Posted by: Patricia Salkin | June 3, 2011

Fed. Dist. Court Upholds Board’s Denial of Variance for Cell Tower as Provider Failed to Show Unnecessary Hardship

The plaintiff, New Cingular Wireless (“AT&T”), challenged the Town’s denial of its permit alleging violation of the Telecommunications Act of 1996 (TCA) because the zoning board did not support their decision to deny the two taller proposed tower heights of 115 and 150 feet by substantial evidence. AT&T sought a court order requiring the zoning board to permit a tower the height of 120 feet, instead of the 100 foot tower authorized by the board through an area variance to the setback requirement. The United States District Court for the District of New Hampshire found that the zoning board’s decision was based on substantial evidence in the record.

To obtain the needed variance to construct their tower, AT&T had the burden of proving, among other factors, unnecessary hardship. To do so, AT&T was obliged to show the variance was required for the proposed use given the unique nature of the property, as well as showing no feasible alternative to the area variance sought. The district court noted that the First Circuit requires AT&T to bear the burden of showing the denial was not based on substantial evidence.

The district court noted that the substantial evidence standard is deferential to the board, and requires the evidence be relevant and adequate for a reasonable person to arrive at their conclusion. The district court found the zoning board did support their decision by making a finding that AT&T had not met their burden of showing unfeasibility of other options.  The Board pointed out AT&T had not shown a gap in coverage would result, or that such could not be filled, if the smaller tower was utilized. Additionally, AT&T did not illustrate whether areas not covered were occupied and did not show a lack of options to cover these gaps through other options, such as constructing an additional tower or co-locating.

Since AT&T could not show the zoning board denied the larger area variances without the support of substantial evidence, AT&T had not met the burden of showing unnecessary hardship and the district court upheld the Board’s denial.

New Cingular Wireless PCS, LLC. V. Town of Candia, 2011 WL 1480410 (Dist. N.H., 4/19/2011)

The opinion can be accessed at: http://www.nhd.uscourts.gov/ISYS/isysquery/9a462640-8eb7-45ad-beb2-3a2fdc3cc393/4/doc/


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