The following is an opinion of the U.S. District Court for the District of New Hampshire. Federal district court cases are not binding on the New Hampshire Supreme Court but do interpret New Hampshire law.
The Telecommunications Act of 1996 (TCA) was enacted by Congress to encourage the expansion of wireless communications, including measures to require municipalities to accommodate construction of telecommunications towers. 47 U.S.C. 332 (c) (7). Among the TCA’s requirements is that any decision of a local land use board to deny a request to place a personal wireless facility must be (1) in writing and (2) supported by “substantial evidence contained in a written record.”
Industrial Tower and Wireless, LLC (ITW) applied for a use variance to construct a telecommunications tower on a site in East Kingston. After public hearings extending over several evenings, the zoning board of adjustment (ZBA) considered each of the five variance criteria separately. For each criterion, members discussed the evidence and voted as to whether the standard had been met. Then the ZBA voted unanimously to deny the variance because “(1) the residential use restriction did not interfere with the applicant’s reasonable use of the property; and (2) the proposed use would be contrary to the spirit and intent of the zoning ordinance.” Six days later the ZBA issued a written notice of its decision, which stated: “By vote of at least three members, and based on the applicant failing to meet all the criteria, the Board voted to DENY the variance….” ITW’s request for rehearing was denied.
ITW filed suit in the U.S. District Court, and both parties filed for summary judgment. ITW argued that the ZBA decision violated the TCA because it was not set forth in a written decision. ITW requested an injunction to require the town to immediately issue all permits and approvals necessary for construction. The town argued that the written decision requirement was satisfied by the explanation of the decision contained in the minutes of the ZBA meeting. In its analysis, the Court cited the First Circuit Court of Appeals case, Southwestern Bell Mobile Sys. v. Todd, 244 F.3d 51, 60 (1st Cir. 2001), which stresses that, under the TCA, “even where the written record may offer some guidance as to the board’s rationale” the written decision must “contain a sufficient explanation of the reasons for the permit denial to allow a reviewing court to evaluate the evidence in the record supporting those reasons.”
The Court ruled that the East Kingston ZBA’s written decision and reliance on the minutes of its meeting did not satisfy the TCA for two reasons: “For purposes of fulfilling the TCA’s written decision requirement, it is not sufficient to record the varying opinions of individual board members because such an approach leaves aggrieved parties and reviewing courts to speculate on the reasons that persuaded the board’s decision.” More fundamentally, the TCA literally requires that the written decision be separate from the written record. The written decision itself must adequately state the reasons for the denial. The Court declined, however, to grant ITW’s request for an injunction. Instead, the Court remanded the case to the ZBA with instructions to issue a written decision in accordance with the requirements of the TCA within 30 days.
This case involves the unique standards of the TCA. However, it should be noted that RSA 676:3, I calls for the local land use board in every case to issue a final written decision and to provide written reasons in the case of a disapproval. It is worth the effort to make a collective decision that adequately expresses the reasons for the decision and to then make sure the written decision accurately and thoroughly reflects the decision.