Appeal of Shaw ( 2006 )

STATE OF VERMONT
ENVIRONMENTAL COURT
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In re Appeal of Shaw, et al. }
(Rinkers Communication } Docket No. 4-1-05 Vtec
Tower Application) }
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Decision and Judgment Order
This matter concerns a de novo appeal of the Town of Hardwick Zoning Board of
Adjustment (ZBA) approval of the telecommunications tower application submitted by Rinkers
Communications, which sought authority to install a 180-foot telecommunications tower. The
ZBA granted approval for a 100-foot tower, with conditions. Karen Shaw, Forest L. Foster,
Suzanna Jones, Robert Houriet, Heather Bryant, Geoff Butler, and K. Elizabeth Cole
(collectively referred to as Appellants) appealed from that ZBA Decision. Rinkers filed its own
cross-appeal.
The individual Appellants represent themselves in this proceeding. Cross-Appellant-
Applicant Rinker’s, Inc., d/b/a Rinkers Communications (Rinkers), is represented by L. Brooke
Dingledine, Esq.; the Town appeared through its non-attorney Town Manager, Daniel Hill.
The Court conducted a site visit and merits hearing on two separate days. Thereafter, the
parties were afforded an opportunity to submit post-trial memoranda. Based upon the evidence
admitted at trial, the Court makes the following Findings of Fact and Conclusions of Law:
Factual Background
1. Rinkers is licensed by the Federal Communications Commission (FCC) as a radio
common carrier and has provided paging services to the general public for more than twenty-five
years. Many of its customers are public safety or medical services providers. It maintains
several telecommunications towers in central Vermont.
2. Rinkers proposes to construct and maintain a 180-foot tower on property owned by
Wendell and Beverly Shepard along Bridgeman Hill Road, near the top of what is known as
Bridgeman Hill. The Shepards’ entire parcel contains several large fields and a single family
residence. The Rinkers tower is proposed to be located in the northern field on the Shepards’
property. The field is not clearly visible from neighboring roads or properties.
3. The site upon which Rinkers proposes to locate the new tower has been used as a site for
telecommunications equipment for over twenty-five years. Rinkers purchased the telecom-
munications equipment on the Shepards’ property in 2003, after the previous owner, Adelphia
Cable Company (Adelphia) went bankrupt. Rinkers currently maintains the pre-existing thirty-
nine foot wooden tower on the site first constructed by Adelphia. Rinkers’s paging antenna is
located on top of this wooden tower.
4. The field where the existing tower is located is near the northeast and northwest
boundaries of the Shepard property. The field slopes away from those boundaries and towards
the south. These borders are lined with trees, some of which are over sixty feet tall. The existing
tower and ground-mounted equipment is not easily observed from nearby roads or residences.
Due to the nature of telecommunications technology and the height of these border trees, the
performance of the existing pager antenna is not consistent.
5. Rinkers entered into a new lease with the Shepards that allows Rinkers to continue to
occupy a portion of the Shepards’ property where the existing tower is located. The leased area
has general dimensions of 200 feet by 200 feet. The lease runs for a term of 20 years.
6. Rinkers proposes to remove the existing tower, move an existing telecommunications
shed that is near the northeastern boarder and install the new tower near where the old tower was
located. Satellite dishes that were once on the property and operated by Adelphia have since
been removed. Rinkers also proposes to construct and maintain two air-conditioned buildings on
both sides of the tower base. Each building will be 12 feet wide and 24 feet long. A chain link
fence will run between the north and south ends of each building, so as to block unauthorized
entry to the tower. The buildings will be served by an underground electrical service from the
nearest utility pole on the Shepard property. A propane-powered electric generator will be
installed between the buildings to provide back-up power in the event of black-outs.
