New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

ZBA's cell tower decision reversed for inadequate written findings

New Cingular Wireless PCS, LLC, v. Candia et al., U.S. District Court, D.N.H.
No. 09-cv-387-SM, 8/11/2010

The following summary is based on an opinion of the U.S. District Court for the District of New Hampshire. Federal district court cases apply federal law and sometimes New Hampshire law. Their interpretations of New Hampshire law are not binding on the New Hampshire Supreme Court.

The Telecommunications Act of 1996 (TCA) was enacted by Congress to encourage the expansion of wireless communications, including measures to require municipalities to accommodate construction of telecommunications towers. 47 U.S.C. 332 (c) (7). Among the TCA's requirements is that any decision of a local land use board to deny a request to place a personal wireless facility must be (1) in writing and (2) supported by "substantial evidence contained in a written record."

New Cingular Wireless PCS (called "AT&T") proposed to replace a preexisting 187-foot radio tower with a 180-foot cell tower. The proposal needed a setback variance and a special exception from the zoning board of adjustment (ZBA). The special exception required a finding that the tower would not (1) be detrimental to property values; (2) change the neighborhood on account of "location or scale"; or (3) change the neighborhood on account of noise. The application was reviewed for nine months as AT&T amended the proposal successively for a tower 150 feet, 115 feet and, finally, 100 feet in height. At 100 feet, no variance was required.

The ZBA denied the special exception and variance for the 180-foot tower, making written findings that the tower would not satisfy the criteria for the special exception and finding no unnecessary hardship for a variance. The ZBA also denied special exceptions and variances for lower heights, but did not make specific findings for those proposals. The notice of decision simply stated that the evidence was insufficient to prove that the shorter towers would meet the criteria.

On appeal to the U.S. District Court, the Court held that the ZBA's decision violated the TCA because the lack of written findings for the lower heights (1) prevented the Court from evaluating the reasonableness of the decision and (2) did not give the applicant "any clue of what will do the trick" in a subsequent application. As a remedy, AT&T requested the Court to order the ZBA to grant a variance and special exception, the usual remedy in such a case. Instead, the Court remanded the case to the ZBA to permit further consideration of the alternatives. "At this point the court is reluctant to by-pass the parties' own judgment as to which proposal best meets their competing concerns."

Please be advised that the foregoing summaries of New Hampshire Supreme Court cases are based on slip opinions. Slip opinions are subject to change following motions for rehearing and/or motions for reconsideration. The Court may also modify an opinion without motion. The final version of the Court’s opinion is that which appears in the New Hampshire Reports. A yearly compilation of municipal law cases is presented each fall at LGC’s annual conference. For your copy of the 2009 Court Update, call 800.852.3358, ext. 100.

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