UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

GMR Holdings of N.H., LLC, Plaintiff

v. Case No. 21-cv-117-SM Opinion No.

Town of Lincoln, New Hampshire, Defendant

O R D E R

GMR Holdings was retained by AT&T to locate, design, and

construct a wireless telecommunications facility to eliminate a

cellular service coverage gap in Lincoln, New Hampshire. After

extensive research and testing, GMR settled on an appropriate

site at which it proposed to construct a 120-foot monopole tower

and a small equipment compound. Although construction of the

tower on that site is a permitted use under the Lincoln zoning

ordinance, GMR still needed permission from the town’s planning

board before it could proceed. In particular, GMR had to secure

a “conditional use permit” to increase the height of the

monopole by 20 feet above the permitted limit of 100 feet. It

also needed a waiver of a zoning provision that requires a “fall

zone” (free of any structures) equal to 125 percent of the

height of the tower. After conducting public hearings on the matter, the Town’s

planning board voted to deny GMR’s application for site plan

review, its request for a conditional use permit to increase the

height of the tower, and its request for the fall-zone waiver.

This litigation ensued.

In its complaint, GMR advances two claims: first, that the

Town’s denial of the authorizations necessary to construct the

wireless communications facility amounts to an effective

prohibition of personal wireless service facilities in the area;

and, second, that the planning board’s decision was not

supported by substantial evidence - all in violation of the

Telecommunications Act of 1996,

(c)(7)(B). GMR

seeks an order “mandating that the Town and the Planning Board

grant approval of the Application and all other permits and

approvals necessary to construct, maintain and operate the

facility at the Property.” Complaint (document no. 1) at 14.

Pending before the court are the parties’ cross-motions for

summary judgment.

For the reasons discussed, GMR’s motion for summary

judgment is granted and the Town’s motion for summary judgment

is denied.

2 Standard of Review

When ruling on a motion for summary judgment, the court is

“obliged to review the record in the light most favorable to the

nonmoving party, and to draw all reasonable inferences in the

nonmoving party’s favor.” Block Island Fishing, Inc. v. Rogers,

(1st Cir. 2016) (citation omitted). Summary

judgment is appropriate when the record reveals “no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). In this

context, a factual dispute “is ‘genuine’ if the evidence of

record permits a rational factfinder to resolve it in favor of

either party, and ‘material’ if its existence or nonexistence

has the potential to change the outcome of the suit.” Rando v.

Leonard,

(1st Cir. 2016) (citation omitted).

When objecting to a motion for summary judgment, “[a]s to issues

on which the party opposing summary judgment would bear the

burden of proof at trial, that party may not simply rely on the

absence of evidence but, rather, must point to definite and

competent evidence showing the existence of a genuine issue of

material fact.” Perez v. Lorraine Enters.,

, 29–30

(1st Cir. 2014). In other words, “a laundry list of

possibilities and hypotheticals” and “[s]peculation about mere

possibilities, without more, is not enough to stave off summary

judgment.” Tobin v. Fed. Express Corp.,

, 451–52

3 (1st Cir. 2014). See generally Anderson v. Liberty Lobby, Inc.,

(1986).

Background

AT&T retained the plaintiff, GMR Holdings, to locate and

develop a wireless telecommunications site in Lincoln, New

Hampshire. AT&T seeks to remedy a gap in its wireless services

in the area and to extend its “FirstNet Responders” network – a

nationwide broadband network dedicated to first responders.

Specifically, AT&T wishes to provide wireless coverage within a

service gap that currently straddles two heavily traveled

highways in Lincoln - Interstate 93 and U.S. Route 3 (Daniel

Webster Highway) - and extends to Franconia Notch State Park and

surrounding roads, residences, and businesses.

As part of the process of locating a suitable site on which

to construct the necessary wireless facilities, GMR prepared a

radio frequency (“RF”) report which shows that “much of Lincoln

is without reliable [wireless] service.” Affidavit of Martin

Lavin (document no. 13-4) at para. 5-9. See also RF Report

Proposed Wireless Facility (document no. 13-4) at 7-14. Mr.

Lavin, an electrical engineer who specializes in the preparation

of radio frequency reports, explained:

4 [F]or wireless communications technology to be successfully operated, the antennas must be located above the tree line and in locations where the signal is not obstructed by other buildings or by topographical features such as hills and mountains. The geographical area covered by each set of antennas is referred to as a “cell.” If there are particular locations where such sites do not exist, then users either will not be able to make or receive calls, or calls in progress may be dropped. In order for a network to provide reliable wireless service to subscribers, there must therefore be a sufficient number of properly placed cell sites to maintain effective, reliable, and uninterrupted service.

Lavin Affidavit at para. 4 (emphasis supplied). With the

benefit of the RF report, GMR began looking for sites that might

serve as viable locations for the proposed tower. For each

potential site, GMR had to consider factors like: the local

topography; the distance to existing wireless towers; the

location of the property within the existing coverage gap; the

site’s access to public utilities; ease of vehicular access to

the site; whether the site provided adequate space for parking

service vehicles; and, of course, whether the site’s owner was

willing to allow construction of a communications tower on the

property.

