Industrial Tower v. East Kingston, NH

2009 DNH 127

• Court: District Court, D. New Hampshire
• Decided: August 28, 2009
• Docket: CV-07-399-PB
• Status: Published

Opinion

Industrial Tower v . East Kingston, NH CV-07-399-PB 8/28/09

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Industrial Tower and Wireless, LLC

Case N o . 07-cv-399-PB Opinion N o . 2009 DNH 127 Town of East Kingston, NH

MEMORANDUM AND ORDER

Industrial Tower and Wireless, LLC (“ITW”) alleges 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. Before the court are cross-motions for summary judgment

with respect to Count I of ITW’s two-count complaint. Count I

alleges that the ZBA’s ruling violates the Telecommunications Act

of 1996 (“TCA”) because it is not supported by substantial

evidence. See 47 U.S.C. § 332(c)(7)(B)(iii). ITW also alleges

in its summary judgment motion that the ZBA violated New

Hampshire’s Right-to-Know law because it failed to deliberate in

public when it adopted the written decision memorializing its

ruling. For the reasons given below, I conclude that the April

2 3 , 2009 written decision is supported by substantial evidence. I also reject ITW’s Right-to-Know law claim. Accordingly, I deny

ITW’s motion for summary judgment on Count I and grant East

Kingston and Kenridge Farm’s corresponding motion.

I. BACKGROUND1

A. East Kingston Zoning Requirements and New Hampshire Land Use Variance Law

East Kingston’s Zoning Ordinance prohibits the construction

of wireless towers in residential districts without a variance.

Zoning Ordinance of East Kingston, Art. XV(D)(2). The Ordinance

only permits construction of new wireless telecommunications

towers in “Light Industrial” and “Commercial” zoning districts.

The Ordinance specifies that one of its goals is to “[r]educe

adverse impacts such facilities may create, including, but not

limited t o : impacts on aesthetics, environmentally sensitive

areas, historically significant locations, flight corridors,

health and safety by injurious accidents to person and property,

and prosperity through protection of property values.” Art.

XV(B)(2). The Ordinance further seeks to “[p]ermit the

construction of new towers only where all other reasonable

opportunities have been exhausted, and to encourage the users of

1 Citations are to the Certified Record “CR” submitted by the Town of East Kingston.

-2- towers and antennas to configure them in a way that minimizes the

adverse visual impact of the towers and antennas.” Art.

XV(B)(4).

A New Hampshire 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 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. See N.H. Rev.

Stat. Ann. § 674:33, I(b) as amended by New Hampshire Laws Ch.

307; Simplex Techs., Inc. v . Town of Newington, 145 N.H. 7 2 7 ,

729, 766 A.2d 713, 715 (2001). The New Hampshire Supreme Court

has explained that unnecessary hardship may be established

by proof that: (1) a zoning restriction as applied to [an applicant’s] 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.

Simplex, 145 N.H. at 731-32, 766 A.2d at 717.

-3- B. ITW’s Application and ZBA Hearings

ITW, a business owning and operating antenna towers and

other wireless telecommunications facilities, determined that

there was a significant gap in the personal wireless service

network in the northeastern section of East Kingston (“the

Town”), particularly in the Route 108 area, and an antenna

facility needed to be installed to close this coverage gap.

Because the northeastern portion of the Town contains no land

that is commercially or industrially zoned, ITW determined that

there were no sites in the Town which would close the personal

wireless service coverage gap without a variance.

On April 2 6 , 2006, ITW and its co-applicant Cingular

Wireless submitted an application for a variance to construct a

180-foot wireless telecommunications monopole tower and equipment

area at 36 Giles Road, a 26-acre parcel of land owned by Jeffrey

and Susan Marston and located in a residential zone in East

Kingston. (CR 2-78.) The Marston property is heavily forested

with the exception of utility and railroad easements that run

through i t . ITW proposed construction of the tower near the peak

of a hill on the Marston property. On May 2 5 , 2006, the ZBA held

a public hearing and voted to grant ITW a variance. (CR 79.)

Thereafter, Kenridge Farm, an abutter and an intervenor in these

-4- proceedings, unsuccessfully sought a rehearing on the ZBA’s

decision. (CR 80.) The parties then discovered that another

abutter had not been properly notified of the May hearing and

stipulated that the matter would be remanded to the ZBA for a new

hearing. (Pl.’s Mot. for Summ. J., Doc. N o . 9-2, at 7.)

On December 1 9 , 2006, the ZBA held a de novo hearing and

again voted to grant ITW a variance. (CR 8 1 , 136-48.) In early

2007, however, Kenridge Farm applied for and was granted a

rehearing of the ZBA’s decision. (CR 8 2 , 85-118.) By this time,

ITW had agreed to reduce the height of the proposed tower from

180 feet to 160 feet. (CR 85.) On April 2 6 , 2007, the ZBA began

the rehearing process for a 160-foot tower with a public hearing

and selected Mark Hutchins, an independent radio-frequency

engineer, to be a consultant to the ZBA. (CR 156-163.) The ZBA

also scheduled a balloon test to gauge the likely visual impact

of the proposed 160-foot tower. Id.

