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.
This case represents the second time this matter has been reviewed by the U.S. District Court. In the first case (see the summary included in the Court Update of the May 2009 issue of New Hampshire Town and City) the Court remanded the matter back to the Zoning Board of Adjustment (ZBA) after finding it had violated the Telecommunications Act of 1996 (TCA) when it failed to issue a separate written decision providing the rationale for its denial of a variance to construct a telecommunications tower in the residential zone of the town. While the ZBA’s meeting minutes contained the reasons for the denial, reliance on the minutes did not satisfy the TCA’s requirement that the written decision be separate from the written record.
Upon remand, the ZBA met and approved a draft written decision, as proposed by a planning board member with the assistance of ZBA counsel, consistent with the board’s earlier denial of the variance application. In this second case, Industrial Tower and Wireless, LLC (ITW) appeals the ZBA’s decision alleging that it violated the TCA because its decision was not supported by substantial evidence and that the ZBA violated the Right to Know Law, RSA Chapter 91-A, because it failed to deliberate in public when it adopted the written decision memorializing its ruling.
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 supported by “substantial evidence contained in a written record.” 47 U.S.C. § 332 (c) (7) (B) (iii). In its denial of the request for a variance, the ZBA found that ITW did not present sufficient evidence satisfying two of the five elements necessary to grant a variance. First, the board found that an unnecessary hardship did not exist because the town ordinance does not unreasonably interfere with ITW’s use of the property considering the unique setting of the property since “other proposed alternatives to the specific tower presented” might be feasible. Second, the board found that granting a variance would not be consistent with the spirit of the ordinance because the proposed facility would have an “adverse impact on the aesthetics, environmentally sensitive areas and historically significant locations.”
ITW argued that the Town did not identify any specific feasible alternatives to the tower presented but merely relied on speculation regarding the availability of alternative sites and that speculation about possible alternatives cannot properly be relied on as a basis for denial. The Court disagreed, pointing out that “neither the TCA nor New Hampshire variance law places any burden on the ZBA to present specific evidence that other acceptable sites were available to ITW.” The Court observed that “[w]hile pure speculation about other options that might exist cannot justify denial of the application under either federal or state law, ITW must prove uniqueness by demonstrating that it made a full effort to evaluate alternatives and that alternatives are not feasible to serve its customers.” The Court found there was credible evidence before the board that there were other feasible and preferable alternatives and ITW’s failure to explore them reasonably prevented the ZBA from concluding that ITW had demonstrated the uniqueness of its proposal.
In addressing the spirit of the ordinance element, the Court observed that the ZBA did not rest its decision on the generalized concerns expressed by members of the public, but instead it addressed the specifics of ITW’s proposal by considering the height location, type of installation and where the tower would be visible from together with evidence presented, before concluding that the use was contrary to the spirit of the ordinance. The evidence was more than “generalized concerns” about the aesthetic appeal of cell towers. Instead, the evidence in the record supported the view that the proposed tower near a ridge would be prominent and aesthetically incompatible with the rural character of the area.
ITW also argued that the ZBA violated the Right to Know Law when it approved the written decision in one or more non-public sessions. ITW came to this conclusion because there was “no record of any public discussion of the decision at all.” The Court found that the only private meeting held was a meeting of the planning board member assigned to draft the written decision and ZBA counsel. Under the Right to Know Law, “consultation with legal counsel” is not a “meeting” and thus not a violation as claimed by ITW. Further, the Court pointed out that its order remanding the case back to the ZBA was to give the ZBA an opportunity to issue a separate written decision consistent with its earlier ruling, and that the order did not require the ZBA to repeat its deliberations and vote again on the ITW’s application. The ZBA engaged in extensive public deliberations prior to denying ITW’s application. Thus, the adoption of the proposed written decision, at a public meeting, with little or no additional discussion, was neither a surprise given the previous amount of public comment on the issue nor inconsistent with the Right to Know Law.
As we observed in the summary of the first opinion of this case, although these cases involve the unique standards of the TCA, 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.