Sec. 16-50p. Certification proceeding decisions: Timing, opinion, factors considered. Telecommunications and community antenna television facilities: Additional factors considered, conditions. Modification of location. Amendment proceeding decisions. Service and notice. “Public need” defined. Civil action by Attorney General.

(a)(1) In a certification proceeding, the council shall render a decision upon the record either granting or denying the application as filed, or granting it upon such terms, conditions, limitations or modifications of the construction or operation of the facility as the council may deem appropriate.

(2) The council's decision shall be rendered in accordance with the following:

(A) Not later than twelve months after the filing of an application for a facility described in subdivision (1) or (2) of subsection (a) of section 16-50i or subdivision (4) of said subsection (a) if the application was incorporated in an application concerning a facility described in subdivision (1) of said subsection (a); and

(B) Not later than one hundred eighty days after the filing of an application for a facility described in subdivisions (3) to (6), inclusive, of subsection (a) of section 16-50i, provided the council may extend such period by not more than one hundred eighty days with the consent of the applicant.

(3) The council shall file, with its order, an opinion stating in full its reasons for the decision. The council shall not grant a certificate, either as proposed or as modified by the council, unless it shall find and determine:

(A) Except as provided in subsection (b) or (c) of this section, a public need for the facility and the basis of the need;

(B) The nature of the probable environmental impact of the facility alone and cumulatively with other existing facilities, including a specification of every significant adverse effect, including, but not limited to, (i) electromagnetic fields that, whether alone or cumulatively with other effects, impact on, and conflict with the policies of the state concerning the natural environment, (ii) ecological balance, (iii) public health and safety, (iv) scenic, historic and recreational values, (v) agriculture, (vi) forests and parks, (vii) air and water purity, and (viii) fish, aquaculture and wildlife;

(C) Why the adverse effects or conflicts referred to in subparagraph (B) of this subdivision are not sufficient reason to deny the application;

(D) In the case of an electric transmission line, (i) what part, if any, of the facility shall be located overhead, (ii) that the facility conforms to a long-range plan for expansion of the electric power grid of the electric systems serving the state and interconnected utility systems and will serve the interests of electric system economy and reliability, and (iii) that the overhead portions, if any, of the facility are cost effective and the most appropriate alternative based on a life-cycle cost analysis of the facility and underground alternatives to such facility, are consistent with the purposes of this chapter, with such regulations or standards as the council may adopt pursuant to section 16-50t, including, but not limited to, the council's best management practices for electric and magnetic fields for electric transmission lines and with the Federal Power Commission “Guidelines for the Protection of Natural Historic Scenic and Recreational Values in the Design and Location of Rights-of-Way and Transmission Facilities” or any successor guidelines and any other applicable federal guidelines and are to be contained within an area that provides a buffer zone that protects the public health and safety, as determined by the council. In establishing such buffer zone, the council shall consider, among other things, residential areas, private or public schools, licensed child care centers, licensed youth camps or public playgrounds adjacent to the proposed route of the overhead portions and the level of the voltage of the overhead portions and any existing overhead transmission lines on the proposed route. At a minimum, the existing right-of-way shall serve as the buffer zone;

(E) In the case of an electric or fuel transmission line, that the location of the line will not pose an undue hazard to persons or property along the area traversed by the line;

(F) In the case of a facility described in subdivision (6) of subsection (a) of section 16-50i that is (i) proposed to be installed on land under agricultural restriction, as provided in section 22-26cc, that the facility will not result in a material decrease of acreage and productivity of the arable land, (ii) proposed to be installed on land near a building containing a school, as defined in section 10-154a, or a commercial child care center, as described in subdivision (1) of subsection (a) of section 19a-77, that the facility will not be less than two hundred fifty feet from such school or commercial child care center unless the location is acceptable to the chief elected official of the municipality or the council finds that the facility will not have a substantial adverse effect on the aesthetics or scenic quality of the neighborhood in which such school or commercial child care center is located, or (iii) proposed to be installed on land owned by a water company, as defined in section 25-32a, and which involves a new ground-mounted telecommunications tower, that such land owned by a water company is preferred over any alternative telecommunications tower sites provided the council shall, pursuant to clause (iii) of this subparagraph, consult with the Department of Public Health to determine potential impacts to public drinking water supplies in considering all the environmental impacts identified pursuant to subparagraph (B) of this subdivision. The council shall not render any decision pursuant to this subparagraph that is inconsistent with federal law or regulations; and

(G) That, for a facility described in subdivision (5) or (6) of subsection (a) of section 16-50i, the council has considered the manufacturer's recommended safety standards for any equipment, machinery or technology for the facility.

