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Case 4/10/97–1
You are hereby notified that the application of Isaac K. Blanchard (owner) and United States Cellular (applicant) for a variance to section 6.1 of the Wilton Zoning Ordinance has been denied.
If granted, the variance would have permitted construction of a cellular telephone tower on Lot D-133, 100 Wilson Road.
The Zoning Board denied the variance because it found that there was no hardship. No evidence was presented that the lot was unsuitable for all permitted uses, and the lot is in fact being used at present for a permitted residential use. Furthermore, there is no evidence that the lot is significantly different from many other similarly situated properties in the Town with respect to the use for which it is zoned.
The Board also observed, with regard to the requirements of Section 704 of the Federal Telecommunications Act of 1996, that personal wireless services are not effectively prohibited in the Town, as it heard testimony that cellular telephone service is already generally available in the Town.
Denial of request for rehearing.
On April 14, 1997, the Town of Wilton Zoning Board of Adjustment denied the application of United States Cellular (applicant) and Isaac K. Blanchard (owner) for a variance from section 6.1 of the Wilton Zoning Ordinance, to permit the construction of a cellular telephone tower on Lot D-133, 100 Wilson Road.
On April 16, 1997, Gregory E. Michael, attorney for the applicant, requested by the attached letter that the Zoning Board rehear the application, per RSA 677:2.
The Board of Adjustment in New Hampshire, 1994 edition, published by the New Hampshire Office of State Planning, in its commentary on RSA 677:3, states (page 45):It is assumed that every case will be decided, originally, only after careful consideration of all the evidence on hand and on the best possible judgment of the individual members. Therefore, no purpose is served by granting a rehearing unless the petitioner claims a technical error has been made to his detriment or he can produce new evidence that was not available to him at the time of the first hearing. The evidence mught reflect a change in conditions that took place since the first hearing or information that was unobtainable because of the absence of key people, or for other valid reasons. The board, and those in opposition to the appeal, should not be penalized because the petitioner has not adequately prepared his original case and did not take to trouble to determine sufficient grounds and provide facts to support them. [emphasis added] The reasons for granting a rehearing should be compelling ones; the board hs no right to reopen a case based on the same set of facts unless it is convinced that an injustice would otherwise be created. To do so would mean that the first hearing of any case would lose all importance and no decision of the board would be final until two hearings had been held.
The applicant in this case has requested a rehearing in order to provided additional information in support of its application. There is no indication, however, that any of this additional information was unavailable at the time of the original hearing.
In particular, we observe that applicant was represented at the original hearing by legal counsel, who must have been well aware of the hardship standard for granting a variance in New Hampshire. There is no suggestion that the conditions of the property have suddenly altered, or that applicant proposes to present any evidence that would not have been available prior to the original hearing. We do not find that justice would be served by holding a second hearing to allow applicant to bring forth the evidence that it failed to produce at the initial hearing.
The request for rehearing is therefore denied.