In re Rinkers, Inc. (Supreme Court of Vermont, July 13, 2011).
As outlined in the Court's opinion, Rinkers Communication, Inc. (Rinkers) proposed building a 180-foot telecommunications tower 1.27 miles from the village of Hardwick on a property located on Bridgman Hill. The proposed site is in a field, surrounded on three sides by a dense band of trees, some of which are as tall as eighty-five feet. There is a farm silo located nearby, as well as a wind turbine mounted on a one-hundred-foot tower. The proposed site has been used for telecommunications equipment for approximately twenty-five years; a forty-three-foot wooden pole equipped with antennas for pagers, cellular telephones, and emergency personnel dispatch is currently located there. Rinkers leases the land, but owns the pole and equipment and wished to replace it with a taller structure in order to maximize the signal distance and coverage and to allow for the co-location of other antennas. Because of its height, the existing tower cannot send a dependable paging signal into the town of Hardwick, nor can it provide reliable dispatching service for the police or adequate cellular telephone service. The proposed tower would remedy these deficiencies and provide greater coverage to the surrounding area. The tower would be built out of galvanized steel that weathers to a grey color and would be of an open lattice-type construction.
According to the Court, the portion of the tower above the trees will be visible from various points in the village and along the roadways through town; however, other than to travelers on Bridgman Hill Road, views of the tower will be brief in duration. From the village itself, the distant tower will be unobtrusive when seen between nearer commercial structures such as signs and gasoline station canopies. To travelers on Bridgman Hill Road, the tower will be a more significant but not overwhelming presence as it would be frequently screened by roadside trees or off to the side of the road and not directly in view. The view of the tower will be the most obtrusive to those who live near it, as the top half of it will be visible from their homes and farms.
On June 1, 2004, Rinkers submitted a zoning permit application to the town of Hardwick for the construction of the tower. The Town issued a conditional-use permit, and a group of neighbors appealed this decision to the Environmental Court. The Supreme Court subsequently affirmed that decision. Rinkers then applied for an Act 250 land-use permit, which the District 7 Environmental Commission issued to Rinkers and the owners of the proposed site in November 2008. Several neighbors appealed the permit to the Environmental Court. The sole issue in their de novo appeal was the impact of the tower on the area's aesthetics, assessed under Criterion 8 of Act 250. The environmental court ruled that, while the tower would have an adverse effect on the surroundings, the effect would not be undue. It specifically concluded that the tower's impact would not be undue because its construction would not violate a clear, written community standard intended to preserve the aesthetics of the area, the tower would not offend the sensibilities of the average person, and Rinkers had taken generally available mitigating steps to improve the harmony of the tower with its surroundings. The court then issued the permit to Rinkers. After the court denied neighbors' motion to reconsider, the neighbors appealed.
Finding no error in the Environmental Court's conclusions or findings, the Supreme Court affirmed the decision to grant the permit. The Supreme Court stated that the neighbors' reading of the town plan ("[m]aintaining . . . a rural and natural skyline) would create an absolute prohibition on disruptions to the rural skyline and would contradict the town plan's clearly stated policy favoring some telecommunications towers which must necessarily reach above the tree and ridgelines. The neighbors argued on appeal that a shorter tower would still provide "sufficient" or "adequate" coverage, but they did not show that such coverage would satisfy the project's purpose of expanding coverage to areas of the village and surrounding roadways that currently lack reliable service for pagers, cellular phones, or emergency-response communication. Regardless, the Environmental Court concluded that a shorter tower would not adequately meet these needs, and this conclusion was not clearly erroneous, according to the Supreme Court.
Anthony Dorland
DorlandA@moss-barnett.com
(612) 877-5258