STATE OF VERMONT 

ENVIRONMENTAL COURT

 }

In re Appeal of Shaw, et al. }

(Rinkers Communication } Docket No. 4-1-05 Vtec 

Tower Application) } 

 } 

Decision and Judgment Order

This matter concerns a de novo appeal of the Town of Hardwick Zoning Board of 

Adjustment (ZBA) approval of the telecommunications tower application submitted by Rinkers 

Communications, which sought authority to install a 180-foot telecommunications tower. The 

ZBA granted approval for a 100-foot tower, with conditions. Karen Shaw, Forest L. Foster, 

Suzanna Jones, Robert Houriet, Heather Bryant, Geoff Butler, and K. Elizabeth Cole 

(collectively referred to as Appellants) appealed from that ZBA Decision. Rinkers filed its own 

cross-appeal. 

The individual Appellants represent themselves in this proceeding. Cross-AppellantApplicant Rinker’s, Inc., d/b/a Rinkers Communications (Rinkers), is represented by L. Brooke 

Dingledine, Esq.; the Town appeared through its non-attorney Town Manager, Daniel Hill. 

The Court conducted a site visit and merits hearing on two separate days. Thereafter, the 

parties were afforded an opportunity to submit post-trial memoranda. Based upon the evidence 

admitted at trial, the Court makes the following Findings of Fact and Conclusions of Law: 

Factual Background

1. Rinkers is licensed by the Federal Communications Commission (FCC) as a radio 

common carrier and has provided paging services to the general public for more than twenty-five 

years. Many of its customers are public safety or medical services providers. It maintains 

several telecommunications towers in central Vermont. 

2. Rinkers proposes to construct and maintain a 180-foot tower on property owned by 

Wendell and Beverly Shepard along Bridgeman Hill Road, near the top of what is known as 

Bridgeman Hill. The Shepards’ entire parcel contains several large fields and a single family 
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residence. The Rinkers tower is proposed to be located in the northern field on the Shepards’ 

property. The field is not clearly visible from neighboring roads or properties. 

3. The site upon which Rinkers proposes to locate the new tower has been used as a site for 

telecommunications equipment for over twenty-five years. Rinkers purchased the telecommunications equipment on the Shepards’ property in 2003, after the previous owner, Adelphia 

Cable Company (Adelphia) went bankrupt. Rinkers currently maintains the pre-existing thirtynine foot wooden tower on the site first constructed by Adelphia. Rinkers’s paging antenna is 

located on top of this wooden tower. 

4. The field where the existing tower is located is near the northeast and northwest 

boundaries of the Shepard property. The field slopes away from those boundaries and towards 

the south. These borders are lined with trees, some of which are over sixty feet tall. The existing 

tower and ground-mounted equipment is not easily observed from nearby roads or residences. 

Due to the nature of telecommunications technology and the height of these border trees, the 

performance of the existing pager antenna is not consistent. 

5. Rinkers entered into a new lease with the Shepards that allows Rinkers to continue to 

occupy a portion of the Shepards’ property where the existing tower is located. The leased area 

has general dimensions of 200 feet by 200 feet. The lease runs for a term of 20 years. 

6. Rinkers proposes to remove the existing tower, move an existing telecommunications 

shed that is near the northeastern boarder and install the new tower near where the old tower was 

located. Satellite dishes that were once on the property and operated by Adelphia have since 

been removed. Rinkers also proposes to construct and maintain two air-conditioned buildings on 

both sides of the tower base. Each building will be 12 feet wide and 24 feet long. A chain link 

fence will run between the north and south ends of each building, so as to block unauthorized 

entry to the tower. The buildings will be served by an underground electrical service from the 

nearest utility pole on the Shepard property. A propane-powered electric generator will be 

installed between the buildings to provide back-up power in the event of black-outs. 

7. Rinkers proposes to install its pager antenna, which is just under twenty feet tall, on top 

of the new tower. The pager antenna will be of the “combiner” variety, thereby allowing 

multiple parties to simultaneously use it. The tower would be just over two hundred feet from 

the northeastern boundary and well over two hundred feet from the northwestern boundary, 

which abuts Bridgeman Hill Road. These buffers from nearby boundaries would provide 
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reasonable assurance that the new tower and antenna structure, measuring less than 200 feet, 

would not trespass upon neighboring property, should the tower collapse. 

