New Cingular Wireless v . Greenfield 09-CV-399-SM 09/09/10 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

New Cingular Wireless PCS, LLC, Plaintiff

v. Civil No.09-cv-399-SM Opinion N o .

Town of Greenfield, New Hampshire; and Zoning Board of Adjustment of the Town of Greenfield, Defendants

O R D E R

The named plaintiff, New Cingular Wireless PCS, LLC, is

wholly owned by the New AT&T, and prefers to be called “AT&T.”

To fill a gap in cellular telephone coverage, AT&T proposes to

construct a cell tower in Greenfield, New Hampshire. After being

denied an area variance by the Greenfield Zoning Board of

Adjustment (“ZBA”), AT&T sued under the Telecommunications Act of

1996,

et seq. (Counts I and II) and section 677:4

of the New Hampshire Revised Statutes Annotated (Count I I I ) .

AT&T argues that the ZBA’s decision to deny a variance is

not supported by substantial evidence (Count I ) , and that the

decision results in an effective prohibition on the extension of

personal wireless services in an identified coverage gap (Count

II). Before the court are cross motions for summary judgment on

Count I . Those motions were argued at a hearing on August 9, 2010. For the reasons given, AT&T’s motion for summary judgment

is granted and defendants’ summary judgment motion is denied.

Summary Judgment Standard

Summary judgment should be granted when the record reveals

“no genuine issue as to any material fact and . . . the moving

party is entitled to a judgment as a matter of law.” FED. R . CIV.

P . 56(c). “The object of summary judgment is to ‘pierce the

boilerplate of the pleadings and assay the parties’ proof in

order to determine whether trial is actually required.’ ” Dávila

v . Corporación de P . R . para la Diffusión Pública,

(1st Cir. 2007) (quoting Acosta v . Ames Dep’t Stores, Inc.,

, 7 (1st Cir. 2004)). When ruling on a party’s motion for

summary judgment, a trial court “constru[es] the record in the

light most favorable to the nonmovant and resolv[es] all

reasonable inferences in [that] party’s favor.” Meuser v . Fed.

Express Corp.,

(1st Cir. 2009) citing Rochester

Ford Sales, Inc. v . Ford Motor Co.,

2 , 38 (1st Cir.

2002)).

Background

A T & T seeks to construct a cell tower and associated

facilities on a 257-acre parcel at 515 Sawmill Road in

Greenfield. That parcel is located in Greenfield’s General

2 Residence District. In July, 2009, the Greenfield Planning Board

conducted a site plan review and approved AT&T’s project, subject

to the following relevant condition: “The applicant receives a

variance(s) from the ZBA for the height above the tree canopy.”

(Certified Record (hereinafter “R.”) at 293.)

In an application for a special exception and two variances,

submitted to the Greenfield ZBA, AT&T proposed to construct “[a]

100' high, galvanized steel monopole within a 5 0 ' x 5 0 ' fenced

equipment area” and associated accessories. (R. at 4.) AT&T

described the proposed tower site in the following way:

[O]pen fields occupy the area to the south and west of the proposed Facility site within a fifty foot (50') radius of the proposed perimeter fence/security barrier. Property to the immediate north and east within a fifty foot (50') radius of the proposed perimeter fence/security barrier is largely comprised of low-lying scrub vegetation.

(R. at 15.) The proposed tower location is 823 feet from the

nearest property line, 1399 feet from the next closest property

line, and more than 2000 feet from each of the other two property

lines. It is 1952 feet from the nearest public road and 474 feet

from the nearest habitable dwelling, which is located on the same

parcel as the proposed tower.

3 The proposed tower is necessary, AT&T says, to fill a gap in

its wireless telephone service coverage.1 A radio-frequency

study prepared for the Greenfield Planning Board identifies a

3.6-mile coverage gap along Route 31 (Sawmill Road). (R. at

297.) The report concludes that the identified gap could be

diminished to approximately several hundred feet by an antenna

mounted on a 100-foot tower at the proposed location. (R. at

298.) On a 100-foot tower, the topmost antenna would have a

center-line height of approximately ninety-seven feet. (R. at

298.) The proposed tower could accommodate a second provider at

approximately eighty-seven feet and a third provider at

approximately seventy-seven feet. (R. at 299.)

