New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Federal Court Upholds ZBA Denial of Special Exception for Cell Tower as Out of Character with the Neighborhood

Omnipoint Communications, Inc. v. City of Nashua
U.S. District, D.N.H., CV-07-46-PB, 2/6/2008

For more than a decade, land use boards have faced litigation in federal court when they deny permission to build telecommunications towers. The Telecommunications Act of 1996 (TCA) is intended to facilitate the national growth of the wireless telecommunications industry, including a mandate to municipalities to accommodate construction of telecommunications towers. 47 U.S.C. 332 (c) (7). The TCA provides that land use control regulations may not “effectively prohibit” wireless service in any given area by excluding towers. (This is a case-by-case determination, which depends on topography and location of other towers and typically requires the analysis of experts.) The TCA also creates a federal requirement that any decision of a local land use board denying a request to place a personal wireless service facility must be (1) in writing and (2) supported by “substantial evidence contained in a written record.” This resembles the standard under state law for judicial review of a zoning board of adjustment or planning board decision.

Omnipoint Communications, Inc. (Omnipoint), a wholly-owned subsidiary of T-Mobile, applied to the Nashua zoning board of adjustment for a special exception to construct a wireless tower on common land of a cluster-style residential development, by agreement with the homeowners’ association. The ZBA denied the special exception on the ground that the tower would “impair the integrity or be out of character with the district or immediate neighborhood where it is located…,” contrary to the zoning ordinance.

Omnipoint filed suit in the U.S. District Court asserting both that the decision (1) effectively prohibits wireless service in the area and (2) was not supported by substantial evidence in the record. Omnipoint also added (3) a conventional ZBA appeal under RSA 677:4. The Court addressed the “substantial evidence” claim and the ZBA appeal based on the ZBA certified record, as is typically done in zoning and planning appeals in the superior court. Under the “substantial evidence” test, the reviewing court defers to the decision of the local land use board “provided that the local board picks between reasonable inferences from the record before it.” The Court found that the specific testimony of neighbors concerning the impact on their property and the neighborhood in general constituted substantial evidence that the proposed tower would be out of character with the surrounding neighborhood visually, aesthetically and functionally. The Court granted summary judgment in favor of the ZBA on both the “substantial evidence” claim under the TCA and the state law appeal under RSA 677:4.

The Omnipoint decision is the latest in a growing body of cases demonstrating that a land use board decision to deny a cell tower can be sustained under the TCA “substantial evidence” standard in federal court, much like an ordinary appeal in the state superior court, if the decision is carefully written and based on a fair evaluation of the evidence in a written record.

Please be advised that the foregoing case summary is based upon a Supreme Court slip opinion. Slip opinions are subject to change following motions for rehearing and/or motions for reconsideration. The Court may also modify the opinion without motion. The final version of the Court’s opinion is that which appears in the New Hampshire Reports.

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