8. The tower would be held in place by three guy wires anchored on the Shepard property. 

It would not be illuminated. FCC regulations do not require beacons or lights on towers or 

antennas under two hundred feet tall. 

9. Rinkers designed its new tower so that it can accommodate several two-way radio 

antennas, like those used by area police and emergency service responders, as well as 

communications repeater stations, wireless broadband service antennas and up to six cellulartype telecommunications carriers. The two-way radio antennas, one to receive signals and 

another to transmit signals, are about 22 feet tall. Paging technology requires that these two 

antennas be vertically separated from each other; they cannot be located across from one another. 

The cellular antennas are usually 12 feet in height and attached to the tower on booms and across 

from each other, so that service can be offered in a 360o range from the tower. An example of 

how the antennas are connected to the tower is shown in the photos of an identical tower Rinkers 

owns and maintains on Irish Mountain in Berlin, Vermont, that is visible from I-89 Exit 6. See 

Exhibit 12. 

10. The proposed tower would be made of galvanized steel in a lattice type design that would 

allow an observer to look through the tower. The Rinkers tower in Berlin, as shown in Exhibit 

12, is of a similar design and is the site of several co-located pager and cellular antennas. 

11. There are no other telecommunications towers in Hardwick or the surrounding 

communities that would provide service similar to that of the proposed tower. The lack of 

telecommunication facilities sometimes results in area police and emergency responders, 

including the Hardwick Police and the Vermont State Police, having difficulty in communicating 

with their dispatchers. Due to the lack of telecommunications towers in the area, police and 

emergency responders are often unable to communicate with each other via radio. Cellular 

phone service in the area is nonexistent. 

12. Rinkers researched other potential sites in the area to locate a telecommunications tower. 

Due to the nature of telecommunications technology, low-lying areas are not suitable for such 

towers; the antennas need to be on a higher point, above a tree line, so that signals may be 

broadcast to the outlining areas. One such site in Hardwick ― Buffalo Mountain ― would 

provide equal or higher elevation for a proposed telecommunications tower. Another 
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telecommunications provider ― Verizon ― sought approval for a tower on Buffalo Mountain 

several years ago, but met strong local opposition and ultimately failed in its attempt to obtain 

municipal approval. Mr. Rinkers, president of Rinkers Communications, testified to his 

knowledge of Verizon’s prior failed efforts and the added expense of developing that alternate 

site, including the need to clear for and construct an access road of about a mile long to the 

proposed site near the top of Buffalo Mountain. Neither Mr. Rinkers nor any other witness 

testified as to their knowledge of any other alternate site in Hardwick or the surrounding area that 

would be appropriate for a telecommunications tower. 

13. An independent study, titled “Personal Wireless Services Analysis of Facility Needs and 

Siting” and dated September 9, 2005, was commissioned by the Town of Hardwick (hereinafter 

referred to as the “Hutchins Study”). It was authored by Mark F. Hutchins, who worked in 

cooperation with Town officials and members of the Hardwick Planning Commission and ZBA. 

While the Hutchins study researched thirteen potential telecommunications sites in and around 

Hardwick, the Rinkers site and the potential site on Buffalo Mountain seemed to provide the 

most reliable coverage for the Town. In fact, the study contains the conclusion and 

recommendation that the Rinkers site will provide extensive but not total coverage for all of 

Hardwick1

 and concludes that “some sort of two-tower scenario” (i.e.: the Rinkers site and 

Buffalo Mountain), supplanted by repeaters, may be the only effective means to provide 

complete wireless telecommunications coverage to all of Hardwick.2

14. The proposed Rinkers tower on the Shepards’ property will be visible from several 

locations, including the homes or farms of most Appellants. The proposed tower site is downhill 

from the northerly boundaries of the Shepard property by about 23 feet in elevation. Most, if not 

all of the Appellants’ homes are north of the proposed tower site. The tallest of the trees on the 

northerly boundaries were 67 feet tall when last measured in May of 2004. Thus, roughly the 

bottom half of the tower, the fencing, generator and buildings will be below these nearby trees 

and not visible from adjoining properties to the north. About 90 feet of the tower and the 20-foot 

 

1

 Hutchins Study at p. 11–13 and Figures 17 and 31. 

