No Expert, No Win: NH Supreme Court Upholds Wakefield ZBA on Cell Towers

When challenging a proposed project before a planning board or zoning board of adjustment, simply speaking in opposition may not suffice. Applications relying on technical data sometimes require objective evidence in response. A recent New Hampshire Supreme Court order involving competing cell towers in Wakefield illustrates this point.

Background

In August 2021, Vertex Tower Assets, LLC applied to the Wakefield Planning Board for approval to build two cell towers. Whittier Communications, Inc. owned a nearby cell tower, located between 1.9 and 2.25 miles from Vertex’s proposed sites. At the time of Vertex’s applications, the Whittier tower was under construction.

The Wakefield Zoning Ordinance required an applicant proposing a new wireless facility to show that no existing facility within four miles could accommodate the applicant’s cell service needs.

Vertex supported its applications with radio frequency coverage maps and a sworn affidavit from a radio frequency engineer. The engineer concluded that wireless coverage gaps existed in Wakefield and that existing and approved towers, including the Whittier tower, could not close those gaps.

After earlier appearances before the Planning Board and the Zoning Board of Adjustment, the Planning Board ultimately approved the applications. It found that the proposed towers would provide coverage where none existed, even assuming the Whittier tower operated with a carrier. The ZBA affirmed.

Court Rulings

Whittier appealed to the superior court and then to the New Hampshire Supreme Court. Whittier argued that Vertex’s evidence lacked credibility and failed to satisfy the zoning ordinance. The Supreme Court disagreed. The Court emphasized that Vertex submitted detailed engineering materials and expert analysis. Whittier, by contrast, offered no competing radio frequency study and no expert affidavit. Generalized criticism and skepticism did not require the local boards to reject Vertex’s technical evidence.

The Court reinforced a familiar principle in land use law. Reviewing courts defer to local boards on credibility and evidentiary weight and do not second-guess a board’s decision to credit expert technical evidence unless the board’s ruling is unlawful or unreasonable, particularly where opponents do not present competing expert evidence.

Takeaway

The lesson for landowners and project opponents is practical. When a proposal rests on engineering or scientific data, effective opposition may require more than argument. Opponents should consider submitting reports and data of their own. Simply throwing stones may not be enough.

Whittier Communications, Inc. v. Town of Wakefield, No. 2024-0674 (N.H. Dec. 12, 2025) (order). (Because the Court issued an “order” rather than an “opinion,” the ruling has no precedential authority over other cases, but it may provide guidance on how New Hampshire courts may approach similar issues in the future.)

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