STATE OF VERMONT

ENVIRONMENTAL COURT

In re: Appeal of Edward Stanak 

and Joellen Mulvaney

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Docket No. 101-7-01 Vtec

Decision and Order

 Appellants appealed from a decision of the Development Review Board (DRB) of the City of 

Barre granting to Appellee-Applicant Independent Wireless One Leased Realty conditional use 

approval and site plan approval to install wireless communications equipment on the North Barre 

Manor building. Appellants are represented by Paul S. Gillies, Esq.; Appellee-Applicants are 

represented by Craig Weatherly, Esq.; and the City is represented by Oliver L. Twombly, Esq. An 

evidentiary hearing was held in this matter before Merideth Wright, Environmental Judge. The 

parties were given the opportunity to submit written requests for findings and memoranda of law. 

Upon consideration of the evidence and the written memoranda and proposed findings, the Court 

finds and concludes as follows. 

 Appellee-Applicant proposes to install wireless communications transmitters and receivers in 

flat panels on the outside of the elevator penthouse walls atop the North Barre Manor elderly 

housing apartment building. The proposed equipment will not project above the elevator 

penthouse, but will occupy space above the maximum height limit for the district. We resolved 

Questions 2, 3, 4 and 5 on summary judgment, and held an evidentiary hearing on the questions 

remaining in the appeal: whether the proposal could qualify for approval under ' 5.1.07 and 

therefore qualify as a complying alteration under ' 5.1.04, and if not, whether this permit must be 

granted by operation of federal preemption. 

 Because the elevator penthouse is constructed of brick, the antennas cannot be placed inside 

the elevator penthouse as it now exists. They can only be placed inside a structure with panels 

made of materials, such as plastic or cloth, transparent to radio frequencies. When AppelleeApplicant installs such antennas inside an existing silo or church tower, it must replace a section 

of the siding with such a panel. No evidence was presented regarding the feasibility of installing a 

plastic panel in the elevator penthouse of the North Barre Manor.

 Because the proposed alteration of the building exterior, although slight, is within the height 

nonconformity, it does not comply with the standards of the district under ' 5.1.04(b), unless it 

otherwise receives approval under ' 5.1.07. The evidence was undisputed at trial that it does not 

qualify for consideration under ' 5.1.07 because the elevation of the building site is only 625 feet 

above sea level.

 Because the application does not qualify for placement in the proposed location under the City 

of Barre Zoning Regulations, the appeal must be upheld and the application must be denied, 

unless this particular location must be approved as a matter of federal preemption.

 As we ruled on summary judgment, to find preemption in the present case for the present 

application, it would be necessary for the applicant to show that this particular location is 

necessary to provide service in this area, and that service cannot be accomplished from any 

other sites or combinations of sites.
 At present, two other wireless communications providers serve the City of Barre from towers 

located in East Barre, in Graniteville, and on Irish Hill in Berlin, although that service is not without 

gaps. The technology associated with the radio frequency spectrum used by Appellee-Applicant, 

as opposed to that used by these other providers, means that Appellee-Applicant would be able 

to provide service to parts of the city of Barre but not to the entire city from those locations.

 Appellee-Applicant could locate antennas on the Barre Auditorium (BOR) which has been 

approved for yet another wireless communications provider= s antennas. That location would 

result in Appellee-Applicant= s experiencing some gaps in service to the north on 302. AppelleeApplicant is also pursuing an unidentified site in or to the north of the city of Barre. That location 

alone would also result in > significant= gaps in coverage to the south. Appellee-Applicant could 

attain adequate coverage if it developed both sites (the auditorium together with the unidentified 

site in or to the north of Barre) but prefers to locate on the single site on North Barre Manor.

 In addition, Appellee-Applicant could provide adequate service to the downtown Barre area 

from an antenna across Route 62 above the 900 foot elevation (and therefore qualifying for 

consideration under ' 5.1.07 of the zoning regulations). However, no existing power poles are 

strong enough to support an antenna; Appellee-Applicant would have to either build a tower or 

arrange to improve or substitute a tower for a pole now supporting electrical transmission wires. 

Otherwise, no technical problem precludes the co-location of a wireless communications tower on 

a structure supporting electric transmission wires or cables.

 It may well be an excellent policy to promote the location of wireless communications 

antennas on existing tall structures. However, no state regulation requires municipalities to insert 

such provisions in their zoning regulations (compare 24 V.S.A. ' 4406 and ' 4409(a) with '

4407(19)) and the City of Barre regulations do not contain such a provision. The Court cannot 

impose such a policy when neither state nor municipal regulations require or allow it.

 Because Appellee-Applicant could provide the service it seeks to provide through this 

application from other sites or combinations of sites, the federal Telecommunications Act of 1996 

does not require the preemption or overriding of the City of Barre zoning regulations or the 

approval of Appellee-Applicant= s application.

 Accordingly, based on the foregoing and the February 2002 summary judgment order in this 

case, it is hereby ORDERED and ADJUDGED that Appellee-Applicant= s application to place 

wireless communications antennas on the exterior of a non-conforming building (North Barre 

Manor) is DENIED.

 Done at Barre, Vermont, this 24th day of October, 2002.

___________________

Merideth Wright 

Environmental Judge