2

 Id. at 17. The Hutchins Study also notes that while tower height would improve coverage, approval of such 

towers must be respectful of aesthetic and other impacts. The Study notes that such concerns doomed a previous 

application to site a telecommunications tower on Buffalo Mountain and that any future application to site a tower 

on Buffalo Mountain that was taller than 150 feet “would face strong opposition.” Id. at 13. 
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pager antenna will be above these trees. Rinkers’s balloon demonstration provided estimates of 

the tower and antenna height.3

15. The neighborhood in which the tower is proposed is in the Compact Residential Zoning 

District (CR District). The District’s stated purpose “is to provide for moderate to high density 

residential development, and appropriate non-residential uses, in predominately built-up areas 

within and surrounding the town’s traditional village centers.” Hardwick Zoning and 

Subdivision Bylaws (Bylaws) § 2.4(A). Telecommunications facilities are permitted as a 

conditional use in the CR District. Nearby properties are almost all used as year-round 

residences and are located on medium to large tracks of land. There are four working farms in 

the neighborhood, two of which follow organic practices. 

16. The potential of a nearly two hundred foot telecommunications tower within several 

hundred yards of Appellants’ homes and farms causes them to have aesthetic and health 

concerns, as well as fears that the proposed tower may have a negative impact on the value of 

their homes and properties. 

17. On December 7, 2004, the ZBA approved Rinkers’s application (No. 2004-045) for a 

telecommunications tower zoning permit, but limited the tower’s height to 100 feet, plus an 

additional 20 feet for the proposed paging antenna to be attached to the top of the tower. The 

ZBA also attached several conditions to their approval of the reduced-height tower. 

Discussion

Land use cases involving the siting of telecommunications towers will most often present 

at least one set of conflicts between important, competing interests. Due to the nature of 

telecommunications technology, a tower must be designed to allow the antennas attached to it to 

be situated above nearby tree tops. Statutes and ordinances encourage towers to be designed so 

that many antennas may be located on one tower (so as to minimize the number of individual 

towers in a given area), resulting in the incentive for towers to be taller, to accommodate 

multiple antennas. But a tall tower with multiple antennas increases the likelihood that it will be 

visible from many areas and could interfere with the aesthetic beauty of an area, particularly an 

area with as much aesthetic beauty as Hardwick and its surrounding towns. 

 

3

 Rinkers’s Exhibit 9 shows three photos of a pink test balloon tethered to the proposed tower site by a string. The 

string was originally 180′ long, but measured 210′ long when the balloon was reeled in several days later. 

Appellants’ Exhibits A, B, C and K show a different Rinkers height demonstration, using a blue balloon. 
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The Town of Hardwick and its citizens had the foresight to not only commission the 

Hutchins Study, but also to adopt specific Bylaws provisions that govern telecommunications 

facilities and reference concerns about telecommunications facilities in their Town Plan. We 

review the applicability of those provisions in more detail below. 

In this de novo appeal, this Court is charged with rendering a new decision, based upon 

the evidence admitted at its trial, on the issues preserved for appeal that relate to the pending 

application. 24 V.S.A. § 4472; see also In re Poole, 136 Vt. 242, 245 (1978) (“All of the 

evidence is heard anew, and the probative effect determined by the appellate tribunal [the 

Environmental Court here] as though no decision had been previously rendered.”). Appellants 

filed their Statement of Questions, thirty-six in number and some with sub-parts, that generally 

challenge the conformance of Rinkers’s application with the Town Plan and the Bylaw 

provisions that set standards for telecommunications facilities, in particular Bylaws § 4.15. 

