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SHARON — The federal court case between the town and West Woods Road No. 2 property owner Pilar Conde is apparently on the court calendar, but no trial date has been announced yet.
Attorneys for both sides confirmed that the town’s insurance agency has decided not to invoke the clause in its policy with the town that would have capped its financial involvement in the case at a predetermined figure. That number is believed to be $90,000.
At the special town meeting on Sept. 25, attorney Frederick O’Brien warned that the insurance company had the option of invoking the clause, which would have left the town entirely responsible for all costs involved with the trial. That figure was estimated at possibly as high as $500,000.
The case centers on discontinued Joray Road, a walking path that runs through Conde’s property. The town has a residential easement on the path, which means town residents are allowed to use it for hiking, cycling and horseback riding.
Some town residents complained to the selectmen that Conde had installed a gate on the easement that left a path only wide enough for walkers and cyclists, and for horseback riders to pass through in single file. Surrey and cart riders could not easily get through the gate.
A wrangle began between several town boards and commissions and Conde over her right to have a gate on the easement.
Conde is now taking the town to federal court with a claim that, without giving her any kind of public hearing, the town told her she could not have a gate. She and attorney Barrie Goldstein of Washington, Conn., allege that she was denied her constitutional right to due process.
The suit names the town as well as selectmen Malcolm Brown, Tom Bartram and John Mathews. The three selectmen and O’Brien, who was hired by the town’s insurance company, tried to settle out of court with Conde. Sharon voters had to approve the settlement because it involved property owned by the town (although technically, the town does not own the property; it owns the right to use the property).
Voters said 47 to 16 that they would rather go to federal court and fight the due process claim than give up the use of the easement.
Joray Road is .9 miles long and runs mainly through the property of Conde and neighbor Eric Olsen. There are 11 other recreational easements in that part of town.
The selectmen warned at the Sept. 25 meeting that the town is liable if anyone is injured or killed on the path, which is not maintained and which is overgrown. The town is legally required to maintain the path.
The three selectmen voted in favor of the settlement. Voters said they would rather take their chances in court.
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Telecom Reg’s Best Kept On the Books
When Connecticut land-use commissions update their regulations, it seems like a no-brainer to jettison old telecommunications regulations adopted decades ago during a short-lived period when municipalities had authority to regulate second generation (2G) transmissions prior to the Connecticut Siting Council (CSC) being ordered by a state court in 2000 to regulate all cell tower infrastructure as “functionally equivalent” services.
It is far better to update those regs instead, especially for macro-towers given new technologies like small cells. Even though only ‘advisory’ to the CSC, the preferences of towns by law must be taken into consideration in CSC decision making. Detailed telecom regs – not just a general wish list -- are evidence that a town has put considerable thought into where they prefer such infrastructure be sited without prohibiting service that many – though not all – citizens want and that first responders rely on for public safety.
Such regs come in handy when egregious tower sites are proposed in sensitive areas, typically on private land. The regs are a town’s first line of defense, especially when cross referenced to plans of conservation and development, P&Z regulations, and wetlands setbacks. They identify how/where the town plans to intersect with the CSC process. They are also a roadmap for service providers regarding preferred sites and sometimes less neighborhood contention. In fact, to have no telecom regs can weaken a town’s rights to protect environmental, scenic, and historic assets, and serve up whole neighborhoods to unnecessary overlapping coverage and corporate overreach. Such regs are unique to every town and should not follow anyone else’s boiler plate, especially industry’s.
Connecticut is the only state that has a centralized siting entity for cell towers. The good news is that applicants must prove need for new tower sites in an evidentiary proceeding and any decisions have the weight of the state behind them. The bad news is that the CSC used to be far less industry-friendly and rote in their reviews, which now resemble a check list. There is an operative assumption at CSC that if an applicant wants a tower, they must need it, otherwise why spend significant money to run the approval gauntlet? This reflects a subtle shift over the years at CSC from sincere willingness to protect the environment toward minimal tweaking of bad applications with minor changes. The bottom line is that towns really cannot rely on the CSC to do all the work for them.
What CSC issues telecom providers is a “certificate of environmental compatibility” after an evidentiary proceeding (not unlike a court case) with intervenors, parties, expert witnesses, and the service provider’s technical pro’s sworn in and subject to cross examination. Service providers get to do the same with any opposition from intervenor/party participants – like towns and citizens -- and their experts. It’s an impressive process whose ultimate goal is the fine balancing between allowing adequate/reliable public services and protecting state ecology with minimal damage to scenic, historic, and recreational values. They unfortunately often fall short of their mandate – like approving cell towers with diesel generators over town aquifers -- evidenced by CSC only rejecting about five cell towers in the past 15-20 years.
The CSC was founded in 1972 and clarified its mission in the 1980’s to prevent the state from being carved up willy-nilly by gas pipelines, high tension corridors, and broadcast towers. With the sudden proliferation of cell towers beginning in late 1990’s, it became the most sued agency in Connecticut by both an arrogant upstart industry if applications were denied and by towns/citizens when bad sites were forced on them. CSC gradually formed a defensive posture that drives their decisions toward industry with deeper pockets and attorneys on retainer.
For citizens, nothing can wreck one’s day like the CSC. It behooves towns to protect what little toolkit they have, and understand the legal parameters of the CSC’s playing field. The CSC is not a “normal” government agency where municipal/citizen redress is based on logic and local support. Their process is largely immune to everything but specific kinds of evidence – like town regs with setbacks/fall zones, radio frequency transmission signal strengths, sensitive areas identified, and detailed wildlife inventory, among others.
There is a current cell tower fight involving two intervening towns -- Washington and Warren; both with good cell tower regs – over a tower site within 1200’ of a Montessori School, near Steep Rock’s nature preserves with comprehensive geology/wildlife databases that include endangered, threatened and special concern flora and fauna, on established federal/state migratory bird flyways, within throwing distance to a historic site capable of being listed on the Underground Railroad, and with an access road on a blind curve entering a state highway that will permanently damage wetlands, vernal pools, and core forests. There are well credentialed environmental experts, including Dr. Michael Klemens, former chair of Salisbury’s P&Z, as well as the former director of migratory bird management at the US Fish and Wildlife Service, and an RF engineer testifying to alternative approaches, plus three attorneys representing intervenors. It is the most professional challenge I have seen at CSC since Falls Village successfully mounted one that protected Robbins Swamps several years ago.
The hearing is ongoing, with uncertain results. To see what it takes today to stop an inappropriate tower siting, see Docket #543 under “Pending Matters” at https://portal.ct.gov/csc before removing local cell tower regs – the lowest hanging fruit that any town can possess in case it’s needed.
B, Blake Levitt is the Communications Director at The Berkshire-Litchfield Environmental Council. She writes about how technology affects biology.