Additionally, if possible, GMR had to operate within the

bounds defined by the Town’s zoning ordinance. Of the seven

zoning districts in Lincoln, only two permit the construction of

new cell towers: the Small Business District and the General Use

5 District. See Lincoln Land Use Planning Ordinance (the

“Ordinance”) (document no. 13-6) at 9. So, GMR began its search

by looking for locations within those two zoning districts.

Eventually, it identified five sites on which it might construct

a new wireless tower to address the gap in wireless service –

each of which was within the permitted zone, close to the

intersection of Interstate 93 and Route 3, situated at an

adequate elevation, and within the service gap. Two of those

sites were eliminated after the owners declined to lease space

for the construction of a wireless tower. A third was rejected

because it is a residential property. And, the fourth, which

was occupied by a motel, was likewise rejected. See generally

Affidavit of Peter Cooke, Project Manager for GMR (document no.

13-2) at paras. 9-10. See also Alternative Site Analysis,

Exhibit 3 to Project Narrative (document no. 13-2) at 20-22.

Mr. Cooke explained that GMR decided that the property

located at 749 Daniel Webster Highway (U.S. Route 3) and owned

by Greenside Ink, a landscaping business, would be the best

location for its proposed facility.

First, it is in the [General Use] district so it is one of the few zones in Town where new tower construction is allowed. Second, it is used for a commercial business. Third, it has better ground elevation than the motel. Fourth, it has better tree cover which provides a better opportunity to screen

6 the proposed tower. Finally, it has an existing access driveway, parking area and utilities, all of which can be utilized for the facility.

Cooke Affidavit at para. 10. GMR negotiated a lease with

Greenside Ink for a portion of its property and began the

process of designing the wireless facility. That facility would

include a fenced equipment compound to hold the base equipment

and a monopole tower to hold AT&T’s cellular antenna (as well as

antennae from other cellular service providers who might be

interested in co-locating on the tower).

GMR then determined that the Greenside Ink property

presented two possible locations for its monopole tower. One,

where GMR ultimately proposed to locate the tower, and the other

approximately 30 to 50 feet away on a small hill (referenced

throughout the parties’ papers as the “knoll”). See Second

Affidavit of Peter Cooke (document no. 19-2) at para. 2. The

knoll is about twenty feet higher in elevation than the proposed

tower location and contains a stand of mature trees, including a

75 foot hemlock, a 70 foot hemlock, and a 60 foot maple.

Project Narrative (document no. 13-2) at 7. In determining

which location was preferable, GMR was forced to reconcile two

conflicting (at least in this case) provisions of the Ordinance.

First, the Ordinance provides that, “Existing mature tree growth

7 and natural land forms on the site shall be preserved to the

maximum extent possible.” Ordinance, Section H(4)(c)(iii).

But, absent permission from the Planning Board, the Ordinance

also limits the height of telecommunication towers to 100 feet

above ground level (“AGL”).

at Section F(4).

So, while locating the tower on the knoll would allow GMR

to gain 20 feet in elevation – thereby allowing it to construct

a 100-foot monopole (which is a permitted use) – GMR would also

have to remove a substantial number of mature trees. That was

something the Ordinance strongly discouraged and the abutting

landowner emphatically preferred to avoid. See generally Cooke

Affidavit at para. 7. On the other hand, if GMR were to

construct the tower in the proposed location, no mature trees

would have to be cut. But, because of the loss in elevation, a

120-foot monopole would be required. That, in turn, would

require GMR to obtain a “conditional use permit” to exceed the

Ordinance’s 100 foot limit. Ordinance, Section F(4).

Additionally, before it may construct a tower at the

proposed site, GMR must also secure from the Planning Board a

“waiver” from the Ordinance’s so-called “fall zone” requirement,

which provides that: “Towers shall be located within the tower

lot so as to provide a fall zone free of any structures equal to

8 125% of the height of the tower.” Ordinance, Section

H(4)(a)(i). In this instance, then, strict application of the

fall zone requirement would require GMR to locate a 120 foot

monopole more than 150 feet from any structures. In other

words, the tower would have to be the only structure on a

circular parcel of property encompassing more than 1.6 acres of

land. See Minutes of November 11, 2020 Planning Board Meeting

(document no. 13-6) at 52. Although there are no structures on

abutting properties that are within 150 feet of the proposed

tower, Greenside Ink (the property owner) does have an existing

commercial building within about fifty feet of the base of the

proposed tower. Hence the need for the waiver of the fall zone

requirement.

Parenthetically, the court notes that while GMR could have

avoided the need to obtain a conditional use permit to exceed

the maximum allowed tower height if it were to locate the

facility on the knoll, it would still need to secure the

Planning Board’s waiver of the fall zone requirement: a 100-foot

tower built on the knoll would be less than 125 feet from

Greenside Ink’s maintenance building (i.e., 125% of a 100 foot

tall monopole). Moreover, according to Mr. Cooke, “any other

available property within the permitted zone and the gap in

coverage will not be able to host a tower without a waiver from

9 the fall zone requirement.” Cooke Affidavit at para. 11

(emphasis supplied). That evidence is unrebutted.

