Agenda - Planning Commission - 05/02/1995

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Page 8 -- April 1995 Z.B. children in her home as long as she used her van to shuttle the additional chil- dren to and from her home. The board denied her request for only one reason -- the neighbors did not want added traffic on the street. If Buckhana used her own van, there would be no added traffic and no basis for the board's decision. Commercial Use N Are Telecommunications Towers Antennas? Carnie v. Town of Richmond, 648 A.2d 205 (New Hampshire) 1994 The Carnies lived in a residential zone in the town of Richmond, N.H. On neighboring land, Paragon Communication Inc. wanted to build a 100-foot tower to support antennas for its proposed cable television receiving facility. Since the structure would involve a commercial use in a residential district, Paragon applied to the town Zoning Board of Adjustment for a special excep- tion. The board granted the exception, and after being ordered by a court to make further findings, decided that the zoning ordinance's 35-foot height limi- tation did not apply to Paragon's project. This was because the limitation did not apply to chimneys or antennas. The Carnies appealed, and the court affirmed. The Carnies appealed again. DECISION: Reversed and returned to the lower court. The trial court was wrong to find that the entire tower Paragon proposed was an antenna. The tower was not the type of antenna the town residents ex- empted when they adopted the ordinance. Paragon failed in its argument that the entire structure was an antenna. Since the ordinance did not define the term "antenna," its dictionary meaning ap- plied. The dictionary defined antenna as "a usu[ally] metallic device (as a rod, wire, or arrangement of wires) for radiating or receiving radio waves." The tower portion of a telecommunications facility was not an antenna under this definition; it was just a structure that supported an antenna. Even though anten- nas had to have supporting masts, the ordinance most likely did not mean to encompass a structure of that size. It more likely meant ordinary, pre-cable television receiving antennas that were mounted on many homes. 5'/ Editor's Note: In 1994, Zoning Bulletin issued a special report on the U.S. Supreme Court's groundbreaking decision of Dolan v. City of Tigard, Supreme Court Docket No. 93-518. The Supreme Court ruled that the city's goals did not outweigh the Dolans' property interests. A recent story in Lawyer's Weekly U.S.A. reported that the Dolans are now suing the city for $2 million because the city continues to block the expansion of their business.