(b) (1) Prior to granting an applicant's certificate for a facility described in subdivision (5) or (6) of subsection (a) of section 16-50i, the council shall examine, in addition to its consideration of subdivisions (1) to (3), inclusive, of subsection (a) of this section: (A) The feasibility of requiring an applicant to share an existing facility, as defined in subsection (b) of section 16-50aa, within a technically derived search area of the site of the proposed facility, provided such shared use is technically, legally, environmentally and economically feasible and meets public safety concerns, (B) whether such facility, if constructed, may be shared with any public or private entity that provides telecommunications or community antenna television service to the public, provided such shared use is technically, legally, environmentally and economically feasible at fair market rates, meets public safety concerns, and the parties' interests have been considered, (C) whether the proposed facility would be located in an area of the state which the council, in consultation with the Department of Energy and Environmental Protection and any affected municipalities, finds to be a relatively undisturbed area that possesses scenic quality of local, regional or state-wide significance, and (D) the latest facility design options intended to minimize aesthetic and environmental impacts. The council may deny an application for a certificate if it determines that (i) shared use under the provisions of subparagraph (A) of this subdivision is feasible, (ii) the applicant would not cooperate relative to the future shared use of the proposed facility, (iii) the proposed facility would substantially affect the scenic quality of its location or surrounding neighborhood and no public safety concerns require that the proposed facility be constructed in such a location, or (iv) no public safety concerns require that a proposed facility owned or operated by the state be constructed in that location. In evaluating the public need for a cellular facility described in subdivision (6) of subsection (a) of section 16-50i, there shall be a presumption of public need for personal wireless services and the council shall be limited to consideration of a specific need for any proposed facility to be used to provide such services to the public.

(2) When issuing a certificate for a facility described in subdivision (5) or (6) of subsection (a) of section 16-50i, the council may impose such reasonable conditions as it deems necessary to promote immediate and future shared use of such facilities and avoid the unnecessary proliferation of such facilities in the state. The council shall, prior to issuing a certificate, provide notice of the proposed facility to the municipality in which the facility is to be located. Upon motion of the council, written request by a public or private entity that provides telecommunications or community antenna television service to the public or upon written request by an interested party, the council may conduct a preliminary investigation to determine whether the holder of a certificate for such a facility is in compliance with the certificate. Following its investigation, the council may initiate a certificate review proceeding, which shall include a hearing, to determine whether the holder of a certificate for such a facility is in compliance with the certificate. In such proceeding, the council shall render a decision and may issue orders it deems necessary to compel compliance with the certificate, which may include, but not be limited to, revocation of the certificate. Such orders may be enforced in accordance with the provisions of section 16-50u.

(c) (1) The council shall not grant a certificate for a facility described in subdivision (3) of subsection (a) of section 16-50i, either as proposed or as modified by the council, unless it finds and determines a public benefit for the facility and considers neighborhood concerns with respect to the factors set forth in subdivision (3) of subsection (a) of this section, including public safety.

(2) The council shall not grant a certificate for a facility described in subdivision (1) of subsection (a) of section 16-50i, that is substantially underground or underwater except where such facility interconnects with existing overhead facilities, either as proposed or as modified by the council, unless it finds and determines a public benefit for a facility substantially underground or a public need for a facility substantially underwater.

(3) For purposes of this section, a public benefit exists when a facility is necessary for the reliability of the electric power supply of the state or for the development of a competitive market for electricity and a public need exists when a facility is necessary for the reliability of the electric power supply of the state.