The ZBA granted AT&T a special exception and determined that

one of the requested variances was not necessary, but denied the

other requested variance. In granting the special exception, the

ZBA

consider[ed] such factors as [the proposed tower’s] proximity to residential buildings, the impact on the value of the surrounding properties, its affect on the character and natural features of the site, the number and frequency of employees visiting the site, nuisances it may create such as interference with neighborhood television, telephone or radio reception plus any comments of abutters.

1 Defendants do not contest the existence of a coverage gap.

4 GREENFIELD, N . H . , ZONING O R D . (hereinafter “ G Z O ” ) § V(1)(C)

(emphasis added). By granting the special exception, the Z B A

necessarily determined that the proposed tower would not have a

significantly adverse impact on either the value of surrounding

properties or the character of the site.

That section of the Greenfield Zoning Ordinance devoted to

personal wireless facilities includes a requirement that

“[g]round mounted personal wireless service facilities shall not

project higher than twenty (20) feet above the average tree

canopy height within a fifty (50) foot radius of the mount,

security barrier, or designated clear area for access to

equipment, whichever is greater.” G Z O § V(2)(E)(1)(d). AT&T

sought a variance from the height restriction because its

proposed tower site is surrounded by open fields and scrub

vegetation, so absent a variance, a useful tower could not be

erected at the site.

At its September 2 , 2009, deliberative session, the Z B A

discussed AT&T’s request for a variance. Z B A member Kevin

O’Connell noted the obvious: “since the area of the tower is a

field, the height restriction can’t be enforced or the tower

would only be about 2 0 ' off the ground.” (R. at 220.) At a

5 deliberative session on September 9, the following exchange took

place:

Craig [Pettigrew] states we already approved the special exception but asks what the average tree height i s , has the height . . . been established?

John [Gryval] explains the Planning board never established tree height, but that they are looking for a variance from i t . If the Board denies the variance the plan will go back to the Planning board and they’ll have to determine tree height.

Craig states we’ve been using 60-65' for an estimate. . . .

Kevin talks of last week’s discussion of tree heights in the area, and the boards lack of knowledge as to the heights.

(R. at 221.)

In its Notice of Decision, the ZBA determined that AT&T

failed to satisfy any of the five requirements for obtaining a

variance. It concluded by stating: “The Board finds that the

applicant MUST if they choose to continue with the proposed

project, construct a facility that does not project higher than

2 0 ' above the average tree canopy height.” (Id. at 3.) Given

the type of vegetation at the site, a literal reading of the

Notice of Decision would suggest that the ZBA denied AT&T

permission to build a tower any taller than about 21 feet, i.e.,

twenty feet plus the average height of the scrub vegetation

surrounding the tower location. But, at the hearing before this

6 court, it became clear that while the ZBA denied AT&T a variance

for a 100-foot tower, it actually granted a variance for an

eighty-foot tower — by deeming the average tree canopy height

within fifty feet of the tower to be sixty feet. Given the ZBA’s

litigation position, the Notice of Decision will be construed as

granting a variance, but only for an eighty-foot tower.

Evidence of the coverage that would be provided by an

eighty-foot tower is somewhat thin. The radio-frequency coverage

report prepared for the Town’s own Planning Board suggests that

three antennas on a 100-foot tower (with center-line heights of

ninety-seven, eighty-seven, and seventy-seven feet) would all

provide some coverage,2 and indicates that “propagation for [the

lowest] provider might not be adversely impacted at a slightly

lower height.” (R. at 299.) At the ZBA’s August 19 public

session, the following exchange took place between ZBA member

John Gryval and Dan Goulet, AT&T’s radio-frequency engineer:

John asks Dan Goulet if there is a way to estimate coverage of an 8 0 ' tower.

Dan Goulet replies there is but that would reduce coverage in-car and in-house.

Dan Dineen [another ZBA member] asks if they could reach the center with an additional smaller tower.

2 On an eighty-foot tower, the topmost antenna would have a center-line height of seventy-seven feet.

7 Dan Goulet replies, “Yes” but then they’d need three towers instead of two. “We do reach the center at 100', but would have to do an RF [radio-frequency] study for 80'.”

