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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Rockingham No. 2008-047 RYDER DANIELS & a. v. TOWN OF LONDONDERRY & a. Argued: June 18, 2008 Opinion Issued: July 15, 2008 Orr & Reno, P.A., of Concord (Jeffrey C. Spear on the brief and orally), for the petitioners. Upton & Hatfield, LLP, of Concord (Matthew R. Serge on the brief and orally), for the defendants. McLane, Graf, Raulerson & Middleton, P.A., of Manchester (Jennifer L. Parent and Kristin M. Yasenka on the brief, and Ms. Parent orally), for the intervenor. GALWAY, J. The petitioners, Ryder Daniels and Gary Morrissette, appeal an order of the Superior Court (Nadeau, J.) upholding the decision of the defendants, Town of Londonderry and the Town of Londonderry Zoning Board of Adjustment (ZBA), allowing the intervenor, Omnipoint Communications, Inc. (Omnipoint), to build a wireless communications tower in an agriculturalresidential zone. We affirm.

I. Background The following facts appear in the record. Omnipoint sought one use and two area variances in order to construct a 170-foot monopole telecommunications tower on a residential parcel (the parcel) located in Londonderry's agricultural-residential zone. The parcel, owned by the Meredith P. Beal Revocable Trust, sits at the end of a residential cul-de-sac and consists of approximately thirteen acres, with an abutting twelve acres of undeveloped land, also owned by the Meredith P. Beal Revocable Trust. The petitioners are abutters to the parcel and oppose Omnipoint's applications. Over the course of six months the ZBA conducted several public hearings and heard testimony from Omnipoint's attorney, project manager and site acquisition specialist, as well as two radio frequency engineers, in support of its applications. Omnipoint presented numerous site maps illustrating the gap in wireless communications coverage surrounding the area, the coverage to be achieved by the proposed tower, and the layout of the proposed compound surrounding the tower, and submitted other pertinent exhibits. In addition, the ZBA heard testimony from an independent radio frequency engineer, who served as a consultant for the ZBA. It also heard testimony from two property appraisers, one hired by Omnipoint and the other by petitioner Daniels, regarding the results of each appraiser's site specific impact study on property value. Several other appraisal studies reflecting towers in other towns were also submitted. The ZBA ultimately granted the three variances with the following conditions: that the tower height shall not exceed one hundred and forty six (146) feet, the tower shall not be lit, the tower shall be moved to the furthest point on the compound away from Hazelnut Drive, the existing tree canopy outside the compound shall be preserved for the length of the lease, granting the Use Variance shall be conditional upon Planning Board approval, there shall be visual screening around the compound, the access road shall be located as presented in plan "locus three" and the tower shall be located as presented in plan "locus three." The petitioners appealed to the trial court after unsuccessfully moving for rehearing. The trial court affirmed the ZBA's decision, ruling that the record

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adequately supported a finding that the five variance criteria had been satisfied. This appeal followed. The superior court's review in zoning cases is limited. Factual findings of the ZBA are deemed prima facie lawful and reasonable and will not be set aside by the superior court absent errors of law, unless the court is persuaded by a balance of probabilities on the evidence before it that the ZBA decision is unreasonable. Malachy Glen Assocs. v. Town of Chichester, 155 N.H. 102, 105 (2007) (quotation omitted). The party seeking to set aside the ZBA decision bears the burden of proof in superior court. Id. We will uphold the trial court's decision unless the evidence does not support it or it is legally erroneous. Kalil v. Town of Dummer Zoning Bd. of Adjustment, 155 N.H. 307, 309 (2007). On appeal, the petitioners argue that the ZBA's decision was unlawful and unreasonable because the ZBA allowed a federal law, the Telecommunications Act of 1996 (TCA), 47 U.S.C.A.

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