Leslie Ludtke of Concord has served as the Public Counsel on several major state permitting projects, including Hydro Quebec and Portland Natural Gas Transmission System.

There’s no question that the town of Bow needs better cell phone service. The problem is that the need for improved cell phone service has eclipsed the equally important planning requirements in Bow’s ordinance that regulate cell tower design and siting.

The ordinance is being ignored because the basic decisions regulated by the ordinance (the method used to increase coverage, the location, and the design of the cell tower) were made before the application process started.

In a recent Concord Monitorarticle, David Stack, Bow’s town manager, recounted meeting the current applicant, Rising Tide Towers, at a conference and bringing it on board to construct a cell tower on town-owned land. Rising Tide Towers’ business model is to build high-capacity cell towers ranging from 190 to 400 feet in height. Rising Tide Towers has now applied for a permit to construct a 190-foot lattice design cell tower on the town-owned site.

Its application violates the spirit and intent of Bow’s ordinance, and if approved will scar Bow’s landscape and create an open season for constructing more unsightly towers.

Bow’s cell tower siting ordinance is comprehensive and articulates two goals: to further the objectives of the master plan and provide a reasonable opportunity for siting facilities; and to reduce adverse impacts from these facilities to view sheds, scenic areas, and property values. To do this, it establishes a process that requires applicants to identify the least intrusive method and location for achieving the intended service increase. If a new cell tower is found to be the only feasible option, the ordinance limits the height and sets forth specific design criteria.

Before siting the facility, an applicant must show that it has evaluated the feasibility of less intrusive options. A new cell tower at a new site is the least preferred option. The application process requires a mandatory submission of studies on alternative sites and methods. If after all this, a new cell is the only feasible option, the cell tower must employ stealth technologies in the design that are visually compatible and in scale with the rural character of the town.

According to the New Hampshire state guidance the stealth tower design is commonly required by towns and councils in New Hampshire. Although not a high-capacity tower, the stealth tower is preferred because it best mitigates adverse visual impact. In addition to requiring stealth design, Bow strictly restricts tower height to 90 feet. The ordinance is clear: “The intent to serve a large area with one tall installation will not be accepted as justification of height. Multiple, minimum-height towers are preferred, and may be required.” New Hampshire state guidance notes that more lower height towers can achieve coverage similar to a higher tower. Although multiple lower height towers using a stealth design may cost more than a single large tower, it’s the preferred approach.

The preference for smaller, less visible cell towers, and mitigation of visual and environmental impact is incorporated specifically into the planning board review process. The ordinance directs the planning board to use a six-step review process to ensure that no less visibly intrusive facility is feasible before approving an application. Due to the complexity of the issues and the expertise required, the planning board is authorized to retain the services of a consultant at the expense of the applicant to assist it. The planning board did not hire a consultant to help it review Rising Tide Towers’ application.

Bow’s town manager has said that the planning board has flexibility on the cell tower’s height. The “flexibility” the planning board has to waive the 90-foot height limit is limited to situations where the board has evidence before it that the height limit imposes an unnecessary hardship on the applicant, and that the waiver is consistent with the spirit and intent of the zoning ordinance. Unnecessary hardship means that “owing to special conditions of the property that distinguish it from other properties in the area that no fair and substantial relationship exists between the general public purposes of the Ordinance provision and the specific application of that provision to the property, and that the proposed use is a reasonable one.”

In December, the applicant applied for a waiver the height limit for the reason that “the intended radio frequency needs are highly dependent on tower height,” and the proposed location is the “unique location for meeting the Coverage Objectives.” Rising Tide Towers’ application says that if it does not get exactly what it wants it “would very likely result in the cancellation of the telecommunications facility,” despite acknowledging that the “Coverage Objectives” could be achieved with lower height towers. The applicant rejected this less intrusive option because “it would result in significant uncertainties and delays in the permitting of such multiple towers with significant additional expenses.” Greater expense and more time in permitting does not justify waiving the ordinance.

The ordinance reflects what Bow residents want for their community and they are entitled to compliance. What happened here does not comply with the ordinance. The town preselected a town-owned location for a cell tower, preselected a cell tower company that specializes in building high capacity cell towers between 190 and 400 feet in height, negotiated a proposed lease agreement of an unknown amount with that company, and left itself in the position of now deciding whether to abandon pretense of compliance with the ordinance and permit the project.

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