7. Rinkers proposes to install its pager antenna, which is just under twenty feet tall, on top
of the new tower. The pager antenna will be of the “combiner” variety, thereby allowing
multiple parties to simultaneously use it. The tower would be just over two hundred feet from
the northeastern boundary and well over two hundred feet from the northwestern boundary,
which abuts Bridgeman Hill Road. These buffers from nearby boundaries would provide
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reasonable assurance that the new tower and antenna structure, measuring less than 200 feet,
would not trespass upon neighboring property, should the tower collapse.
8. The tower would be held in place by three guy wires anchored on the Shepard property.
It would not be illuminated. FCC regulations do not require beacons or lights on towers or
antennas under two hundred feet tall.
9. Rinkers designed its new tower so that it can accommodate several two-way radio
antennas, like those used by area police and emergency service responders, as well as
communications repeater stations, wireless broadband service antennas and up to six cellular-
type telecommunications carriers. The two-way radio antennas, one to receive signals and
another to transmit signals, are about 22 feet tall. Paging technology requires that these two
antennas be vertically separated from each other; they cannot be located across from one another.
The cellular antennas are usually 12 feet in height and attached to the tower on booms and across
from each other, so that service can be offered in a 360º range from the tower. An example of
how the antennas are connected to the tower is shown in the photos of an identical tower Rinkers
owns and maintains on Irish Mountain in Berlin, Vermont, that is visible from I-89 Exit 6. See
Exhibit 12.
10. The proposed tower would be made of galvanized steel in a lattice type design that would
allow an observer to look through the tower. The Rinkers tower in Berlin, as shown in Exhibit
12, is of a similar design and is the site of several co-located pager and cellular antennas.
11. There are no other telecommunications towers in Hardwick or the surrounding
communities that would provide service similar to that of the proposed tower. The lack of
telecommunication facilities sometimes results in area police and emergency responders,
including the Hardwick Police and the Vermont State Police, having difficulty in communicating
with their dispatchers. Due to the lack of telecommunications towers in the area, police and
emergency responders are often unable to communicate with each other via radio. Cellular
phone service in the area is nonexistent.
12. Rinkers researched other potential sites in the area to locate a telecommunications tower.
Due to the nature of telecommunications technology, low-lying areas are not suitable for such
towers; the antennas need to be on a higher point, above a tree line, so that signals may be
broadcast to the outlining areas. One such site in Hardwick ― Buffalo Mountain ― would
provide equal or higher elevation for a proposed telecommunications tower. Another
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telecommunications provider ― Verizon ― sought approval for a tower on Buffalo Mountain
several years ago, but met strong local opposition and ultimately failed in its attempt to obtain
municipal approval. Mr. Rinkers, president of Rinkers Communications, testified to his
knowledge of Verizon’s prior failed efforts and the added expense of developing that alternate
site, including the need to clear for and construct an access road of about a mile long to the
proposed site near the top of Buffalo Mountain. Neither Mr. Rinkers nor any other witness
testified as to their knowledge of any other alternate site in Hardwick or the surrounding area that
would be appropriate for a telecommunications tower.
13. An independent study, titled “Personal Wireless Services Analysis of Facility Needs and
Siting” and dated September 9, 2005, was commissioned by the Town of Hardwick (hereinafter
referred to as the “Hutchins Study”). It was authored by Mark F. Hutchins, who worked in
cooperation with Town officials and members of the Hardwick Planning Commission and ZBA.
While the Hutchins study researched thirteen potential telecommunications sites in and around
Hardwick, the Rinkers site and the potential site on Buffalo Mountain seemed to provide the
most reliable coverage for the Town. In fact, the study contains the conclusion and
recommendation that the Rinkers site will provide extensive but not total coverage for all of
Hardwick1 and concludes that “some sort of two-tower scenario” (i.e.: the Rinkers site and
Buffalo Mountain), supplanted by repeaters, may be the only effective means to provide
complete wireless telecommunications coverage to all of Hardwick.2
14. The proposed Rinkers tower on the Shepards’ property will be visible from several
locations, including the homes or farms of most Appellants. The proposed tower site is downhill
from the northerly boundaries of the Shepard property by about 23 feet in elevation. Most, if not
all of the Appellants’ homes are north of the proposed tower site. The tallest of the trees on the
northerly boundaries were 67 feet tall when last measured in May of 2004. Thus, roughly the
bottom half of the tower, the fencing, generator and buildings will be below these nearby trees
and not visible from adjoining properties to the north. About 90 feet of the tower and the 20-foot
1
Hutchins Study at p. 11–13 and Figures 17 and 31.