Appellants’ Statement of Questions also includes more generalized challenges to the proposed 

tower. In the hope of addressing all issues preserved for review in this appeal by Appellants’ 

thirty-six Questions in a complete, non-repetitive and clear manner, we have subtitled our 

discussion below. Since the only remaining Question raised by Rinkers’s cross-appeal speaks to 

the general issue of compliance with the Hardwick Zoning Bylaws (Bylaws), we incorporate our 

analysis of Rinkers’s Question in the three sub-sections of our discussion below. 

I. Compliance with Town Plan (Appellants’ Questions 1, 2 & 3)

Appellants’ first three Questions challenge whether the proposed tower conforms with 

specific provisions of the Hardwick Town Plan (Plan) and whether the Bylaws, as interpreted in 

the context of the pending tower application, implement the goals of the Plan. 

While the sincerity with which Appellants assert that the proposed tower conflicts with 

specific provisions of the Hardwick Town Plan is genuine, we cannot pass judgment on these 

Questions because our Supreme Court has repeatedly stated that municipal plans do not have 

“the force and effect of a legislative enactment,” unless specifically incorporated into the zoning 

bylaws. In re Appeal of Wesco, 2006 VT 52, ¶ 33. Other than the generalized reference to the 

Town Plan in the general purpose provisions of Bylaws § 1.2, we find no specific reference to or 

incorporation of the Plan in the Bylaws. 
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The Supreme Court in Wesco explained its reasoning in a common sense manner by 

quoting from the long-standing precedent of Kalakowski v. John A. Russell Corp., 137 Vt. 219 

(1979): 

The plan is merely an overall guide to community development. It is a general 

guideline to the legislative body for its consideration of the municipality's land use 

program and of the community's needs and desires. Often stated in broad, general 

terms, see 24 V.S.A. §§ 4382–4383, it is abstract and advisory. Zoning bylaws, on 

the other hand, are specific and regulatory. Zoning is properly conceived of as the 

partial implementation of a plan of broader scope. It must reflect the plan, but it need 

not be controlled by it. Although the plan may recommend many desirable 

approaches to municipal development, only those provisions [specifically] 

incorporated in the bylaws are legally enforceable. 

Id. at 225–26 (citations omitted). 

Thus, we must conclude that because Appellants’ Questions 1, 2 and 3 ask this Court to 

pass judgment on conformance with a Plan that is not a regulatory document, those Questions 

cannot serve as a basis for rejection of the pending tower application. To the extent Appellants 

raise similar issues in the context of questioning whether the proposed tower conforms with the 

Bylaws, we address those issues below. 

II. Compliance with Bylaw provisions.

 A. Safety and health concerns (Appellants’ Questions 5, 11, 20, 22 & 35)

Appellants raise several issues relating to the protection of public health, safety and 

welfare. These important interests are protected by references in Bylaws §§ 3.7(B)(1), 

4.15(F)(1) and 4.15(F)(4). The specific evidence presented at trial did not reveal even a 

suggestion that the proposed tower posses a threat to public health, safety and welfare. The 

tower and its attachments are no more than 200 feet tall; the tower is located over 200 feet away 

from the nearest boundary and a considerably greater distance from other boundaries. The 

nearest boundaries are surrounded by mature trees that provide a physical buffer from adjoining 

properties. 

Pursuant to Bylaws § 4.15(F)(1), Rinkers commissioned a study of the expected 

transmissions, emissions and interference from the proposed tower and its antennas. Applicant’s 

Exhibit 13. This study evidenced that the proposed tower was not expected to exceed 3.5% of 

the maximum standards established by the FCC and the Occupational Safety and Health 
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Administration (OSHA). While Appellants referenced the Court to several studies that speak to 

the general risks and threats that telecommunications towers and equipment may pose, 

Appellants presented no evidence that addressed the expected transmissions, emissions or 

interference from this specific tower. Thus, the only admitted evidence presented expressed an 

estimate that the proposed tower and antennas would operate will below the federally established 

health and safety standards. 

