Industrial Tower and Wireless, LLC (ITW) alleged that the East Kingston Zoning Board of Adjustment (ZBA) improperly denied ITW’s application for a variance to construct a wireless telecommunications tower on property zoned only for residential use because the Town’s grounds for denial were not supported by substantial evidence.
Under New Hampshire law, a zoning board may authorize a land use variance if the applicant proves that the following conditions are met: 1) the variance will not be contrary to the public interest; 2) special conditions exist such that the literal enforcement of the ordinance results in unnecessary hardship; 3) the variance is consistent with the spirit of the ordinance; 4) substantial justice is done; and 5) the variance will not diminish the value of surrounding properties. The New Hampshire Supreme Court has explained that unnecessary hardship may be established by proof that: 1)a zoning restriction as applied to the property interferes with their reasonable use of the property, considering the unique setting of the property in its environment; 2) no fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the property; and 3) the variance would not injure the public or private rights of others.
ITW, a business owning and operating antenna towers, determined that there was a significant coverage gap for their wireless service network in the north-eastern section of East Kingston (the town), and an antenna facility needed to be installed to close this coverage gap. On April 26, 2006, ITW submitted an application for a variance to construct a 180-foot wireless telecommunications tower on a 26-acre parcel of land located in a residential zone of the town. The zoning board initially voted to grant the variance, but in early 2007 Kenridge Farm applied for and was granted a re-hearing of the ZBA’s decision. The town then conducted a balloon test to determine the aesthetic consequences of a 160-180 foot tower on the landscape. The test concluded that the balloon was visible from the Kenridge Farm as well as from some other locations in the area. Following the test, the ZBA received correspondence from the Public Archaeology Lab and the New Hampshire Division of Historical Resources indicating opposition to ITW’s proposed tower because of its adverse effect on the integrity of historical properties in the area and that the balloon test confirmed that “the proposed installation would create a significant intrusion in the rural scenic backdrop and important public views of two significant historic buildings.”
On September 27, 2007, the ZBA voted to deny ITW’s variance application 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.
The primary issue in front of the federal district court on a summary judgment motion was whether the ZBA provided substantial evidence that ITW had failed to establish: 1) that special conditions exist such that a literal enforcement of the provisions of the ordinance would result in unnecessary hardship; and 2) that granting the variance would be consistent with the spirit of the ordinance. ITW contended it had demonstrated that all the alternatives suggested by the ZBA are not feasible for various reasons including, lack of interest by property owners, inability of alternative sites to accommodate the proposed tower and facility, and poor location of the alternative sites for closing the coverage gap. The court agreed that some alternatives were not feasible, but found that ITW had not adequately demonstrated why other proposed solutions such as a stealth faux silo installation or multiple shorter installations would not be feasible alternatives. In order to prove unnecessary hardship, ITW must prove uniqueness by demonstrating that it made a full effort to evaluate alternatives and that the alternatives are not feasible to serve its customers. Because ITW could not prove uniqueness, the ZBA was justified in its denial of the variance. The court additionally found that the use of the variance to construct a telecommunications tower was inconsistent with the spirit of the ordinance, which was “to preserve and protect the rural character of East Kingston by reducing the negative impacts of the telecommunications facilities, such as impacts on aesthetics, environmentally sensitive areas, and historically significant locations.” Therefore, the ZBA’s written denial of ITW’s application for variance was based on substantial evidence and it was not improper.
Industrial Tower and Wireless, LLC v. Town of East Kingston, 2009 WL 2704579 (8/28/09 D.N.H.)
