SCOV Law Blog: Thank you for participating

Editor’s note: This analysis of a recent Vermont Supreme Court ruling is by Daniel Richardson, the founder of SCOV Law Blog.

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 30 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 exclusive jurisdiction to review and permit all cell towers. 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.

One of the more recent additions to the PSB’s jurisdiction is cell towers. Under 30 V.S.A. § 248a, the PSB has exclusive jurisdiction to review and permit all cell towers. 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.

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 18 notice only notified them that they needed to file a motion to intervene by April 8. 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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  • Doug Hoffer

    I always enjoy the SCOV Law Blog. Thanks

    A quick comment. You said, “the PSB regulates cable television…”

    The PSB requires providers to obtain a Certificate of Public Good, which is an important threshold. But unless I’m mistaken, the PSB has no authority over cable rates or services. The cable industry managed a nice end run when Congress de-regulated the telephone industry in the `90s. Too bad.

  • Hi Doug,

    Thanks for the compliment.

    The PSB does have authority over cable television. Hence the whole Burlington Telecom issue with its certificate of public good. The language in 30 V.S.A. Section 502 is fairly broad stating that the PSB “shall be the franchising authority in the state empowered to grant, renew and revoke certificates of public good for all cable television systems and shall have all other authority to regulate cable television systems.” The next subsection even talks specifically about ratemaking. I cannot comment on the nuances in how the PSB has used or limited this power, but the grant appears to be there. The big difference, as I understood it, is that cable does not have a monopoly over an area like electricity. That is why a Burlington resident can choose between BT and Comcast but must purchase electricity from Burlington Electric.

    • Doug Hoffer

      From the Board’s website: “The board also supervises cable television companies, although federal law preempts most authority to regulate cable rates or programming.”

  • A friend of mine just point out an error in this entry. PSB jurisdiction is not exclusive for cell towers. Developers can chose either the 248a route or go through Act 250. I will leave it to her and other wiser minds to explain why Developers would choose one over the other.

    • Leslie Cadwell

      One reason to go the PSB route is the appeals process . Appeals from PSB decisions go directly to the Vermont Supreme Court and are not stayed pending appeal. That means a developer could construct a tower while an appeal is pending if the risk/reward equation is right and financing is available.

  • Leslie Cadwell

    For what it’s worth, cable television rates are not regulated and haven’t been for some time because federal law preempted local rate regulation years ago. The issue in the BT investigation is not about ratemaking, but instead about compliance with conditions imposed on BT’s franchise when the PSB granted BT a certificate of public good.

    On the tower permitting issue, a clarification is necessary. Permitting of communications towers is not vested exclusively in the PSB. Section 248a is one of two available permit options for communications towers. If a developer chooses the section 248a route, Act 250 does not apply; but a developer may still go through the Act 250 process if she chooses. This choice was intentional when 248a was first enacted in 2007. The statute “sunsets” in 2014 and Act 250 will resume its role as the permitting regime for tower development.

  • Thanks to VT Digger and SCOV LAW Blog for a helpful summary of the Weston tower case.

    A more subtle, further clarification:
    Section 248a isn’t the exclusive permitting venue for cell towers, it also isn’t just for cellular (mobile carrier) towers. It’s for wireless telecommunications facilities. Our company, Cloud Alliance, provides fixed wireless broadband. Last year, the PSB granted us a single CPG to build towers in each of four towns.

    Here’s why we chose the 248a process over the Act 250 route: 1. An Act 250 permit requires concurrent local zoning approval, and local zoning is often a more challenging venue* than Act 250. 2. We applied once—for one CPG—rather than for eight permits. 3. The concept of Public Good is more relevant to our application than traditional land use permitting. The interconnected nature of the facilities in our application is best seen as a whole.

    For a small company such as ours, the PSB 248a process is anything but trivial. As Daniel points out, “This is a substantial filing that is application, trial memo, pre-filed testimony, exhibits, and proposed permit all rolled in one.” Preparation of the filing took us considerable time and expense, but we were able to accomplish this without benefit of an attorney. Had we gone the other route, we’d probably still be seeking approvals. Our towers are built and serving the public.

    *As an example, the Select Board and Planning Commission of one town were extremely supportive of our plan to expand broadband into their town. However, the existing municipal zoning regulations had not been modernized in time to accommodate our potential application. Spot zoning is usually, by definition, illegal. It would have taken an estimated extra year to get the zoning up to speed to provide townspeople their desired tower, and this particular tower is the linchpin of our deployment. The Planning Commission concurred with our determination to pursue the PSB route and to hold public hearings for local input, prior to application.

  • Randy Koch

    Here’s a grotesque twist to the already twisted PSB story: right now hearings are underway before the PSB on an appeal from Vermont Agency of Natural Resources (ANR) stormwater permit for the Green Mtn Power’s Lowell wind project. The teams of lawyers and engineers from GMP, Shumlin’s brown-nosing ANR and, on the other side, project opponents have submitted tons of prefiled testimony and are taking testimony day after day. But guess what? It’s all a weird joke since the project is being built. When the project opponents bring up erosion and pristine stream destruction, it’s not abstract, it’s here and now. The GMP crowd obviously knows the appeal will fail and they better be right since they have already bet millions. Of course, it’s a sure bet since the PSB couldn’t very well say it’s in the public good to build a bunch of stuff and then tear it right down, could they?

  • walter moses

    Thanks to VT Digger and the people who write comments everyone should now know what a stinking rotten mess GMP and their lackeys in the Shumlin administration are. A foul sepsis that defies description. ANR, where are you?

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