The Vermont Supreme Court upheld the Environmental Court’s decision granting a conditional use permit for the placement of a telecommunications tower in Hardwick, Vermont. The tower, intended primarily for providing paging services to, among others, public safety and medical service providers, would also allow other service providers to place antennae for cell-phone service, which is currently nonexistent in the municipality. The site, located in a Compact Residential District, allows telecommunications facilities subject to a conditional use permit. Following approval by the Zoning Board of Adjustment, the neighbors appealed to the Environmental Court, which, upon a de novo review, upheld the decision and granted the application for a 180-foot tower with a 20-foot antenna, subject to several conditions. The neighbors then appealed to the Supreme Court claiming, among other things, that the Environmental Court erred in concluding that the tower would not adversely affect scenic resources.
The Supreme Court first noting that the zoning bylaws of the municipality state, “[n]ew telecommunications facilities, including towers, shall be sited and designed to minimize their visibility and not result in undue adverse impact on the town’s scenic landscape,” also noted that the environmental court found that the “design of the tower minimized visibility with a lattice-type design, that the height of the tower encouraged co-location, that the sloping field and existing trees provided good screening for the neighboring properties, and that the property had been the site of telecommunications facilities for decades.” Therefore, the Supreme Court maintained that the Environmental Court’s conclusion, based on these findings, was not clearly erroneous. In fact, the Court said that to interpret the zoning bylaws as the neighbors suggest, to strictly prohibit anything that might impact the town’s natural and scenic beauty, would “put a massive anti-development thumb on one side of the scale,” and the Court commented that this is not a result that the bylaws require. In fact, the bylaws provide that the scenic character is to be protected, “while accommodating the communication needs of residents and businesses.” The Environmental Court correctly balanced these needs.
Further, while the neighbors relied on general statements in the Town Comprehensive Plan that favored protection of “farmland and forest,” “hills, mountains and bodies of water,” “scenic resources,” “mountains, hills, and ridgelines,” and “rural and natural skyline,” the Supreme Court noted that these provisions are aspirational, abstract and advisory, and that they do not have the force of a legislative enactment.
In re Appeal of Shaw, 2008 WL 681399 (VT. 3/7/2008).
The opinion can also be accessed at: http://www.libraries.vermont.gov/supct/current/eo2006-463.html
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