New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Suitability of Land for Cell Tower Under Federal Telecommunications Act of 1996, May Make Parcel “Unique” for Purposes of ‘Unnecessary Hardship’

Ryder Daniels et al. v. Town of Londonderry et al.
No. 2008-047, 7/15/2008

An application for multiple area and use variances was approved by the Londonderry zoning board of adjustment to allow the installation of a wireless communications tower in an agricultural residential zone where such use is not permitted. Conditions were attached to the approval to regulate placement of the tower, its height, and visual screening from abutting properties. Several abutters appealed, arguing that the ZBA decision was unlawful and unreasonable because it had allowed the federal Telecommunications Act of 1996 to preempt its own findings under state law, and that the required variance criteria had not been met. The trial court affirmed the decision of the ZBA. On appeal, the Supreme Court also affirmed. Factually, it found that while the ZBA had considered the impact of the Telecommunications Act, it had not allowed its provisions to preempt its own findings.

As a matter of law, the Court announced an important new principle for ZBAs to use when evaluating the element of “unnecessary hardship” in requests for either a use or area variance. While the federal Telecommunications Act of 1996 does not expressly preempt all local zoning regulations and permit the installation of wireless communication towers in any location, it does preempt local regulations which have the practical effect of preventing the provision of wireless services. Thus, if evidence is presented that a request for a tower is filed to “fill a significant gap in coverage,” the suitability of the specific parcel of land for that purpose may constitute a situation which makes that parcel unique for the purpose of the “unnecessary hardship” element of a variance analysis. While the land may be similar to other parcels in the general area under ordinary circumstances, its suitability for wireless service coverage may make it unique as a result of the Telecommunication Act of 1996.

It remains to be seen whether this new principle will be restricted to the Telecommunications Act, or may eventually be extended to other state or federal laws that encourage the installation of socially valuable uses. It certainly encourages ZBAs to take a broad view of the usefulness of the intended use as it considers the uniqueness of the land in a variance analysis.

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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