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Banks v. Maine RSA #1, revised 1-20-99
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:		1998 ME 272
Docket:		Oxf-98-210
Argued:		October 8, 1998
Decided:		December 21, 1998

Panel:	CLIFFORD, RUDMAN, DANA, SAUFLEY,{1} ALEXANDER and CALKINS, JJ.



HENRY BANKS et al. v. MAINE RSA #1



CLIFFORD, J.

	[¶1]  Henry Banks and other residents of the Town of Denmark{1}
appeal from the judgment entered in the Superior Court (Oxford County,
Perkins, A.R.J.) affirming the decision of the Town of Denmark Zoning Board
of Appeals which affirmed the Denmark Planning Board's grant of a
conditional use permit to Maine RSA #1, Inc. (RSA){2} to construct a
telecommunications tower and equipment shed on Pleasant Mountain in
Denmark.  Because we agree with the contention of the residents that the
Planning Board committed an error of law when it granted the permit to
construct a 190 foot tower despite a Denmark Zoning Ordinance provision
limiting the height of structures to thirty-five feet, we vacate the judgment.
	[¶2]  In April of 1997, RSA submitted an application for a permit to
the Planning Board, proposing to construct a 300 foot telecommunications
tower and an accompanying equipment shed 1900 feet above sea level on
Pleasant Mountain.{3}  After several public hearings before the Planning Board,
during which the Planning Board determined that RSA's application was
incomplete, RSA submitted a final revised application.  RSA's Consolidated
and Amended Application for a conditional use permit, dated June 26,
1997, lists the proposed structures as "one (1) 190' guyed tower, with
antennae, without hazard lighting or warning paint and one (1) 12' X 24'
one (1) story equipment building, surrounded by a chain link security
fence."{4}  The tower is mounted on a reinforced concrete foundation which
is pinned to bedrock, is supported by guide wires anchored to the ground in
three locations, and is connected to the proposed utility building by
transmission cables.  The tower is designed to support antennae that receive
and transmit radio waves for cellular telephone calls.  The radio waves are
processed by equipment located in the equipment shed. 
	[¶3]  In July of 1997, after determining that RSA's application was
complete, the Planning Board approved RSA's application for a conditional
use permit.  The written decision of the Planning Board granting RSA the
conditional use permit does not address the thirty-five foot height
restriction contained in the Zoning Ordinance, nor does it mention the
Federal Telecommunications Act.  The residents appealed the Planning
Board's grant of the permit to the town Zoning Board of Appeals.  The
Chairman of the Planning Board told the Board of Appeals that "the Planning
Board decided the proposed tower [was] not a structure and [was] not
limited to the thirty-five foot height restriction. . . ."  The record, however,
does not reflect any discussion of the height restriction by the Planning
Board in making its decision.  The Board of Appeals affirmed the grant of the
permit to RSA, concluding that "the Planning Board did not err in its
decision that section 4.1.E does not apply, because common sense dictates
that utility towers would have to be more than thirty-five feet high in many
instances."   The residents appealed that decision to the Superior Court
pursuant to M.R. Civ. P. 80B.  The Superior Court affirmed the grant of the
permit and the residents filed this appeal.  
	[¶4]  Because the Board of Appeals and the Superior Court reviewed
this matter in their appellate capacity, "we review directly the planning
board's decision for errors of law, abuse of discretion, or findings not
supported by substantial evidence in the record." Fitanides v. City of Saco,
684 A.2d 421, 422 (Me. 1996) (citing Enos v. Town of Stetson, 665 A.2d
678, 680 (Me. 1995)).  The meaning of a term contained within an
ordinance is a question of law, subject to de novo review.  See Gerald v.
Town of York, 589 A.2d 1272, 1274 (Me. 1991).  A court must interpret an
ordinance "by first looking at the plain meaning of the language to give
effect to legislative intent."  Clarke v. Olsten Certified Healthcare Corp.,
1998 ME 180, ¶ 6, 714 A.2d 823.  In doing so, "[t]he terms or expressions
in an ordinance are to be construed reasonably with regard to both the
objectives sought to be obtained and the general structure of the ordinance
as a whole."  Gerald, 589 A.2d at 1274; see also Cumberland Farms, Inc. v.
Town of Scarborough, 1997 ME 11, ¶ 6, 688 A.2d 914 ("Individual
provisions must be interpreted in harmony with the overall scheme of a
zoning ordinance. . . .").  A court's interpretation of an ordinance must not
create "absurd, inconsistent, unreasonable or illogical results." Melanson v.
Belyea, 1997 ME 150, ¶ 4, 698 A.2d 492.  
	[¶5]  Section 4.1.E of the Zoning Ordinance provides, "No structure
shall exceed 35 feet in height.  Features of buildings and structures, such as
chimneys, towers, ventilators, and spires may exceed 35 feet in height . . . ." 
Denmark, Me., Zoning Ordinance § 4.1.E (1994) (emphasis added).  The
residents contend that the proposed tower is a "structure" separate from
the equipment shed and thus in violation of the height restriction;  RSA
contends that the proposed tower is a "feature" of the connected
equipment shed and/or a "feature" of the concrete foundation, not subject
to the height restriction.
	[¶6]  Section 3.2 of the Zoning Ordinance defines "building" as "a
structure for the support, shelter or enclosure of persons, animals, goods or
property of any kind."  Denmark, Me., Zoning Ordinance § 3.2 (1994).  This
section further defines "structure" as "anything constructed or erected,
except a boundary wall or fence, the use of which requires location on the
ground or attachment to something on the ground."  Id.  The equipment
shed falls within the definition of "building."  We conclude that the
proposed tower falls within the Zoning Ordinance's definition of
"structure." 
	[¶7]  Contrary to RSA's contention, the proposed tower does not
constitute a "feature" for purposes of section 4.1.E.  Section 3.2 of the
Zoning Ordinance states that "[t]erms not defined shall have the customary
dictionary meaning."  Id.  "Feature" is not specifically defined by the Zoning
Ordinance.  Although the section of the ordinance pertaining to the height
restriction does list a "tower" as an example of a "feature,"  Denmark, Me.,
Zoning Ordinance § 4.1.E, "tower" must be read in the context of the list of
features included in the statute.  A basic tenet of statutory construction
provides that "a general term followed by a list of illustrations is ordinarily
assumed to embrace only concepts similar to those illustrations." Penobscot
Nation v. Stilphen, 461 A.2d 478, 489 (Me. 1983).  "Tower" is placed on a
list with "chimneys, . . . ventilators, and spires[,]" all of which contemplate a
strong physical attachment to a structure.   To be consistent with the other
items on the list, the term "tower" must refer to towers attached to other
structures and not free standing towers. 
	[¶8]  The tower proposed by RSA is significantly different from a
chimney, ventilator or spire in that it stands attached to a concrete
foundation and is anchored directly to the ground at three separate
locations.  The tower is the structure.  It is not ancillary to something else
and would remain standing absent the equipment shed.  The tower is
connected to the equipment shed through cables which serve to transfer
data collected by the tower to the equipment located in the equipment shed
for processing.  That connection is functional rather than structural.  For
purposes of section 4.1.E, RSA's proposed tower clearly fits within the
definition of "structure." It cannot be described as a "feature."
	[¶9]  RSA contends that both the equipment shed and the tower are
integral elements of the overall telecommunications structure, and thus
"features."{5}  According to RSA, the tower is useless without the equipment
shed and the equipment shed is useless without the tower.  This overly
broad interpretation of the ordinance, however, would render the height
restriction virtually meaningless.  Following this construction, a skyscraper
built simultaneously with shorter buildings would constitute a "feature" of
the overall construction project.  Such an interpretation would create an
illogical result.  See Melanson, 1997 ME 150, ¶ 4, 698 A.2d 492.  If the
town wishes to allow the construction of utility towers in excess of
thirty-five feet in height, it can change the language of its ordinance.
	[¶10]  That the Zoning Ordinance's height restriction prohibits the
Planning Board from granting the conditional use permit, however,
necessarily implicates the Federal Telecommunications Act.{6} The
Telecommunications Act provides that state and local governments have the
authority to regulate the "placement, construction, and modification of
personal wireless service facilities" as long as such regulation does not
"prohibit or have the effect of prohibiting the provision of personal wireless
services."  47 U.S.C. § 332(c)(7)(A), (B)(i)(II) (Supp. 1998) (emphasis
added).  The Planning Board did not address the issue, and the present
record does not contain sufficient information concerning whether
application of the height restriction to RSA's proposed tower would
"prohibit or have the effect or prohibiting the provision of personal wireless
services."  Accordingly, the issue can be addressed by the Board on
remand.{7}
	The entry is:
Judgment of the Superior Court is
vacated.  Remanded for remand to the
Zoning Board of Appeals for remand to
the Planning Board for further
proceedings consistent with this opinion.