The balloon test was conducted on May 5 , 2007, a clear but

somewhat cloudy day with occasional winds, using a tether that

made the 3-foot diameter red balloon 170 feet high. (CR 1 6 4 ,

167.) The ZBA report on the balloon test and photos taken during

the test indicate that the balloon was barely visible from some

locations, but was visible from Kenridge Farm’s driveway and the

-5- rear of the house, as well as from other locations in the area

including, inter alia, along Giles Road, Joslin Road, Stumpfield

Road, and parts of Route 108 in the Town. (CR 1 6 4 , 222-61.)

Following the balloon test, the ZBA received correspondence from

the Public Archaeology Lab (“PAL”), and the New Hampshire

Division of Historical Resources (“NHDHR”) indicating opposition

to ITW’s proposed tower because of its adverse effect on the

integrity of historical properties in the area, including

Kenridge Farm and the Maurice Kimball House in Kensington. NHDHR

said that 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.” (CR 577.) Later during the hearing process when a

new tower height and site on the Marston property were proposed,

the ZBA decided that there was too much foliage to conduct a new

balloon test but that it could extrapolate the information from

the May 5 , 2007 balloon test when making its determination for

the new site. (CR 189.)

On May 1 4 , 2007, Kenridge Farm submitted a report by David

Maxson of Broadcast Signal Lab that analyzed and critiqued ITW’s

variance application from an RF engineering perspective. (CR

888.) Maxson stated that the coverage ITW sought from the

-6- proposed tower fell predominantly in the neighboring town of

Exeter, as well as in Kensington, and would not adequately

address areas within the borders of East Kingston. (CR 890.)

Maxson further stated that propagation studies he had performed

demonstrated the efficacy of alternative approaches to remedy the

Town’s coverage gap. (CR 895-898.) Maxson asserted that

existing structures could be used to affix antennas and provide

wireless service to the area. (CR 892-93.) Even if existing

structures would not be sufficient, Maxson proposed that lower,

alternative tower structures such as faux silos containing

antennas and placed next to barns might be utilized to better

meet the Town Ordinance. (CR 893-94.)

As the rehearing process continued, the ZBA received the

Hutchins report as well as additional correspondence from

Hutchins detailing his analysis of ITW’s application. The

Hutchins report concluded that: Cingular has a gap in service in

the Town that cannot be filled using existing facility sites;

other providers likely have poor service in the Town and ITW’s

proposed tower could provide for collocation of provider

antennas; and “one or more facilities must be placed in

residential/agricultural/forestry zones to adequately serve the

town” because the Town’s coverage gap cannot be filled from

-7- towers in the Commercial and/or Light Industrial zones. (CR 2 7 2 ,

280.) Further, the Hutchins report noted that the proposed tower

would still provide “inadequate service of the southeast section

of the Town.” (CR 272.)

The Hutchins report also discussed the possibility of

stealth treatments, for example moving the tower down the hill on

the Marston property and using a tree or “stick” design. (CR

280.) The report noted that Cingular had submitted an

explanation of why small-scale facilities such as distributed

antenna systems (“DAS”) cannot address the coverage gaps, but

found that this explanation raised issues regarding deployment

logistics and financial burden of such a system that were beyond

the scope of Hutchins’ analysis. (CR 281.) The Hutchins report

concluded that ITW had not demonstrated that a 160-foot structure

is necessary and noted that Cingular’s engineer stated that 120

feet is the minimum required at the proposed site and 140 feet is

ideal. (CR 281.) The Hutchins report further noted that

although it may create problems for collocation of other

providers, “use of the Bodwell silo off North Road would provide

coverage over much of the problem area, as would a facility as

suggested at Giles Hill.” (CR 282.)

-8- At its June 2 9 , 2007 meeting, the ZBA focused on the

alternatives sought by ITW before applying for the variance, and

how exhaustive that research was. (CR 170.) Maxson stated that

there are alternatives to provide coverage for the Route 107/108

area, such as rooftop, silo, and flagpole facilities. (CR 171.)

Hutchins also discussed alternative sites including a flagpole-

designed structure at the Hillside Cemetery, Giles Hill, the

Bodwell silo, and a flagpole design at the school on South Road.

(CR 172.) The ZBA suggested the alternative of moving the

proposed tower to the west on the Marston’s property, lowering

the height of the tower, and disguising it as a tree. (CR 172.)

The possibility of a multi-site alternative was also discussed.

(CR 172.) Further, members of the public apprised the ZBA of

several individuals who had expressed interest in having ITW

place an antenna on their property. (CR 173.)

Representatives of ITW addressed these proposed alternatives

at the June 29 and July 2 4 , 2007 ZBA meetings and dismissed them

as “scenarios and not concrete options.” (CR 174.) Don Cody,

Director of Operations for Industrial Wireless, stated that a

multi-site alternative would be cost-prohibitive. (CR 172.)

