Opinion
No. CV 01 0064730
May 12, 2003
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO DISMISS #112
Facts
The plaintiff, MCF Communications, Inc. (MCF), appeals the December 20, 2000 decision of the Putnam zoning commission (commission) denying its application for a special permit. MCF filed the application for a special permit on September 12, 2000, seeking the commission's permission to construct a "190' monopole cellular tower and all appurtenances thereto . . ." on a site located at 33 Munyan Road in an AG-2 zone in Putnam. (Return of Record [ROR], Item J.) After holding public hearings on November 15 and December 20, 2000, the commission denied MCF's application on the basis of § 720 and §§ 330-34 of Putnam's zoning regulations. (ROR, Items L, EE.)
MCF now appeals the commission's denial of its special permit application. In its complaint, MCF alleges that the commission acted illegally, arbitrarily, and abused its discretion because it failed to consider: the expert testimony concerning the lack of health effects of emissions from the facility; the minimum esthetic impact of the proposed tower on the neighborhood and the need for the tower within the vicinity; expert testimony regarding the effect of the tower on real estate values; and the regulations applicable to cellular towers. (Complaint ¶ 9.)
On February 7, 2001, the following individuals owning property near this location requested permission to intervene (intervenors) in this action: Kenneth Butler, Sr.; Roger D. Savard; Lorena B. Savard; John R. Erickson; Ernest Barry; Janet Y. Waters; Beverly Griffith Williams. The court, Potter, J., granted this motion on February 26, 2001. The intervenors now move to dismiss this action on the ground that the court lacks subject matter jurisdiction pursuant to the decision in Westport v. Connecticut Siting Council, 260 Conn. 266, 796 A.2d 510 (2002). In accordance with the holding of that case, they assert that the Connecticut siting council (council) is vested with exclusive jurisdiction over wireless towers; therefore, local zoning commissions do not have jurisdiction over the issuance of wireless tower permits.
Pursuant to Practice Book § 10-31(b): "Any adverse party who objects to this motion shall, at least five days before the motion is to be considered on the short calendar, file and serve in accordance with Sections 10-12 through 10-17 a memorandum of law and, where appropriate, supporting affidavits as to facts not apparent on the record." MCF did not object to this motion by filing a memorandum of law. Although MCF's failure to timely file a memorandum of law in objection to the intervenors' motion to dismiss violates Practice Book § 10-31(b), this failure is no longer deemed to constitute consent to the granting of the motion. Southport Manor Convalescent Center, Inc. v. Foley, 216 Conn. 11, 13 n. 1, 578 A.2d 646 (1990). See also Connecticut Electric Equipment Co., Inc. v. Fidelity Guaranty Insurance Co., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 00 0274893 (March 25, 2002, Skolnick, J.) ( 31 Conn.L.Rptr. 588); Massad v. Jensen, Superior Court, judicial district of New London, Docket No. CV 02 0559830 (March 13, 2002, Martin, J.); Darer v. Fresh Baked Studios, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 00 0181202 (December 26, 2001, D'Andrea, J.T.R.); Corbin v. Arcadia Financial, Ltd., Superior Court, judicial district of Waterbury, Docket No. CV 00 0151811 (March 31, 2000, Leheny, J.). Accordingly, the court exercises its discretion to consider the merits of this motion. See Ferguson v. Ga-Na-Den Too Apartments, Superior Court, judicial district of Windham at Putnam, Docket No. CV 00 0063076 (September 20, 2000, Potter, J.).
Discussion
"A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Brookridge District Assn. v. Planning Zoning Commission, 259 Conn. 607, 611, 793 A.2d 215 (2002). "A motion to dismiss shall be used to assert lack of jurisdiction over the subject matter, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 51, 794 A.2d 498 (2002).
The intervenors assert that the council is vested with exclusive jurisdiction over wireless towers; therefore, local zoning commissions do not have jurisdiction over the issuance of wireless tower permits. At the hearing before the court on February 10, 2003, counsel for MCF conceded that this case is ultimately governed by the Supreme Court's treatment of the issue of jurisdiction in Westport v. Connecticut Siting Council, supra, 260 Conn. 266. Thus, the court addresses the intervenors' motion to dismiss and the issue of the court's jurisdiction over the appeal in the context of that decision.
The Supreme Court in Westport v. Connecticut Siting Council affirmed the judgment of the trial court and adopted its "thoughtful and comprehensive memorandum of decision . . . [b]ecause that memorandum of decision fully addresse[d] the arguments raised in the present appeal . . ." (Citation omitted.) Id., 274. Furthermore, the court stated that the trial court properly resolved the issue of whether the council is vested with exclusive jurisdiction over cellular towers. Id. The trial court, Cohn, J., found that the council has exclusive jurisdiction over the location of cellular towers pursuant to § 16-50x (a). Westport v. Connecticut Siting Council, 47 Conn. Sup. 382, 396, 797 A.2d 655 (2001), aff'd., 260 Conn. 266, 796 A.2d 510 (2002).
To reach this determination, the trial court analyzed General Statutes §§ 16-50g et seq., which sets forth the provisions of the Public Utility Environmental Standards Act (PUESA). Id. Under PUESA, "the council shall have exclusive jurisdiction over the location and type of facilities and over the location and type of modifications of facilities subject to the provisions of subsection (d) of this section." General Statutes § 16-50x (a). Subsection (d) of § 16-50x cross-references the definition of "facility" found in § 16-50i (a), a section of PUESA which defines its key terms. This section lists the six types of "facilities" that are within the exclusive jurisdiction of the council pursuant to PUESA. General Statutes § 16-50i (a) (1) — (6).
Cellular towers are one of the six types of facilities included within this list. General Statutes § 16-50i (a) (6). As the trial court emphasized: "`Facility' is defined by § 16-50i (a) (6) to include `such telecommunications towers, including associated telecommunications equipment . . . used in a cellular system, as defined in the Code of Federal Regulations Title 47, Part 22, as amended . . .'" (Emphasis in original.) Westport v. Connecticut Siting Council, supra, 47 Conn. Sup. 396, quoting General Statutes § 16-50i (a) (6). Hence, the council has exclusive jurisdiction over the location of cellular towers, such as the one proposed by MCF.
As the trial court observed in the Westport case, the legislative history of § 16-50i is instructive. "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." Id., 398-99.
The court finds that Putnam Zoning Commission lacked jurisdiction over MCF's special permit application because the Connecticut siting council has exclusive jurisdiction over the location of cellular towers. Accordingly, the court grants the intervenors' motion to dismiss.
Cosgrove, J.