2
Id. at 17. The Hutchins Study also notes that while tower height would improve coverage, approval of such
towers must be respectful of aesthetic and other impacts. The Study notes that such concerns doomed a previous
application to site a telecommunications tower on Buffalo Mountain and that any future application to site a tower
on Buffalo Mountain that was taller than 150 feet “would face strong opposition.” Id. at 13.
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pager antenna will be above these trees. Rinkers’s balloon demonstration provided estimates of
the tower and antenna height.3
15. The neighborhood in which the tower is proposed is in the Compact Residential Zoning
District (CR District). The District’s stated purpose “is to provide for moderate to high density
residential development, and appropriate non-residential uses, in predominately built-up areas
within and surrounding the town’s traditional village centers.” Hardwick Zoning and
Subdivision Bylaws (Bylaws) § 2.4(A). Telecommunications facilities are permitted as a
conditional use in the CR District. Nearby properties are almost all used as year-round
residences and are located on medium to large tracks of land. There are four working farms in
the neighborhood, two of which follow organic practices.
16. The potential of a nearly two hundred foot telecommunications tower within several
hundred yards of Appellants’ homes and farms causes them to have aesthetic and health
concerns, as well as fears that the proposed tower may have a negative impact on the value of
their homes and properties.
17. On December 7, 2004, the ZBA approved Rinkers’s application (No. 2004-045) for a
telecommunications tower zoning permit, but limited the tower’s height to 100 feet, plus an
additional 20 feet for the proposed paging antenna to be attached to the top of the tower. The
ZBA also attached several conditions to their approval of the reduced-height tower.
Discussion
Land use cases involving the siting of telecommunications towers will most often present
at least one set of conflicts between important, competing interests. Due to the nature of
telecommunications technology, a tower must be designed to allow the antennas attached to it to
be situated above nearby tree tops. Statutes and ordinances encourage towers to be designed so
that many antennas may be located on one tower (so as to minimize the number of individual
towers in a given area), resulting in the incentive for towers to be taller, to accommodate
multiple antennas. But a tall tower with multiple antennas increases the likelihood that it will be
visible from many areas and could interfere with the aesthetic beauty of an area, particularly an
area with as much aesthetic beauty as Hardwick and its surrounding towns.
3
Rinkers’s Exhibit 9 shows three photos of a pink test balloon tethered to the proposed tower site by a string. The
string was originally 180′ long, but measured 210′ long when the balloon was reeled in several days later.
Appellants’ Exhibits A, B, C and K show a different Rinkers height demonstration, using a blue balloon.
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The Town of Hardwick and its citizens had the foresight to not only commission the
Hutchins Study, but also to adopt specific Bylaws provisions that govern telecommunications
facilities and reference concerns about telecommunications facilities in their Town Plan. We
review the applicability of those provisions in more detail below.
In this de novo appeal, this Court is charged with rendering a new decision, based upon
the evidence admitted at its trial, on the issues preserved for appeal that relate to the pending
application. 24 V.S.A. § 4472; see also In re Poole, 136 Vt. 242, 245 (1978) (“All of the
evidence is heard anew, and the probative effect determined by the appellate tribunal [the
Environmental Court here] as though no decision had been previously rendered.”). Appellants
filed their Statement of Questions, thirty-six in number and some with sub-parts, that generally
challenge the conformance of Rinkers’s application with the Town Plan and the Bylaw
provisions that set standards for telecommunications facilities, in particular Bylaws § 4.15.
