals share many of the same goals: to provide reliable services, protect the environment and the community, and encourage economic development. However, the council pursuant to its statutory charge must evaluate and consider the cumulative benefits and impacts of proposed projects on the entire state as well as on the local community.

The committee acknowledges and supports the council's primary charge to remain neutral and objective in siting proposed facilities. This is consistent with the council's underlying legislative purpose. The council has a difficult mandate which makes it oftentimes an unpopular entity. However, the generally positive ratings on its performance by municipalities suggests it is working. Nonetheless, improvements, as outlined in committee recommendations, can be made.

Whenever possible, the council should seek opportunities to promote and reiterate its role as an impartial panel and at all times ensure that even the appearance of fairness be protected. Members of the public should be encouraged to participate in the process to address their specific concerns regarding community effects on local land use and harmful effects in natural resources and potentially the identification of alternatives. Finally, there should be a more structured schedule for follow-up and monitoring of sited facilities and better collaboration with interested groups.

⁹ C.G.S.§16-50x(d) states "Any town, city or borough zoning commission and inland wetland agency may regulate and restrict the proposed location of a facility... . Each such order shall be subject to the right of appeal....by any party aggrieved to the council... "

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