(R. at 216-17.) At the ZBA’s September 9 deliberative session,

AT&T attempted to present coverage maps for an eighty-foot tower,

but the ZBA declined to consider them.3 AT&T did, however,

attach those coverage maps to its motion for a rehearing, which

the ZBA denied. AT&T characterizes those coverage maps as

showing that if it were limited to an eighty-foot tower at the

Sawmill Road location, as opposed to a 100-foot tower, the

coverage gap would increase from .16 miles to .60 miles. (Pl.’s

Mem. of Law (document n o . 1 3 - 1 ) , at 5.) Defendants do not

contest that characterization, but also offer their own, stating

that the “coverage maps show that an eighty foot tower would

still provide some wireless coverage at the site.” (Defs.’ Mem.

of Law (document n o . 1 5 - 1 ) , at 6.)

Discussion

Count I of AT&T’s complaint asserts that the ZBA’s decision

to deny a variance for a 100-foot tower was not supported by

substantial evidence. Both parties move for summary judgment on

that issue.

3 It did so after declining to accept a set of photographs from a party opposing the tower.

8 The court of appeals for this circuit has explained that:

[T]hough state and local governments have the power “to deny . . . request[s] to place, construct, or modify personal wireless service facilities,” their decisions must be “in writing and supported by substantial evidence contained in a written record.”

(c)(7)(B)(iii). This balance strengthens the decision making authority of local zoning boards, while protecting wireless service providers from unsupported decisions that stymie the expansion of telecommunication technology.

ATC Realty, LLC v . Town of Kingston,

1 , 94 (1st Cir.

2002) (citing Brehmer v . Planning Bd.,

(1st

Cir. 2001)). “In this circuit, the [Telecommunications Act] is

understood to impose two requirements on a local land use board.

First, the board must issue a written decision, and second, the

board’s decision must be supported by substantial evidence in a

written record.” ATC Realty, LLC v . Town of Sutton, N o . CV-01-

046-M,

, at *5 (D.N.H. Mar. 7 , 2002).

To satisfy the written-decision requirement, a board’s

“written denial must contain a sufficient explanation of the

reasons for the permit denial to allow a reviewing court to

evaluate the evidence in the record supporting those reasons.”

Sw. Bell Mobile Sys., Inc. v . Todd,

1 , 60 (1st Cir.

2001) (citing Sprint Spectrum L.P. v . Town of N . Stonington,

(D. Conn. 1998)). “[A] written denial,

containing explanations, serves the additional purpose of

9 providing an unsuccessful applicant with information that will

assist him or her in crafting an acceptable subsequent

application.” Town of Sutton,

, at * 6 .

“Substantial evidence ‘does not mean a large or considerable

amount of evidence, but rather such evidence as a reasonable mind

might accept as adequate to support a conclusion.’ ” Town of

Kingston,

(quoting Cellular Tel. C o . v . Zoning Bd.

of Adjustment,

4 , 71 (3d Cir. 1999)). A local land-use

board’s “decision will thus withstand [judicial] scrutiny if it

is ‘supported by . . . more than a scintilla of evidence.’ ”

Town of Kingston,

(citing Cellular Tel. C o . v .

Town of Oyster Bay,

(2d Cir. 1999); NLRB v .

Grand Canyon Mining Co.,

(4th Cir. 1997)).

AT&T challenges the ZBA’s decision to deny a variance for a

100-foot tower. In New Hampshire:

To obtain a variance, a landowner bears the burden of showing that: (1) the variance will not be contrary to the public interest; (2) special conditions exist such that 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) granting the variance will not diminish the value of surrounding properties.

10 Farrar v . City of Keene, 158 N . H . 684, 688 (2009) (citing

Harrington v . Town of Warner, 152 N . H . 7 4 , 77 (2005)); see also

N . H . R E V . S T A T . A N N . § 674:33, I ( b ) .

A . Public Interest & Spirit of the Ordinance

“The requirement that the variance not be contrary to the

public interest is related to the requirement that the variance

be consistent with the spirit of the ordinance.” Farrar, 158

N.H. at 691 (quoting Malachy Glen Assocs. v . Town of Chichester,

(2007)). “A variance is contrary to the public

interest or injurious to the public rights of others if it

‘unduly, and in a marked degree conflict[s] with the ordinance

such that it violates the ordinance’s basic zoning objectives.’ ”

Farrar, 158 N.H. at 691 (quoting Chester Rod & Gun Club, Inc. v .

Town of Chester,

(2005)) (emphasis added).