ITW’s site acquisition specialist, John Champ, noted that he had

looked at the largest pieces of property that would meet setback

-9- issues when searching for suitable sites. (CR 172.) Champ also

noted that the Bodwells were not interested in considering any

proposal from ITW. (CR 172.) He stated that the Monahan Corners

site proposed by Maxson is not suitable because it is too small

for a 10,000 square foot compound area and did not meet setback

requirements. (CR 178.) Further, Champ noted that ITW had sent

a letter to the owner of record for the Giles Hill location but

had received no response. (CR 172.) Likewise, ITW received no

response from letters it sent to owners of the Sullivan

properties in the neighboring town of Kensington. (CR 178.)

Champ also stated that alternatives on Morse Hill and in the

commercial and light industrial zone would not meet coverage

needs. (CR 178.)

Champ and Cody both noted that they had investigated the

possibility of moving the proposed tower site to a different

location on the same property approximately 700 feet down the

hill, but the Marstons had indicated a potential other use for

that site and would not agree to a new lease for that site. (CR

172, 178.) Barry Hobbins, another ITW representative, stated

that a statute prohibited any new construction on or about a

cemetery of burial grounds, which would rule out the Hillside

Cemetery as an alternative site. (CR 178.) Hobbins reiterated

-10- that ITW had provided a report demonstrating its due diligence in

investigating 800 possible sites and had contacted all the

alternative sites suggested by Maxson and Hutchins. (CR 178.)

Finally, when queried regarding whether ITW had researched the

possibility of placing alternatives to a monopole and a 10,000

square foot compound at any of the alternative sites, Cody stated

that the ZBA was “digressing from the issue.” (CR 180.)

At the August 2 3 , 2007 hearing, an ITW representative

advised the ZBA that the applicants had agreed to both relocate

the tower from its original proposed location to a new location

on the Marston’s property 235 feet off the ridge and lower the

tower height to 140 feet. (CR 191.) ITW also stated that it was

willing to implement a “mono-pine” stealth installation if the

ZBA so desired i t . (Id.) ITW asserted that this alternative

location and lower height would lessen the amount of the tower

that could be seen above the ridge by fifteen feet. (Id.)

Jeffrey Spear, Attorney for Monique Waldron and Kenridge Farm,

stated that the tower would still protrude eighty feet above the

tree line, and by his interpretation of the topographical maps

would only be six feet lower than the original location, rather

than fifteen feet lower as asserted by ITW. (CR 192.) Spear

also emphasized that the burden was on ITW to show that it had

considered and eliminated all the alternatives for tall towers.

(CR 194.) Further, Spear drew the ZBA’s attention to the fact

-11- that the letters sent by the applicants only targeted property

capable of accommodating a 180-foot tower and only solicited

interest in constructing a tower. (CR 194-95.) The applicant’s

letters do not address the possibility of constructing

alternatives to a tall tower. (CR 194.)

In response to questions about alternatives, Cody stated

that a tower that extended only ten feet above the tree line

would be cost-prohibitive and impractical because it could

require twenty-four sites to solve the coverage problem and would

not allow for co-location. (CR 194.) In response to the

possibility of building a 100-foot silo with multiple antennas,

Cody stated that ITW had not asked anyone to build a silo on

their property and that ITW does not offer people a “catalog” of

options when sending letters to solicit sites for facility

placement. (CR 195.) Cody also stated that existing silos are

incapable of handling the load and that the cost factor makes

construction of new stealth silos prohibitive. (Id.)

On September 2 7 , 2007, the ZBA met to deliberate and 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. (CR 203-16.)

On October 3 , 2007, the ZBA issued a terse written notice of its

decision, which stated that it had voted to deny ITW’s variance

-12- application for construction of a 160-foot monopole and equipment

area in a residential zone. (CR 83.)

On October 2 5 , 2007, ITW, accompanied by Cingular Wireless

and the Marstons, moved for a rehearing. (CR 119-25.) On

November 1 3 , 2007, the ZBA voted to deny ITW’s request for a

rehearing, (CR 219-21), and later issued a brief written notice

memorializing its decision. (CR 84.)

C. Procedural Background

On December 1 3 , 2007, ITW commenced this action in a two-

count complaint, alleging that (1) the ZBA’s denial violated the

TCA in that it was not set forth in a separate written decision

and that the denial was not supported by substantial evidence

contained in a written record; and (2) the Town’s zoning

ordinance, as applied by the ZBA, has the effect of prohibiting

ITW and its lessees from providing personal wireless service to

its customers. (Cmplt., Doc. N o . 1

On April 3 0 , 2008, ITW moved for summary judgment with

respect to Count I of its Complaint. The Town objected to this

motion. I then granted leave for Kenridge Farms to intervene,

and the Town and Kenridge Farms filed their own cross-motions for

summary judgment with respect to Count I . On March 2 5 , 2009, I

ruled that the Town had violated the first prong of the

“substantial evidence” test contained in the TCA because it

failed to issue a separate written decision providing the

-13- rationales for its denial. I then remanded the matter to give

the Town thirty days to cure this defect by issuing a new written

decision. (Memorandum and Order, Doc. N o . 29

On March 2 6 , 2009, the ZBA met and decided that the ZBA’s

chair and its attorney, Peter Loughlin, would draft a decision

for the ZBA to approve and finalize. On April 2 3 , 2009, the ZBA

met in a “working meeting”, circulated a written decision to its

members, and voted unanimously to adopt the written decision

denying ITW’s application. In the April 2 3 , 2009 written

decision, the ZBA cites the two rationales that it voted on

September 2 7 , 2007 as not being satisfied. First, the decision

states that an unnecessary hardship did not exist because the

Town Ordinance does not unreasonably interfere with ITW’s use of

the property considering the unique setting of the property. To

support this rationale, the decision states that “other proposed

alternatives to the specific tower presented” might be feasible.

