Wednesday, August 3, 2011

An Appreciable Height

By Nicole Killoran

In re Rinkers, Inc. and Shepard Act 250 Land Use Permit, 2011 VT 78 (mem.)

Today’s story takes place against the beautiful backdrop of Hardwick—a rural town with a quaint mix of farms, homes, small-scale businesses, and thick forest.  The Hardwick skyline, if you can call it that, rarely rises above the forest canopy and has the sleepy vibe of many towns north of Route 2 that hearkens back to a level of commerce that has long since dissipated. 

Enter Applicant Rinkers Communications, Inc., a local telecommunications company who specializes in pager and emergency personnel dispatch communications.  Applicant sought to replace an existing 43-foot wooden pole, hosting a variety of antennae used for pager, cell phone, and emergency dispatch relay, with a 180-foot telecommunications tower to “maximize the signal distance” and allow for “co-location of other antennas.” 

Applicant applied for and received from the Town of Hardwick a conditional-use permit for the tower.  But several neighboring property owners objected to the destruction of their skyline, and appealed the permit to the Environmental Court.  The SCOV affirmed this decision in In re Appeal of Shaw, 2008 VT 29 (mem.), and a conditional use permit followed.

Applicant then applied for an Act 250 land-use permit, a necessary step for anyone wishing to “commence development” in the state.  The District 7 Environmental Commission issued the permit, and Neighbors predictably appealed the decision to the Environmental Court.  Neighbors felt that the new tower would have an “undue adverse effect” on the area’s aesthetics, in violation of Act 250’s Criterion 8.  While the Environmental Court found that the tower would undoubtedly have an adverse effect on the aesthetics of the area, it concluded that the effect would not be undue.  The court issued the permit, after denying Neighbors’ motion to reconsider, and Neighbors appealed the decision to the SCOV.

The proposed tower would climb to a rather imposing height, rising nearly 100 feet above the tree canopy.  The tower site was surrounded on three sides by trees, and was located approximately 1.25 miles from Hardwick village.  To minimize visual impact, Rinkers proposed to use latticed galvanized steel, which weathers to a dull grey color and would theoretically blend in with the dull grey sky during the approximately 300 cloudy days we experience per year.  The tower would be mostly screened by trees, but it would be briefly visible from the village and surrounding roadways, more visible from the road nearest the property, and most obtrusively to nearby homes and farms.

The existing 43-foot tower, the SCOV notes, was unreliable for emergency dispatch use.  The new tower would have antennae at the 180- and 100-foot levels, well above the tallest trees.  AT&T, who also filed an amicus curiae brief to the SCOV, proposed to place cellular telephone antennas at the 160-foot level.  Also signing on to use space on the new tower was another cellular provider, Hardwick emergency service dispatch, and Vermont Electric Power Company.  The proposed tower would therefore remedy spotty service, provide greater coverage to the surrounding area, and allow for others to co-locate antennae on the tower.

Vermont takes a unique approach to development.  In the 1960s, the interstate highway system came to this rural state, delivering with it a high volume of tourists from surrounding states, who suddenly realized they had a pristine and beautiful neighbor to visit.  Reacting to the increased levels of development to accommodate tourism, the Vermont legislature enacted Act 250.  The legislature intended this new law to “regulate and control” land use and protect the environment from “unduly detrimental” uses.  The law also sought to promote orderly growth and development suitable to needs of its residents.

To accomplish these lofty goals, the legislature established district environmental commissions to review and adjudge each application for proposed development to determine whether the project will have an “undue adverse effect” on any of eight different criteria.  The criteria are broad, and consider impacts to water and air pollution, education and municipal services, necessary wildlife habitat, and scenic and natural beauty—to name a few. 

The SCOV’s analysis of the present permit for the proposed telecommunications tower is confined to the question of whether the Environmental Court erred in finding the proposed tower would not cause an undue adverse effect on the area’s aesthetics under Criterion 8.  As most attorneys who work in this area know, Criterion 8 is aesthetics, and the analysis is governed by the “undue and adverse” standard developed in the seminal Quechee Lakes case.  Under the Quechee Lakes test, a project is undue if it violates “clear, written community standard[s]” relevant to aesthetics; if the project would offend the “sensibilities of the average person”; or if the applicant fails to take steps to improve the harmony of the project with its surroundings.  If a project is deemed undue, then it must be measured for an adverse impact.

Neighbors base their appeal on the first and third factors in this test.  Neighbors claim the Hardwick Town Plan clearly favors a “rural and natural skyline,” and that this preference precludes a 180-foot telecommunications tower.  The SCOV quickly dismisses this reading of the Town Plan, pointing out that to read the Plan as Neighbors suggest would preclude construction of “any non-rural structure that disrupted the skyline.”  The SCOV affirms the Environmental Court’s reliance on provisions in the Town Plan favoring co-location, a policy adopted to balance the need for modern telecommunications facilities with the inherent intrusiveness of telecommunications towers.  The SCOV finds Neighbors arguments and unconvincing.

To the third factor, Neighbors’ advanced three arguments.  First, Neighbors claim the evidence supported a conclusion that a reduced height would not reduce coverage and opportunity for co-location.  The SCOV defers to the Environmental Court’s findings on this point and finds ample evidence in the record to support the proposition.  On this point, the SCOV notes that Neighbors never presented countervailing evidence to contradict the Applicants’ experts.  Note to intervening neighbors, beware of mustering these challenges on the cheap.  Without such evidence, the SCOV finds no basis to overturn the conclusion that a shorter tower would frustrate the project’s purpose.

Neighbors’ second argument attacks the sufficiency of the evidence the court relied on in concluding that the Town Plan favored co-location.  Applicants presented evidence showing that only four tenants—the two cellular companies, the Hardwick emergency services, and the Vermont Electric Power Company—were interested in locating on the tower.  Neighbors insist that this evidence proves the tower could be “significantly shorter.”  The SCOV rejects this argument too by noting that the additional height also allowed up to six future users at the site and did not give the SCOV grounds to reduce the overall height.  As the SCOV puts it, “[a]dditional space on the tower for future, albeit unknown users is precisely what the Town Plan envisions in aiming to limit the total number of towers built around the town.”

As a last ditch effort, Neighbors also challenge the Environmental Court’s finding that the trees near the proposed tower will eventually grow to one-hundred feet in height.  But because the court did not clearly rely on this to support its conclusion that a reduced height would frustrate the project’s purposes, the SCOV dismisses Neighbors’ arguments.  Neighbors point to unchallenged testimony regarding the potential height of the trees, but the SCOV declines to “second-guess” the court’s weighing of the evidence.

Though Neighbors missed this particular opportunity to reign in development in their idyllic corner of Vermont, perhaps they will eventually change their tune.  There are benefits to living in this beautiful mountainous state, but none of them include the ability to use a cell phone without frustration.

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