                                      STATE OF VERMONT

                                    ENVIRONMENTAL COURT

             Appeal of Beckstrom, et al.         }
                                                 }
                                                 }     Docket No. 85-4-02 Vtec
                                                 }
                                                 }

                  Decision and Order on Cross-Motions for Summary Judgment

Appellants appealed from a decision of the Development Review Board (DRB) of the Town of
Hyde Park, ruling that the relocation of the so-called Village Communication Tower falls within the
exemption of ' 1.22 of the Hyde Park Telecommunications Facilities Interim Bylaw. Appellants are
represented by Stephanie J. Kaplan, Esq.; Appellee-Applicant H.A. Manosh, Inc. is represented
by John H. Hollar, Esq.; and the Town is represented by Steven F. Stitzel, Esq. The parties have
moved for summary judgment on the validity of the exemption contained in ' 1.22 of the Town= s
Telecommunications Facilities Interim Bylaw.

The following facts are undisputed unless otherwise noted.

Appellee-Applicant owns property in the Rural Residential 2 zoning district at a higher elevation
than the center of Hyde Park village. Appellee-Applicant proposes to build on that property a new
twenty-foot high base section for an existing telecommunications tower located in the village, and
to relocate the upper 140 feet of that tower from the village location to its property in the Rural
Residential 2 district. The village tower, which measures a total of 160 feet in height, was in
existence prior to the adoption of the Town= s Telecommunications Facilities Interim Bylaw. The
relocation increases the tower= s elevation above sea level, but does not increase the tower= s
total height above ground level at its base. Appellee-Applicant argues that this proposal is exempt
from complying with the new Telecommunications Facilities Interim Bylaw, under its ' 1.22, which
states in full that:

Any tower located in the Town or Village of Hyde Park, its relocation or modification, which does
not increase the tower height, upon the date of these bylaws [January 20, 1999] shall be exempt
from the bylaws.

The exemption in ' 1.22 is potentially applicable to three existing towers within the Town: a 100-
foot tower Appellee-Applicant also owns that is located on the Jones property, the 160-foot village
tower at issue in the present case, and another tower, 50 feet in height, also located in the
Village. If the exemption applies, the tower proposal in the present case must be reviewed in the
Rural Residential 2 zoning district under the conditional use standards, but not under the stricter
review standards of the Telecommunications Facilities Bylaw.

Appellants argue that ' 1.22 violates the uniformity provisions of 24 V.S.A. ' 4405 and that the
bylaw is invalid because it serves no public purpose. Further, Appellants argue that the
exemption improperly allows for the creation of nonconforming uses and structures where they
did not already exist and is effectively an improper grant of a variance or illegal spot zoning. The
Town and Appellee-Applicant argue that the Town is entitled to create an exemption to a new
bylaw, and that because the proposal falls within the exemption, it complies with the bylaw and
does not create an illegal variance, new nonconformity, or illegal mini-floating zone. The Town
suggests that the exemption serves the legitimate public purpose of preserving or enhancing
emergency service communications.
While it is correct that a municipality may write an exemption into a new bylaw, and is not
obligated to apply a new bylaw to all categories of uses at once, an exemption must be held to
the same standard as any other element of the bylaw, that is, the category it creates must be
rationally related to a legitimate municipal purpose, both as a principle of constitutional law and
under 24 V.S.A. ' 4405(a). Thus, an exemption from the new Telecommunications Facilities
Bylaw for existing tower structures in their existing locations would be a legitimate exemption, and
would be authorized by 24 V.S.A. ' 4408. Similarly, an exemption for towers used to provide
improved coverage for emergency services communications might very well be a legitimate
exemption within the power of the municipality. However, that is not what the Town has done in
the version of ' 1.22 here before the Court.

Section 1.22 as it is written merely exempts an assembly of materials already existing within the
town if it is being moved to a new site, while requiring the same assembly of materials in the
same new site to meet the stricter standards of the Telecommunications Bylaw if those materials
are moved in from an out-of-town or an out-of-state location. It is as if the Town had created an
exemption for houses that are jacked up and moved to another location within town (or houses
disassembled and reconstructed in a new location from lumber already existing within the town)
from having to comply with the setback or other requirements with which all other newly-built
houses in town must comply. Or it is as if the Town had created one requirement for lot size
within a mobile home park for mobile homes already existing in town and moved to their new
location, and another lot size requirement for mobile homes moved in from out-of-town, whether
new or used. There is no rational basis derived from any of the legitimate purposes of zoning that
justifies such a distinction based on the source of the structure= s materials, rather than on the
location of the structure or the use to which it is to be put.

Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that Appellants=
Motion for Summary Judgment is GRANTED and the Town= s and Appellee-Applicant= s Motion
for Summary Judgment are DENIED. The exemption, as written, is not reasonably related to any
legitimate governmental purpose under zoning. The Town may, of course, amend its
Telecommunications Facilities Bylaw to provide for other exemption language drafted so as to
relate to a legitimate governmental purpose, such as an exemption for telecommunications
towers that are primarily used for providing emergency services, or an exemption for towers that
improve the Town= s or the region= s ability to provide emergency services. This ruling appears
to the Court to conclude this appeal. It will be entered as a final order effective on May 20, 2003,
unless one or more of the parties telephones the Court to request a telephone conference to
discuss this issue; in which case the conference will be held on May 20, 2003 at 11:30 a.m.

                                th
Done at Barre, Vermont, this 12 day of May, 2003.




___________________
Merideth Wright
Environmental Judge