(April 2 3 , 2009 Decision at 6, Doc. N o . 3 0 ) . The decision notes

that ITW failed to persuade the ZBA that alternative sites for

the proposed tower and alternative forms of technology were not

feasible and would not achieve the same general coverage goals.

Second, the decision states that granting a variance would not be

consistent with the spirit of the Ordinance. To support this

rationale, the decision states that the proposed facility would

-14- have an “adverse impact on aesthetics, environmentally sensitive

areas and historically significant locations.” (Id. at 8.)

Following the filing of this written decision with the

court, the parties filed supplemental memoranda to their cross

motions for summary judgment addressing whether the April 2 3 ,

2009 written decision is supported by substantial evidence.

II. STANDARD OF REVIEW

Summary judgment is appropriate when the “pleadings, the

discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue of material fact and that the

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(c). A party seeking summary judgment must first identify

the absence of any genuine issues of material fact. Celotex

Corp. v . Catrett, 477 U.S. 3 1 7 , 323 (1986). The evidence

submitted in support of the motion for summary judgment must be

considered in the light most favorable to the nonmoving party,

indulging all reasonable inferences in its favor. See Navarro v .

Pfizer Corp., 261 F.3d 9 0 , 93-94 (1st Cir. 2001). The burden

then shifts to the nonmoving party to “produce evidence on which

a reasonable finder of fact, under the appropriate proof burden,

could base a verdict for i t ; if that party cannot product such

evidence, the motion must be granted.” Ayala-Gerena v . Bristol

Myers-Squibb Co., 95 F.3d 8 6 , 94 (1st Cir. 1996); see Celotex,

-15- 477 U.S. at 323. On cross motions for summary judgment, the

standard or review is applied to each motion separately. See Am.

Home Assurance C o . v . AGM Marine Contractors, Inc., 467 F.3d 8 1 0 ,

812 (1st Cir. 2006).

A claim alleging a lack of substantial evidence for a zoning

decision in violation of the TCA is especially amenable to

decision at summary judgment because the court’s only role is to

determine if substantial evidence exists within the

administrative record that would support the zoning decision.

See Nat’l Tower, LLC v . Plainville Zoning Bd. of Appeals, 297

F.3d 1 4 , 22 (1st Cir. 2002); see also 47 U.S.C. § 332(c)(7)(B)

(iii). The First Circuit has instructed that the TCA’s

substantial evidence standard, though “highly deferential, is not

a rubber stamp.” Sw. Bell Mobile Sys., Inc. v . Todd, 244 F.3d

5 1 , 58-59 (1st Cir. 2001)(citation omitted); see also Town of

Amherst v . Omnipoint Commc’ns Enters., Inc., 173 F.3d 9, 16 (1st

Cir. 1999) (“The substantial evidence test . . . involves some

deference but also has some bite.”). Substantial evidence “does

not mean a large or considerable amount of evidence,” or even a

preponderance of the evidence, just “more than a scintilla of

evidence.” ATC Realty, LLC v . Town of Kingston, 303 F.3d 9 1 , 94-

95 (1st Cir. 2002)(internal quotation marks and citations

omitted). Substantial evidence is simply

such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The

-16- reviewing court must take into account contradictory evidence in the record. But the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.

Todd, 244 F.3d at 58 (quoting Penobscot Air Servs., Ltd. v . Fed.

Aviation Admin., 164 F.3d 713, 718 (1st Cir. 1999)).

The substantial evidence standard does not permit a court to

“uphold a board’s denial of a permit on grounds that it did not

present in the written decision.” Nat’l Tower, 297 F.3d at 2 2 .

Judicial review of a board’s decision, however, is not limited

“only to the facts specifically offered in the written decision.”

Todd, 244 F.3d at 6 0 . A reviewing court can rely on evidence

from the written record supporting the board’s stated reasons for

its decision, even if the board itself did not. See id.; see

also Second Generation Props., L.P. v . Town of Pelham, 313 F.3d

620, 627 (1st Cir. 2002) (“an instance in which the district

court reviewed the record developed by the Board and provided

more detail than did the Board in its decision . . . is entirely

in accordance with the [TCA]”).

III. ANALYSIS

A. The Variance

variance if the applicant proves that the following conditions

have been met: (1) the variance will not be contrary to the

-17- 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)

Stat. Ann. § 674:33, I ( b ) ; Simplex, 145 N.H. at 729. In its

written decision, the ZBA found 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 argues that neither

finding is supported by substantial evidence. I address each

ground for the ZBA’s decision in turn.