In the fall of 2020, GMR applied to the Planning Board for

site plan review approval, as well as the conditional use permit

seeking to increase the permitted height of the monopole from

100 feet to 120 feet. It also sought three waivers from

provisions of the Ordinance, only one of which is currently at

issue: a waiver from the fall zone requirement. In support of

its requested waiver from that requirement, GMR submitted a

letter from Greenside Ink, owner of the property on which the

monopole would be constructed. In it, Greenside Ink explained

that it was aware of the fall zone requirement and the presence

of its commercial building within that zone, and expressly

consented to the waiver of that requirement. See Letter from

Donald Landry on behalf of Greenside Ink, LLC (document no. 13-

2) at 23.

GMR also submitted a stamped engineering report which

explained that the monopole would be designed so, in the

unlikely event of a tower “failure,” it would “buckle” at a pre-

determined height at or above 75 feet. That “failure” point

would be created by over-engineering the monopole below that

height. Thus, if the monopole were to experience unanticipated

10 stresses, it would simply bend or deflect at that pre-designed

point. The engineer’s report explained this in greater detail:

Failure of a steel monopole occurs when a point is reached where the induced stresses exceed the yield strength of the material. At this point, the deflections induced in the material are no longer temporary. Hence, a permanent deflection in the monopole would exist.

The term failure above refers to local buckling at a designated point on the pole. Local buckling does not cause a free falling pole; rather it relieves the stresses from the pole at this location. Monopoles are flexible, forgiving structures, which are not generally susceptible to damage by impact loads such as wind gust or earthquake shocks.

When local buckling occurs, a relatively small portion of the shaft distorts and “kinks” the steel. When the pole begins to bend the exposure area is reduced and therefore, the force due to wind is decreased as well. Even though buckling exists, the cross section of the pole is capable of carrying the entire vertical load. Therefore, wind induced loads could not conceivably bring this type of structure to the ground due to the excellent ductile properties, design criteria, and failure mode.

Engineering Report of Valmont Structures (document 13-2) at 7

(emphasis supplied).

The engineer’s report goes on to state that, “Valmont has

provided structures that have performed well during earthquakes

in California, hurricanes in the South (including Hugo, Andrew,

Opal, and Katrina), and a number of tornadoes. In over 25 years

of engineering and fabricating thousands of monopoles, to our

11 knowledge Valmont has never experienced an in-service failure of

a communication pole due to weather induced overloading, even

though, as in the cases of Hurricanes Hugo, Andrew, and Katrina,

the wind speeds exceeded the design wind speed.” Id. at 7.

Aside from the unsupported and speculative

opinions/concerns expressed by some members of the Planning

Board, there is no evidence in the record that the monopole

tower GMR proposed to construct presented any danger of toppling

onto nearby people or structures. Nor, indeed, is there any

evidence in the record suggesting that a monopole of that sort

has ever failed and caused damage to anyone or anything on the

ground, in New Hampshire or elsewhere.

The first public hearing on GMR’s application was held on

October 14, 2020. At that hearing the Planning Board voted that

the application was “complete” and opened the hearing to the

public. Members of the Planning Board as well as the general

public identified several “viewshed areas” they were concerned

about. That is, they wished to know whether the proposed tower

would be visible from various scenic vistas in the area.

Accordingly, GMR enlisted the services of A&D Klumb

Environmental (“ADKE”) to conduct a “balloon test” (ADKE also

12 prepared the National Environmental Policy Act (“NEPA”) report

for the proposed tower site).

The balloon test was conducted on October 31, 2020, after

nearly all of the leaves had fallen from deciduous trees.

Accordingly, it presented the “worst case scenario in terms of

visibility” of the proposed tower. Comments of Peter Cooke,

Minutes of November 11, 2020 Planning Board Meeting (document

no. 13-6) at 40. The test involved inflating two, four-and-one-

half-foot diameter, helium-filled balloons. The first (red)

balloon was raised to an elevation of 120 feet above ground

level at the proposed site of the wireless facility. The second

(orange) balloon was raised to an elevation of 100 feet. The

balloons were in the air from 7:30 am to 1:00 pm. The winds

were calm and the sky was clear and sunny. Numerous photographs

were taken of the balloons to show the proposed tower’s

visibility from various viewing areas. ADKE reported that those

viewing areas included:

portions of Route 3, Interstate 93 northbound and southbound, the entrance to the Flume Gorge, The Basin, Lafayette Campground, Boise Rock, Indian Head Resort and Tower, Whale’s Tail Water Park - top of the north slide, Days Inn Motel, Inn of Lincoln Motel and Woodward’s Resort, as well as 4 Broken Arrow Road and 11 Broken Arrow Road. These locations are shown on the included viewshed survey map and photographs from each are included.

13 ADKE Summary of Results of Balloon Test (document no. 13-3) at

10.

Audra Klumb of ADKE described the process and outcome of

the balloon test as follows:

As part of the NEPA process, a party is required to have the project reviewed by the New Hampshire Division of Historical Resources. Attached to the draft NEPA checklist were the comments by the State Historic Preservation Office (“SHPO”). See Exhibit l. SHPO stated that:

The project is located within the Franconia Notch cultural landscape - a large district determined eligible for listing in the National Register of Historic Places. However, the proposed tower does not appear to visually impact the resource and the DHR [Division of Historic Resources} concurs with [ADKE’s] finding of No Historic Properties affected. Please contact the DHR immediately should public concern be raised regarding impacts to historic properties.

