Laserfiche WebLink
<br />Zoning Bulletin <br /> <br />Variances-ZBA grants cellular telephone <br />company's request for variances to construct <br />communication tower <br /> <br />.--" <br /> <br />Landowners argue ZBA unlawfully allowed federal <br />Telecommunjcations Act to moot statutorily required <br />variance criteria <br /> <br />Citation: Daniels v. Town of Londenderry, 2008 WL 2727368 <br />(N.H. 2008) <br /> <br />NEW HAMPSHIRE (07/15/08)-Omnipoint Communications, <br />Inc. sought to construct a 170-foot monopole telecommunications <br />tower on a residential parcel (the parcel) in the town's agricul- <br />tural-residential zone. The town's zoning ordinance did not allow <br />personal wireless facilities, such as the proposed tower, in its agri- <br />cultural-residential zone. Therefore, Omnipoint applied for a use <br />variance, as well as two area variances rel~ting to tower height and <br />setback requirements. <br />Mer six months of public hearings, the town's zoning board of ad- <br />justment (ZBA) granted the three variances with certain conditions. -~') <br />Ryder Daniels and Gary Morrissette (collectively, "Daniels") <br />owned land that abutted the parcel. They appealed the ZBA's grant- <br />ing of the three variances to Omnipoint. <br />The trial court affirmed the ZBA's decision. <br />Daniels appealed. They argued that the ZBA's decision was unlaw- <br />ful because the ZBA overly deferred to the federal Telecommunica- <br />tions Act of 1996 (TCA) (47 U.S.C.~ 332(c)(7)). Daniels argued that <br />in doing so the ZBA did not, as it should have, require Omnipoint t() <br />show that it met state law-required criteria for a variance. Alterna- <br />tively, Daniels argued that the ZBA's decision was unlawful because <br />Omnipoint failed to meet the statutory criteria for a variance. <br /> <br />DECISION: Affirmed. <br /> <br />The court first concluded that the ZBA properly considered the <br />TeA in making its determination on O.rrmipoint's application. <br />The court explained that under New Hampshire law, the ZBA <br />was required to evaluate whether, Omnipoint met five statutory <br />variance criteria: (1) the variance would not be contrary to the <br />public interest; (2) because of special conditions, not allowing the .,) <br />variance would result in unnecessary hardship; (3) the variance was ' <br />consistent with, the spirit of the ordinance; (4) substantial justice <br /> <br />10 <br /> <br />@ 2008 Thomson ReuterslWest <br /> <br />70 <br />