Judge tosses bulk of Hampton cell tower lawsuit

A federal judge has rejected most of telecommunications developer Vertex Towers’ legal challenge to build a 150-foot cellular tower on residential land in Hampton, dealing the company a significant setback.

Judge Paul J. Barbadoro granted summary judgment to the town and its Zoning Board of Adjustments on three of the four counts in Vertex’s lawsuit, but allowed one claim to proceed: that the board’s denial “effectively prohibited” wireless service in violation of federal law.

Vertex sued the town and its Zoning Board in U.S. District Court in February 2024, contesting a unanimous vote the month prior that denied its application to construct the tower at 17R Barbour Road. The company argued the structure was necessary to fill a one-to-two-mile coverage gap east of Route 1.

Because the site lies outside Hampton’s telecommunications zone and the tower would exceed the town’s 100-foot height limit, Vertex needed special approval from the Zoning Board.

The board denied the application and later rejected a request for rehearing, citing a commissioned report that concluded a 110-foot tower would sufficiently address the coverage gap. It also found that Vertex failed to meet its burden under state variance law to show the project would not diminish nearby property values.

In its lawsuit, Vertex alleged that the board’s decision violated the federal Telecommunications Act of 1996 by issuing a decision without “substantial evidence,” and that the denial “effectively prohibited” wireless service in violation of federal law. It also argued the decision was illegal under state zoning variance law and improperly based on “the environmental effects of radio emissions,” which federal law prohibits as a consideration.

Attorneys for Vertex, the town of Hampton and the Hampton Zoning Board of Adjustment did not return requests for comment.

Vertex challenged the Zoning Board’s denial of its application, contending the board violated the federal Telecommunications Act and New Hampshire zoning law by issuing an arbitrary decision.

The Telecommunications Act was passed by Congress in 1996 to balance two competing interests: the growth of nationwide cellular service and local zoning control, Barbadoro wrote. It mandates that local bodies support any decisions about cellular tower placement in writing with substantial evidence.

The fight over the tower’s height, which was central to the board’s denial of Vertex’s application, stemmed from two conflicting reports.

Vertex’s expert concluded a 150-foot tower was the “minimum height necessary to accommodate co-location of multiple carriers as required by the Hampton Telecommunications Ordinance and satisfy the significant gap in coverage experienced by all of the carriers in this market.”

However, Ivan Pagacik, in the report commissioned by the Zoning Board, said a 110-foot tower would fill the coverage gap, a finding disputed by Vertex. A taller tower would accommodate more cellular carriers and not be affected by the tree line, Vertex said.

The tower’s impact on property values was also disputed. Several studies commissioned by Vertex suggested the tower was not visible from nearby properties and would not have a significant impact on property values.

Concerned residents then submitted letters from three appraisers, who criticized the methodology of Vertex’s reports. One said that in general, cellular towers diminish property values by 5% to 20%.

Because the board had a wealth of information to base its decision on, its denial was permissible under the law, Barbadoro concluded.

“I cannot displace the board’s judgment in favor of my own,” he wrote. “Its members did not make their decision arbitrarily but instead weighed evidence differently than Vertex would have. Such differences do not make the board’s decision unsupportable.”

The Telecommunications Act also prevents state and local authorities from rejecting cellular towers because of their own radiofrequency emission standards. Many Hampton residents brought health related concerns before the board during public hearings.

“Here, Vertex argues that the board impermissibly relied on concerns regarding radiofrequency emissions in denying its application for a variance,” Barbadoro wrote.

“Vertex concedes that the board’s written decision and denial of its motion for rehearing do not explicitly rely on any impermissible evidence regarding emissions. However, it suggests that the board used ‘property value’ as a proxy for the effects of radiofrequency emissions,” he added.

The town and Zoning Board argued that they were allowed to hear concerns about emissions, so long as they did not impact their decision.

“The board points out that it did not rely directly or indirectly on publicly expressed concerns about such emissions. Instead, it makes clear that concerns about property values related to the visibility of the tower and its excessive height drove the denial, not emissions,” Barbadoro wrote.

Because the Zoning Board’s denial of Vertex’s application listed 16 factual findings — none of which mentioned radiofrequency emissions — Barbadoro ruled in favor of the town and Zoning Board.

The second count in Vertex’s lawsuit contended that even if the board’s decision was legal, the court should intervene.

“It argues that, absent such an intervention, the board’s decision amounts to an effective prohibition on the provision of personal wireless services in violation of the TCA,” Barbadoro wrote, referring to the Telecommunications Act.

Barbadoro found the disagreement to be narrow; both Vertex and the Zoning Board agreed there was a service gap, and a tower built at the 17R Barbour Road location would be the best solution.

That left the court to decide: “Did the board effectively prohibit the provision of personal wireless services by denying Vertex a variance to build a 150-foot tower when it left open the option to build a 110-foot tower on the same site?”

With a “genuine dispute of material fact” remaining, Barbadoro allowed the case to proceed.

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