ADKE conducted the balloon test for this project on October 31, 2020 and prepared the viewshed survey dated November 4, 2020. I was personally involved with the test and personally prepared the survey. A copy of the viewshed survey is attached to this affidavit as Exhibit 2.

Following the balloon test and in accordance with SHPO’s comment, on November 24, 2020 I submitted the viewshed survey to SHPO, along with copies of public comments regarding visibility following the balloon test. A copy of the November 24 submission is attached to this affidavit as Exhibit 3. As part of that submission, and due to the limited visibility of the proposed tower within the Franconia Notch Cultural Landscape, I recommended a finding of no adverse

14 effect on historic resources within the “APE,” or area of potential effect.

By response dated December 15, 2020, SHPO agreed and found “No Adverse Effect.” A copy of the final finding from SHPO is attached as Exhibit 4.

Affidavit of Audra Klumb (document no. 13-3) at 1-3 (emphasis

supplied). See also Request for Project Review by the N.H.

Division of Historical Resources (document no. 13-3) at 53-54.

See generally Email from John Devivo, General Manager of Cannon

Mountain Ski Area (document no. 19-4) (recounting that on

October 31, he hiked in several of the viewshed areas and noted

that the red (higher) balloon was not visible from Artist Bluff;

from atop what once was the Old Man of the Mountain’s Forehead

in Franconia Notch; from any point on southbound Franconia Notch

Parkway toward Flume Gorge; from any point at or around the base

of Flume Gorge; from below the height of land at Flume Gorge; or

at the height of land at Flume Gorge. The only place Mr. Devivo

visited and from which the red balloon was visible was on Route

3, just south of the Flume Gorge exit. 1

1 The Town says it “disputes GMR’s characterization of the visual impact of the Tower,” Defendant’s Opposition Memorandum (document no. 17) at 2, focusing on Mr. Devivo’s observation that the tower would be “clearly visible from just south of the Flume Gorge exit (on Rte 3 southbound at Parker’s),” id. (quoting Devivo email). But, of course, the tower is not invisible and it will be observable from some locations – such is the nature of cellular communication towers which rely upon line-of-sight to other towers and end users and, therefore, must be somewhat exposed. See Affidavit of Martin Lavin, at para. 4.

15 A few days after the balloon test was conducted, on

November 4, 2020, the Littleton Courier published an article

entitled “Cell Tower Considered Near Flume Gorge.” In it, the

Lincoln Town Planner was quoted as suggesting (largely

erroneously) that the proposed tower would be widely visible to

hikers in the area and would adversely affect the pristine views

in Franconia Notch. The article read, in part, as follows:

GMR Holdings conducted a balloon test at the Greenside Ink property on Halloween. However, it’s unknown how many people had advanced notice to hike Notch trails and assess its visibility.

Lincoln Town Planner Carole Bont indicated that representatives from the New Hampshire Division of Parks and Recreation wondered if the monopole would be visible from the top of Cannon Mountain. However, they could not access the ridge line for the balloon test because the tram is not operational at this time. “Every hiker would probably see that cell tower in every spot in the area, including the Flume, the Basin and Artist’s Bluff, as well as the Indian Head Resort and other private properties,” noted Bont.

The town official continued, “Franconia Notch is the crown jewel of the North Country. It has unfettered views.” . . . . Bont encouraged hikers, outdoor enthusiasts and residents from other communities to submit public comments at the virtual meeting.

The question presented – and largely answered by results of the balloon test, Mr. Devivo’s personal observations, and the conclusions of both ADKE and the New Hampshire Historic Preservation Office - was the extent to which it would be observable and whether it would adversely affect a number of scenic views in the area.

16 Littleton Courier Article (document no. 13-7) at 59 (emphasis

supplied).

Understandably, GMR was not pleased. Counsel for GMR wrote

a letter to Peter Malia, Town Attorney for Lincoln, in which he

noted, in part:

Both my client and I are extremely disappointed and even shocked by these statements. First and foremost, there are absolutely no views of the tower from the Flume, the Basin and Artisan’s Bluff. It is not clear from the article when she made the statements, so it is possible that she made them before the balloon test was held (although in that case, she should have withheld comment). However, the lack of visibility from those places should have been obvious to anyone looking at a map; indeed, it is why I said at the acceptance hearing that GMR was not going to include those places in the visual study. The lack of visibility is in fact confirmed by the comments from Johanna Lyons, of the New Hampshire Division of Parks and Recreation and John M. De Vivo, General Manager at Cannon Mountain.

Her statements are not only factually incorrect, but also highly prejudicial. They were made before my client has even started its presentation on the merits, and before the visual study has been submitted. Ms. Bont’s statements, coupled with her encouragement that “hikers, outdoor enthusiasts and residents from other communities should submit public comments” show a bias against this project on the part of the Town.