Appellants’ Statement of Questions also includes more generalized challenges to the proposed
tower. In the hope of addressing all issues preserved for review in this appeal by Appellants’
thirty-six Questions in a complete, non-repetitive and clear manner, we have subtitled our
discussion below. Since the only remaining Question raised by Rinkers’s cross-appeal speaks to
the general issue of compliance with the Hardwick Zoning Bylaws (Bylaws), we incorporate our
analysis of Rinkers’s Question in the three sub-sections of our discussion below.
I. Compliance with Town Plan (Appellants’ Questions 1, 2 & 3)
Appellants’ first three Questions challenge whether the proposed tower conforms with
specific provisions of the Hardwick Town Plan (Plan) and whether the Bylaws, as interpreted in
the context of the pending tower application, implement the goals of the Plan.
While the sincerity with which Appellants assert that the proposed tower conflicts with
specific provisions of the Hardwick Town Plan is genuine, we cannot pass judgment on these
Questions because our Supreme Court has repeatedly stated that municipal plans do not have
“the force and effect of a legislative enactment,” unless specifically incorporated into the zoning
bylaws. In re Appeal of Wesco, 2006 VT 52, ¶ 33. Other than the generalized reference to the
Town Plan in the general purpose provisions of Bylaws § 1.2, we find no specific reference to or
incorporation of the Plan in the Bylaws.
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The Supreme Court in Wesco explained its reasoning in a common sense manner by
quoting from the long-standing precedent of Kalakowski v. John A. Russell Corp., 137 Vt. 219(1979):
The plan is merely an overall guide to community development. It is a general
guideline to the legislative body for its consideration of the municipality's land use
program and of the community's needs and desires. Often stated in broad, general
terms, see 24 V.S.A. §§ 4382–4383, it is abstract and advisory. Zoning bylaws, on
the other hand, are specific and regulatory. Zoning is properly conceived of as the
partial implementation of a plan of broader scope. It must reflect the plan, but it need
not be controlled by it. Although the plan may recommend many desirable
approaches to municipal development, only those provisions [specifically]
incorporated in the bylaws are legally enforceable.
Id. at 225–26 (citations omitted).
Thus, we must conclude that because Appellants’ Questions 1, 2 and 3 ask this Court to
pass judgment on conformance with a Plan that is not a regulatory document, those Questions
cannot serve as a basis for rejection of the pending tower application. To the extent Appellants
raise similar issues in the context of questioning whether the proposed tower conforms with the
Bylaws, we address those issues below.
II. Compliance with Bylaw provisions.
A. Safety and health concerns (Appellants’ Questions 5, 11, 20, 22 & 35)
Appellants raise several issues relating to the protection of public health, safety and
welfare. These important interests are protected by references in Bylaws §§ 3.7(B)(1),
4.15(F)(1) and 4.15(F)(4). The specific evidence presented at trial did not reveal even a
suggestion that the proposed tower posses a threat to public health, safety and welfare. The
tower and its attachments are no more than 200 feet tall; the tower is located over 200 feet away
from the nearest boundary and a considerably greater distance from other boundaries. The
nearest boundaries are surrounded by mature trees that provide a physical buffer from adjoining
properties.
Pursuant to Bylaws § 4.15(F)(1), Rinkers commissioned a study of the expected
transmissions, emissions and interference from the proposed tower and its antennas. Applicant’s
Exhibit 13. This study evidenced that the proposed tower was not expected to exceed 3.5% of
the maximum standards established by the FCC and the Occupational Safety and Health
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Administration (OSHA). While Appellants referenced the Court to several studies that speak to
the general risks and threats that telecommunications towers and equipment may pose,
Appellants presented no evidence that addressed the expected transmissions, emissions or
interference from this specific tower. Thus, the only admitted evidence presented expressed an
estimate that the proposed tower and antennas would operate will below the federally established
health and safety standards.
