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. Town of Greenfield., U.S. District Court, D.N.H.
No. 09-cv-399-SM, 9/9/2010

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.

As the deployment of personal wireless service equipment (cell towers) continues throughout the state, this is another case where the federal district court has found a municipal land use board decision to lack the specificity required by the federal Telecommunications Act of 1996, leading to an order that the tower may be constructed in the manner requested by the wireless company.

Here, AT&T sought approval to construct a 100-foot monopole in an open field located within a 257-acre property in the Town of Greenfield. The tower location was hundreds of feet in all directions from any property line, dwelling or public road. The local planning board granted site review approval but sent the company to the ZBA because the height of 100 feet was "more than 20 feet above the average tree canopy height within a 50 foot radius of the mount." The company also sought a special exception for the use from the ZBA.

The ZBA granted the special exception but later denied the requested height variance, finding that none of the five criteria for a variance had been met. The company appealed to Federal Court, alleging a violation of the Telecommunications Act and that the tower, at the requested height in the requested location, was necessary to provide an acceptable level of service in the Town of Greenfield.

In a rather stinging, 26-page opinion, Judge McAuliffe found that the ZBA's decision on each of the five elements was erroneous as a matter of law. After emphasizing that it was not the court's function to reweigh the evidence presented, the Court states, "Rather, the fundamental problem with the ZBA's decision in this case is that it fails to put the correct evidence on the proper scale in the first instance."

The issue of personal wireless service facilities is a difficult one, and will occur in many municipalities. Often, the tower structures are unpopular with residents who find that they interfere with a view. They are, however, given special protection under federal laws, and this case highlights that the companies will not hesitate to invoke their federal remedies if they feel that the local land use board has failed to recognize and honor those special protections. If ZBA members are unfamiliar with the technology of cell phone towers, or the special requirements of the federal telecommunications act, we strongly suggest that they consult with the municipal attorney before hearing the case to assure that any hearings meet these special requirements, and that their decision is more defensible if challenged in court.

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. The 2010 Court Update will be available in mid-November.

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