* * *

There is simply no way to undo this damage. Ms. Bont, in her official capacity as Town Planner, disseminated factually incorrect and highly damaging information before my client has had the opportunity to be heard, and further has encouraged a large segment of the

17 population to oppose the project based on that information. There is little question that many people, probably numbering in the thousands, will read that article and form adverse opinions of the project based on what she said.

I have sent a copy of this letter to the Planning Board. Please make this letter and the attached article a part of the record.

Letter from Jonathan Springer, Esq. to Peter Malia, Esq.

(document no. 13-7) at 57 (emphasis supplied).

The next public hearing was on November 11, 2020, at which

GMR formally presented its application, including a detailed

review of the RF report, a discussion of the various sites GMR

considered, and an explanation of the results of the balloon

test. See generally Minutes of November 11, 2020 Planning Board

Meeting (document no. 13-6) at 30-59. That hearing was

continued to the December 9, 2020, meeting of the Planning Board

and the final public hearing occurred on January 6, 2021. At

that final meeting, the Planning Board voted to deny GMR’s

entire application: the site plan review, the request for the

conditional use permit, and the request for the waiver of the

fall zone requirement. A final written decision of the board

was provided to GMR in late January. See Corrected Notice of

Decision (document no. 13-7) at 25-28.

18 With regard to its denial of a conditional use permit to

increase the height of the tower from 100 feet to 120 feet, the

Planning Board stated:

Of note, however, the applicant indicated that they could obtain the same coverage with a 100-foot tower on the same property atop a nearby knoll. That was one of the reasons why the Planning Board found that a modification of the Town’s 100-foot height limitation was not necessary to further the purposes of the Town’s telecommunications ordinance or to allow for the provision of telecommunication service in the area of the community affected - the applicant stated that they could obtain the same coverage elsewhere on the same lot with a 100 foot tower.

Id. at 26.

As an aside, the court notes that GMR has stated that it

would be entirely satisfied if the Town permitted it to

construct the facility on the knoll located on the same lot:

“[I]f the Town truly believes that the Knoll is a feasible

alternative, . . . the Plaintiff will agree to a consent decree

- to be signed by both parties and the Court - granting the

Plaintiff the necessary town permits to put a 100’ monopole on

the Knoll.” Plaintiff’s Objection (document no. 19-1) at 6.

The Town appears not to have acted on that offer.

In support of its denial of GMR’s requested waiver of the

fall zone requirement, the Planning Board stated, among other

19 things, that “strict adherence to the requirements of the 125%

fall zone requirement was required to effectuate the purposes of

the ordinance” and that “strict compliance with the 125% fall

zone requirement would not create practical difficulty and

unnecessary inconvenience.” Id. at 27. Finally, the board

noted that “Board members did express significant concerns

regarding the following factors: (a) visual impacts on

viewsheds, ridgeline and other impacts by means of tower

location, tree foliage clearing and placement of incidental

structures and (b) availability of alternative tower structure

and alternate siting locations.” Id.

Discussion

I. The “Effective Prohibition” Claim.

The Telecommunications Act provides, in part, that “The

regulation of the placement, construction, and modification of

personal wireless service facilities by any State or local

government or instrumentality thereof . . . shall not prohibit

or have the effect of prohibiting the provision of personal

wireless services.”

(c)(7)(B)(i)(II). To

prevail on its “effective prohibition” claim, GMR must

establish: (1) that there is a gap in cellular service coverage

in the area of the proposed tower; and (2) that there are no

feasible alternatives to the site proposed to, and rejected by,

20 the Planning Board. See Green Mountain Realty Corp. v. Leonard,

(1st Cir. 2012). See generally Omnipoint

Holdings, Inc. v. City of Cranston,

(1st Cir.

2009) (“The effective prohibition clause does not stand alone;

it is also part of the TCA’s larger goal of encouraging

competition to provide consumers with cheaper, higher-quality

wireless technology. . . . The themes in the TCA of promoting

competition in the wireless communications market and of

relatively speedily effectuating the purpose of the Act,

including the elimination of significant gaps, underlie the

determination of feasibility and impose their own constraints.

Just as carriers must present evidence of their efforts to

locate alternative sites, once they have done so there are

limits on town zoning boards’ ability to insist that carriers

keep searching regardless of prior efforts to find locations or

costs and resources spent.”) (citations omitted).

As to the first element of GMR’s claim, there is no

dispute: a significant cellular service coverage gap exists in

the area of GMR’s proposed tower. See Plaintiff’s RF Report

(document no. 13-4) at 7-28. See also Affidavit of Martin

Levin, Senior RF Engineer (document no. 13-4) at para. 6

(“AT&T’s existing, on-air sites cannot provide RF coverage to

the gap area due to distance and topography. AT&T’s closest

21 existing site is 3.1 miles away, at 33 Brookline Road, Lincoln.

The next closest site is in the Town of Woodstock, almost five

miles away.”). Adhering to the notion that one should “trust

but verify,” the Town of Lincoln commissioned a radio frequency

report by an independent expert – IDK Communications – which

concluded that “there exist coverage gaps in the Town of Lincoln

for AT&T, specifically in the areas of Route 93 and Daniel

Webster Highway.” IDK RF Report (document no. 13-7) at 65. The

Town’s expert also concluded that, “the proposed site at 749

Daniel Webster Highway at 120 feet provides coverage to the

areas along Route 93 and Daniel Webster highway.”