To explain its determination that the requested variance

would be contrary to the public interest, the ZBA wrote:

While the Board consented that a potential exists for individual interest(s) to be served as a result of the approval of this variance public interest in general in the form of protection of visual features of Greenfield is well recorded and noted within the ordinance and must be considered in any decision. Since the ordinance allows for an intrusion or visual impact resulting from a structure extending above the canopy height not to exceed 2 0 ' is acceptable [sic], the Board finds that any additional intrusion of the visual impact would be contrary to public interest.

11 (Compl., Ex. 1 , at 1-2.) In essence, the ZBA seems to have

determined that AT&T’s proposed tower did not qualify for a

variance from the height restriction as requested (i.e., 100

feet), because that height would violate the very restriction

from which AT&T sought relief (eighty feet). In other words, the

ZBA seemingly determined that a variance for a 100-foot tower was

not in the public interest, because a 100-foot tower could not be

built without a variance from the de facto eighty-foot

limitation.

Southwestern Bell requires the ZBA to give a sufficient

explanation for its denial, see

0 , and the circular

reasoning offered by the ZBA falls short of the mark. As the New

Hampshire Supreme Court explained in Malachy Glen, where the

plaintiff sought a variance from a wetlands ordinance, “the mere

fact that the project encroaches on the buffer, which is the

reason for the variance request, cannot be used by the ZBA to

deny the variance.”

; see also Chester Rod & Gun

Club,

(pointing out that any variance is

necessarily contrary to the ordinance from which a variance is

sought). In addition, the ZBA incorrectly described AT&T’s

proposed tower as serving an exclusively individual interest

rather than both private and public interests. Cf. Daniels v .

12 Town of Londonderry,

(2008) (“A tower at this

site would also serve the public interest in that it would

alleviate a significant gap in coverage and would be used to

provide service for at least two other wireless

telecommunications companies to limit the need for any further

towers.”). Because the ZBA’s public-interest determination

relies on circular reasoning and fails to recognize that enhanced

cellular telephone service and co-location are decidedly in the

public interest, the ZBA did not provide an adequate explanation

for its determination that the variance AT&T sought was contrary

to the public interest.

The Notice of Decision addressed the “spirit of the

ordinance” in the following way:

The Board finds that the spirit of the ordinance is well defined within its “purpose” Section V.1 “The purpose of this section is to establish regulations for telecommunications facilities so as to protect residential areas and lands [by] minimizing adverse impacts of towers”. Although the ordinance allows for an impact of sorts by allowing for ground mounted personal wireless facilities to project not higher than 2 0 ' above the average canopy height in this case the additional height goes beyond being compatible with visual features. In that light the Board finds any additional height would not be within the spirit of the ordinance and would not meet the goals set out in the Town’s Master Plan.

(Compl., Ex. 1 , at 2 (emphasis added).) That explanation plainly

suffers from the same deficiencies as the explanation the ZBA

13 gave for its decision relative to the public-interest

requirement. The ZBA determined that the variance would violate

the spirit of the ordinance because it violated the ordinance.

That, of course, is not the correct test. Beyond that, the ZBA

failed to recognize that the provision of personal wireless

services falls within both the public interest and the spirit of

the Greenfield Zoning Ordinance.

To be sure, section V(1) of the ordinance provides that the

purpose of the telecommunications portion of section V is “to

protect residential areas and lands by minimizing adverse impacts

of [telecommunications] towers.” But, protection from the

adverse impacts of towers is not the only purpose of section V.

Section V ( 2 ) , pertaining to personal wireless service facilities

– which includes the height restriction imposed on AT&T’s

proposed tower – describes a much broader purpose: “It is the

express purpose of this Article to permit carriers to locate

personal wireless service facilities within particular areas of

the Town of Greenfield consistent with appropriate land use

regulations that will insure compatibility with the visual and

environmental features of the Town.” (Emphasis added.) Section

V(2) also strongly encourages co-location. Thus, the spirit of

the ordinance is substantially broader than indicated in the

14 Notice of Decision, which renders the ZBA’s determination on that

requirement insufficient.

The relevant question is whether there is substantial

evidence in the written record to support the ZBA’s determination

that an increase in tower height from eighty to 100 feet would

“unduly, and in a marked degree conflict with the ordinance such

that it violates the ordinance’s basic zoning objectives.”

Farrar, 158 N.H. at 691 (citation and internal punctuation marks

omitted). There is not substantial evidence in the record to

support that determination.