B. Tower siting, review of alternate sites and respect for scenic and historic
resources (Appellants’ Questions 6–9, 10, 12, 13–16, 19, 21, 30, 31, 33 & 34)
The proposed tower is sited in a residential area that also serves as the neighborhood of
several working farms, including two organic farms. Hardwick’s Bylaws emphasize the
importance of protecting the Town’s scenic and historic resources, and for good reason: the
Bridgeman Hill Road section of Town, as well as several other areas of Hardwick, provide
excellent examples of the natural beauty of our State. However, based upon the evidence
presented, we conclude that the proposed tower does not adversely affect the scenic and historic
resources of the neighborhood in which it is sited.
The proposed tower location has served as the site for telecommunications equipment for
over 25 years. While the current equipment will be expanded and the tower will be considerably
taller, all proposed ground mounted equipment will continue to be screened from the neighboring
road and property by the ground cover and trees on the border of the northern field where the
tower is to be located. Given the siting of the tower on the down-sloping field and the trees on
the northern boundary, all ground-mounted equipment and nearly half of the tower will be
screened from view. This setting will still result in about 90 feet of the tower being above the
nearest tree line and therefore visible from neighboring properties. The lattice-type design of the
tower appears to minimize the visual impact of the portion of the tower that will be visible.
Rinkers investigated alternate sites for its proposed tower. Its president testified that the
proposed site would best serve the telecommunications needs of the community. The Town’s
own study supported Rinkers’s conclusion that its site was superior to others. Ironically, the
alternate site Appellants suggested ― Buffalo Mountain ― already failed to receive municipal
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approval for a tower similar to that proposed here.4 The Town’s study suggested that a tower of
greater than 150 feet on Buffalo Mountain, while possibly necessary to provide sufficient
telecommunications service to the area, would face serious opposition.
The Buffalo Mountain site provides further support for the appropriateness of Rinkers’s
proposed site on Bridgeman Hill: Buffalo Mountain is an area of largely undeveloped land with
few, if any residents or farms. It is mostly forested; siting a telecommunications tower on it
would require extensive road work and tree cutting. These factors may have been the very basis
for the demise of the tower proposed on Buffalo Mountain.
Rinkers’s proposed tower site has been used for telecommunications equipment for over
a quarter century. Because it is sited in a field, minimal site clearing will need to occur.
However, since its nearby boundaries are bordered by mature trees and ground cover, the site is
screened from adjoining properties.
Bylaws § 4.15(C)(1) requires that telecommunications towers be sited on exiting
buildings or other structures, whenever possible. Rinkers provided adequate evidence for the
Court to conclude that existing buildings and structures in Hardwick do not provide the altitude
or location necessary for the equipment needed to serve Hardwick. The Town’s own study
supports this conclusion. No evidence was offered to the contrary. We therefore conclude that
Rinkers fulfilled its burden of satisfying Bylaws § 4.15(C)(1).
C. Removal of obsolete equipment (Appellants’ Question 17)
Appellants challenge whether Rinkers can or should be trusted to remove “all abandoned,
unused, obsolete or noncompliant wireless telecommunications facilities,” as required by Bylaws
§ 4.15(H). The Court understands from observations made during the site visit and explained in
testimony at trial that Rinkers may now have ownership or control of telecommunications
equipment that falls within this category that has not been removed. But no evidence was
introduced at trial that the pre-existing equipment referenced was subject to a prior removal order
or the provisions of Bylaws § 4.15(H). This Bylaw provision appears to speak to conditions that
must be followed in connection with the approval of new telecommunications equipment,
although the section references “all . . . telecommunication facilities” and could be read to
4
Even though the Town study suggests Buffalo Mountain as the next best site for a telecommunications tower, it is
not surprising that its proposed tower could not receive Town approval. The significance of Buffalo Mountain is
evidenced by the fact that it is reproduced as the background on the Town’s official seal.
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control all such equipment in the ownership or control of the applicant. In any event, the
provisions of § 4.15(H) can serve as appropriate conditions for approval of Rinkers’ proposed
telecommunications facilities. We therefore incorporate such a condition in our approval below.
