STATE OF VERMONT
ENVIRONMENTAL COURT
}
Appeals of Curtis, et al. } Docket
Nos. 203-11-03 Vtec
} and 231-12-03 Vtec
}
Decision and Order on Cross-Motions for Summary Judgment
In Docket Number 203-11-03, Linda M. Curtis, Clark W. Curtis, Linda S.
Cunningham, James C. Cunningham, Christina Hilliker, Richard Hilliker, Francis Lantagne,
Rita Lantagne, Liz Lemieux, Leo Paul Major, Norma Major, Stephanie Rosamilia, Nelson
C. Stevens III, Rachel A. Stevens, Thomas Zaffis and Susan Zaffis, appealed from the
decision of the Planning Commission of the City of Newport granting site plan approval to
Appellee-Applicant1[1] Vermont RSA Limited Partnership, d/b/a/ Verizon Wireless, for the
installation of wireless telecommunication antennas within the towers of the existing St.
Mary’s Star of the Sea Catholic Church and for the construction of a related equipment
shed and a maintenance shed for the Church’s own use. Verizon Wireless cross-
1[1]
The application was filed jointly by the landowner Roman Catholic Diocese of Burlington,
through Father Leo Bilodeau of St. Mary’s Star of the Sea Catholic Church, and by Verizon Wireless;
however, neither the Diocese nor St. Mary’s Church took an active role in the presentation of the
application nor appeared as a party in the present appeals.
appealed from that decision on the issue of whether site plan approval by the Planning
Commission was required at all for the proposed project. In Docket Number 231-12-03,
the same individuals except for Susan Zaffis and the Lagntagnes appealed from a decision
of the Zoning Board of Adjustment (ZBA), upholding the Administrative Officer’s grant of a
zoning permit for the proposed project. In both appeals, Appellants are represented by
Gerald R. Tarrant, Esq. and Appellee-Applicant is represented by Brian Sullivan, Esq. The
City of Newport did not enter an appearance in either appeal.
The following facts are undisputed unless otherwise noted. St. Mary’s Star of the
Sea Catholic Church is located in the Urban Residential zoning district of the City of
Newport; religious institutions are a permitted use category in this zoning district.
Appellee-Applicant proposes to install six wireless telecommunication panel
antennas, three within each of two openwork stone bell towers that form the front of the
church building, and to install a separate prefabricated shed, ten feet in height, on the
church property to house related equipment. Appellee-Applicant holds a lease agreement
with the Roman Catholic Diocese of Burlington to place the antennas and the structure on
the church property. Appellee-Applicant also proposes to build a shed on the church
property to for the church’s maintenance use. The parties did not provide the proposed
site plan or building plans in connection with their motions, and therefore the Court cannot
determine whether the two sheds are designed as separate structures or as two distinct
sections of a single structure; that fact is not material to the issues on summary judgment.
Appellee-Applicant filed its application for a zoning permit, including supporting
materials keyed to the site plan approval criteria of §606 and to the small-scale wireless
telecommunication facilities criteria of §346.05. The Administrative Officer referred the
application to the Planning Commission for site plan approval prior to ruling on the permit
application.
The issues raised in the summary judgment motions arise from the incorporation of
the City’s wireless telecommunications ordinance within its Zoning Bylaw. The zoning
district regulations in §205 do not provide for wireless telecommunications facilities or
towers2[2] as either a permitted or a conditional use in any zoning district, and therefore a
conditional use permit is not required3[3] for such proposals. Rather, §346 requires the
Planning Commission to apply specific criteria in its site plan review related to the potential
effects of wireless telecommunication proposals.
Section 346 provides for two regulated classes of wireless telecommunication
facilities: small scale facilities under §346.05; and all others under §346.06. Small scale
facilities are defined as “the placement of wireless telecommunications antennas, repeaters
2[2]
These terms are defined in §502 to distinguish antennas, repeaters and micro cells, and their
related ground facilities, from the towers or other structures on which they may be placed.
3[3]
But see the reference in §346.15(E) to a ‘conditional use permit,’ which suggests that such a
procedure may have been intended at some earlier stage of the bylaw’s drafting.
or micro cells on existing buildings, roofs, or walls, and not extending more than 10 feet
from” the surface to which they are attached, and as “the installation of [wireless
telecommunication] ground facilities less than 20 feet in height.” The proposed antennas
and the related equipment shed4[4] fall within the small-scale class of facilities.
Wireless telecommunications facilities “not covered by §346.05” must submit a
more extensive application under §346.06, and must also submit supplemental site plan
information under §346.07, “in addition to site plan requirements found elsewhere in the
Newport City Zoning Bylaws,” that is, in §606.
