In re Petition of New
Cingular Wireless, 2012 VT
46.
Mapping the legal world is like any project in
geography. It is a matter of figuring
out the location and outline of each little sovereign state, and then placing
them within the whole and establishing where the lines connect.
In that light, let us consider the legal sovereign known as
the Public Service Board. This is the state
entity that reviews, approves, and oversees the various utilities in Vermont. It is part of the reason why you only have
one choice for electricity. For
efficiency, the State has licensed to each utility the exclusive right to
provide such a service within a discrete area.
In return for this monopoly, the utility submits to the authority of the
PSB and makes regular filings for rates, services, and any changes.
Over the past thirty years, the scope of the PSB has
grown. Beyond utilities and power
generation, the PSB regulates cable television, telephones, electrical grids, windmills,
hydro-electric dams, and cellphone towers.
In each instance, the PSB is the major, if not only, public entity providing
oversight.
This is not by mistake.
The primary purpose of the PSB is to determine public good. This is an important concept. The PSB is not an adjudicator between
neighbors or individual parties. It is
not there to award one side relief from a dispute. It does not do zoning and planning. Rather, it oversees reliability, safety, and
functionality. It is, in essence, a utilitarian
forum, dedicated to crafting and issuing certificates of public good for projects
that benefit the community and state.
One of the more recent additions to the PSB’s jurisdiction
is cell towers. Under 30 V.S.A. § 248a,
the PSB has jurisdiction to review and permit all cell towers. (Applicants actually have the choice of an 248a or Act 250 permit.) This statute, while couched in terms of
public good, also incorporates many Act 250 factors like aesthetics, historic
sites, and air and water purity. This is
because Act 250 and local zoning no longer review such projects. They sit within the sole purview of the PSB.
Section 248a, it should be noted, is a fast track statute. The review called for under this statute is
fairly minimal, and the deadlines under it are fairly brisk.
Or so Opponents in today’s case learned the hard way.
In October 2010, Petitioner provided 45-day notice to
abutting neighbors that it would be filing a Section 248a petition with the PSB
to erect a cell tower on property in Weston.
On March 18, 2011, Petitioner filed its application binder with the PSB
and sent copies to the abutting neighbors.
This is a substantial filing that is application, trial memo, pre-filed
testimony, exhibits, and proposed permit all rolled in one. Again Petitioner notified the neighbors that
they had until April 8, 2011 to comment or file an appearance.
On April 6, 2011, Neighbors entered an appearance in the
matter. They sought to oppose the
project. With their notice, the
Opponents filed a statement raising concerns over aesthetics, safety, erosion,
wetlands, and compliance with the town plan.
They tied their concerns to their own property and articulated reasons
why they believed the proposal might violate these standards. Then they waited.
On June 6, 2011, the PSB issued a decision that allowed
Opponents’ request to intervene. The
decision then went on to discuss the merits of the application and make a
ruling. In doing so, the PSB took note
that the Opponents had failed to request a hearing or file any further evidence
in support of their allegations. As you
might expect under these circumstances, the PSB ruled in favor of Petitioner
and granted the Certificate of Public Good.
The Opponents, now scrambling, filed a motion to alter. They asserted that the project would have an
undue and adverse impact on them and the community and that the March 18th
notice only notified them that they needed to file a motion to intervene by
April 8th. It gave no indication that
they needed to request a hearing and submit substantive comments within those
same 21 days. They asked for more time.
The PSB issued a decision in August to this motion. In it, the Board rejected Opponents’ arguments
by noting that the Petitioner had complied with the Board’s rules and
procedure. It then went further to
review the Opponents’ claims on the merits of the evidence—essentially
revisiting the basis of their June decision—and reaffirmed that the project
complied with the relevant standards.
On appeal to the SCOV, the Opponents argue that they were
denied due process because of the Petitioners limited notice, the Board rules for
notice that governed, and the combined decision on intervener status and
merits. They argue that they were denied
a meaningful opportunity to participate.
The SCOV begins its analysis with the question of due
process. Any time the SCOV or any court
deals with due process, the first question always goes to identifying the
constitutionally protected liberty or property interest that is at stake.
Here the Opponents concede that their claims do not involve
a liberty interest or a possessory interest in property but rather “a property
interest in connection with the award of a CPG for construction of
telecommunications facilities on adjoining land.”
This rudimentary property interest exists in large part as a
function of the rules giving rise to the interest. Thus, if the law requires a facility to
obtain a permit to avoid nuisance, the SCOV has held that there is a
recognizable property interest because the nuisance language intends to benefit
and protect the neighbors. This,
however, is more an exception than a general rule. As the SCOV has previously found most land
use regulations, such as Act 250, are intended to benefit the broader
community, and therefore do not give rise to individual property interests in
the abutting neighbor.
This proves, upon review, to be even more so for a Section
248a petition, which takes some of Act 250 and weds it to the PSB’s traditional
standard of public good. Thus, the SCOV
concludes, there is no constitutionally protected interest in participating in
a cell tower permit application because the statute gives no consideration to
the rights of the abutting neighbors and individuals. It merely gives them the right to participate
if they so choose to in a timely manner.
And that is not enough to give rise to a constitutionally protected
interest. No dice.
This leaves only the rhetorical question of whether
Petitioner and the Board followed the statutory and regulatory procedure. They did, which means the decision and permit
is affirmed.
Opponents lose their opportunity for a day at the PSB and
can look forward to a cell tower looming in the neighborhood. On the bright side, cell reception is bound
to improve, right?
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