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State legislators hoped to get judiciary committee approval this week for a bill that would limit personal injury lawsuits stemming from incidents at popular recreation areas.HB 6557, An Act Concerning Liability for the Recreational Use of Lands, is a response to a personal injury lawsuit decided last year, in which a Rocky Hill woman was awarded $2.9 million after she broke her neck in a bicycle accident. Maribeth Blonski of Rocky Hill sued the Metropolitan District (MDC) in 2002 after she collided with a steel gate at the district’s West Hartford reservoir. Despite reports that Blonski had been traveling in the wrong direction and not looking where she was going, a jury declared her only 30 percent responsible for the collision, with the MDC primarily negligent for not posting a sign declaring the gate closed.The decision sent shock waves through the legal and outdoor-enthusiast communities, and forced municipalities to reconsider their policies on keeping recreation areas open to the public. MDC announced last year that it was considering closing all bike trails and swimming areas to the public, and an outcry from residents followed. Connecticut legislators began scrambling to come up with legislation that would grant towns and organizations like the MDC immunity from litigation.More than 700 people appeared at an MDC town meeting regarding the issue last July, and hundreds have testified in support of changes. Legislators introduced 14 different bills, with 35 different supporters, to address the problem. State Representatives Kevin Witkos (R-17) and John Rigby (R-63) were early proponents of legislation that would exempt the MDC from litigation.In January, HB 6557, An Act Concerning Liability for the Recreational Use of Lands, was drafted, with 21 cosponsors signing on. The act, which has strong bipartisan support, would grant immunity from personal injury litigation to municipalities, political subdivisions of the state and special districts which own publicly traveled recreation areas.In a letter to members of the Connecticut Chapter of the Appalachian Mountain Club, Chairman Tim Linehan wrote this week that the Connecticut Forest and Parks Association, the Sierra Club and more than 20 other organizations were lobbying for passage of HB 6557. There was an increased push for approval by members of the Joint Committee on Judiciary this week, with Friday, April 15, marking the deadline for action.State Rep. Roberta Willis (D-64) said Monday that she believes the bill will make it through committee and get a shot at passage in the General Assembly. “We need to close the loophole and give some protection to towns from personal injury lawsuits,” Willis said. “We all incur risks when we go out hiking. I went out hiking this past weekend and I thought I was going to break my neck because the trail was just ice. It was challenging. But if I slipped and did myself in, it would have been my own responsibility.”As one of the proponents of early legislation on the issue, Willis said Connecticut residents should be free to explore designated recreation areas without fear that they’ll be shut down the next time someone breaks an ankle.“The threat of litigation not only puts the fear of God into a town, but it also increases the liability insurance costs,” Willis said. “The bottom line in our area is that outdoor recreation is part of who we are in the Northwest Corner. Hiking, biking and boating are all things that we enjoy, and we are seeing an increasing public investment in recreational land. I think there’s an expectation when we make those investments that the public is going to have access to enjoy these places for recreation.”Despite some resistance from trial lawyers, Willis predicted HB 6557 would make it through the judiciary committee this week and eventually make it to the House floor. “There is no cost connected to this, so I would assume it could pass relatively quickly,” she said. If voted into law, the provisions would become effective Oct. 1, 2011.
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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.