In this case, the appropriate “way to ascertain whether

granting the [requested] variance would violate basic zoning

objectives is to examine whether it would alter the essential

character of the locality.” Farrar, 158 N.H. at 691 (citation

omitted). As a starting point for such an examination, it is

important to bear in mind that an area variance, such as the one

at issue here, “does not alter the character of the surrounding

area as much as a use not permitted by the ordinance.”

Harrington,

(citing Bacon v . Town of Enfield,

(2004) (Duggan and Dalianis, JJ., concurring

specially)).

15 The record evidence shows that AT&T proposes to locate its

tower near the middle of a 257-acre parcel, more than 800 feet

from the nearest lot line. Evidence also shows that the tower

would be seen from several vantage points, but in nearly every

documented instance, all that would be visible is a small portion

of the top of the tower extending above the treetops. Given that

the Greenfield Zoning Ordinance allows ground-mounted personal

wireless service towers in all zoning districts to extend above

the tree canopy, see GZO § V(2)(E)(1)(d), there is not

substantial evidence to support a determination that the proposed

tower would conflict with the ordinance “unduly, and in a marked

degree,” Farrar, 158 N.H. at 691, or “would alter the essential

character of the locality,” id. That conclusion is buttressed by

the fact that the ZBA granted AT&T a special exception which

required a determination, under an arguably stricter standard,

see Harrington,

8 , that a 100-foot tower would not

have a significantly adverse effect on the character and natural

features of the site. In sum, the ZBA’s determination that the

proposed tower would be contrary to the spirit of the zoning

ordinance is not supported by substantial evidence in the record.

B . Unnecessary Hardship

At the time the ZBA considered AT&T’s application, to

satisfy the unnecessary hardship requirement, AT&T was required

16 to show that: “(1) an area variance is needed to enable the

applicant’s proposed use of the property given the special

conditions of the property; and (2) the benefit sought by the

applicant cannot be achieved by some other method reasonably

feasible for the applicant to pursue, other than an area

variance.” Daniels,

.

With respect to the first requirement for establishing

unnecessary hardship, the ZBA determined: “The Board finds that

the applicant can utilize the property as proposed by erecting a

tower in accordance with and staying within the allowable height

restriction and not exceeding the 2 0 ' limit above the average

tree canopy height as defined in the ordinance.” (Compl., Ex. 1 ,

at 2.) Defendants contend that “[t]he board concluded that

Plaintiff had not proven unnecessary hardship because substantial

evidence shows that the Property is not unique for purposes of

closing a significant gap in wireless coverage.” (Defs. Mem. of

Law (document n o . 1 5 - 1 ) , at 10.) In Daniels, the New Hampshire

Supreme Court described the proper way to assess a property’s

special conditions, or uniqueness, when an applicant for a

variance proposes to use the property as the site for a cell

tower:

When an application to build a wireless telecommunications tower is designed to fill a significant gap in coverage, the suitability of a

17 specific parcel of land for that purpose should be considered for purposes of determining hardship. The fact that a proposed location is centrally located within the gap, has the correct topography, or is of an adequate size to effectively eliminate the gap in coverage, are factors that may make it unique under the umbrella of the TCA.

.

Here, neither the Notice of Decision nor defendants’

memorandum of law indicates either the source or the substance of

the “substantial evidence” that purportedly underpins the ZBA’s

determination that the Sawmill Road property is not unique in the

context of closing a recognized gap in cell phone coverage.

Moreover, while defendants’ memorandum of law mentions

uniqueness, albeit incompletely, the Notice of Decision does not

discuss the uniqueness factor at all. In any event, under the

Daniels standard, AT&T adequately demonstrated uniqueness by

showing that the Sawmill Road property is located within the

coverage gap and has the correct topography for a tower that

would largely eliminate the gap. And, AT&T has shown that a 100-

foot tower would permit co-location – an express preference of

the zoning ordinance. The record does not establish whether co-

location would be as available on an eighty-foot tower, and

without effective co-location, the record does not contain

substantial evidence supporting the ZBA’s conclusion that AT&T

could “utilize the property as proposed” with an eighty-foot

18 tower. Accordingly, the ZBA’s determination on the first part of

the unnecessary-hardship requirement is not supported by

substantial evidence.

With respect to the second requirement for establishing

unnecessary hardship, the Z B A wrote: “The Board finds that the

applicant can achieve the results sought utilizing methods in

accordance specified within the ordinance. These methods would

include but not be limited to additional and/or alternate sites

proposed within the limits and confines of the Greenfield Zoning

Ordinance.” (Id.)