Attorney for plaintiffs: E. Stephen Murray, Esq., (orally) John B. Shumadine, Law Student Murray, Plumb & Murray P O Box 9785 Portland, ME 04104-5085 Attorneys for defendant: Richard L. Trafton, Esq., (orally) Trafton & Matzen P O Box 470 Auburn, ME 04212-0470
FOOTNOTES******************************** {1} * Saufley, J., sat at oral argument and participated in the initial conference but participated no further. {1} . The appellants in this case are a group of individuals who reside in Denmark in the proximity of the proposed site or in view of the proposed site. {2} . Maine RSA #1, Inc. is associated with United States Cellular. {3} . Pleasant Mountain is designated by the Town of Denmark as a "general purpose" land use district. According to the town Zoning Ordinance, commercial structures and uses in general purpose districts require a conditional use permit from the town Planning Board. {4} . RSA engineers found an error in their calculations that enabled RSA to reduce the proposed tower height from 300 feet to 190 feet. {5} . In support of its position, RSA cites our opinion in Town of Union v. Strong holding that a deck joined to a house is an integral part of the "principal structure." See 681 A.2d 14, 17 (Me. 1996). In Strong, we were interpreting a town ordinance which distinguished between a "principal structure" and an "accessory structure" for purposes of set back requirements. See id. at 16-17. The Strong decision offers little support for RSA's position. {6} . The record contains some discussion of alternative sites for the proposed tower, but little to indicate whether an alternate design is possible. Although the Federal Telecommunications Act is not mentioned in the Planning Board's decision, it was raised by RSA before the Board. {7} . The residents also contend that the permit was improperly issued because the Board failed to consider provisions of the Denmark ordinance requiring that RSA's application for a permit specify how the tower is to be accessed, and that the application and the evidence presented were inadequate in that regard. Because we vacate the Board's decision on the issue of the height of the tower, we do not address the access road issue. Access to the tower is an issue, in addition to the Federal Telecommunications Act, that should be addressed by the Planning Board on remand.