B. Tower siting, review of alternate sites and respect for scenic and historic 

resources (Appellants’ Questions 6–9, 10, 12, 13–16, 19, 21, 30, 31, 33 & 34)

The proposed tower is sited in a residential area that also serves as the neighborhood of 

several working farms, including two organic farms. Hardwick’s Bylaws emphasize the 

importance of protecting the Town’s scenic and historic resources, and for good reason: the 

Bridgeman Hill Road section of Town, as well as several other areas of Hardwick, provide 

excellent examples of the natural beauty of our State. However, based upon the evidence 

presented, we conclude that the proposed tower does not adversely affect the scenic and historic 

resources of the neighborhood in which it is sited. 

The proposed tower location has served as the site for telecommunications equipment for 

over 25 years. While the current equipment will be expanded and the tower will be considerably 

taller, all proposed ground mounted equipment will continue to be screened from the neighboring 

road and property by the ground cover and trees on the border of the northern field where the 

tower is to be located. Given the siting of the tower on the down-sloping field and the trees on 

the northern boundary, all ground-mounted equipment and nearly half of the tower will be 

screened from view. This setting will still result in about 90 feet of the tower being above the 

nearest tree line and therefore visible from neighboring properties. The lattice-type design of the 

tower appears to minimize the visual impact of the portion of the tower that will be visible. 

Rinkers investigated alternate sites for its proposed tower. Its president testified that the 

proposed site would best serve the telecommunications needs of the community. The Town’s 

own study supported Rinkers’s conclusion that its site was superior to others. Ironically, the 

alternate site Appellants suggested ― Buffalo Mountain ― already failed to receive municipal 
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approval for a tower similar to that proposed here.4 The Town’s study suggested that a tower of 

greater than 150 feet on Buffalo Mountain, while possibly necessary to provide sufficient 

telecommunications service to the area, would face serious opposition. 

The Buffalo Mountain site provides further support for the appropriateness of Rinkers’s 

proposed site on Bridgeman Hill: Buffalo Mountain is an area of largely undeveloped land with 

few, if any residents or farms. It is mostly forested; siting a telecommunications tower on it 

would require extensive road work and tree cutting. These factors may have been the very basis 

for the demise of the tower proposed on Buffalo Mountain. 

Rinkers’s proposed tower site has been used for telecommunications equipment for over 

a quarter century. Because it is sited in a field, minimal site clearing will need to occur. 

However, since its nearby boundaries are bordered by mature trees and ground cover, the site is 

screened from adjoining properties. 

Bylaws § 4.15(C)(1) requires that telecommunications towers be sited on exiting 

buildings or other structures, whenever possible. Rinkers provided adequate evidence for the 

Court to conclude that existing buildings and structures in Hardwick do not provide the altitude 

or location necessary for the equipment needed to serve Hardwick. The Town’s own study 

supports this conclusion. No evidence was offered to the contrary. We therefore conclude that 

Rinkers fulfilled its burden of satisfying Bylaws § 4.15(C)(1). 

C. Removal of obsolete equipment (Appellants’ Question 17)

Appellants challenge whether Rinkers can or should be trusted to remove “all abandoned, 

unused, obsolete or noncompliant wireless telecommunications facilities,” as required by Bylaws 

§ 4.15(H). The Court understands from observations made during the site visit and explained in 

testimony at trial that Rinkers may now have ownership or control of telecommunications 

equipment that falls within this category that has not been removed. But no evidence was 

introduced at trial that the pre-existing equipment referenced was subject to a prior removal order 

or the provisions of Bylaws § 4.15(H). This Bylaw provision appears to speak to conditions that 

must be followed in connection with the approval of new telecommunications equipment, 

although the section references “all . . . telecommunication facilities” and could be read to 

 

4

 Even though the Town study suggests Buffalo Mountain as the next best site for a telecommunications tower, it is 

not surprising that its proposed tower could not receive Town approval. The significance of Buffalo Mountain is 

evidenced by the fact that it is reproduced as the background on the Town’s official seal. 
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control all such equipment in the ownership or control of the applicant. In any event, the 

provisions of § 4.15(H) can serve as appropriate conditions for approval of Rinkers’ proposed 

telecommunications facilities. We therefore incorporate such a condition in our approval below. 