(4) Any application for an electric transmission line with a capacity of three hundred forty-five kilovolts or more that is filed on or after May 1, 2003, and proposes the underground burial of such line in all residential areas and overhead installation of such line in industrial and open space areas shall have a rebuttable presumption of meeting a public benefit for such facility if the facility is substantially underground and meeting a public need for such facility if the facility is substantially above ground. Such presumption may be overcome by evidence submitted by a party or intervenor to the satisfaction of the council.

(d) If the council determines that the location of all or a part of the proposed facility should be modified, it may condition the certificate upon such modification, provided the municipalities affected by the modification and the residents of such municipalities shall have had notice of the application pursuant to subsection (b) of section 16-50l.

(e) In an amendment proceeding, the council shall render a decision not later than ninety days after the filing of the application or adoption of the resolution initiating the proceeding. The council shall file an opinion with its order stating its reasons for the decision. The council's decision shall include the findings and determinations enumerated in subsection (a) of this section which are relevant to the proposed amendment.

(f) The council shall serve a copy of the order and opinion issued therewith upon each party and publish a notice of the issuance of the order and opinion in such newspapers as will serve substantially to inform the public of the issuance of such order and opinion. The name and address of each party shall be set forth in the order.

(g) In deciding whether to issue a certificate, the council shall in no way be limited by the applicant already having acquired land or an interest therein for the purpose of constructing the facility that is the subject of its application.

(h) For purposes of this section, a public need exists for an energy facility if such facility is necessary for the reliability of the electric power supply of the state.

(i) For a facility described in subdivision (1) of subsection (a) of section 16-50i, with a capacity of not less than three hundred forty-five kilovolts, the presumption shall be that a proposal to place the overhead portions, if any, of such facility adjacent to residential areas, private or public schools, licensed child care centers, licensed youth camps or public playgrounds is inconsistent with the purposes of this chapter. An applicant may rebut this presumption by demonstrating to the council that burying the facility will be technologically infeasible. In determining such infeasibility, the council shall consider the effect of burying the facility on the reliability of the electric transmission system of the state and whether the cost of any contemplated technology or design configuration may result in an unreasonable economic burden on the ratepayers of the state.

(j) Upon a motion of a party or intervenor or a council determination that any party or intervenor relating to a facility described in subdivision (5) or (6) of subsection (a) of section 16-50i has intentionally omitted or misrepresented a material fact in the course of a council proceeding, the council may, by majority vote, request the Attorney General to bring a civil action against such party or intervenor. In any such action, the Attorney General may seek any legal or equitable relief the Superior Court deems appropriate, including, but not limited to, injunctive relief or a civil penalty of not more than ten thousand dollars and reasonable attorney fees and related costs.

(1971, P.A. 575, S. 10; P.A. 73-340, S. 1, 2; 73-458, S. 8; P.A. 75-375, S. 7, 12; P.A. 76-320, S. 1, 2; 76-359, S. 3, 7; P.A. 77-218, S. 4; P.A. 79-537, S. 4; P.A. 80-483, S. 66, 186; P.A. 83-569, S. 5, 17; P.A. 88-121, S. 1, 3; P.A. 93-268, S. 1; P.A. 94-176, S. 3; P.A. 98-28, S. 50, 117; P.A. 01-120, S. 2, 3; P.A. 03-140, S. 10–13; 03-221, S. 6; 03-248, S. 1; 03-263, S. 6; 03-278, S. 120; P.A. 04-236, S. 6, 7; 04-246, S. 3–7; P.A. 05-288, S. 219; June Sp. Sess. P.A. 07-4, S. 116; P.A. 11-80, S. 1; P.A. 12-165, S. 1; P.A. 13-298, S. 61; P.A. 14-94, S. 36; P.A. 15-227, S. 25; P.A. 16-163, S. 8, 9; P.A. 17-218, S. 4.)