Under New Hampshire law, the “second factor includes

consideration of whether the variance is necessary to avoid an

undue financial burden on the owner.” Boccia v . City of

Portsmouth, 151 N . H . 8 5 , 92 (2004) (citing Bacon, 150 N . H . at

477-79 (Duggan and Dalianis, J J . , concurring specially);

Hertzberg v . Zoning Bd. of Adjustment,

3 , 49 (Pa.

1998); Halberstadt v . Borough of Nazareth,

(Pa.

1997); 3 K . H . YOUNG, ANDERSON’S AMERICAN LAW OF ZONING § 20:16, at 165-

67 (Supp. 2003)). That i s , “in deciding whether to grant an area

variance, courts and zoning boards must examine the financial

burden on the landowner, including the relative expense of

available alternatives.” Boccia, 151 N . H . at 93 (citation

19 omitted). To meet its burden, an applicant must make “a showing

of an adverse effect amounting to more than mere inconvenience.”

Id.

While the Notice of Decision suggests the use of additional

and/or alternate sites — meaning, as a practical matter,

construction of additional towers — the evidence of record

establishes that AT&T could adequately serve Greenfield with two

towers if the one at Sawmill Road is 100 feet tall, but would

need three towers if the one at Sawmill Road were only eighty

feet tall. There is no evidence in the record suggesting that a

single tower located somewhere other than Sawmill Road and built

in compliance with the zoning ordinance would allow for co-

location, or allow AT&T to provide adequate coverage to

Greenfield with two towers. Nor have defendants “point[ed] to

plausible alternatives that [AT&T] failed to properly evaluate.”

Indus. Tower & Wireless, LLC v . Town of East Kingston, N o . 07-cv-

399-PB,

, at *8 (D.N.H. Aug. 2 8 , 2009). S o , AT&T

demonstrated that without the variance, it would have to build

three towers in Greenfield rather than two, obviously at no small

incremental expense.

Yet, in assessing unnecessary hardship, the ZBA did not

consider “whether an area variance is required to avoid an undue

20 financial burden on [AT&T], which includes examination of the

relative expense of alternative methods.” Malachy Glen,

. In Malachy Glen, the New Hampshire Supreme Court ruled

that no reasonable trier of fact could find that it would not be

an undue financial burden for an applicant to reduce the size of

a proposed self-storage facility by more than fifty percent.

That principle is applicable here as well. The record does not

contain substantial evidence to support a determination that AT&T

failed to demonstrate undue financial hardship in this case,

where denial of the requested variance would require construction

of a third tower, an undeniably significant expense, easily

avoided merely by adding twenty feet to the tower the ZBA already

approved for the Sawmill Road site, with no appreciable adverse

impact, particularly not with respect to visibility.

C . Substantial Justice

“Perhaps the only guiding rule [as to the factor of

‘substantial justice’] is that any loss to the individual that is

not outweighed by a gain to the general public is an injustice.”

Farrar, 158 N.H. at 692 (quoting Malachy Glen,

)).

In explaining its determination “that substantial justice would

not be done by granting this variance” (Compl., Ex. 1 , at 2 ) , the

ZBA wrote:

21 The loss to the applicant in this case does not outweigh the loss to the general public. The applicant in this case is allowed to erect a tower to a height not greater than 2 0 ' above the average canopy height. the loss resulted by this height restriction to the applicant does not outweigh the gain to the general public by protecting the visual features as defined within the ordinance.

(Id.) That determination is beset by the same infirmity as the

ZBA’s decision on public interest; it fails to account for

substantial benefits the public will obtain if the tower is built

as proposed, and the reduced benefit if limited to eighty feet.

The proposed tower would provide coverage in Greenfield with

two towers rather than three, would provide two spots for co-

location which, presumably, would diminish the need for two other

carriers to construct their own single-carrier towers to fill

coverage gaps, 4 and would effectively eliminate a substantial

coverage gap in Greenfield. Thus, the correct substantial-

justice balancing test places the cost of building an extra tower

on one side, which is the loss to AT&T that results from the

ZBA’s decision, while on the other side of the balance is the

gain to the general public. That gain consists of the marginal

benefit of not seeing a twenty-foot section of a cell tower from

certain long-distance vantage points (and masked not only by the

4 As noted, the Greenfield Zoning Ordinance contains hortatory language encouraging co-location followed by technical requirements that all but preclude i t .

