In an unpublished decision, the District of New Hampshire issued a Memorandum and Order granting summary judgment upholding the Nashua Zoning Board of Appeals’ denial of a special exception permit to construct a wireless communications tower on property located within a 220-home residential development.  The tower was originally to be 150 feet high with external antennae and would be set in a 70 foot by 70 foot chain-link fenced area, but the application was amended to propose a height of 112 feet to avoid having to be lighted under Federal Aviation Administration regulations. The residential development’s homeowners association entered into a lease with Omnipoint to enable the company to site the tower in their community.  The City allows telecommunications towers by special exception which requires the zoning board to find that an applicant has satisfied five general conditions, one of which is that the requested use will not “impair the integrity or be out of character with the district or immediate neighborhood where it is located, nor be detrimental to the health, morals, or welfare of the residents of the city.” In addition, telecommunications towers are subject to special regulations in the City that include specific requirements regarding where towers may be situated and how they must be designed.

 At the hearing before the zoning board, a number of abutting property owners spoke against the proposed application, raising concerns about visual impacts of the tower on the neighborhood, possible health effects from the radio frequency emissions (editors note: by the way, although the Court did not address this, possible health effects from RF emissions may not be considered under the Telecommunications Act), concerns that the tower would collapse and concerns over noise from the tower’s operating machinery.   At a second meeting where the application was considered, Omnipoint again proposed to reduce the height of the tower to 105 feet, to move the proposed location farther into the woods and away from residences, and to modify the tower structure from a monopole with exterior antennae to a “slick stick” model with all antennae inside the tower.  Opponents again raised issues regarding the tower’s impact on the residential character of the neighborhood as well the original intent of the developers to keep common property as open space, and safety concerns. The zoning board voted unanimously to deny the application, offering three reasons for its finding that Omnipoint satisfied only four of the five criteria for special exception permits since they could not demonstrate that the proposed tower would not damage the character of the surrounding neighborhood. The zoning board noted that the plan for the residential subdivision had to be strictly followed and one component thereof was that the common areas would be left in their natural state for the aesthetic and recreational enjoyment of the residents; that the tower would be out of character with the residential area and that it would be visible to abutters and nearby property owners; and that property values would be negatively impacted by the tower.

The District Court of New Hampshire noted that the First Circuit has held that visual impact and aesthetics are valid considerations when deciding whether to site a telecommunications tower, provided they are “grounded in the specifics of the case” and not generalized negative comments of residents.  The Court found substantial evidence in the record, in accordance with the requirements of the Telecommunications Act of 1996, to support the zoning board’s conclusion that the visual and aesthetic impact of the proposed tower would be out of character with the surrounding neighborhood. The Court noted that residents provided testimony about decisions they have made and expectations they relied on as a result of the belief that the common area would remain in its natural undeveloped state, the views from their windows, and the importance of the wooded common area to the character of the community.  The Court concluded that it was reasonable for the zoning board to infer from the testimony and evidence submitted by the residents and their attorneys, that the “proposed tower would be visually, aesthetically, and functionally out of character with the surrounding neighborhood.” Furthermore, the Court concluded that under state law. Omnipoint failed to meet its burden of demonstrating that the zoning board’s decision was illegal or unreasonable.

 Omnipoint Communications, Inc. v. City of Nashua, 2008 WL 345855 (D.N.H. 2/65/2008).