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Bar News - February 13, 2009


Not in My Backyard: NH Telecommunications and Variance Law Intertwine with Demand for Technology

By:

Steve Grill

Stephanie Zywien

"Not in my backyard" is a reaction residents sometimes have when they learn telecommunications structures are proposed for their community. These days, however, nearly everybody demands seamless text, e-mail, and internet capability for their mobile devices with no dropped phone calls, even inside their homes and offices. The tension comes from people demanding bigger, better, and faster technology, while simultaneously not wanting to see the infrastructure necessary to support it. Obviously, a reasonable balance is needed.

Although federal law limits local control over the siting and construction of telecommunications infrastructure, the rubber still meets the road at the local level. To build and install infrastructure, telecommunications service providers must obtain land-use relief, such as variances, special exceptions, or conditional use permits, from local boards. It is these local boards that consider, among other things, the potential benefits to increased telecommunications coverage as well as the potential impact to the community.

This article summarizes recent NH Supreme Court cases that provide guidance for local boards to use in deciding whether to grant permission to telecommunications service providers to build infrastructure. This article does not address the specifics of Section 704 of the Telecommunications Act of 1996 (47 USCA, § 332(c)(7)(B) ) which limits local control.

In many cases, an "area" or "dimensional" variance is needed because a proposed facility is taller than what local regulations allow. Even in communities that have specific ordinances governing wireless facilities, those ordinances often do not reflect the reality that wireless telecommunications signals must travel to and from mobile devices to the antenna site without significant obstruction from natural objects such as trees and hills, or manmade structures such as tall buildings.

The requirements that must be met for a variance to be granted are statutory in origin. See N.H. RSA 674:33, I(b) (1996). In order to obtain a variance, a petitioner must demonstrate the following:

· the variance will not be contrary to the public interest;

· special conditions exist such that literal enforcement of the ordinance results in unnecessary hardship;

· the variance is consistent with the spirit of the ordinance;

· substantial justice is done; and

· the value of surrounding properties will not be diminished. See id; Robinson v. Town of Hudson, 149 N.H. 255, 256-57 (2003).

For several years, the unnecessary hardship standard required that the deprivation resulting from the enforcement of the ordinance be so great as to effectively prevent the landowner from making any reasonable use of the property. See Governor’s Island Club v. Town of Gilford, 124 N.H. 126, 130 (1983); Grey Rocks Land Trust v. Town of Hebron, 136 N.H. 243-44 (1992).

In 2001, the NH Supreme Court established a new, less restrictive standard. See Simplex Technologies v. Town of Newington, 145 N.H. 727 (2001). The case involved a request for a variance in order to develop a portion of commercial property. The Court held that the current restrictive approach was inconsistent with the earlier articulations of unnecessary hardship. See Simplex, 145 N.H. at 730. It was through the Simplex decision, therefore, that the Court attempted to strike a better balance between "the rights of citizens to the enjoyment of private property and with the rights of municipalities to restrict property use. See Id. at 731.

Following the Simplex decision, an applicant seeking a variance could prove unnecessary hardship by demonstrating that: (1) a zoning restriction as applied to their 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 purpose 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. See Simplex, 145 N.H. at 731-32. Notably, the unnecessary hardship test set forth in Simplex did not distinguish between "use" variances and "area" variances.

In Boccia v. City of Portsmouth, the Court addressed the problems faced by local zoning boards trying to apply the Simplex standard to applications for area variances. Boccia v. City of Portsmouth, 151 N.H. 85 (2004). The Simplex case had been decided primarily in the context of a use variance. In contrast, the Court in Boccia clarified the role of the unnecessary hardship standard in area or dimensional variance cases, and also articulated factors to be used when evaluating unnecessary hardship in the context of an area variance. Specifically, those factors include: (1) whether an area variance is needed to enable the applicant’s proposed use of the property given the special conditions of the property; and (2) whether the benefit sought by the applicant can be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance. See Boccia, 151 N.H. at 92. The Boccia case did not disturb the Court’s holding in Simplex. Instead, it set forth a two-pronged track for analyzing unnecessary hardship--one prong for use variances and the other for area variances.

Four years later, the Court specifically addressed the issue of whether to grant a variance in a telecommunications infrastructure setting in Daniels v. Town of Londonderry. See Daniels v. Londonderry, 2008-047 (N.H. 7-15-2008). The trial court upheld the Town ZBA’s decision to grant one use variance and two area variances in order to allow construction of a wireless telecommunications tower on a residential parcel. See id. The Court, relying on its decisions in Simplex and Boccia, held that "to ensure compliance with the TCA...a broader, more inclusive view of hardship is required..." See id. The Court also reiterated a point made by the First Circuit that, "[s]ince board actions will be invalidated by a federal court if they violate the effective prohibition provision, many boards wisely do consider the point." See id. citing Second Generation Props. v. Town of Pelham, 313 F.3d 620, 630 (1st Cir. 2002). In other words, boards should utilize the TCA as a "gloss over the deliberative process," when considering a potential decision’s implications. See id.

Finally, in Mayo v. Town of Conway, 2008-0318 (N.H. 11-21-2008), a special exception case, the Court affirmed the town of Conway’s decision to grant a special exception allowing the erection of a wireless communications facility. The Court held that under the Town’s Ordinance, a telecommunications carrier did not have to do more than make a reasonable effort to make sure it had examined alternatives, and that the Town did not need to hire an "expert" to help it decide the issues.

Taken together, Daniels and Mayo demonstrate that the NH Supreme Court understands the importance of wireless technology in today’s world and that New Hampshire law encourages municipalities to take a reasonable approach in their efforts to regulate this critical technology.

Steve Grill is a shareholder at Devine Millimet & Branch in Manchester where he chairs the firm’s commercial litigation practice group. Grill has represented wireless telecommunications companies in land-use matters before local boards and in state and federal courts. He can be reached at sgrill@devinemillimet.com.

Stephanie Zywien is an associate at Devine Millimet & Branch in Andover, Mass., where she is a member of the firm’s commercial litigation and employment law practice groups. Stephanie is licensed to practice in New Hampshire and Massachusetts, and can be reached at szywien@devinemillimet.com.

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