LINDA TUCKER and TUCKAHOE LAND CO. L.P.
NORTH KINGSTOWN ZONING BOARD OF REVIEW, T-MOBILE NORTHEAST LLC, DANIEL PIRHALA, VINCENT BRUNELLE, JOHN GIBBONS, GREGG O'NEILL and STEVEN CRAVEN
Washington County Superior Court
For Plaintiff: Dawson Hodgson, Esq.
For Defendant: William M. Dolan, III, Esq.
Edward D. Pare, Jr., Esq. James H. Reilly, Esq.
Kristin E. Rodgers
Linda Tucker and Tuckahoe Land Co. L.P. (collectively Appellants) appeal from a decision of the North Kingstown Zoning Board of Review (the Board) granting a use variance, three dimensional variances, and a special use permit to T-Mobile Northeast LLC (T-Mobile) to construct a 120-foot telecommunications tower upon a residential lot located at 170 Slocum Road, North Kingstown, Rhode Island.
Jurisdiction is pursuant to G.L. 1956 § 45-24-69. For the reasons set forth herein, the Board's decision is affirmed.
Facts and Travel
T-Mobile is a subsidiary of T-Mobile USA Inc., a national telecommunications provider, which, through its various subsidiaries, has a Federal Communications Commission (FCC) license to operate a digital personal communications wireless service network throughout the country, including in Rhode Island and in the Town of North Kingstown. T-Mobile provides wireless service to customers through a network of antennae that broadcast signals between towers and to customers' wireless phones and devices. Antennae can be mounted on the exterior of towers or other structures or within the interior of a structure such as a unipole.
When T-Mobile discovers that an area within its network lacks sufficient coverage to provide its customers with reliable service to make and maintain calls, it tries to remedy the coverage gap by either looking for an existing tower on which to place antennae or, as a last resort, building one of its own. It is this type of "coverage gap" situation that provides the backdrop for the instant action.
T-Mobile had received complaints from Amtrak that customers would often lose cellular phone service while passing through a portion of the Amtrak line near Slocum Road along the North Kingstown/Exeter town line. Various properties in the vicinity of the Amtrak line were reviewed in order to ascertain where an antenna could be installed to address the coverage gap. Ultimately, T-Mobile identified 170 Slocum Road in North Kingstown as the ideal spot to locate a telecommunications tower, which, as originally planned, included exterior-mounted antennae. The proposed site, identified as Assessor's Map 56, Lot 11, is located in a Rural Residential zone and is owned by Alfred T. Cole, Jr. (the Property).
On November 10, 2010, T-Mobile filed an Application with the Board for various forms of relief. Specifically, T-Mobile sought: (1) a special use permit seeking relief from Article III, Land Use Table—Utilities Section of the North Kingstown Zoning Ordinance (the Zoning Ordinance) to operate the proposed telecommunications tower in a Rural Residential zone; (2) a use variance under § 21-325(15)(a) of the Zoning Ordinance in order to install the proposed telecommunications tower within 500 feet of a Scenic Overlay District; (3) a rear yard dimensional variance under § 21-325(15)(c)(3)of the Zoning Ordinance to locate the proposed telecommunications tower seventy-two feet from the property line of an abutting residential property; (4) a side yard dimensional variance under § 21-325(15)(c)(3) to locate the proposed telecommunications tower within sixty-five feet from an abutting residential property; and (5) a dimensional variance under § 21-325(15)(c)(11) to locate the proposed telecommunications tower 1.15 miles from an existing guyed tower located at the Yawgoo Valley Ski Area. See Application (Appl.) Ex. 1, Nov. 10, 2010.