1. Unnecessary Hardship

To prove unnecessary hardship in a typical case, an

applicant must establish, among other things, that the “zoning

restriction as applied to [the applicant’s] property interferes

with their reasonable use of the property, considering the unique

setting of the property in its environment.” Simplex, 145 N.H.

at 731-32. The New Hampshire Supreme Court recently explained

that uniqueness in cell tower cases also must be construed to

accommodate the TCA’s effective prohibition provision.2 Daniels

2 Under the TCA, local land use law is preempted when the decision of a local board would effectively prohibit the provision of wireless services. 47 U.S.C. § 332(c)(7)(B)(i)(II).

-18- v . Town of Londonderry, 157 N.H. 519, 5 2 7 , 953 A.2d 406, 412

(2008). Thus, the court has recognized that a property may be

deemed unique if it is especially well suited to close a

significant gap in wireless coverage. Id. Accordingly, the

court has held that:

[t]he fact that a proposed location is centrally located within the gap, has the correct topography, or is of an adequate size to effectively limit the gap in coverage, are factors that may make it unique under the umbrella of the TCA. Similarly, that there are no feasible alternatives to the proposed site may also make it unique.

Id.

The ZBA determined in its April 2 3 , 2009 decision that ITW

had failed to prove uniqueness because it did not establish that

other alternatives to its proposal were not feasible. In

particular, the ZBA identified two alternatives that it claimed

ITW failed to adequately explore. First, the ZBA concluded that

ITW had not provided a sufficient explanation as to why moving

the tower west of the proposed site off the ridgeline, lowering

the tower to the height of the tree canopy, and disguising the

tower as a tree was not a feasible alternative. Second, the ZBA

determined that ITW had only considered tall towers in its site

search and had dismissed properties not capable of accommodating

The First Circuit has determined that a local board’s denial of a cell tower application violates the TCA’s effective prohibition clause when the application is “the only feasible plan” to fill a “significant geographic gap in service.” Second Generation, 313 F.3d at 630-31.

-19- extremely tall monopole towers and 10,000 square foot compounds.

In particular, the ZBA concluded that ITW had not sufficiently

considered alternatives to tall towers, including stealth

installations such as a faux silo and multiple-site solutions.

ITW challenges the ZBA’s decision on several grounds.

First, ITW argues that the Town has not identified any specific

feasible alternatives, but has merely relied on speculation

regarding the availability of alternative sites. ITW argues that

speculation about possible alternatives cannot qualify as

substantial evidence that alternatives actually exist, and thus

cannot properly be relied upon as a basis for denial. Neither

the TCA nor New Hampshire variance law, however, places any

burden on the ZBA to present specific evidence that other

acceptable sites were available to ITW. Instead, the burden was

on ITW to provide evidence demonstrating that the land was unique

in that no feasible alternatives existed for its proposed tower.

See N.H. Rev. Stat. Ann. § 674:33, I ( b ) ; Todd, 244 F.3d at 63

(describing the burden of proof under the T C A ) ; Nine A , LLC v .

Town of Chesterfield, 157 N.H. 3 6 1 , 950 A.2d 197 (N.H.

2008)(stating that the applicant bears the burden of proof in

order to obtain a variance under RSA § 674:33). Here, the ZBA

rejected ITW’s application for a variance in part because ITW had

failed to meet its burden of proof with respect to the issue of

uniqueness. The ZBA does not need to point to a specific

-20- alternative site to be entitled to reject a variance application

on this basis as long as it can point to plausible alternatives

that ITW failed to properly evaluate.

ITW next contends that a tower on the Marston’s property

that does not extend above the ridgeline is not a feasible

alternative because it would not provide coverage to the area of

the Town on the other side of the ridge, which includes the

section of 108 in the Town along the Kensington boundary. While

it is undisputed that a tower that does not extend above the

ridgeline by itself would not close the section of the Town’s

wireless gap on Route 108 along the Kensington boundary, that

does not mean that the ZBA could not reasonably conclude that the

alternative was feasible.

This court has recently held that “a facility at an

alternative site can be ‘feasible to serve [a provider’s]

customers’ [for purposes of the TCA] even if it does not close an

identified coverage gap all, or even most o f , the way that a

facility at the provider’s proposed site would.” Industrial

Tower and Wireless, LLC v . Town of Epping, 2009 DNH 1 2 1 , at 15

(D.N.H. Aug. 1 1 , 2009) (LaPlante, J . ) . This is because, although

local zoning boards cannot effectively prohibit wireless

services, cost-benefit analyses regarding the impact of a

proposed facility “are in the realm of trade-offs” and “such

choices are just what Congress has reserved to the town.”

-21- Omnipoint, 173 F.3d at 1 5 . In other words, while a town cannot

preclude wireless service altogether, it can balance the

effectiveness of a wireless system against the other impacts the

system will have on the town. Id. Given the evidence in the

record, including statements by Hutchins that even ITW’s proposed

tower would not cover all the gaps in the Town’s service, it was

reasonable for the ZBA to conclude that a tower that does not

extend above the ridgeline was a feasible alternative because it

would still provide coverage to a large portion of the Town’s

coverage gap while reducing the visual impact of the tower.

