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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Hillsborough-southern judicial district
No. 2000-131
SUZANNE MARCHAND & a.
v.
TOWN OF HUDSON
December 31, 2001
Prunier & Leonard, P.A., of Nashua (Andrew A. Prolman on the brief and orally), for the plaintiffs.
Donahue, Tucker & Ciandella, of Exeter (John J. Ratigan and Susan W. Chamberlin on the brief, and Mr. Ratigan orally), for the defendant.
Bolton Law Offices, P.A., of Nashua (Steven A. Bolton on the brief), and Michael N. Raisbeck, of Chelmsford, Massachusetts, on the brief and orally, for the intervenor, Jeremy L. Muller.
Booth, Freret, Imlay & Tepper, of Washington, D.C. (Christopher D. Imlay on the brief), for The American Radio Relay League, Inc., as amicus curiae.
BROCK, C.J. The defendant, the Town of Hudson (town), appeals from a Superior Court (Brennan, J.) order rescinding a building permit granted to the intervenor, Jeremy L. Muller. The town argues that the court misapplied the law on accessory uses and ordered relief that conflicted with federal objectives to allow and promote amateur ham radio facilities. We affirm in part, reverse in part, vacate and remand.
Muller resides in a section of Hudson zoned Residential-Two (R-2), and is an amateur or "ham" radio operator. In December 1998, when Muller applied for a building permit, the town had no regulations restricting the number or height of amateur radio towers. The town zoning administrator granted Muller a building permit to erect three ninety-foot amateur radio towers with antennae to be added at a later date that would bring the total height of each tower to one hundred feet.
Shortly thereafter the plaintiffs, Suzanne Marchand, Joanne Radziewicz and Peter Radziewicz, Muller’s neighbors, appealed the grant of the building permit to Hudson’s zoning board of adjustment (ZBA), arguing that radio communications towers were not permitted in the R-2 zone. Following a hearing on the merits, the ZBA upheld the grant of the building permit. In support of its decision, the ZBA made the following findings:
1. The Hudson Zoning Ordinance, in listing accessory uses, does not use the word "only" for items permitted; since it is a permitted accessory use, site plan is not required.
2. RSA 674:16; 17; III: we do not get to prohibit Hamm [sic] radio.
3. Historically, Hamm [sic] radio has been an accessory use, with no quantification of type; simply an accessory to residential property-as a hobby;
4. This is a permitted accessory use.
Following a rehearing at the plaintiffs’ request, the ZBA upheld its decision. The plaintiffs appealed to the superior court.
The superior court did not hold a hearing, but relied on the ZBA’s certified record to evaluate the ZBA’s decision. The court ruled that while the ZBA heard sufficient evidence to establish ham radio as an accessory use in residential districts in the town, "there was no evidence of ham radio operations in residential neighborhoods which included anything reasonably close to the scale of the three antennae proposed in this case." The court also addressed whether the federal government had preempted local regulation in this area, see Amateur Radio Preemption, 101 F.C.C. 2d 952 (1985), and concluded that the size and height of the towers "would upset the balance between the federal interest in promoting amateur operations and the legitimate interest of local governments in regulating local zoning matters." The court therefore reversed the ZBA decision, rescinded the building permit and ordered the towers removed.
The trial court’s review of the ZBA decision is governed by RSA 677:6 (1996). Pursuant to this statute, to the extent that the ZBA made findings upon questions of fact, these findings are deemed prima facie lawful and reasonable, and the superior court shall not set aside or vacate the ZBA’s decision "except for errors of law, unless the court is persuaded by the balance of probabilities, on the evidence before it, that said order or decision is unreasonable." RSA 677:6. On appeal, the superior court’s decision will be upheld unless it is not supported by the evidence or is legally erroneous. Peabody v. Town of Windham, 142 N.H. 488, 492 (1997).
We first address the town’s argument that the superior court erred when it failed to uphold the ZBA’s conclusion that the building permit was properly issued as an accessory use under the town zoning ordinance.
The interpretation of a zoning ordinance and the determination of whether a particular use is an accessory use are ultimately questions of law for this court to decide. KSC Realty Trust v. Town of Freedom, 146 N.H. __, __, 772 A.2d 321, 322-23 (2001) (quotations omitted). The town’s zoning ordinance expressly permits, as an accessory use, "[t]raditional secondary accessory uses and structures, including garages, toolsheds, parking areas, recreational facilities, outdoor in-ground swimming pools and other customary uses and structures." Town of Hudson Zoning Ordinance Table of Permitted Accessory Uses (1996). The ordinance defines accessory use as "[a]ny use which is customary, incidental, and subordinate to the principal use of a structure or lot." Town of Hudson Zoning Ordinance