T-Mobile's Application was duly presented to and reviewed by the North Kingstown Planning Commission (Planning Commission) in January and April 2011. In the course of the review sessions, the Planning Commission suggested several changes, and said changes were also included in the Town Planner's recommendations to the Board. The changes included: (1) replacing the exterior–mounted communications tower with a unipole/flagpole style, with all interior-mounted antennae; (2) relocating the position of the tower to the northeast corner of the Property; (3) reducing the size of the lease area from 3600 square feet to 3300 square feet; and (4) utilizing deer-resistant plantings rather than arbor vitae. Tr. 6, May 31, 2011; see also May 4, 2011 report by Rebecca P. Lamond, AICP, Principal Planner to Board. T-Mobile implemented all the Planning Commission's recommendations and, by written decision dated June 21, 2011, the Planning Commission approved T-Mobile's plan. However, the changes requested by the Planning Commission also necessitated slight changes in T-Mobile's Zoning Board Application. T-Mobile submitted its revised Application and all supporting documents by way of a Supplemental Information Packet dated June 16, 2011 (Supp. Appl.) The revised Application sought a fifty-five foot rear property setback and a forty-five foot side yard property setback rather than seventy-five and sixty-five foot setbacks, respectively. See Supp. Appl., Ex. 1 at 4.
T-Mobile's Application was presented at public hearings before the Board on May 31 and July 12, 2011. Testifying on behalf of T-Mobile were radio frequency engineer Bryan Eicens (Eicens), planning consultant Ed Pimental (Pimental), and site acquisition specialist Peter Fales (Fales). Appellants were represented by counsel at the two public hearings before the Board, and counsel had the opportunity to question each of the witnesses. Appellant Linda Tucker (Tucker) also testified before the Board.
Eicens presented coverage maps to the Board which showed both the existing coverage in the area as well as the proposed coverage. Tr. 14-32, July 12, 2011; see also Supp. Appl., Ex. 3, at 10-15. Through the use of these maps, Eicens explained the different levels of coverage that could be achieved—more specifically the difference between reliable In-Building coverage and reliable In-Vehicle coverage. He noted that coverage for the Amtrak line would require reliable In-Building coverage, a higher level of coverage than In-Vehicle. Tr. 15, July 12, 2011. He testified that, with the construction of the tower, T-Mobile hoped to achieve a level of -76 dBm along the Amtrak line, which would provide reliable In-Building coverage to Amtrak passengers and would also address some customer complaints T-Mobile received from people living in the area. Id.
In order to determine the type of coverage needed, Eicens developed standard deviation propagation maps. Id. at 18. The predictions in the propagation maps were based on baseline data assembled by members of Eicens's team who would either ride the area in a vehicle or ride the Amtrak line with an antenna to measure signal strength. Id. at 16. While acknowledging that some of the poor reception areas on the existing map still show up on the proposed map, Eicens noted the reason is due to the remoteness of some of the areas for which thorough testing cannot be accomplished; however, should the tower go in, the poor reception areas would disappear. Id. at 17-18. Further, when asked if penetrating a steel train is the main reason for the coverage gap, Eicens answered that, while it may be a contributing factor, the primary reason for the poor coverage is the actual terrain of the area. Id. at 20. The terrain, however, would have relatively little impact on the tower as proposed on the Property because it provides the antennae with a clear line of site to the Amtrak line. Id. at 21.
Pimental authored a planning consultant report dated March 18, 2011,  and offered testimony concerning the appropriateness of the proposed tower siting. Tr. 8-11, May 31, 2011. Pimental noted in his testimony that aside from finding a location that meets the coverage goals, a primary concern when locating a tower is its impact on the residents. Id. at 8. Toward that end, Pimental prepared a neighborhood analysis of ten lots surrounding the Property. He noted that the nearest residence is 350 feet away from the tower; beyond that, the next two nearest houses are 600 feet away. Id. at 8-9. This density translates to one unit for every thirty-eight acres. Id. at 9. Based on this, Pimental concluded that the proposed tower on the Property would have limited impact on residents in the vicinity. Id.
Pimental also commented on the tower's impact on the Scenic Overlay District. He opined that while the tower would only be 280 feet from a scenic corridor, i.e., Slocum Road, rather than the 500 feet required by the Ordinance, placing the tower further back from the road would require an extended driveway that, itself, would inhibit the agricultural vista. Id. at 10. Pimental further noted that the existence of surrounding tree lines would help mitigate any visual impact on the Scenic Overlay District. Id.