The ZBA also pointed to other feasible alternatives to

support its denial of ITW’s application. The ZBA heard evidence

from experts such as Hutchins and Maxson that a number of

alternatives exist to close a large portion of the wireless

coverage gap in the Town. These alternatives include multiple

sites with shorter installations as opposed to a single tall

tower and stealth installations.

ITW claims that it has demonstrated that all the

alternatives suggested by the ZBA are not feasible for various

reasons including, inter alia, 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. And ITW is correct that

there is undisputed evidence in the record that some of the

-22- proposed solutions such as co-location on an existing tower,

antenna installation on other currently existing structures such

as an existing silo in the Town, and construction in a cemetery

in the Town are not feasible alternatives. ITW has not

adequately demonstrated, however, why other proposed solutions

such as a stealth faux silo installation or multiple shorter

installations would not be feasible alternatives.

ITW contends that a multiple site solution would not be

feasible because multiple towers would be cost-prohibitive and

multiple sites are not available to close the Town’s wireless

gap. But ITW provided no evidence to support its contention that

this solution would be cost-prohibitive, and the ZBA is not

required to approve the most economical proposal. “[D]evelopers

of wireless networks are not entitled to locate facilities

wherever they wish t o , nor are local governments required to

approve the ‘best’ or most economical siting proposals, so long

as permit denials are given in writing and are supported by

substantial evidence in the record.” ATC Realty, LLC v . Town of

Sutton, 2002 DNH 0 5 7 , 2002 WL 467132, at *11 (D.N.H. Mar. 7 ,

2002) (citing Omnipoint, 173 F.3d at 14-15).

Further, ITW’s contention that multiple sites are not

available is based on the fact that it considered and rejected

over 800 alternative sites, including the alternative sites

identified by the ZBA, Hutchins, and Maxson. However, the

-23- efficacy of ITW’s search for other feasible alternatives was

drawn into doubt by evidence in the record. Although ITW

produced evidence that it had contacted the owners of all

properties suitable to accommodate tall towers and 10,000 square

foot compounds and only the Marstons had expressed interest in

ITW’s proposal, ITW’s site search focused on a singular tall

tower installation. The search did not include properties able

to accommodate smaller facilities.

In addition, ITW’s search only evaluated property owners’

willingness to allow towers on their property. It did not

evaluate whether property owners were willing to allow stealth

wireless installations such as a faux silo on their property.

The minutes of the August 2 3 , 2007 ZBA meeting reflect that in

response to a question from a ZBA member about faux silos as an

alternative, an ITW representative stated that ITW had not asked

property owners about building a faux silo. (CR 195.) He

contended that ITW was not obligated to offer people a “catalog”

of options. Further, he stated that he was unsure that a faux

silo would have any less of a visual impact on the area and ruled

the option out as cost-prohibitive. (Id.) These conclusory

statements regarding the visual impact and the cost prohibitive

nature of a faux silo, however, are not sufficient to show that a

faux silo is not a feasible alternative and the ZBA was entitled

to reject these unsupported statements. See ATC Realty, LLC v .

-24- Town of Sutton, 2002 WL 467132, at *11 (noting that local

governments are not required to approve the most economical

proposal). Given the evidence in the record, it was not

unreasonable for the ZBA to conclude that the use of faux silos

is a feasible alternative and that ITW failed to demonstrate that

it had adequately considered such an alternative.

In sum, the ZBA’s denial was based on the fact that ITW was

focused on the use of tall towers, and did not fully explore

alternative stealth installations or multiple site solutions.

While pure speculation about other options that might exist

cannot justify denial of the application under either federal or

state law, ITW must prove uniqueness by demonstrating that it

made a full effort to evaluate alternatives and that alternatives

are not feasible to serve its customers. There was credible

evidence before the board that there were other feasible and

preferable alternatives. ITW’s failure to explore these

alternatives reasonably prevented the ZBA from concluding that

ITW had demonstrated the uniqueness of its proposal. Although

the ZBA may have reasonably reached another conclusion, it was

justified in concluding that ITW has not shown that a full effort

has been made to evaluate all known alternatives.

2. Spirit of the Ordinance

The ZBA also denied ITW’s application on the ground that the

use would be contrary to the spirit and intent of the Ordinance.

-25- (CR 213-16.) The primary goal of the Ordinance at issue is to

preserve and protect the rural character of East Kingston by

reducing the negative impacts of telecommunications facilities,

such as “impacts on aesthetics, environmentally sensitive areas,

[and] historically significant locations.” Zoning Ordinance of

East Kingston, Art. XV(B)(2). Accordingly, the Ordinance aims to

“permit the construction of new towers only where all other

reasonable opportunities have been exhausted, and to encourage

the users of tower and antennas to configure them in a way that

minimizes the adverse visual impact of the towers and antennas.”

Art. XV(B)(4). ITW claims that the ZBA’s conclusion regarding

the spirit of the Ordinance is not supported by substantial

evidence. I disagree.

