NEW CINGULAR WIRELESS PCS, LLC, V. TOWN OF CANDIA, NEW HAMPSHIRE (United States District Court, District of New Hampshire, April 19, 2011.)
Plaintiff sought to construct a telecommunications tower and related facilities in Candia, New Hampshire, at the site of an existing (but unrelated) radio tower. Initially, Plaintiff applied for a special exception and a variance to construct a 180-foot lattice tower at the site and proposed to remove the existing tower. Subsequently, however, it amended its applications, offering to build a monopole-style tower at a height of either 150, 115, or 100 feet. The Candia Zoning Board of Adjustment (the "Board") denied Plaintiff's applications.
By prior order dated August 11, 2010, the court held that because the Board addressed only one of Plaintiff's four proposed tower heights (i.e., the 180-foot lattice tower), its decision to deny Plaintiff's applications for a special exception and a variance was not supported by substantial evidence. Rather than enter an order directing the Board to grant a special exception (and, depending on the height of the tower, a variance), the court instead remanded the matter for further proceedings. In that remand order, the court instructed the Board to "issue an adequate written decision with regard to each of the three remaining proposals, i.e., for towers of 150, 115, and 100 feet."
On remand, the Board granted Plaintiff's request for a special exception to the local zoning ordinance and authorized the construction of a 100-foot monopole telecommunications tower and related support facilities. The Board denied Plaintiff's proposed tower alternatives of 115 and 150 feet because, unlike the 100-foot tower, each of the taller towers would also require a variance from the "fall zone" setback provisions of the town's zoning ordinance, and Plaintiff failed to meet its burden of proving entitlement to such a variance. Plaintiff challenged the Board's latest decision, again arguing that it was not supported by substantial evidence under 47 U.S.C. § 332(c)(7)(B)(iii) of the Telecommunications Act of 1996 ("TCA"). Apparently, despite earlier representations that it would be satisfied with a 100-foot tower, Plaintiff sought a court order requiring the defendants to permit construction of a 120-foot monopole telecommunications tower.
The Court noted that in order to construct either a 115-foot or a 150-foot monopole tower at the site in question, Plaintiff must obtain a variance from the fall zone setback requirement of the Candia zoning ordinance. To secure the required variance, Plaintiff bore the burden of showing, among other things, that literal enforcement of the ordinance would impose upon it an "unnecessary hardship", citing New Hampshire law. The federal Court noted that the New Hampshire Supreme Court has recognized that, in the context of an application for a cellular communications tower, a broader, more inclusive view of hardship is required. The Court also noted that Plaintiff bore the burden of demonstrating that the Board's decision was not supported by substantial evidence.
The Court stated that after four different attempts to adequately explain its decisions, the Board appeared to finally get it right. The Board apparently explained, in some detail, the reasons for its decision to grant Plaintiff's request for a special exception to permit the construction of a 100-foot tower and to deny its request for a variance to construct either a 115 or 150-foot tower. In short, the Board concluded that Plaintiff had not shown that it would suffer an unnecessary hardship or that a gap in cellular coverage would exist that could not be otherwise filled if permission to construct a 115 or 150-foot tower on the subject property was denied. Again, apparently Plaintiff represented that if a variance were denied for a 115, 150, or 180-foot tower, it would erect a 100-foot tower, which would still meet some of the company's coverage needs.
The Court stated that by proposing to site a smaller tower on the subject property, Plaintiff acknowledged that it could still receive a benefit from the use without the need for a variance, and, while a 100-foot tower likely provided less cellular coverage than would a taller tower, Plaintiff had not pointed to any evidence in the record disclosing the size of that difference in coverage or its location (e.g., areas of town that would be covered by a taller tower, but that would be without service from a 100-foot tower). In summary, the Court stated that Plaintiff had not pointed to any record evidence suggesting how (or even if) it will suffer any harm by being permitted to construct only a 100-foot tower rather than the taller tower it sought. In light of the foregoing, the Court could not conclude that the Board's decision to authorize the construction of a 100-foot tower, but to deny Plaintiff's request for a taller tower, lacked substantial support in the record.
Anthony Dorland
(612) 877-5258
DorlandA@moss-barnett.com