See also

Defendant’s Memorandum in Support of Summary Judgment (document

no. 15-1) at 18 (conceding the existence of a coverage gap).

Next, GMR must show that there are no feasible alternatives

to the location it has proposed for the monopole tower. That,

says the Town, it has failed to do. The court disagrees.

According to the Town, the “knoll site” on the Greenside

Ink property is a feasible alternate location. And,

constructing the tower in that location would allow GMR to

proceed without the need for a conditional use permit to extend

the tower height to 120 feet. What the Town neglects to mention

is that: (a) there was local opposition to siting the tower in

22 that location; and (b) the Ordinance requires that “Existing

mature tree growth and natural land forms on the site shall be

preserved to the maximum extent possible.” Ordinance, Section

H(4)(c)(iii) (emphasis supplied). GMR says it has complied with

that requirement (and appeased local concerns) by moving the

proposed location of the tower off the knoll. Moreover,

contrary to the Town’s assertion (see Defendant’s Memorandum at

para 41), GMR presented evidence that a tower located on the

knoll would still require a waiver of the Ordinance’s “fall

zone” requirement. See Defendant’s Memorandum at 12 (quoting

Lincoln Planning Board Meeting Video) (noting that counsel for

GMR testified that, “if we move over the 20 to 25 feet and we

put up a 100 foot pole, we are still within the 125 percent

radius of the building on our site so we would need to ask for

the fall zone waiver in any event.”). Indeed, the evidence of

record establishes that a tower constructed anywhere on the

knoll would require a waiver of the “fall zone” requirement.

See, e.g., Second Affidavit of Peter Cooke (document no. 19-2)

at paras. 2-3. Locating the tower on the knoll would place it

roughly 60 to 70 feet from the Greenside Ink’s commercial

building. By comparison, GMR has proposed locating the tower

approximately 55 feet away from the commercial building.

at

para. 3.

23 The point is this: given the strong opposition shown by

members of the Planning Board to allowing any waiver of the fall

zone requirement, it is unclear why the Town argues that the

knoll is a viable alternative site (or, perhaps revealingly, why

it has not accepted GMR’s offer to construct the tower at that

location). See generally Planning Board Minutes, November 11,

2020 (document no. 13-6) at 50-51, Comments of Planning Board

Member Beaudin (“He sees that the fall zone, no matter how

collapsible the tower is, could impact those going in and out of

the building. There is a safety concern there for him. He does

not know how safety at the site would be addressed. There may

be no towers that have ever fallen down, but there is always a

first time for everything.”); Minutes of December 9, 2020

Meeting (document no. 13-7) at 4 (“Member Paul Beaudin said he

disagreed with the fall zone analysis. He stated that no one

can ever address every weather event and make a guarantee [that]

the pole will hold up, however, this pole is very close to a

building. . . . Member Beaudin made it clear that this tower

goes against everything he would like to see public safety

wise.”) (emphasis supplied). See also

Comments of Planning

Board Member Ehrman.

Next, the Town argues that “GMR itself identifies two

alternative properties on which it could site the monopole.”

24 Defendant’s Memorandum in Opposition (document no. 15-1) at 19.

But, in its alternate site analysis summary, GMR explained that,

“Although all three properties are located within the allowed

tower district (GU), the subject property at 749 US Route 3

provided an existing underlying commercial/industrial use, past

tower use on the property, better elevation to limit the

required height of the proposed tower, and a better opportunity

to screen much of the proposed tower installation from

surrounding properties.” Alternate Site Analysis, Exhibit 3 to

Project Narrative (document no. 13-2) at 22 (emphasis supplied).

Given the Planning Board’s refusal to allow GMR to construct a

120-foot tower at the proposed site, it is unclear why it would

suggest that an alternate site – at which an even taller tower

would have to be constructed - is viable. See, e.g., Minutes of

January 6, 2021, Planning Board Meeting (document no. 13-7) at

12 (“Member Beaudin stated that throughout these meetings

members of the general public have expressed a great deal of

concern as to the aesthetics of the proposed tower location.

Further, the FCC does allow for gaps and dead zones. Therefore,

there is no need to allow a conditional use permit to increase

the proposed cell tower from one hundred feet (100') in

elevation to one hundred twenty feet (120') in elevation.”)

(emphasis supplied).

25 Moreover, one of the sites identified by the Town is a

residential home, while the other is a motel. And, like the

site proposed by GMR, both would require a waiver of the fall

zone requirement. See Cooke Affidavit at para. 11. But, given

the Planning Board’s reluctance to grant such a waiver for a

commercial property, there is no reason to think it would grant

such a waiver for either of those sites – both of which provide

residence for people, thus exacerbating the professed “safety”

concerns. See, e.g., Comments of Planning Board Member

Beaudoin, supra. Indeed, one member of the Planning Board

suggested that he would not vote to approve a waiver of the fall

zone requirement for any tower in proximity to a residence or

other place of temporary or permanent habitation. See Comments

of Planning Board Member Ehrman, Defendant’s Memorandum in

Support of Summary Judgment (document no. 15-1) at 9-10 and 11-

12.

