Court will defer to the land use board’s judgment in weighing evidence and credibility of testimony if the board acted reasonably and there is a good record for the court to rely on

Vertex Tower Assets, LLC submitted applications to the Planning Board seeking site plan approval to construct two cell towers. The plaintiff, Whittier Communications, owned a cell tower 1.9 miles away from one of the proposed new towers and 2.25 miles away from the other; however the tower was not fully built, but rather under construction. The Wakefield Zoning Ordinance states that if an applicant is proposing a new personal wireless service facility, the applicant must submit written evidence demonstrating that no existing facility within four miles of the proposed personal wire service facility can accommodate the applicant’s needs. The Planning Board denied the application on the grounds that the Whittier tower was in existence and within four miles of the proposed new towers. Vertex appealed to the ZBA, and the ZBA ruled that the Whittier tower was not actually “in existence” since it was still under construction. The Planning Board then approved the application, finding that the proposed Vertex towers would provide coverage where none was then available, even assuming that the Whittier tower location was operational with a carrier.

Whittier appealed, arguing that Vertex did not submit sufficient evidence to demonstrate that the existing facility could not accommodate the applicant’s needs. The court noted that Vertex submitted multiple sets of radio frequency coverage maps showing the wireless coverage provided by existing and approved cell towers, including the Whittier Tower, and the additional coverage that would be provided if the Vertex Towers were constructed. They also submitted other evidence from a radio frequency engineer. Whittier argued that the evidence submitted was inaccurate and lacked credibility, citing comments from the public and members of the Planning Board during the hearing. However, the court ruled that it is for the Planning Board and the ZBA to assess credibility and weigh the evidence, not the court. Ultimately, the court upheld the decisions made by the Planning Board and ZBA, ruling that the boards acted lawfully and reasonably in reaching their decisions.

*This is a Final Order issued by the Supreme Court that disposes of a case that has been briefed but in which no opinion is issued. Although this Final Order has no precedential value it does provide helpful guidance for municipal officials.

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