New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Federal Court Upholds Only One of Five Reasons to Deny Cell Tower Permit

USCOC of New Hampshire RSA #2, Inc., (d/b/a US Cellular) v. City of Franklin
No. 05-cv-266-JM,

US Cellular continued its quest to locate a cell tower in the City of Franklin by filing in federal court, complaining that the city’s planning board denied its site plan application in violation of the Telecommunications Act of 1996 (TCA). This litigation follows the successful appeal by US Cellular of the city’s zoning board of adjustment denial of a height variance for the 150-foot tall wireless telecommunications tower. In that case, the court ruled that the ZBA’s decision was not supported by substantial evidence, as required by the TCA, and ordered the ZBA to grant the variance. USCOC of NH RSA #2, Inc. v. City of Franklin, Civ. No. 04-66-JM.

The TCA aims, in part, to facilitate nationally the growth of wireless telephone service and maintain substantial local control over citing of towers. However, local control of whether to allow cell towers in a particular location is not unlimited. For example, the TCA provides that local zoning authorities may not discriminate among providers of wireless telecommunications service; act in a manner that effectively prohibits the provision of wireless telecommunications services; or make zoning decisions based on concerns over the environmental or health effects of the radio emissions associated with wireless cell towers. At issue in this case is the provision that requires any decision by a local zoning authority to deny permission to build a wireless service facility to be “in writing and supported by substantial evidence contained in a written record.”

With the court ordered variance in hand, US Cellular made application to the planning board for site plan review. The site chosen for the telecommunications facility was a 2.4-acre parcel on which a convenience store, gas station and home heating business were located. The property also contained large above-ground fuel storage tanks located behind the convenience store. The property to be used for the project was zoned for business uses, including wireless telecommunications facilities. The property borders a residential district. US Cellular’s site plan application included a project summary, a compliance statement and detailed engineering drawings. US Cellular acknowledged that it could not meet the buffer requirement in the city’s zoning ordinance and requested that the board waive the buffer requirement, citing the existing vegetation on the site and waivers that the planning board had allegedly granted in the past for another wireless provider.

The planning board found that the following provisions of the city zoning ordinance were specifically relevant to US Cellular’s application: reduce adverse impacts that wireless telecommunications facilities may create including impacts on aesthetics; permit construction of new towers only where all other reasonable opportunities have been exhausted; minimum fall zone requirements for ground-mounted facilities; camouflage requirements for ground-mounted facilities; requiring applicants who propose to build a new tower to execute an agreement that promotes maximum co-location upon the new structure; and performance and design standards for proposed wireless facilities.

The public hearing process on US Cellular’s site plan application began in March 2005. Those opposed to the project expressed concerns about the aesthetic harm the tower would have on the residential neighborhood, the proximity of the proposed facility to the above-ground fuel tanks already on the site, and the danger presented by the tower potentially collapsing at its base and falling on a fuel tank.

The planning board continued to hold hearings on the site plan in March, April, May and June. A site walk of the property was conducted and numerous communications between the US Cellular representative and the planning board detailed the issues that continued to concern the board. As a result of these communications, US Cellular made changes in their site plan, including a three-foot reduction in the height of the facility by grading at ground level; a change in the compound size so that the entire fenced area would be located within the commercial zone; and a change of the location of the antenna array and a reduction in the size so that no part of the antennas extend above the 150-foot limit on the variance. US Cellular also agreed to relocate the tower so that the antennas and those of future tenants would not protrude over the zoning line, revise landscaping plan and rotate the equipment so that the impact of lighting on the residential neighborhood would be minimized.

In answering concerns raised with regard to a potential failure of the tower, the applicant submitted engineering reports indicting that the tower is designed not to fall, even in extreme weather conditions. According to the report submitted to the board, even if a catastrophic failure occurred, the tower is designed to collapse on itself in sections, rather than topple over from its base in a manner that would threaten nearby structures. US Cellular informed the board that it would install the quietest generator available and that it would work with co-locating wireless service providers to install a larger generator so that multiple generators would not be necessary. The planning board asked for more specific information regarding the ability of the proposed facility to accommodate at least two additional co-location possibilities, requesting the applicant to prepare plans showing where the pads, generators and propane tanks would be located. US Cellular responded by stating that its existing plans identified possible locations for three future tenants and that any additional plans would be speculative without knowing the specific space configurations of a potential future tenant.

Opponents of the plan requested the application be denied based on the fall zone and buffer zone provisions of the ordinance and the site plan review regulations. The applicant complained that opposition by residents was contradictory and non-specific.

At a final public hearing on the application in June 2005, a planning board member presented a copy of a pre-written decision denying the application and after some discussion, the board voted to deny the application and issued the written decision that had been presented. The rationale given for the denial included: 1) the proposed cell tower poses a safety hazard; 2) the proposed cell tower will have an adverse visual impact on the surrounding residential neighborhood; 3) alternative sites exist that could accomplish applicant’s goals; 4) the applicant did not demonstrate that its proposed facility could accommodate three other personal wireless service providers; and 5) locating the proposed facility on the site chosen constitutes an over utilization of that property.

US Cellular filed suit seeking summary judgment on the grounds that the board’s decision to deny its application for site plan approval violated the TCA, 47 U.S.C. § 332 (c) (7) (B) (iii), because it was not supported by substantial evidence in a written record. In resolving this case, the court looked to the written record of the board. The court found that the planning board’s denial of the application on four of the five grounds given was not supported by substantial evidence, including the grounds that it would be a safety hazard, availability of alternative sites, accommodation of other personal wireless service providers and over utilization of the property. The court said some of the board’s conclusions were speculative and that the board ignored highly relevant facts. With regard to accommodation of other providers and over utilization of the property, the court held that those issues were not sufficiently presented during the hearing process such that the applicant could address them prior to the board’s denial of the application.

The remaining reason for denying the application, that the proposed cell tower would have an adverse visual impact on the surrounding residential neighborhood, was upheld by the court. US Cellular acknowledged in its original application that it could not meet the buffer requirements in the zoning ordinance, but did not seek a variance from that provision prior to making application for site plan approval. It contended that the board could have granted a waiver of that provision and that waivers for similar projects had been granted in the past. US Cellular argued that the buffer provision “makes no sense on the facts of this case, exceeds the bounds of site plan review and creates an impermissibly vague standard.” The court explained that the focus of substantial evidence review is whether the board’s decision is consistent with the applicable regulations and ordinance provisions. Further, the court disagreed with US Cellular’s suggestion that the court has the authority to set aside the buffer provisions.

Upholding the board’s consideration of whether “adequate buffers, landscaping and screening are provided to protect adjoining properties” as within the board’s site plan review, and noting that the planning board is not required to grant the requested waiver, the court found that the board did not exceed the bounds of site plan review. The court concluded that with respect to the visual impact criteria, US Cellular did not demonstrate that no substantial evidence supports the board’s determination that the proposed facility would have an adverse visual impact that justified the denial of the application.

US Cellular’s motion for summary judgment was denied with respect to the board’s decision regarding adverse visual impact, and granted with respect to the other four reasons used by the board to deny the application for site plan. Those four reasons were held to be invalid.

This case illustrates how important it is for land use boards to keep detailed records of their proceedings, including written decisions that are clear and that set forth the rationale used by the board to reach its conclusions. The Telecommunications Act of 1996 provides that any local land use board decision to deny a request for a wireless facility must be in writing and supported by substantial evidence contained in a written record. If a municipality wants to exercise its rights to deny such a facility, it must do so by supporting its decision with a written record supported by substantial evidence. Otherwise, the municipality’s decision to deny the application will be overturned.

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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