Here are five detailed ways to be more successful with wireless facilities siting in Northern New England.
1. Be thorough in documenting your alternative analysis
Simply stated, the test for demonstrating that a new tower is needed because a proposed wireless facility “cannot be collocated on or at an existing telecommunications facility” requires the applicant to demonstrate the following:
- Use of an existing structure results in significant reduction in coverage area or capacity to be provided (as compared to the facility on a proposed new tower);
- Use of an existing structure results in substantial impediment to coverage or capacity objectives (as compared to the facility on a proposed new tower);
- Proposed collocation on existing structure exceeds the structural or spatial capacity of the existing tower / structure, and the existing tower / structure cannot be “reinforced, modified, or replaced to accommodate planned or equivalent equipment, at a reasonable cost”;
- The owner of the support structure will not rent or license space for collocation “on commercially reasonable terms”; or
- The proposed collocation will cause RF interference that will materially impact other equipment at the facility, and the interference cannot be mitigated at a reasonable cost.
Because the applicant bears the burden of satisfying the test, the applicant has to expect that in a contested proceeding, other parties will challenge whatever rationale is presented, and that the applicant may have to produce evidence beyond what has typically been the case (especially if other parties are permitted to engage in discovery). Consequently, it’s critical in dealing with existing structure owners that the applicant take steps to:
- obtain and compile the necessary written documentation to establish collocation exhaustion (e.g., (i) rent is too high; (ii) coverage objective will be compromised; (iii) tower is overloaded and too expensive to replace; (iv) height won’t work without extension; (v) interference problems can’t be remedied).
- secure a quote or offer in writing for any business decision to forego a site based on cost (including tower lease rent, structural reinforcement, tower reconstruction, etc.) so that it is available if needed to bolster any determination;
- avoid any written evidence of a “blanket” or “out-of-the-gate” unwillingness to work with a particular company, party, or municipality on the basis of past dealings; and
- assume that all written communications for these rings are discoverable, including internal personnel emails. Stated another way, assume that every email or text communication could wind up before the VT Public Utility Commission, and write nothing that AT&T, Centerline, SAI, etc., would want to read in a newspaper. [When in doubt, best to send the email to me, someone at DRM, or an internal attorney for risk review before sending it to a third party; however, copying an attorney on an email will not by itself create an attorney client privilege].
2. Public engagement early in the site selection process can ease the permitting process.
- Respond to facts and actual issues/impacts; not individuals per se.
- Use social media and other outreach to spark greater understanding and how people can engage effectively in planning and permitting processes. Get people thinking – if not this, then what? What are the alternatives and the costs and impacts of those? Encourage critical thinking and creativity – what are the community’s interests and needs?
- Engaging with public officials and community leaders and public planning processes can play an important role, especially if done well in advance, seeking input before a specific project design is publicly presented and when there is still opportunity for serious consideration of all options. If that is done well, ill-informed or inaccurate social or other media blasts will not have so much impact.
- Pick your battles. Is it a loud individual squeaky wheel, or a real issue with extensive and broad public concern?
3. Take advantage of alternative permitting regimes
Both New Hampshire and Vermont have enacted legislation that either creates an alternative path to traditional local zoning for approval of wireless facilities or creates limited exceptions for de minimis modifications of wireless facilities.
Vermont enacted 30 V.S.A. § 248a in 2009 in order to expedite the deployment of wireless service in Vermont. Unlike “traditional” Vermont land use permitting (which involves municipal and state zoning requirements), 248a involves submission of applications to the Vermont Public Utility Commission (PUC). New wireless facilities or modifications approved through the PUC 248a approval process are altogether exempted from Act 250 and local zoning jurisdiction. Advantages of 248a include the following:
- Common set of deliverables (no need to tailor each application for municipal requirements)
- Fixed times for prefiling responses, intervention, and PUC decision (including when application is contested)
- No application fees.
- No required municipal hearings; limited PUC hearings unless contested.
Section 248a governs the placement of wireless communications facilities generally, while 30 V.S.A. § 248n provides a streamline approval process before the Vermont Public Utility Commission for the placement of wireless communications facilities on existing electrical transmission and generation infrastructure.
There is a blanket exception under Vermont’s local zoning statutes for antenna facilities with an aggregate area of 8 sq. ft. or less if the antennas do not extend more than 12 feet above a building; however, the facility can only be used to transmit and receive signals “on that property owner’s premises” (i.e., the exception is unavailable for a facility used to provide general coverage). 24 V.S.A. §4412(8)(A).
Vermont law also contains exemptions for antenna structures less than 20 feet high located within the boundaries of a “downhill ski area” (defined as an “area with trails for downhill skiing served by one or more ski lifts and any other areas within the boundaries of the ski area and open to the public for winter sports.”) 24 VSA 4412(8)(B).
New Hampshire’s SB 101, enacted in 2013, revised RSA 12:K to bifurcate the municipal review of collocations and certain modifications one the one hand; and preservation of existing municipal regulation for new towers and substantial modifications, on the other. Through SB101’s changes to RSA 12:K, collocations and non-substantial modifications are no longer subject to processes and submission requirements for site plan review, special exemptions, variances, or other land use permits. Applicants need only file for a building permit and the town administrator has 45 days to approve the completed application, otherwise it is deemed approved. [Consider whether we should link to Will’s article].
4. Understand implications of land conservation restrictions
Vermont and New Hampshire have a lot of land subject to land conservation restrictions. Applicants need to familiarize themselves about the types of conversation restrictions and how to work with the stakeholders when siting on property subject to such conservation restrictions.
5. Know Your Options When It Comes to Siting on Ski Areas in Vermont
Telecommunications infrastructure is critical for ski areas, both to ensure service to resort customers increasingly reliant on mobile devices, to support business operations at the mountain, and because of the strategic value of installing a wireless site at a high altitude overlooking dense residential areas and heavily-travelled roads. The constant demands of changing infrastructure can create both opportunities and challenges for the ski area industry.
- Is the ski resort required by law to accommodate telecommunications towers at ski area summits?
- If the ski area installs or upgrades its own communications system on the mountain, does its Act 250 permit need to be amended?
- A wireless provider wants to install antennas atop a gondola building at the summit – does that create safety concerns?
- A long term communications lease at the ski resort is being renegotiated. What provisions should be included to make sure the tower does not disrupt area operations?
- A new tower being proposed in the area is going to be visible from several slopeside condominiums – how will that affect property values?
- A wind developer built a meteorological tower at the summit – can the ski patrol use the tower for a microwave link to the base lodge?
Learn more about these considerations for siting on ski areas in Vermont.