Section 606 provides that “[n]o zoning permit shall be issued by the Administrative
Officer for any use or structure, except for one-family and two-family dwellings, until the
Planning Commission grants site plan approval.” Section 606 exempts signs unless they
have ‘an impact on’ the site plan standards in §606.02, but does not by its terms exempt
small-scale wireless telecommunication facilities.
4[4]
The additional shed proposed for the church’s use would be an accessory building to the
religious institution, a permitted use on the property. It would only need site plan approval from the
Planning Commission, and a zoning permit from the Administrative Officer.
Under §346.05, small-scale wireless telecommunication facilities may be approved
by the Administrative Officer if they meet “the applicable requirements of this bylaw 5[5],”
upon submission of the following three documents: a “final site and building plan;” a report
by a qualified engineer that the existing structure is suitable to hold the proposed antennas
and that the method of affixing the antenna complies with standard engineering practices;
and a copy of the executed contract between the owner of the existing structure and the
applicant. The only other requirement of §346.05 is that no such device may be located
closer than fifty feet to an existing neighboring residential or commercial building. The
parties do not dispute the proposal’s compliance with the requirements for the fifty-foot
distance, the structural suitability of the towers to hold the antennas, or the existence of
the executed contract.
We must interpret a zoning ordinance to the extent possible to make sense of and
give meaning to all of its provisions, read as a whole, and to avoid interpreting any of its
provisions as surplusage. Town of Calais v. County Road Commrs., 173 Vt. 620, 621
(2002) (mem.). As discussed below, the provisions of §346 specific to small-scale
wireless telecommunication facilities may be harmonized with all three of the contested
aspects of the Zoning Bylaw: with the provisions of §606 requiring site plan review by the
Planning Commission for everything other than one- and two-family dwellings, with the
5[5]
The parties dispute whether “this bylaw” refers solely to §346 or to the entire Zoning Bylaw,
and dispute which are the “applicable” sections, even of §346.
additional site plan review standards for non-small-scale wireless telecommunication
facilities, and with such additional provisions of §346.08 through §346.18 as are
applicable to both classes of wireless telecommunication facilities.
Essentially, small-scale wireless telecommunication facilities are treated in the same
way as non-residential permitted uses in any district. Permitted uses other than one- and
two-family dwellings must undergo site plan review under §606, but then need only obtain
a zoning permit from the Administrative Officer, rather than the more extensive prior review
required for a conditional use by the ZBA under §605. Similarly, small-scale wireless
telecommunication facilities must undergo site plan review under §606, but then need only
obtain a zoning permit from the Administrative Officer, rather than the more extensive
supplemental site plan review required for a non-small-scale wireless telecommunication
facility by the Planning Commission under §346.06 and 346.07. This interpretation is
consistent with the fact that one of the documents that must be submitted for the §346.05
zoning permit for a small-scale wireless telecommunication facility is a “final” site and
building plan. The modifier “final” is given meaning only if it refers to the site plan as
approved by the Planning Commission through the §606 site plan review process, as
opposed to a site plan as initially proposed by the applicant, as the supplemental site plan
review of §346.06 and 346.07 is not required for such facilities.
Section 606.02 requires the Planning Commission to assess a project’s compliance
with certain standards, such as landscaping and screening, and including in §606.02(E)
compliance with “all pertinent parts’ of the Zoning Bylaw. For small-scale wireless
telecommunication facilities such as the present proposal, the parties dispute whether any
portion of §346 should be considered a “pertinent part” of the Zoning Bylaw. It is not
necessary to determine whether the more specific provisions of §346.05-07 or the more
general provisions of §606.02 apply to wireless telecommunication facilities, as there is no
inherent conflict between them. In performing site plan review under §606.02(E) for a
small-scale wireless telecommunication facility, the Planning Commission (and hence this
Court sitting in place of the Planning Commission in this de novo appeal) must simply
determine what portions of §346, if any, are applicable to this particular proposed small-
scale wireless telecommunication facility.
After distinguishing between the small-scale and other types of wireless
telecommunication facilities, §346 sets out several other requirements. Some of these by
their terms are not applicable to a project such as this one which proposes antenna panels
mounted on an existing structure rather than the construction of a new tower; others only
apply to the operation or decommissioning of wireless telecommunication facilities after
they have been constructed. We examine each section.
Section 346.18 merely establishes the authority for the City Council to enact special
fees for wireless telecommunication permits and monitoring.
