GOLDFISHER v. CONNECTICUT SITING COUNCIL, No. CV 03 0524650 S (Feb. 1, 2005)

PINKUS, JUDGE.

This is an appeal from a final decision of the Connecticut Siting Council, which, on September 23, 2003, granted a certificate permitting the defendant, Message Center Management, Inc. to construct a 175-foot-high tower in the Town of East Haddam. The plaintiff is the owner of real property in the town of East Haddam known as 13 West Cove Road. The plaintiff's property is located approximately 3,500 feet (two-thirds of a mile) from the proposed cell tower.

The plaintiff alleges that the residential property owned by him ". . . enjoys waterfront access to the lower Moodus Reservoir. Such property has views of the reservoir and its scenic vistas and would have a clear and direct view of the proposed tower, if constructed." Apparently, the proposed cell tower would be on the opposite side of the lower Moodus Reservoir from the plaintiff's property.

The plaintiff also alleges that there are certain deed restrictions which encumber plaintiff's property that, by way of example, require all utility and transmission lines to be installed underground and prohibit satellite dishes, TV antenna or short wave antennas from being placed on any structure or parcel of land. These deed restrictions do not encumber the proposed site of the cell tower. The plaintiff alleges that he is aggrieved by the decision of the Siting Council in that, if the proposed cell tower were to be built, there would be a significant adverse impact on the residential quality and property values in the area of the proposed site and on the natural environment, ecological balance, public health and safety, scenic, historic and recreation values, forest and parks; air and water purity; and fish, aquaculture and wildlife, and on cultural, historic, scenic and recreational resources. The CT Page 1872 plaintiff further alleges that he is aggrieved by virtue of his respective interest in his residential property, in that the fair market value of said property is likely to be diminished due to the intended construction of the proposed tower and that the proposed tower would have a visual impact on the plaintiff's property and would impair the use and enjoyment of such property. The plaintiff states that he has a specific, personal and legal interest in the subject matter of the decision.

At the hearing on aggrievement before this court, the plaintiff produced Peter Vimini, a real estate appraiser. Mr. Vimini testified that he had personally inspected the property. He described the plaintiff's property as a single-family elevated site which overlooked the reservoir. The plaintiff's property was the highest point in the subdivision. The subdivision was one of the "better subdivisions" in town. The plaintiff's property has a view of the reservoir and the hillside on the opposite side of the reservoir where the proposed cell tower was to be built. Mr. Vimini believed that the location of the plaintiff's property and the view had a positive influence on its value. Mr. Vimini testified that, in his opinion, there was likelihood that the property value would be affected by the proposed cell tower on the other side of the reservoir. Mr. Vimini did not provide any empirical data to support his proposition.

The plaintiff also produced as a witness, Nicole Fournier, who is the owner of 7 West Cove Road. Ms. Fournier testified that she could see across the reservoir towards the proposed cell tower site when the leaves are down. Ms. Fournier was unaware of the proposed cell tower at the time she purchased her property. She testified that she most likely would have offered less money for her property if she knew the cell tower was going to be constructed but did not state whether she would not have purchased her home.

The plaintiff failed to present any evidence that the proposed cell tower would have any effect on the natural environment, ecological balance, public health and safety, scenic, historic and recreation values, forest and parks, air and water purity, and fish, aquaculture and wildlife, and on cultural, historic, scenic and recreational resources.

The defendant Message Center Management, Inc., presented testimony that the proposed cell tower would have four platforms with ten feet of separation between each platform. The testimony CT Page 1873 also indicated that as a result of the distance from the plaintiff's property the proposed cell tower would have the visual impact no greater than a rooftop dish TV antenna.

The defendant, Message Center Management, Inc. also presented evidence by way of testimony from a real estate appraiser, Mr. Estrada, and a report prepared by him. The report indicates that the proposed tower in East Haddam would not have any negative impact on values of surrounding property. The report reaches its conclusion from an analysis of data which it claims to be "substantial and clear." Mr. Estrada testified that Mr. Vimini's opinion was not defendable, that there would be no diminution of value based upon his investigation even if the tower were built and that this opinion was based upon similar towers being built in other locations.

As a threshold issue, this court must determine whether or not the plaintiff is aggrieved, and therefore has standing to challenge the actions of the siting council. The plaintiff does not allege that he has been statutorily aggrieved. The issue that must be resolved, therefore, is whether or not the plaintiff is classically aggrieved.

In order for a party to have standing to invoke the jurisdiction of the court, that party must be aggrieved. Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless one has, in an individual or representative capacity, some real interest in the cause of action . . . Standing is established by showing that the party claiming it is authorized by statute to bring suit (in other words, statutorily aggrieved) or is classically aggrieved . . . The fundamental test for determining classical aggrievement encompasses a well-settled two fold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all the members of the community as a whole. Second, the party claiming aggrievement must successfully establish that the specific, personal and legal interest has been specifically and injuriously affected by the decision.

CT Page 1874

Edgewood Village, Inc. v. Housing Authority of the City of New Haven, 265 Conn. 280, 288 (2003).

The Connecticut Supreme Court has also stated that "aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." Light Rigging Company v. Department of Public Utility Control, 219 Conn. 168, 173 (1991). However, in this case, any claim made by the plaintiff as to diminution of his property value is entirely speculative and not supported by the testimony presented at the hearing. Sachem's Head Association v. Lufkin, 168 Conn. 365, 368 (1975). Further, the plaintiff has not established that he has a specific legal interest in the subject matter of the decision. Such a showing is generally required outside the context of a zoning appeal. Edgewood Village, Inc. v. Housing Authority of the City of New Haven, supra at 295. This court concludes that, in the present case, the plaintiff is not deprived from any use or enjoyment of his property nor has he been deprived of any other pre-existing property right. The fact that the plaintiff may well be able to see the proposed cell tower approximately two-thirds of a mile away does not establish aggrievement.

Even assuming arguendo that the plaintiff were to establish agrievement, the court has thoroughly reviewed the record and has determined that the decision of the Connecticut Siting Council is supported by substantial evidence in the record. The scope of review in an administrative appeal, such as this case, is limited. The judicial review portion of the Uniform Administrative Procedure Act, Connecticut General Statutes § 4-183(j), states, in part, that:

The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that the substantial rights of the person appealing has been prejudiced because the administrative findings, influences, conclusions, or decisions, are: (1) In violation of Constitution or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedures; (4) affected by other error of law; (5) clearly erroneous CT Page 1875 in view of the reliable, probative and substantial evidence of the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwanted exercise of discretion.

As indicated in Connecticut General Statute § 4-183(j), the court may only overturn an agency's decision if "the court finds that the substantial rights of the person appealing had been prejudiced." The plaintiff has not demonstrated that his substantial rights were prejudiced and, as a result, even if certain procedural regularities could be demonstrated, the plaintiff should not prevail. Tele Tech of Connecticut Corp. v. Department of Public Utility Control, 270 Conn. 778, 812 (2004).

For the reasons set forth above, the plaintiff's appeal is dismissed.

Pinkus, J. CT Page 1876