A Towering Tale in Barnstead - Another Cell Tower Challenge
The New Hampshire Supreme Court's order in Patricia Morris & a. v. Town of Barnstead (Case No. 2022-0583, issued on February 14, 2024) highlights the complexities inherent in appeals from local zoning and planning board decisions. This case involved an application by Industrial Tower and Wireless LLC (ITW) for site plan review to build a 175-foot communications tower in Barnstead, a project opposed by local residents Patricia Morris and Jerad Davis.
The crux of the legal battle was the applicability of Section 8-1 of the Barnstead Zoning Ordinance (BZO). Section 8-1 provides that “[a]ny business may be located in Barnstead upon application and approval of the Planning Board, Selectman and Health Officer; and provided that [certain requirements are met].” ITW argued cell towers are not businesses and thus not required to comply with Section 8-1.
The planning board had approved ITW's site plan application without explicitly addressing this section, despite arguments from the plaintiffs that it was relevant to the case. The zoning board of adjustment (ZBA), upon appeal, determined that the argument had no bearing on the applicable sections of the BZO, effectively stating they lacked jurisdiction over the appeal on these grounds.
In ultimately upholding the planning board's approval of the site plan, here are the key takeaways from the Supreme Court's order:
Jurisdiction over the plaintiffs' appeal - "dual tracking". When reviewing site plans, planning boards may make decisions as to the meaning of a provision of the zoning ordinance. An aggrieved party may appeal those decisions to the zoning board of adjustment. If the planning board also renders a decision on the site plan, an aggrieved party may appeal those decisions to the superior court. Confusion results where someone wants to appeal both types of decisions made at the same planning board meeting. The New Hampshire legislature addressed the problem with a "dual tracking" system for planning board decisions involving both an interpretation of the zoning ordinance and on the site plan itself.
Here, the Supreme Court ruled that the planning board did indeed interpret the meaning of Section 8-1, thus giving both the ZBA and then the superior court jurisdiction to hear the issue as to whether or not Section 8-1 applied to the cell tower. (The courts agreed with the implicit decision of the planning board that the cell tower was not a "business" per Section 8-1.)
Interpretation of the zoning ordinance. In addressing the applicability of Section 8-1, the court looked at the zoning ordinance's language and the specific characteristics of ITW’s proposed tower. The court noted the planning board had implicitly considered whether Section 8-1 applied when it approved ITW’s site plan. The court reasoned that, for the planning board to approve the site plan, it must have determined that ITW's tower, categorized under "commercial towers" per zoning ordinance definitions, did not constitute a "business" in the traditional sense under Section 8-1. This interpretation aligns with the zoning ordinance's intent and definitions, distinguishing between businesses operating within the town and structures like ITW's tower, meant for broader commercial purposes beyond local business activities.
Deference to Local Boards. The case also highlights the deferential standard applied by courts to decisions made by local zoning and planning boards. The Supreme Court reiterated that such boards' factual findings are prima facie lawful and reasonable, and their decisions can only be overturned for unreasonableness or identified errors of law. This principle underscores the challenges appellants face in overturning local board decisions and the need for a compelling legal argument to demonstrate unreasonableness or legal error.
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