22 existing tree canopy but by the slope of the elevated terrain as

well). But even that “gain” would, of course, be substantially

diminished by the resulting need to construct a third AT&T tower

in Greenfield, as well as the loss of two co-location

opportunities on the Sawmill Road tower.

When the question of substantial justice is viewed in the

proper context, it is evident that the ZBA’s determination is not

supported by substantial record evidence. An eighty-foot tower,

as opposed to a 100-foot tower, at the Sawmill Road site would

pose a substantial hardship for AT&T, as it would increase the

number of towers necessary to cover Greenfield from two to three,

cf. Malachy Glen,

, while the benefit to the

public would be negligible (indeed, the result would likely be

considered a substantial detriment in the e n d ) . Congress, of

course, has given considerable discretion to local authorities to

balance the various interests that collide during the process of

selecting suitable locations for telecommunications facilities,

see Town of Amherst, 173 F.3d at 1 5 , but where, as here, local

authorities have not properly identified or characterized the

interests that must be balanced, their actions cross over the

“outer limit” of acceptable decision making, see id.

23 D. Property Value

Finally, the ZBA determined that AT&T failed to show that

the value of surrounding properties would not be diminished if

the requested variance were to be granted:

Although the Board was not unanimous concerning this issue in its earlier decision regarding a special exception allowing the erection of this cell tower in a residential district; the Board does find that the additional height of this tower extending above the 20 feet “Average Tree Canopy Height” allowed within the ordinance could have an adverse effect on surrounding property values.

(Compl., Ex. 1 , at 1.) AT&T presented the ZBA with a report from

the Stanhope Group, LLC, concluding that “the [siting] of the

proposed telecommunication tower would not result in diminution

of value to the property in the subject neighborhood.” (R. at

255.) The record before the ZBA included no evidence, opinion or

otherwise, to the contrary and, in fact, the ZBA granted AT&T a

special exception, which necessarily entailed a determination

that the proposed tower would not have a sufficiently adverse

impact on the values of surrounding properties. Defendants say

nothing about the property-value issue in their objection to

AT&T’s summary judgment motion. Whether or not defendants have

conceded the point, however, there is no evidence in the record

to support a determination that AT&T’s proposed tower could have

an adverse effect on surrounding property values.

24 E . Summary

The ZBA determined that AT&T satisfied none of the five

requirements for a variance established under New Hampshire law.

Careful review of the record, however, demonstrates that the

ZBA’s determinations either fail to satisfy the written-decision

requirement, or are not supported by an adequate quantum of

evidence. This is not a case in which the court has merely

reweighed the evidence considered by local authorities and come

to a different conclusion. See Town of Kingston,

(“We must reiterate that our review is not focused on whether the

Planning Board made the best or the correct decision.”). Rather,

the fundamental problem with the ZBA’s decision in this case is

that it fails to put the correct evidence on the proper scales in

the first instance.

Because the ZBA’s Notice of Decision fails to meet the

statutory standard described in Town of Kingston,

4 ,

defendant violated the Telecommunications Act, which entitles

AT&T to summary judgment on Count I . See Town of Sutton,

, at * 7 . “[I]n the majority of cases the proper remedy for

a zoning board decision that violates the Act will be an order

. . . instructing the board to authorize construction.” Nat’l

Tower, LLC v . Plainville Zoning Bd. of Appeals,

4 , 21-

22 (1st Cir. 2002) (citing Brehmer,

; Town of

25 Oyster Bay,

. This case falls comfortably within

that majority; AT&T is entitled to an order instructing the ZBA

to grant the requested variance and authorize construction of the

100-foot tower described in AT&T’s application.

Conclusion

For the reasons given, AT&T’s motion for summary judgment on

Count I (document n o . 13) is granted and defendants’ cross motion

for summary judgment (document n o . 15) is denied. The ZBA shall

promptly authorize construction of the subject tower as proposed.

Because AT&T has prevailed on Count I , the remaining two counts

of AT&T’s complaint are dismissed, without prejudice, as moot.

Accordingly, the clerk of the court shall enter judgment in

accordance with this order and close the case.

SO ORDERED.

September 9, 2010

cc: Douglas H. Wilkins, Esq. Matthew R. Serge, Esq.

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