D. Traffic impacts (Appellants’ Question 18)
The Rinkers tower is not proposed to be regularly staffed; access to it will not be open to
the public. Other than the occasional maintenance personnel, no admitted evidence suggested
any new traffic that the proposed new tower would generate. Bylaws § 5.2(H)(3) relates to
review of traffic impacts when conditional use applications are being considered.5 Given the
nominal additional traffic generated by the proposed tower, we conclude that Rinkers has
satisfied its burden of proof under § 5.2(E)(3) and specifically conclude that the proposed tower
has no measurable impact upon area traffic.
III. Miscellaneous issues (Appellants’ Questions 4, 23–26, 28, 29 & 36)
Our final discussion addresses the miscellaneous concerns Appellants raise regarding the
impact of the proposed tower upon the value of their properties, the integrity of the Bylaws,
potential future liabilities and the past unrelated activities Mr. & Mrs. Sheppard have allowed to
occur on their property. While we have no reason to doubt the accuracy or sincerity of
Appellants’ allegations here, we must remind Appellants that this is a Court of limited
jurisdiction. We have only the authority to consider issues the Town ordinances authorize the
municipal panel in the first instance and this Court in the second instance to review in connection
with a pending application. We have not been made aware of any provisions in the Bylaws or
other Hardwick ordinances that authorize consideration of these issues in connection with a
tower application. We therefore decline to address these issues, which we conclude are beyond
the scope of this Court’s jurisdiction.
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that
Rinkers’s application for conditional use approval of a 180-foot telecommunications tower is
GRANTED, subject to the following terms and conditions:
5
Even though Appellants challenge the conditional use approval of Rinkers’s tower, it appears that traffic is the
only specific conditional use criteria that Appellants preserved for review in this appeal. Impact upon the character
of the area is also a conditional use criteria under Bylaws § 5.2(E)(2), but Appellants preserved review of this impact
through their challenges under Bylaws § 4.15.
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1. The tower, its support guy wires, equipment buildings and fencing shall be
constructed as shown on the drawings and site plans admitted into evidence. See
Exhibits 1 through 13.
2. No antennas other than the pager antennas, two-way radio antennas, communications
repeater stations, wireless broadband service antennas and up to six cellular-type
telecommunications antennas Rinkers proposed in its application shall be located on
the completed tower, unless and until Rinkers receives permit approval for such
additional antennas. All other antennas and the proposed cellular antennas shall first
receive zoning approval pursuant to Bylaws § 4.15(F)(1) before being located on and
operated from the Rinkers tower.
3. Rinkers shall remove all abandoned, unused, obsolete or noncompliant wireless
telecommunications equipment and facilities on the proposed site within twelve
months of the cessation of operations at the site and shall restore the site to its
original, pre-telecommunications equipment appearance. The Court concludes that it
is not necessary at this time to require Rinkers to post a bond or other security.
Nothing in this condition shall limit a party from requesting that the Court revisit the
need for a bond other security upon a specific showing that any such equipment or
facilities has been abandoned, gone unused, or become obsolete or noncompliant for a
twelve month period.
4. The Court authorizes the tower to be constructed to a height of 180 feet, with a pager
antenna on top of it of no more than twenty feet, thereby REVERSING the specific
limitation by the ZBA of the tower to a height of no more than 100 feet. The Court
concludes that the additional height is warranted by the increased coverage estimated
by Rinkers’ expert and the encouragement of co-location on telecommunications
towers contained in Bylaws § 4.15(A)(4).
5. This Decision and its conditions shall run with the land and enforceable against
Rinkers, its successors or assigns.
This matter is REMANDED to the Hardwick Zoning Administrator, solely to complete
the ministerial act of issuing a zoning permit in conformance with this Decision, which also
serves as the Judgment Order in this appeal.
Done at Berlin, Vermont, this 2nd day of October, 2006.
__________________________________________
Thomas S. Durkin, Environmental Judge
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