Local Land Use Regulation and the Siting of Electronic Generating Facilities

April 1, 1999 Advisory
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The recent deregulation of the electric industry in Connecticut opens the door to companies from around the country to compete in the state's energy market. One result has been a substantial increase in the number of proposed new electric generating facilities. Companies that develop such proposals are confronted with a regulatory structure that attempts to address the potentially competing interests of state and local agencies.

The Connecticut Siting Council
The state agency that is responsible for the siting of electric generating plants and other electric facilities is the Connecticut Siting Council ("CSC"). The CSC was created by the legislature in 1971 in order to place the development of the State's electric infrastructure in the hands of an agency that would address that development from a statewide, rather than purely local, perspective.

No person or entity may construct a generating facility until the CSC has issued a "certificate of environmental compatibility and public need" (a "Certificate"). The CSC will not issue a Certificate for an electric generating plant unless it determines that the facility is "necessary for the reliability of the electric power supply of the state or for a competitive market for electricity," and that the adverse environmental impacts of the facility are not sufficient grounds to deny the application.

The CSC's jurisdiction to carry out its statutory mandate is broad: "Notwithstanding any other provision of the general statutes to the contrary... [it] shall have the exclusive jurisdiction over the location and type of facilities." Furthermore, a Certificate issued by the CSC "shall be in lieu of all certifications, approvals and other requirements of state and municipal agencies in regard to any questions of public need, convenience and necessity for such facility."

Scope of Local Authority
The CSC's exclusive jurisdiction is subject to one important, and very narrow, exception. Zoning commissions and inland wetland agencies "may regulate and restrict the proposed location" of electric generating facilities and substations -- subject to appeal of any order to the CSC. This limited grant of authority names only two agencies. Other municipal bodies such as the Zoning Board of Appeals, the Sewer Commission, the Building Inspector and the local legislative body are not named in the statute. No local agency may regulate or restrict the location of transmission lines.

In essence, the role of zoning commissions and inland wetland agencies with respect to generating units and substations is to issue advisory opinions, not to make binding determinations. These two agencies may exercise their authority to "regulate and restrict" by making written "orders" within thirty days of receiving "any application." These orders, however, may regulate only the location of a facility; they cannot regulate or restrict the type of facility.

An order by a zoning commission or inland wetland agency regulating or restricting a facility may be appealed to the CSC by "any party aggrieved." On appeal, the CSC's review of the application will be de novo. The CSC has the authority to "affirm, modify or revoke such order or make any order in substitution thereof." In doing so, it is to "give such consideration to other state laws and municipal regulations as it shall deem appropriate."

The ultimate determination of whether an electric generating facility can be sited in a particular location in Connecticut lies with the CSC, rather than with local agencies. This does not mean, however, that the input of local agencies will be ignored by the CSC in rendering a decision on an application for a Certificate. Therefore, it is in the applicant's best interest to address the concerns of the local agencies. The extent to which local concerns give way to the State or regional issues will become increasingly apparent as the CSC confronts the applications before it. A company desiring to construct an electric generating facility in Connecticut should be proactive is establishing communication and cooperation with local agencies, even though the company and the local agencies are aware that the CSC is the ultimate decisionmaker.