Cell Tower Location Allowed Where a Gap in Wireless Service Exists.

GMR Holdings v. Lincoln
United States District Court, District of New Hampshire Case No. 21-cv-117-SM, Opinion No. 2021 DNH 173
Monday, November 8, 2021

AT&T retained GMR Holdings, to locate and develop a wireless telecommunications site in Lincoln, New Hampshire. As part of the process of locating a suitable site on which to construct the necessary wireless facilities, GMR prepared a radio frequency (“RF”) report which showed that much of Lincoln is without reliable wireless service. Based on the report, GMR looked for a technologically suitable site that was within the two (of seven) zones where wireless facilities were permitted. GMR identified five suitable locations.

Two of the five locations were owned by owners unwilling to lease their sites for a wireless facility. One was a residential property, and another was a motel. Both were rejected by GMR on the basis of their current use. The fifth and final site was at a landscaping business and had two suitable locations for the facility. One was atop a 20’ high knoll on which grew several mature trees. The other was where GMR proposed to build the facility on the basis that Lincoln’s zoning ordinance encouraged wireless facilities to avoid cutting mature trees (and was not notably opposed by the abutting neighbor).

As the proposed location would require a 120’ (rather than allowed 100’) tower and structures would be within 125% of the “fall zone” of the tower, a conditional use permit for the extra 20’ and a waiver of the “fall zone” requirement were necessary under Lincoln’s zoning ordinance. After a hearing and a balloon test (whereby balloons were used to determine the proposed tower’s visibility from nearby landmarks), the planning board rejected GMR’s application.

GMR filed suit with the Federal District Court, alleging that the Town’s denial of the authorizations necessary to construct the wireless communications facility amounted to an effective prohibition of personal wireless service facilities in the area and that the planning board’s decision was not supported by substantial evidence – all in violation of the Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7)(B).

In analyzing the case, the Court noted that the Telecommunications Act provides, in part, that “the regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof . . . shall not prohibit or have the effect of prohibiting the provision of personal wireless services.” To prevail on a claim of “effective prohibition” claim, a claimant must establish: (1) that there is a gap in cellular service coverage in the area of the proposed tower; and (2) that there are no feasible alternatives to the site proposed to, and rejected by, the Planning Board.

As all parties agreed that there was a gap in cellular coverage for AT&T in Lincoln, the only issue was whether there were feasible alternatives to the site proposed. In examining the town’s defense, the Court rejected the claim that state or federal land were available as feasible alternatives because both had requirements related to proving that now suitable private land was available. Further, in examining the alternative locations, the Court found that there were two sites based on the overlay of the RF map and the zoning map: on the knoll or off the knoll. Both would require compromise – both required a waiver of the “fall zone” requirement, and placement on the knoll would result in the destruction of a number of mature trees and be more visible whereas placement off the knoll would require a conditional use permit for a tower that was 20’ taller than if it was on the knoll. Ultimately, the Court found that the planning board’s rejection of GMR’s application was in violation of the Telecommunications Act and ordered that the planning board issue all necessary permits to allow GMR to construct the tower.


Additional Information: 

Practice Pointer:  Municipalities should be aware that the federal Telecommunications Act governs placement of cell towers and where, as here, a gap in coverage exists for a particular carrier, the overlay map comprised of the RF map and zoning map showing permissible areas for a tower will likely determine where a cell tower will be allowed to be located.