The ZBA concluded that ITW’s proposed tower is not

consistent with the spirit of the Ordinance because it would

“alter the essential character of the locality and have an

adverse impact on aesthetics, environmentally sensitive areas,

and historically significant locations.” (April 2 3 , 2009

Decision, at p . 8 , Doc. N o . 30.) Local zoning boards may

restrict development based upon aesthetic concerns, so long as

those judgments do not mask a de facto prohibition of personal

wireless services and those aesthetic concerns are “grounded in

the specifics of the case.” Todd, 244 F.3d at 6 1 .

-26- In the present case, even if there were some generalized

concerns expressed by members of the public regarding the

aesthetics of cell towers, the ZBA did not rest its decision on

such generalized concerns. See id. at 6 0 . Rather, the ZBA

addressed the specifics of ITW’s proposal by considering the

height, location, type of installation, and where the tower would

be visible from when it concluded that a tower extending over the

ridge of the Marstons’ property was in violation of the spirit of

the ordinance. The record includes undisputed evidence that ITW

proposed to construct its tower in an area of the Town that has

retained its rural residential character and is prized for its

views of the countryside. Further, evidence in the record

indicates that the proposed tower would extend significantly

above the tree line on the ridge of the Marston’s property, be of

a different magnitude than any other structures in the region,

and be visible from numerous locations in the rural area.

ITW contends that the ZBA’s decision regarding the spirit of

the Ordinance is not based on substantial evidence because the

ZBA improperly relied on reports of the impact of the proposed

tower on historical properties including Kenridge Farm and the

Maurice Kimball House. ITW admits that the evidence shows that

its proposed wireless facility will impact some “potentially

historic” properties, (Pl.’s Mem. in Opp. to Cross-Mots. for

Summ. J., Doc. N o . 2 2 , at 1 2 . ) , however, ITW contends that the

-27- ZBA is precluded from considering the impact of the proposed

tower on these properties because the Ordinance was meant to

protect East Kingston and the historical properties in question

are located in a neighboring town and not in East Kingston. Even

if the Town could not consider the proposed tower’s visual impact

on property outside the Town, however, evidence indicates that

the proposed tower would also be visible from other areas of the

community and impact the rural nature of East Kingston. Thus,

the ZBA’s aesthetic concerns regarding impact on the Town remain.

ITW next argues that concerns expressed regarding the visual

impact of its proposed tower are not grounded in the specifics of

the case because the concerns are based upon an earlier proposed

tower height of 180 feet and a balloon test using a 170-foot

tether. ITW contends that the ZBA’s decision regarding

aesthetics cannot be grounded in the specifics of the case if it

fails to consider ITW’s modified proposal. To its credit, ITW

did modify the original proposal for a 180-foot monopole to

accommodate the ZBA’s desire for a less conspicuous facility.

ITW lowered the height of the tower, moved its location slightly

off of the ridge line, and agreed to use a mono-pine design.

However, as the ZBA noted, it was entitled to draw inferences

from the balloon test when considering ITW’s application for a

shorter tower at the new site. (CR 189.)

-28- Although the modifications agreed to by ITW undoubtedly

would reduce the negative visual impact of ITW’s proposal, there

is no question that even a 140-foot tower would extend and be

visible above the tree line on the ridge on the Marstons’

property. Evidence before the ZBA indicated that ITW’s proposed

alternative location and 140-foot height would only lessen the

amount of the tower you could see above the ridge by anywhere

from six to fifteen feet and that the 140-foot tower would still

protrude nearly eighty feet above the tree line. While the

Marstons’ property is already impacted by utility easements,

those easements are of a far lesser magnitude than ITW’s proposed

tower, which is of a different magnitude and nature than anything

else in the vicinity. See, e.g. Todd, 244 F.3d at 61 (finding

substantial evidence of adverse visual impact where residents

specifically complained that the proposed tower was of a

different magnitude than anything else in the vicinity and was

inconsistent with the residential uses around i t ) .

Evidence suggests that a 140-foot tower near a ridge on the

Marstons’ property would be prominent and aesthetically

incompatible with the rural character of the area. This evidence

reflects more than “generalized concerns” about the aesthetic

appeal of wireless telecommunication facilities. See id at 6 0 .

There is no indication that the ZBA’s decision based on

aesthetics is a mere pretext for a blanket prohibition on cell

-29- tower variances. Instead, the evidence supports the view that

the ZBA reasonably concluded that the proposed tower was not

compatible with the surrounding area and not sufficiently

screened from view.

In sum, there is substantial evidence in the record to

support the conclusion that the ZBA’s grounds for denial were

reasonable. A reasonable person could find credible and

substantial evidence supporting a finding that aesthetics was a

legitimate reason for the denial. While multiple eighty foot

structures will not completely eliminate the aesthetic impacts of

ITW’s project and might not provide the same coverage, it will

cover much of the gap and lessen the aesthetic impacts by

bringing towers down to a level consistent with surrounding trees

or disguising them as silos that fit into the rural residential

character of the area. See PrimeCo Pers. Commc’ns, Ltd. P’Ship

v . City of Mequon, 352 F.3d 1147, 1149 (7th Cir. 2003)(Posner,

J.) (stating that a reasonable decision whether to approve a

wireless antenna requires a balance of the contribution the

antenna will make to wireless service and the aesthetic or other

harm caused by the antenna). Substantial evidence supports a

finding that the application was denied based on aesthetic

concerns.