History: P.A. 73-340 added Subsec. (d) re irrelevance of applicant's prior acquisition of land; P.A. 73-458 amended Subsec. (a) to clarify Subdiv. (2) by specifying “significant” adverse effects “whether alone or cumulatively ...”, to add “that will provide, in accordance with the need for adequate and reliable electric service” in Subdiv. (4)(B) and to delete Subdiv. (6) re conformity of facility location to state and local laws; P.A. 75-375 amended Subsec. (a) to require decision within 10 months rather than one year, to delete reference in Subdiv. (4)(B) to elimination of overhead lines in accordance with need for adequate and reliable service and to require consistency with purposes of Ch. 277a and adopted regulations as well as with federal guidelines under Subdiv. (4)(C); P.A. 76-320 made technical change in Subsec. (b) and amended Subsec. (c) to require publication of notice of issuance of order and opinion rather than publication of copy of order and opinion; P.A. 76-359 rephrased Subsec. (d); P.A. 77-218 made 10-month deadline applicable to applications for facilities in Subdivs. (1) to (4), inclusive, of Sec. 16-50i(a), imposed 120-day deadline for those in Subdivs. (5) and (6) and made provision for extensions under Subsec. (a); P.A. 79-537 made clear that provisions apply to certification proceedings, inserted new Subsec. (c) re amendment proceedings and redesignated former Subsecs. (c) and (d) accordingly; P.A. 80-483 made technical changes; P.A. 83-569 amended Subsec. (a) to establish a time limit for council decisions affecting substations and switchyards; P.A. 88-121 amended Subsec. (a) increasing the council's time to render decisions on applications; P.A. 93-268 inserted new Subsec. (b) regarding factors considered in granting and conditions of a certificate for a facility described in Sec. 16-50i(a)(5) or (6), and relettered former Subsecs. (b) to (e) as (c) to (f); P.A. 94-176 amended Subsec. (a)(4)(C) by adding provision re life-cycle cost analysis of the facility and underground alternatives; P.A. 98-28 made technical changes in Subsec. (a), added new Subsec. (c) re siting of electric generating and storage facilities and electric transmission lines which are substantially underground or underwater, and redesignated former Subsecs. (c) to (f) as Subsecs. (d) to (g), effective July 1, 1998; P.A. 01-120 amended Subsec. (a) by adding aquaculture to items in Subdiv. (2) that council must determine the probable environmental impact upon for any facility and adding provisions making the terms of any agreement between the applicant and any party to the proceeding or third party part of the record of the proceeding, effective July 1, 2001; P.A. 03-140 amended Subsec. (a) to add provisions re feasible and prudent alternatives, effective July 1, 2003, and applicable to applications for a certificate of environmental compatibility and public need filed after that date, and further amended said Subsec. to add subdiv. designators, to add “not later than” and “after the deadline for filing an application following the request-for-proposal process for” in Subdivs. (2)(A) and (2)(B), to delete reference to community antenna television and telecommunication towers in Subdiv. (2)(B), to add Subdiv. (2)(C) re deadline for issuing a decision on an application for community antenna television and telecommunication towers, to delete provisions re feasible and prudent alternatives, to add Subdiv. (3)(F) re applications heard under a consolidated hearing process, to delete provisions re terms of agreements as part of the record of the proceedings, and to make conforming changes, effective October 1, 2004, and amended Subsec. (c) to add provisions re public need for a facility that is substantially underwater in Subdiv. (2)(A), to add provisions re feasible and prudent alternatives, and to make technical changes, effective July 1, 2003, and applicable to applications for a certificate of environmental compatibility and public need filed after that date, and further amended said subsec. to add Subdiv. (1)(D) re applications heard under a consolidated hearing process, to delete provisions re feasible and prudent alternatives, and to add Subdiv. (2)(F) re applications heard under a consolidated hearing process, effective October 1, 2004; P.A. 03-221 added Subsec. (a)(6) re telecommunication towers proposed on land under agricultural restriction; P.A. 03-248 added Subsec. (c)(3) re rebuttable resumption for an application for certain electric transmission lines, effective July 9, 2003; P.A. 03-263 added new Subsec. (h) re definition of public need for an energy facility, effective July 9, 2003; P.A. 03-278 amended Subsec. (a) by adding Subdiv. (6) re facility proposed to be installed on land under agricultural restriction; P.A. 04-236 made a technical change in former version of Subsecs. (a)(4)(C) and (c)(2)(B), effective June 8, 2004; P.A. 04-246 