D. Traffic impacts (Appellants’ Question 18)

The Rinkers tower is not proposed to be regularly staffed; access to it will not be open to 

the public. Other than the occasional maintenance personnel, no admitted evidence suggested 

any new traffic that the proposed new tower would generate. Bylaws § 5.2(H)(3) relates to 

review of traffic impacts when conditional use applications are being considered.5

 Given the 

nominal additional traffic generated by the proposed tower, we conclude that Rinkers has 

satisfied its burden of proof under § 5.2(E)(3) and specifically conclude that the proposed tower 

has no measurable impact upon area traffic. 

III. Miscellaneous issues (Appellants’ Questions 4, 23–26, 28, 29 & 36)

Our final discussion addresses the miscellaneous concerns Appellants raise regarding the 

impact of the proposed tower upon the value of their properties, the integrity of the Bylaws, 

potential future liabilities and the past unrelated activities Mr. & Mrs. Sheppard have allowed to 

occur on their property. While we have no reason to doubt the accuracy or sincerity of 

Appellants’ allegations here, we must remind Appellants that this is a Court of limited 

jurisdiction. We have only the authority to consider issues the Town ordinances authorize the 

municipal panel in the first instance and this Court in the second instance to review in connection 

with a pending application. We have not been made aware of any provisions in the Bylaws or 

other Hardwick ordinances that authorize consideration of these issues in connection with a 

tower application. We therefore decline to address these issues, which we conclude are beyond 

the scope of this Court’s jurisdiction. 

Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that 

Rinkers’s application for conditional use approval of a 180-foot telecommunications tower is 

GRANTED, subject to the following terms and conditions: 

 

5

 Even though Appellants challenge the conditional use approval of Rinkers’s tower, it appears that traffic is the 

only specific conditional use criteria that Appellants preserved for review in this appeal. Impact upon the character 

of the area is also a conditional use criteria under Bylaws § 5.2(E)(2), but Appellants preserved review of this impact 

through their challenges under Bylaws § 4.15. 
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1. The tower, its support guy wires, equipment buildings and fencing shall be 

constructed as shown on the drawings and site plans admitted into evidence. See 

Exhibits 1 through 13. 

2. No antennas other than the pager antennas, two-way radio antennas, communications 

repeater stations, wireless broadband service antennas and up to six cellular-type 

telecommunications antennas Rinkers proposed in its application shall be located on 

the completed tower, unless and until Rinkers receives permit approval for such 

additional antennas. All other antennas and the proposed cellular antennas shall first 

receive zoning approval pursuant to Bylaws § 4.15(F)(1) before being located on and 

operated from the Rinkers tower. 

3. Rinkers shall remove all abandoned, unused, obsolete or noncompliant wireless 

telecommunications equipment and facilities on the proposed site within twelve 

months of the cessation of operations at the site and shall restore the site to its 

original, pre-telecommunications equipment appearance. The Court concludes that it 

is not necessary at this time to require Rinkers to post a bond or other security. 

Nothing in this condition shall limit a party from requesting that the Court revisit the 

need for a bond other security upon a specific showing that any such equipment or 

facilities has been abandoned, gone unused, or become obsolete or noncompliant for a 

twelve month period. 

4. The Court authorizes the tower to be constructed to a height of 180 feet, with a pager 

antenna on top of it of no more than twenty feet, thereby REVERSING the specific 

limitation by the ZBA of the tower to a height of no more than 100 feet. The Court 

concludes that the additional height is warranted by the increased coverage estimated 

by Rinkers’ expert and the encouragement of co-location on telecommunications 

towers contained in Bylaws § 4.15(A)(4). 

5. This Decision and its conditions shall run with the land and enforceable against 

Rinkers, its successors or assigns. 

This matter is REMANDED to the Hardwick Zoning Administrator, solely to complete 

the ministerial act of issuing a zoning permit in conformance with this Decision, which also 

serves as the Judgment Order in this appeal. 

Done at Berlin, Vermont, this 2nd day of October, 2006. 

__________________________________________ 

 Thomas S. Durkin, Environmental Judge