-30- B. New Hampshire’s Right-to-Know Law

ITW also argues that the ZBA violated New Hampshire’s Right-

to-Know Law by discussing the April 2 3 , 2009 written decision in

one or more non-public sessions. ITW contends that this

conclusion is “inescapable” because there is “no record of any

public discussion of the decision at all.” (Pl.’s Supp. Mem.,

Doc. N o . 33 at 1 3 ) . I disagree.

New Hampshire law requires land use boards to comply with

RSA chapter 91-A, the State’s Right-to-Know Law. See N.H. Rev.

Stat. Ann. § 673:17. Under chapter 91-A, “all meetings . . .

shall be open to the public.” N.H. Rev. Stat. Ann. § 91-A:2, I I .

“The purpose of the Right-to-Know Law is to ensure both the

greatest possible public access to the actions, discussions and

records of all public bodies, and their accountability to the

people.” Lambert v . Belknap County Convention, 157 N.H. 375,

378, 949 A.2d 709, 714 (N.H. 2008)(citation omitted).

The record in this case reveals that the ZBA engaged in

extensive public discussion and deliberation prior to its

September 2 7 , 2007 decision to deny ITW’s application.

Specifically, during its September 2 7 , 2007 meeting, the ZBA

discussed and voted on each criteria for ITW’s variance

application. (CR 203-16.) The minutes of that meeting reflect

that the ZBA determined that all but two of criteria necessary

for a variance had been satisfied. (Id.) Although my March 2 5 ,

-31- 2009 Order concluded that the ZBA had failed to comply with the

TCA’s written decision requirement, I did not require the ZBA to

redo its deliberations and vote again on ITW’s application.

Rather, my Order merely remanded the matter to give the ZBA an

opportunity to issue a separate written decision consistent with

its earlier ruling.

Following the March 2 5 , 2009 Order, the ZBA convened on

March 2 6 , 2009 for a previously scheduled public meeting. (March

2 6 , 2009 Meeting Minutes, Doc. N o . 33-3.) At that meeting,

Chairman John Daly notified the other ZBA members that the Court

had granted the Town thirty days to draft a written decision

memorializing the ZBA’s denial of ITW’s application. The meeting

minutes state that ZBA member Ciardelli would be assigned to

draft a decision with the ZBA’s counsel, Peter Loughlin. The

minutes also note that the ZBA would hold a public hearing to

consider the proposed decision. (Id.)

On April 2 3 , 2009, the ZBA met again in a “working meeting”

to consider whether to accept and issue the draft written

decision. (April 2 3 , 2009 Meeting Minutes, Doc. N o . 3 3 - 4 ) .

Although the April 2 3 , 2009 minutes state that no members of the

public were in attendance, the meeting was open to the public and

minutes were kept for the public record. Further, although the

April 2 3 , 2009 minutes do not describe any detailed discussion or

deliberation, they state that the ZBA members were given an

-32- opportunity to discuss the matter before a vote was taken to

approve the decision. After a brief comment by one ZBA member

but no further discussion, the ZBA voted to issue the written

decision.

There is no evidence to support ITW’s assertion that the ZBA

at any time engaged in private discussions or deliberations

regarding its denial of ITW’s application. The only private

meeting referred to in the record is Ciardelli’s meeting with the

ZBA’s counsel to draft the written decision. Ciardelli, however,

was entitled to meet in private with counsel to obtain advice as

to how to draft a written decision that reflected the ZBA’s prior

ruling because “[c]onsultation with legal counsel” does not

constitute a “meeting” which is required to be open to the public

for purposes of the New Hampshire Right-to-Know law. N.H. Rev.

Stat. Ann. § 91-A:2, I ( b ) .

While ITW contends that other private discussion and

deliberations must have occurred because the ZBA did not engage

in any discussions at the April 2 3 , 2009 meeting before voting to

adopt the proposed written decision, ITW’s argument overlooks the

fact that the ZBA had engaged in extensive public deliberations

before denying ITW’s application in 2007. Under these

circumstances, it is not surprising that the ZBA approved the

April 2 3 , 2009 decision with little additional discussion.

-33- In sum, there is no basis in the record for ITW’s Right-to-

Know Law challenge because the only meetings the ZBA held

concerning ITW’s variance request were the public meeting held in

2007 where the ZBA denied the requested variance, the public

meeting on March 2 5 , 2009, where Ciardelli was assigned to draft

a written decision with the assistance of counsel, and the public

meeting on April 2 3 , 2009, where the written decision was

approved.

IV. CONCLUSION

For the foregoing reasons, I deny ITW’s motion for summary

judgment (Doc. N o . 9 ) and grant the Town and Kenridge Farm’s

motion for summary judgment (Doc. Nos. 14 and 17) as to Count I .

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

August 2 8 , 2009

cc: Steven E . Grill, Esq. Russell Hilliard, Esq. Jeffrey Spear, Esq.

-34-