Pattern of abuse appears in Siting Council actions

CORNWALL — What was described initially by the first selectman as a letter of comment on the proposed Verizon cell tower above Popple Swamp Road has turned out to be much more.

A 32-page brief has now been filed by Attorney Perley Grimes on behalf of the Town of Cornwall. The brief was filed Aug. 19, the last day comment was allowed into the record of the public hearing on an application before the Connecticut Siting Council. It called for the council to deny the application for one or all of five reasons explained at length in the brief.

Fundamental fairness

The public hearing began in Cornwall, with a site inspection by council members and about four hours of evidentiary submissions and public comment.

From a transcript, Grimes assembled a list of 29 instances where Siting Council Chairman David Caruso allegedly set a tone for the hearing that the public, town officials and others took as disrespectful and condescending — ultimately leading to a lack of significant public input, as well as doubts over the Siting Council’s ability to give in-depth consideration to the decision.

In other words, fundamental fairness of an administrative hearing was denied, the brief claims.

“The remarks by the chairman reflect a certain callousness and chilling effect upon intervenors, abutters and members of the public who attended the hearing,� Grimes wrote.

The brief attempts to show how those remarks illustrate more than the alleged condescending attitude, but also a misunderstanding of statutory procedure.  

Caruso has written a three-page letter in defense of his behavior, in response to a letter from state Sen. Andrew Roraback (R-30) and state Rep. Roberta Willis (D-64) that noted the public’s dismay over its treatment.

Caruso cited time constraints and his duty to make sure as many people as want to speak are heard. He also cited a need to proceed and prevent the public hearing from becoming a “freewheeling discussion.�

Comparatively subdued

He summed up his view of the hearing: “Finally, I might note that few hearings may be considered as so oppressive or inhospitable when interrupted with laughter more than six times in its concluding hour.�

On the contrary, most who attended say the Cornwall hearing session was attended by a public that demonstrated restraint, respect and a clear desire to conform to proper procedure. An audio technician told The Journal during a break in proceedings that it was  very subdued, and that hearings are usually marked by demonstrations, angry outbursts and other disruptions.

The only out-of-order comments, or laughter as the case may have been, at the July 20 session were shocked responses to the chairman’s behavior.

He offered explanations such as “a formal tone does not signify a dismissive attitude.�

Flippant remarks

Many of the quotes listed by Grimes, however, indicate flippant remarks and innuendo.

Caruso contended that letters written independently by the Northwest Conservation District and the Cornwall Planning and Zoning Commission (P&Z), both opposing the project for a variety of reasons, were done at the direction of First Selectman Gordon Ridgway. Caruso continued with the allegation even after Ridgway denied it.

Questions about the use of roads and property remain a concern for the town and residents, particularly since a comprehensive, A-2 survey was not completed for the proposed site.

In response to Ridgway’s questions about land use, Caruso was quoted in the brief as saying, “Isn’t that someone else’s business?�

While Elaine LaBella, director of land protection for the Cornwall-based Housatonic Valley Association, was attempting to give a summary of her expert remarks, and speaking of the area’s tourism-based economy, Caruso interrupted her. In an attempt to manage the alloted time for the public, he polled the audience to determine how many still wanted to speak, telling LaBella he was doing it, “so that you know before you tell us every car that drives through.�

When Popple Swamp Road resident Caroline Daifotis suggested she would submit a letter from a soil engineer she had hired, in part because neighbor and intervener Fred Thaler wanted it submitted, Caruso said, “You shouldn’t do things just because other people want you to. Your mom told you that, right?�

Caruso went on to mention that Daifotis also lives in New Canaan, and that she was not at a hearing there the week prior. His nonprocedural remarks included, “You couldn’t be lucky enough to live next to two towers at the same time.�

Pattern of lawsuits

Grimes stated three lawsuits against the Siting Council alleging procedural violations. One of the issues posed by one town’s citizens was that “the procedure used impaired their ability to fully participate in the administrative proceedings.�

To show how the Cornwall hearing was a due process violation, Grimes covered in detail, with supporting case law at times, four additional points, each a reason to deny Verizon’s application.

Lack of standing

Without a conclusive survey, questions of property use, rights of abutting landowners and the status of involved roads and easements, all necessary to the project, remain unanswered. Without those facts, the public and interested parties are in essence denied the opportunity to comment.

Town counsel contended that Verizon has no standing of record to submit an application without “proof of its control of the proposed right of access.�

Procedural due process

Grimes listed several lawsuits brought by citizens and towns against the council containing allegations that their rights to due process were violated in numerous ways.

The accusations include inadequate notice of a hearing, denial of a request for a continuance and that procedures used impaired the public’s ability to fully participate as did the “conduct of the public hearing.�

At the Cornwall hearing, Grimes noted the public and interveners repeatedly asked for information on drainage and  environmental and access issues, and were told by the council these issues would be addressed in detail after the application was approved.

Zoning regulations

Grimes noted state statute and local zoning regulations that require the council to consider viewsheds in some areas. Cornwall zoning regulations note this location as the least desirable for a freestanding tower.

The Cornwall Planning and Zoning Commission has also submitted an objection based on plans for a hillside access road to the site that exceeds its maximum slope allowance.

Grimes pointed out the council’s requirement to consider scenic impacts due to some very specific designations. The site is located in the federal Upper Housatonic Valley National Heritage Area and the federal Highlands Conservation Act Region. The state has designated all of Cornwall as part of the federal Forest Legacy Program.

The brief also sheds light on statutory priorities when it comes to the protection of ridgelines and scenic vistas, as opposed to the need for improved cellular coverage.

Within the siting council’s specific guidelines, State Statute 16-50, the council is directed to consider the area around the proposed tower site for scenic quality of local, regional and statewide significance. An application can be denied if the proposed facility would have substantial impact on scenic quality, but “no public safety concerns require that the proposed facility be constructed in such a location.�

The public hearing transcript is available for review at the Cornwall and Sharon town halls.