amended Subsec. (a) to make technical changes, to add “including, but not limited to, electromagnetic fields that,” to include references to standards and best management practices for electric and magnetic fields for electric transmission lines, and to add buffer zone requirement, amended Subsec. (c) to make technical changes and to eliminate provisions re rebuttable presumption for certain electric transmission line applications, and added Subsec. (i) re presumption re proposal for an overhead electric transmission facility with a capacity of three hundred forty-five kilovolts or greater, effective June 3, 2004, and applicable to applications for a certificate of environmental compatibility and public need that was originally filed on or after October 1, 2003, for which the Connecticut Siting Council has not rendered a decision upon the record prior to June 3, 2004 (Revisor's note: In 2005, the Revisors editorially redesignated Subsec. (c)(3) as Subsec. (c)(4) to conform with technical changes made by P.A. 04-246); P.A. 05-288 made technical changes in Subsec. (a)(3)(A) and (D), effective July 13, 2005; June Sp. Sess. P.A. 07-4 amended Subsec. (i) to add to factors for determining infeasibility whether cost of any contemplated technology or design configuration may result in unreasonable economic burden for ratepayers, effective July 1, 2007; pursuant to P.A. 11-80, “Department of Environmental Protection” was changed editorially by the Revisors to “Department of Energy and Environmental Protection” in Subsec. (b)(1), effective July 1, 2011; P.A. 12-165 amended Subsec. (a)(3) to add provisions re certification decisions for proposed facilities located not less than 250 feet from a school or commercial child day care center in Subpara. (C) and add Subpara. (H) re consideration of manufacturer's recommended safety standards for equipment, machinery or technology, amended Subsec. (b)(1) to add Subpara. (D) re examination of the latest facility design options intended to minimize aesthetic and environmental impacts and add provision re surrounding neighborhood, amended Subsec. (c)(1) to add provision re consideration of neighborhood concerns for proposed facilities, added Subsec. (j) re civil action brought by Attorney General, and made technical changes, effective July 1, 2012; P.A. 13-298 amended Subsec. (a)(3) to add reference to Subsec. (b) in Subpara. (A) and to add clause (iii) re facility proposed to be installed on land owned by a water company and which involves a new ground-mounted telecommunications tower and to make conforming changes in Subpara. (G), and amended Subsec. (b)(1) to add clause (iv) re authorization for council to deny an application if it determines no public safety concerns require that a proposed facility owned or operated by the state be constructed in that location and to add provision re evaluation of public need for a cellular facility, effective July 1, 2013; P.A. 14-94 amended Subsec. (a)(2) by deleting “deadline for” and references to the request for proposal process re timeline for filing an application in Subparas. (A) and (B), making conforming changes in Subpara. (B) and deleting former Subpara. (C) re facility described in Sec. 16-50i(a)(5) or (6), and amended Subsec. (a)(3) by deleting former Subpara. (F) re application heard under a consolidated hearing process and redesignating existing Subparas. (G) and (H) as Subparas. (F) and (G), effective June 6, 2014; pursuant to P.A. 15-227, “child day care center” was changed editorially by the Revisors to “child care center” in Subsec. (a)(3)(F), effective July 1, 2015; P.A. 16-163 amended Subsecs. (a)(3)(D) and (i) by replacing “child day care facilities” with “child care centers”, effective June 9, 2016; P.A. 17-218 amended Subsec. (a)(3)(B) by designating existing provisions re adverse effects as clauses (i) to (iv) and (vi) to (viii) and adding clause (v) re agriculture, effective July 1, 2017.

Notation

Cited. 177 C. 623; 212 C. 157; 215 C. 474. In determining environmental impact, council's jurisdiction is limited to nonnuclear environmental effects. 286 C. 57. Subsec. (c)(1) only requires that neighborhood concerns inform the council's decision to the extent that they are material, it does not require the council to make specific findings and determinations regarding such concerns or to articulate how and to what extent each concern impacted its decision. 326 C. 40.

Cited. 20 CA 474.

Subsec. (g):

The phrase “in no way be limited” implies that legislature did not want council to be bound by applicant's alleged acquisition of an interest in land, but council was not prohibited from considering such an interest in determining whether certificate should be issued; the language is an enlargement of council's discretion, not a limitation, permitting but not obligating council to consider likelihood of applicant securing the proposed site. 50 CS 443.