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Case 6/11/97–1
You are hereby notified that the application of United States Cellular (applicant) and Isaac K. Blanchard (owner) for a variance from section 6.1 of the Wilton Zoning Ordinance has been denied.The variance, if granted, would have permitted the construction of a 120-foot cellular telephone tower on Lot D-133, 100 Wilson Road.
The Zoning Board found that the proposed use did not differ materially in nature and degree from the 180-foot cellular telephone tower which had been proposed for the same location, and for which a variance had been denied, in case 4/10/97-1, and the Board was therefore unable to consider the merits of the new application. (Fisher v. Dover, 120 N.H. 187)
Denial of request for rehearing.
On June 11, 1997, the Town of Wilton Zoning Board of Adjustment considered 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 120-foot cellular telephone tower on Lot D-133, 100 Wilson Road. The Zoning Board found that the proposed use did not differ materially in nature and degree from the 180-foot cellular telephone tower which had been proposed for the same location, and for which a variance had been denied, in case 4/10/97-1, and the Board was therefore unable to consider the merits of the new application. (Fisher v. Dover, 120 N.H. 187)
On June 26, 1997, Gregory E. Michael, attorney for the applicant, requested by the attached letter that the Zoning Board rehear the application, per RSA 677:2.
Applicant submits that "no advance notice of the chain of events which unfolded at the June 11, 1997 meeting was provided to the Applicant. Thus, we were not able to fully respond to the Board's position." However, it is well-established in zoning law in New Hampshire that "When a material change of circumstances affecting the merits of an application has not occurred or the application is not for a use that differs materially in nature and degree from its predecessor, the board of adjustment may not lawfully reach the merits of the petition," and further that "The burden of proving a material change of circumstances before the board of adjustment lies on the party seeking the variance." (Fisher v. Dover) Bringing a second application only two months after the first, and identical to the first in every significant respect except for the height of the proposed tower, applicant ought not to have been surprised at being expected to demonstrate a material difference from the original proposal. The Board therefore does not see that applicant is offering to supply any evidence at a rehearing that it could not have supplied, or should not have been expected to supply, at the hearing of June 11.
Applicant, in requesting a rehearing, asserts that "the greatest criticism of our original 180 foot tower was its height." While this may have been the greatest concern on the part of abutters testifying at the April hearing on the original (4/10/97-1) application, the Board denied that application solely on the grounds that applicant had failed to demonstrate unnecessary hardship; the tower's height did not enter into the Board's decision. Thus, the reduction in the proposed tower height is entirely immaterial to the grounds on which the original case was decided.
The request for rehearing is therefore denied.