As for two additional sites suggested by the Town – 4

Broken Arrow Drive and 11 Broken Arrow Drive – it is plain from

the record that the owners of those properties were opposed to

construction of a cell tower and neither location was available

for GMR to lease. See generally Plaintiff’s Memorandum in

Opposition (document no. 19) at 7-9.

26 Finally, the Town argues that “GMR eliminated land owned by

the United States Forest Service or the State of New Hampshire

because it stated that they are ‘generally unavailable for lease

for private use.’” But, says the Town, both the state and

federal government have regulations and policies that permit

siting telecommunications towers on those lands. Defendant’s

Memorandum in Support at 20. Thus, the Town vaguely suggests

that GMR could have successfully addressed the coverage gap by

locating a tower on some unidentified land managed by either the

State or the U.S. government. But, for the reasons set forth in

the affidavit of Peter Cooke, GMR reasonably concluded that a

site on either state or federal land was not a “feasible

option,” given the viability of the proposed site at 749 Daniel

Webster Highway, which is on private land.

In my 30 years in the telecommunication industry, I have had occasion to deal with both the State of New Hampshire, regarding state forest land, and the United States Forest Service, regarding federal lands. It has been my understanding and my experience that both the State of New Hampshire and the Federal Forest Service require an applicant seeking to put a telecommunication facility on state or federal forest land to show that there is no private, nonstate or non-federal land available for the facility.

I have reviewed the State of New Hampshire Department of Natural and Cultural Resources Policy document attached as Exhibit 18 to the Town of Lincoln’s motion for summary judgment. At page 3 of that policy, it states that DNCR permits use of state-owned land for a telecommunication facility “when no other feasible alternative is available.”

27 Attached as Exhibit 4, is a brochure from the Federal Forest Service with instructions about how to obtain permission for such facility. As can be seen, on page 1 the brochure states that “Normally NFS land is not made available if the overall needs of the individual or business can be met on nonfederal lands.” On page 4 it states that an applicant “must first consider using nonfederal land.” Attached as Exhibit 5 is the standard application used by the United States Forest Service for a telecommunication facility on federal lands. The application form requires an applicant to describe “other alternative locations considered” and why those alternatives were not selected. (Both of these documents are available on the internet at: www.fs.fed.us\specialuses\special_app_process.shtml.)

In this case, for both state and federal lands, GME would have to disclose that the Town of Lincoln has a permitted zone, and that the host property at 749 US Route 3, Lincoln, New Hampshire is available, and fits all of GMR’s and AT&T’s criteria. Based upon my experience, that disclosure will mean that neither the state nor the federal government will approve an application for a telecommunication facility.

Cooke Affidavit (document no. 19-2) at paras. 7-10 (emphasis

supplied). See also Comments of Attorney Springer, Minutes of

November 11, 2021 Planning Board Meeting (document no. 13-6) at

48 (noting that constructing a telecommunications facility in

either the White Mountain National Forest or Franconia State

Park would present an access issue). The Town offers no

rebuttal.

The points are made. Given the evidence of record, it is

plain that GMR has carried its burden and established that there

28 is a significant gap in cellular service coverage in the area of

the proposed tower and that there are no feasible alternatives

to the site proposed at 749 Daniel Webster Highway.

II. The “Substantial Evidence” Claim.

The Town’s denial of GMR’s application amounted to an

“effective prohibition,” in violation of the Telecommunications

Act. Consequently, a lengthy discussion of GMR’s “substantial

evidence” claim is unnecessary. It is sufficient to note the

following.

The Telecommunications Act requires that, “Any decision by

a State or local government or instrumentality thereof to deny a

request to place, construct, or modify personal wireless service

facilities shall be in writing and supported by substantial

evidence contained in a written record.”

(c)(7)(B)(iii). “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.” ATC Realty v. Town of Kingston,

(1st Cir. 2002) (citation omitted). But, as this court has

noted, “judicial review for substantial evidence is not a

‘rubber stamp.’ A town board ‘is not free to prescribe what

inferences from the evidence it will accept and reject, but must

29 draw all those inferences that the evidence fairly demands.’”

New Cingular Wireless PCS, LLC v. City of Manchester, NH, No.

11-CV-334-SM,

, at *4 (D.N.H. Feb. 28, 2014)

(quoting Southwestern Bell Mobile Sys. v. Todd,

, 59

(1st Cir. 2001) (emphasis supplied)). See also Nat’l Tower, LLC

v. Plainville Zoning Bd. of Appeals,

, 22–23 (1st

Cir. 2002).

Here, the evidence of record established the following

facts:

1. AT&T has a significant gap in cellular service coverage in the area surrounding the intersection of Interstate 93 and U.S. Route 3 in Lincoln, New Hampshire.

2. Given restrictions imposed by the Town’s zoning Ordinance, the need to locate the tower within the existing coverage gap, the distance to existing wireless towers, the local topography, the need to access public utilities at any tower site, and the need for vehicular access to, and parking at, the tower site, GMR determined that five locations presented viable potential sites for the monopole tower.