Section 346.08 read in its entirety only applies to the construction of new towers or
support structures; it requires a careful examination of whether the proposed facilities (that
is, the antennas, repeaters or micro cells) can be accommodated on an existing tower or
structure. This preference is found in the initial paragraph of §346.08 and in its
subsections D, E, F and G. A camouflaged or so-called stealth design location is also
ranked higher than is the accommodation of facilities on an existing tower, in the
locational preferences in §346.04(B) and (C), although not higher than location on
municipal property6[6]. §346.04(A). As Appellee-Applicant proposes to place the
antennas on an existing structure, and integrated into architectural elements within the
definition of ‘stealth facility’ in §502, no other co-location analysis under §346.08 is
required.
Section 346.09 is inapplicable as no access roads are required to be constructed
or improved. Section 346.13 regarding temporary facilities is also inapplicable to this
proposal.
6[6]
However, nothing in 346.08 requires an applicant or the Planning Commission to consider a
municipal property location as an alternative to location on an existing structure, whether ‘stealth’ or
otherwise. We do not determine whether this is good policy or not; it is for the City to determine
whether it wishes to place such a requirement in its ordinance.
Section 346.10 is inapplicable to the extent it deals with tower design and
screening; it is applicable to the extent it deals with antenna design and screening and
with the placement and screening of the related equipment shed. It overlaps to some
extent with the general site plan criteria in §§606.02(C) and 606.03(D) regarding the
adequacy of landscaping and screening. Section 346.12 is inapplicable to the extent it
deals with lighting and signage not proposed for this project; it is applicable to the extent it
deals with noise, as is the noise performance standard in §331. The remaining sections
address the facility’s operation7[7] and are therefore inapplicable in this permit proceeding.
The only remaining question is whether the §308 requirement of only one principal
use per lot, except for Planned Unit Developments, applies to preclude this proposal.
The term “principal” use appears in the definition of and as distinguished from the term
“accessory” use. §502. An accessory use is one that occurs on the same lot as the
principal use for that lot, but is both ‘subordinate’ to and ‘customarily incidental’ to the
principal use. For the purpose of determining which permit criteria apply, accessory uses
generally fall into the same permitted or conditional use category as the principal use to
which they are accessory.
The placement of wireless telecommunication antennas on a church building does
not fall within the use category of “accessory” use because the antennas are not
7[7]
Section 346.11 (permit amendments); §346.14 (monitoring and evaluation); §346.15 (facility
removal); §346.16 (maintenance); §346.17 (insurance).
‘customarily incidental’ to the religious use; they are not functionally related to the principal
use of the property. Compare Appeal of Stanak and Mulvaney, Docket No. 101-7-01 Vtec
(Vt. Envtl. Ct., Feb.28, 2002) (antenna panels not accessory to a publicly-owned elderly
housing use). If this application were for approval of the proposal as an accessory use to
the church, it would not qualify for approval.
However, §308 does not by its terms preclude approval of a subordinate or
incidental second use on a lot that is specifically authorized elsewhere in the Zoning Bylaw
and is not a second principal use on that lot. Again, both sections of the Zoning Bylaw
can be harmonized, by recognizing that the strong preference in §346 for the placement of
antennas on existing buildings specifically authorizes application for an unrelated but
subordinate use on a single lot, so long as it is not so substantial as to constitute a
second principal use. It is possible that a proposal to construct a new wireless
telecommunication tower on the same lot as an existing unrelated use might constitute a
second principal use, while in the present case the placement of antennas on an existing
church building does not, because it is an allowed subordinate use.
Thus, if the criteria for approval discussed above are all met 8[8] the Administrative
Officer may issue a zoning permit for a small-scale wireless telecommunication facility and
remain in compliance with §204.
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that
Appellee-Applicant’s Motion for Summary Judgment is GRANTED in PART, in that
consideration of Appellee-Applicant’s proposal is not prohibited by §§308 or 204, and in
that further analysis of co-location elsewhere than the proposed property is not required
under §346.08 and the motion is otherwise denied; and Appellants’ Motion for Summary
Judgment is GRANTED in PART, in that the project requires prior site plan approval by
the Planning Commission, and hence this Court in this de novo appeal, including
consideration of the applicable provisions of §346.08 through §346.18, as discussed
above, and the motion is otherwise denied.
We will hold a telephone conference on February 7, 2005, to discuss what issues
remain to be heard on the merits of site plan review.
Done at Barre, Vermont, this 24th day of January, 2005.
8[8]
That is, prior site plan approval by the Planning Commission under §606, including
consideration of any applicable provisions of §§346.08 through 346.18 and the imposition of any
appropriate conditions under §606.03, followed by the Administrative Officer’s ministerial
determinations under §346.05.
_________________________________________________
Merideth Wright
Environmental Judge