Fales testified as to the various properties he explored to find a suitable placement for T-Mobile's tower. Tr. 6-14, July 12, 2011. His findings were also documented in an Affidavit he executed on November 14, 2010, submitted in connection with T-Mobile's original Application. See Appl., Ex. 5. Fales noted that he could find no solution that would not require one or more variances. Tr. 7, July 12, 2011. He listed the parcels he studied and the reasons they were discounted and concluded that the Property was the only viable option. Id. at 7-13; see also Appl., Ex. 5, ¶¶ 8-19. While the subject Property is zoned Rural Residential, Fales did look at neighboring plats for any Industrial or Business zones; however, he determined that none offered feasible solutions. Tr. 10-13, July 12, 2011.
Tucker, either individually or as a partner in Appellant Tuckahoe Land Co. L.P., owns property abutting the Property to the east and south, as well as two additional house lots at 70 Slocum Road and 897 Indian Corner Road, approximately forty acres immediately across the street from the Property on the Exeter side of Slocum Road, and a residential development within a mile from the Property. Tr. 38-39, July 12, 2011. Tucker testified the proposed tower would be visible from the house lots in that residential development as well as from her place of business at 757 Indian Corner Road. Id. at 39.
The Board unanimously voted to grant T-Mobile's Application on July 12, 2011. Tr. 59, July 12, 2011. A written decision was issued on July 29, 2011, and filed with the Town Clerk on the same day. According to the Board, its decision was based upon the following findings of fact:
"1. The applicant meets the standards outlined in the Telecommunications Act of 1996. These standards mandate providers to meet coverage requirements for telecommunications customers. This can be considered as a hardship in granting a variance. The standards include identifying a significant gap in coverage and investigating other reasonable sites for tower placement.
"2. There are no other parcels in the coverage area that would not require relief from the requirements of the Zoning Ordinance. The parcel is unique in that it meets the coverage requirements in the search area. The relief to be granted is the least relief necessary.
"3. The applicant investigated several other parcels in the coverage area however either the property owners were not willing to have the tower on their property, terms for the lease could not be agreed upon or the property itself was environmentally constrained and not conducive to tower placement. Some of these parcels would have required greater variances, were in the scenic overlay or were in more residentially dense areas. The proposed site would have less impact on nearby residences.
"4. The applicant has received complaints from Amtrak and users of the train that there is a gap in coverage. This gap in coverage is also evidenced in the site coverage plots.
"5. The use will not disrupt the neighborhood or the privacy of abutting landowners by excessive noise, light, glare or air pollutants.
"6. The hardship is not the result of any prior action of the applicant and does not result primarily from the desire of the applicant to realize greater financial gain.
"7. The granting of the requested variance will not alter the general character of the neighborhood. Proposed buffering around the compound area, the unipole design and the proposed setback off of the road will mitigate some of the impacts.
"8. The Zoning Board of Review previously granted a use variance in a scenic overlay area for a telecommunications tower.
"9. Based on the findings of fact listed above, not granting the requested relief amounts to more than a mere inconvenience." Dec., July 29, 2011.
On August 16, 2011, Appellants appealed the Board's decision to this Court. Appellants argue the Board committed legal error in its application of both the Zoning Ordinance and the federal Telecommunications Act of 1996, codified at 47 U.S.C. § 330, et seq. (the TCA). In sum, Appellants argue that the Board (1) erred in determining there was a significant gap in wireless coverage; (2) failed to consider alternatives under the TCA; (3) failed to find that all beneficial use of the Property would be lost for purposes of the granting of a use variance; (4) overlooked substantial evidence indicating the requested relief would alter the general character of the surrounding area or impair the intent or purpose of the Zoning Ordinance or comprehensive plan; (5) erred because T-Mobile failed to provide sufficient evidence that the proposed tower cannot be located in a permitted district for purposes of granting a use variance; (6) failed to consider a telecommunications tower owned by Amtrak, located approximately 1290-feet from the proposed T-Mobile tower, for purposes of granting a dimensional variance under § 21-325(15)(c)(11); and (7) failed to determine T-Mobile had no other reasonable alternative way to enjoy a legally permitted use of the Property for purposes of granting the dimensional variances.
Standard of Review
The Superior Court's review of a zoning board decision is governed by § 45-24-69(d), which provides:
"The court shall not substitute its judgment for that of the zoning board of review as to the weight of the evidence on questions of fact. The court may affirm the decision of the zoning board of review or remand the case for further proceedings, or may reverse or modify the decision if substantial rights of the appellant have been ...