3. After further investigation, GMR learned that owners of two potential sites were unwilling to lease space for a tower and two of the three remaining sites would require placement of a tower in proximity to dwellings. Consequently, GMR eliminated all but one as a genuinely viable site for the tower.

4. The location proposed by GMR for its communications facility is within a zoning

30 district in which new tower construction is permitted.

5. Although the monopole tower would be constructed within approximately 55 feet of a commercial building on the site, it could be engineered in such a way that it would not topple over. Rather it would “buckle” or “deflect” at a height of approximately 75 feet AGL. Consequently, it would not present any realistic danger to people or buildings in the area.

6. If a 100 foot tower were constructed a very short distance away on the knoll, it would have the same (or nearly the same) elevation above sea level as a 120 foot tower constructed in the location proposed by GMR (and presumably be equally visible from various locations as the 120 foot tower proposed by GMR).

7. If the tower were constructed on the knoll (60 to 70 feet from the location proposed by GMR), GMR would still need a waiver from the Ordinance’s “fall zone” requirement.

The Town’s written decision to deny GMR’s request for a

conditional use permit to exceed by 20 feet the 100-foot height

limit imposed by the Ordinance was not supported by substantial

evidence. The Ordinance provides that:

Any height limit imposed by this section may be decreased or increased by the Planning Board by approval of a conditional use permit if the Board affirmatively finds (a) the intent of the ordinance will be preserved, (b) a modification is reasonably necessary and appropriate to further the purposes of this article; and (c) a modification is necessary to allow for the provision of telecommunications service in the area of the community affected which can [not] otherwise be effectively serviced.

31 Ordinance at Section F(4). See also

at Section I(3)

(listing factors to be considered in acting upon an application

for a conditional use permit).

Here, the Planning Board based its denial of a waiver of

the “fall zone” requirement, at least in part, on its conclusion

that, “‘strict adherence to the requirements of the 125% fall

zone requirement was required to effectuate the purposes of the

ordinance’ and that ‘strict compliance with the 125% fall zone

requirement would not create practical difficulty and

unnecessary inconvenience.’” Corrected Notice of Decision

(document no. 13-7) at 26 (quoting the Ordinance). Although it

mimics the language of the Ordinance quoted above, that aspect

of the Planning Board’s decision is almost entirely unexplained

and at odds with the great weight of the evidence of record, as

well as “those inferences that the evidence fairly demands.”

New Cingular Wireless,

, at *4.

Additionally, the Planning Board stated that, “Board

members did express significant concerns regarding the following

factors: (a) visual impacts on viewsheds, ridgeline and other

impacts by means of tower location, tree foliage clearing and

placement of incidental structures and (b) availability of

alternative tower structure and alternate siting locations.”

32 Again, that aspect of the Planning Board’s decision is almost

entirely unexplained. Indeed, the opinions of those board

members are inconsistent with the record evidence and the

governing law. See, e.g., Comments by Board Member Beaudin,

supra, concerning the FCC’s “allowance” of gaps and dead zones.

The balloon test demonstrated that a 120-foot tower at the

proposed site would have minimal visual impact. “Tree foliage

clearing” would be minimized by constructing the tower in GMR’s

proposed location, rather than atop the knoll. And, there is no

suggestion in the record of any “alternate siting locations”

that would meet GMR’s technical requirements and were available

for lease and would satisfy the Planning Board’s criteria,

particularly given members’ expressed opposition to any waiver

of the fall zone requirement (which all other viable sites would

require).

Given the state of the evidentiary record, the court is

constrained to conclude that the Planning Board’s written

reasoning for its denial of GMR’s application is not supported

by substantial evidence.

33 Conclusion

For the foregoing reasons, as well as those set forth in

GMR’s various memoranda, the court holds that the Town of

Lincoln’s denial of GMR’s application to construct a 120-foot

monopole cellular communications tower at 749 Daniel Webster

Highway (U.S. Route 3) amounted to an effective prohibition of

the provision of wireless services in the area, in violation of

(c)(7)(B)(i)(II). Moreover, the Planning Board’s

written decision explaining that denial was not supported by

substantial evidence, in violation of

(c)(7)(B)(iii). Plaintiff’s Motion for Summary Judgment

(document no. 13) is, therefore, granted. Defendant’s Motion

for Summary Judgment (document no. 15) is denied.

In this case, as “in the majority of cases, the proper

remedy for a zoning board decision that violates the” TCA is an

order “instructing the board to authorize construction.”

National Tower, 297 F.3d at 21–22. Such an order is warranted

here in order to avoid “multiple rounds of decisions and

litigation,”

and because a remand to the Board would “serve

no useful purpose,” Brehmer v. Planning Bd. Of Town of

Wellfleet,

(1st Cir. 2001). Accordingly, the

Town of Lincoln Planning Board shall promptly issue all

necessary permits and approvals and authorize construction of

34 the tower as proposed at 749 Daniel Webster Highway (U.S. Route

3).

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

November 8, 2021

cc: Jonathan S. Springer, Esq. Russell F. Hilliard, Esq. Brooke Lois Lovett Shilo, Esq.

35