Posted by: Patricia Salkin | November 23, 2009

Planning Board’s Denial of Wireless Communications Tower Overturned

Following denials by the Planning Board for a permit to site a 19o foot wireless communication tower by Gridcom that would house up to four telecommunications carriers, on the ground that the proposed facility fell within a scenic view and would have an unreasonable adverse impact thereon, the Board of Appeals remanded to the planning board to approve the application determining that the evidence didn’t support the planning board’s finding of reasonably adverse impact on scenic view.  On remand, the planning board approved the application and a group of community members appealed the action.  The Superior Court ordered the Board of Appeals to further remand to the Planning to deny the application.  Gridcom appealed.

The Maine Supreme Court examined the seven factors applied by the planning board as enumerated by the ordinance to determine whether the tower would have an unreasonably adverse impact on the scenic view.  They focused on the planning board’s definition of “tree line” which initially was “where the trees meet the horizon” when viewed from the bay; and when viewed from the mountain, where the trees meet “the edge of the water.”  On appeal, the Board changed its definition of tree line to mean “the true height of the average-sized trees;” which was then determined to be 50 feet, at the first hearing and 65-80 feet at the second hearing.  Gridcom argued that under this definition no telecommunications tower would be allowed and this is inconsistent with the zoning ordinance in that the ordinance allows telecommunications to be up to 195 feet tall.  The Supreme Court agreed, noting that any tower higher than the highest tree in the area – about 86 feet, would never be approved, rendering ineffective the zoning ordinance provision, and this could not be the intended result.

Since the term “tree line” is not defined in the ordinance, the Court must reasonably consider the ordinance’s objectives and general structure.  Therefore, the Court said that the planning board’s initial interpretation, which resulted in a finding that the proposed tower would not pierce the top of the tree-line, was more appropriate. 

Further, the term “vegetative screening” was not defined in the ordinance, although it is one of the seven factors to be considered.  Similar to how the board treated the “tree line” definition, their first interpretation would have supported the tower application and their second interpretation would not.  The Court agreed that the Board’s initial interpretation was reasonable because it permits this section of the ordinance to be both constitutional and harmonious with other sections of the ordinance. 

The Court concluded that Gridcom met its burden of establishing the factual elements necessary for the grant of its application, finding that they met five of the seven factors to show no reasonable adverse impact on scenic view.

Davis v SBA Towers II, LLC, 2009 WL 2392994 (Me. 8/6/2009).

The opinion can be accessed at:  http://www.courts.state.me.us/court_info/opinions/2009%20documents/09me82da.pdf


Responses

  1. Lorraine Davis v. SBA Towers

    This case reviewed a zoning ordinance denial of Gridcom to construct a 190 foot communications tower in the town of Lincolnville, Maine.

    The Supreme Court of Maine rightly decided this matter to let Gridcom construct the tower.

    Gridcom contended that had the court upheld the determination that they could not build the tower, in what was viewed a scenic area, pursuant to the ambiguous sections cited under the ordinance, that in effect, no one could ever build such a tower, anywhere in the town’s scenic areas.

    The Court agreed.

    They found that:

    “When we are tasked with construing “an ambiguous, undefined term in a zoning ordinance,” we must reasonably consider the ordinance’s objectives and its general structure as a whole.” H.E. Sargent, 676 A.2d at 923. Because we will not read one provision of an ordinance to conflict with another provision when there is an alternative, reasonable interpretation that yields harmony, we hold that the Planning Board’s first definition—“where the trees meet the horizon” or where the trees meet “the edge of the water”— should be used to define the term. Accordingly, the Planning Board’s original finding—that the proposed tower would not pierce the top of the tree line—results in a positive outcome for Gridcom”.

    This determination was both correct under the law, as well as consistent with good public policy.

    Communications towers are necessary in our modern society, and this one would have four telecommunications carriers serviced by its construction. Cell phones provide communications for personal, business and emergency use. To unfairly restrict towers used to transmit their signals for what constitutes an ambiguous reading of a local ordinance merely as a vehicle to exclude its construction for a general concept that it may cause a scenic distraction, is neither permitted under the law nor good public policy.

    When people’s lives are placed at risk because they can not get a cell phone signal to place an emergency call, such as has occurred on Interstate 87 in New York, the law needs to make reasonable accommodations, and find a way to have cell towers and the environment peacefully co-exist. This court did that to the people of Maine’s benefit.

  2. I agree with the Supreme Court of Maine’s decision. It strikes me that the zoning ordinance was rife with ambiguities and the result that the planning board seems to be a means-justify-the-ends result. In the end, I think this is an example of a municipality trying to misconstrue an open-ended zoning regulation to make it mean what it wants it to say. I admit that I am biased toward wireless communication service providers as I think that they provide an invaluable service.


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

Categories

%d bloggers like this: