Material Prejudice and Proof of Coverage Gaps in Wireless Tower Zoning: Commentary on Whittier Communications, Inc. v. Town of Wakefield

I. Introduction

This commentary analyzes the Supreme Court of New Hampshire’s order in Whittier Communications, Inc. v. Town of Wakefield (No. 2024-0674, Dec. 12, 2025), a land-use dispute involving competing wireless infrastructure providers and the application of a municipal ordinance governing personal wireless service facilities (“cell towers”).

The case arises from the Town of Wakefield’s approval of site plans for two new towers proposed by Vertex Tower Assets, LLC (the “Vertex Towers”), notwithstanding the existence of a nearby tower owned by Whittier Communications, Inc. (the “Whittier Tower”). Whittier, as owner of the competing tower, challenged the approvals before the Planning Board, the Zoning Board of Adjustment (ZBA), the superior court, and finally the Supreme Court.

The decision is significant for three principal reasons:

It clarifies what constitutes sufficient “written evidence” under a local ordinance requiring proof that no existing wireless facility within a defined radius can accommodate an applicant’s needs.
It reinforces strong judicial deference to local land-use boards’ evaluation of technical radio-frequency (RF) evidence.
It applies the “material prejudice” standard to alleged procedural noncompliance with ordinance requirements, signaling that technical irregularities will not invalidate board decisions absent concrete harm.

The opinion, issued under Supreme Court Rule 20(3) by order rather than a full-length opinion, nonetheless lays down practical and doctrinal guidance on wireless tower siting, the use of engineering evidence, and the limits of procedural attacks in zoning appeals.

II. Factual and Procedural Background

In August 2021, Vertex applied to the Wakefield Planning Board for site plan approval to construct two personal wireless service facilities (the Vertex Towers). The applications included:

Multiple radio-frequency coverage maps for each proposed site, showing existing service and projected service;
An affidavit from a radio-frequency engineer, acting as independent consultant to Vertex, attesting that:
- There was “a gap in wireless coverage and inadequate network service” in the areas targeted by the Vertex Towers; and
- Wireless carriers would be “unable to close this gap in coverage” without the Vertex Towers.

Whittier owns a separate tower (the Whittier Tower), located 1.9 miles from one proposed Vertex site and 2.25 miles from the other. At the time Vertex applied, the Whittier Tower was under construction, not yet complete or operational.

The Wakefield Zoning Ordinance, Article 24, contains provisions directly aimed at limiting new towers where existing facilities might be used instead:

Article 24, § E.5 – For a new personal wireless service facility, the applicant must submit “written evidence demonstrating that no existing facility within four miles of the proposed personal wireless service facility can accommodate the applicant’s needs,” with specified types of “substantial evidence” that may be used.
Article 24, § F – When applying for a new tower or similar structure, the applicant bears the burden of proving that “there are no existing structures available and suitable” to locate its facility, with illustrative requirements that may include lists of contacts with potential site owners and copies of inquiry and rejection letters.

Initially, the Planning Board denied Vertex’s applications, reasoning that because the Whittier Tower was “existing” within four miles of the proposed towers, Vertex had not met its burden under Article 24, §§ E.5 and F.

Vertex appealed to the ZBA. After a hearing, the ZBA held that the Whittier Tower was not “in existence” when the Planning Board denied the applications, and it remanded to the Planning Board for further consideration.

Between the remand and the Planning Board’s new decisions, the Whittier Tower’s construction was completed. On remand, the Planning Board:

Approved the Vertex applications subject to conditions; and
Found that the Vertex Towers “would provide coverage where none is presently available assuming that the Whittier tower location was operational with a carrier.”

In other words, even accounting for a fully operational Whittier Tower, the Board concluded that coverage gaps remained that only the Vertex Towers would fill.

Whittier appealed to the ZBA, arguing, among other points, that Vertex had failed to:

Prove that locating the Vertex Towers within four miles of the Whittier Tower was “necessary” under § E.5;
Prove, under § F, that there were no suitable, available existing structures on which to locate its equipment; and
Provide any evidence that it had contacted Whittier to see if the Whittier Tower was available or suitable.

After a hearing, the ZBA affirmed the Planning Board, explicitly finding that “even if the Whittier Tower is ‘existing’ as that term is used in the Town ordinance,” Vertex had submitted sufficient evidence. On rehearing, the ZBA again affirmed.

Whittier then appealed to the superior court, which:

Treated the factual findings of the Planning Board and ZBA as “prima facie lawful and reasonable” under RSA 677:6 and 677:15, V;
Concluded that neither board acted unlawfully or unreasonably; and
Affirmed the approvals.

A motion for reconsideration was denied. Whittier then appealed to the Supreme Court, which affirmed by order.

III. Summary of the Supreme Court’s Decision

The Supreme Court upheld the superior court’s affirmance of the Planning Board’s and ZBA’s decisions. In doing so, it held:

Article 24, § E.5 was satisfied. Vertex’s RF coverage maps and engineering affidavit constituted “substantial evidence” that no “existing facility within four miles” could accommodate Vertex’s needs, because:
- Even assuming the Whittier Tower were operational, coverage gaps would remain; and
- The Vertex Towers would provide coverage “where none is presently available.”
Attacks on the credibility of Vertex’s technical evidence failed. Objections based on public comments and board members’ questions did not show that the boards’ acceptance of Vertex’s evidence was unreasonable. The Court reiterated that:
- It is the Planning Board’s and ZBA’s role to assess credibility and weigh conflicting evidence; and
- The superior court, acting in an appellate capacity, cannot “second guess” those factual determinations.
Article 24, § F was also satisfied. Using the same RF evidence, the boards reasonably found that “there are no existing structures available and suitable” to host a facility that would eliminate the identified coverage gaps, including the Whittier Tower.
Procedural arguments under § F(1)-(2) were rejected for lack of material prejudice. Even assuming the ordinance required Vertex to:
- Submit a list of all contacts made with potential site owners; and
- Provide copies of inquiry and rejection letters;
any failure to do so was a “procedural irregularity” that did not warrant reversal under Patenaude v. Town of Meredith, because Whittier did not demonstrate “material prejudice.”
All remaining arguments were found unavailing and not discussed in detail. Citing Vogel v. Vogel, the Court declined to address further issues that did not warrant extended analysis.

Accordingly, the Supreme Court affirmed the judgment: the Vertex Towers were lawfully approved under the Wakefield Zoning Ordinance.

IV. Detailed Analysis

A. Standard of Review and Procedural Posture

The case is an appeal from a superior court decision reviewing Planning Board and ZBA actions. Under RSA 677:6 and 677:15, V, the superior court is required to treat the factual findings of those boards as “prima facie lawful and reasonable” and may set aside their decisions only for unreasonableness or legal error.

Relying on Monadnock Rod and Gun Club v. Town of Peterborough, 177 N.H. 70 (2024), 2024 N.H. 61, ¶ 10, the Supreme Court restated the controlling standard:

The boards’ decisions are presumed lawful and reasonable;
The party challenging the decision bears the burden of showing that it is unlawful or unreasonable; and
The superior court’s judgment will be upheld unless it is unsupported by the evidence or legally erroneous.

The Supreme Court, in turn, reviews the superior court’s application of this standard; it does not re-try the land-use dispute. This double layer of deference — first to the boards, then to the superior court’s limited review — is central to the outcome.

B. The Ordinance Framework: Article 24, §§ E.5 and F

Article 24 of the Wakefield Zoning Ordinance is designed to:

Discourage unnecessary proliferation of new towers; and
Encourage use of existing facilities (co-location) where possible.

Two provisions were pivotal:

1. Article 24, Section E.5 – Existing Facilities Within Four Miles

Section E.5 applies when “the applicant is proposing a new personal wireless service facility.” It requires the applicant to submit “written evidence demonstrating that no existing facility within four miles of the proposed personal wire service facility can accommodate the applicant’s needs.” (The opinion uses “personal wire service” but the context is personal wireless service.)

This requirement can be met through “substantial evidence” showing, for example:

(a) No existing structures in the geographic area;
(b) Existing facilities are not tall enough or structurally strong enough;
(c) Existing facilities have no additional capacity; or
(d) Co-location would cause electromagnetic interference.

The ordinance also contains a catch-all:

§ E.5(e): “Other substantial evidence as may reasonably be required.”

Together, these provisions indicate that the ordinance is less concerned with form than with substance: is there reliable, objective evidence that existing facilities cannot meet the applicant’s technical needs?

2. Article 24, Section F – No Existing Structures “Available and Suitable”

Section F provides that, when applying to construct a new tower or similar structure, the applicant “shall have the burden of proving that there are no existing structures available and suitable to locate its personal wireless service facility.”

To meet that burden, the ordinance contemplates that the applicant “shall take all appropriate actions as may be required,” which “may include but not necessarily [be] limited to”:

§ F(1): Submitting “a list of all contacts made with owners of potential sites” regarding availability; and
§ F(2): Providing copies of all inquiry letters and all rejection letters from owners of existing structures.

Section F thus has two dimensions:

A substantive requirement: there must in fact be no existing “available and suitable” structures; and
A set of procedural/evidentiary mechanisms: lists and letters are contemplated as ways to prove that substantive point.

The crucial doctrinal question is how strictly courts should enforce these procedural components when the substantive question (whether suitable structures exist) has been addressed through other evidence. The Court resolves this via the “material prejudice” doctrine.

C. Applying Article 24, § E.5: “No Existing Facility Within Four Miles Can Accommodate the Applicant’s Needs”

1. Vertex’s Evidence

Vertex provided:

Multiple RF coverage maps showing:
- Coverage from existing and approved towers, including the Whittier Tower; and
- Projected additional coverage if the Vertex Towers were constructed.
An affidavit from an RF engineer stating, based on RF studies, reports, and computer models, that:
- There is a “gap in wireless coverage and inadequate network service” in the areas of the proposed towers; and
- Carriers would be “unable to close this gap in coverage” without the Vertex Towers.

Crucially, the coverage maps and affidavit accounted for the Whittier Tower as an existing or potential facility. The Planning Board found that the Vertex Towers “would provide coverage where none is presently available assuming that the Whittier tower location was operational with a carrier.”

2. The Planning Board’s and ZBA’s Findings

From this evidence, the boards concluded that:

Even with the Whittier Tower fully built and carrying a wireless carrier, coverage gaps would remain;
The Vertex Towers would fill those gaps; and therefore
No existing facility within four miles could “accommodate [Vertex’s] needs,” understood as providing adequate service to the identified underserved areas.

This reading interprets “accommodate the applicant’s needs” in a functional, service-oriented sense:

The question is not simply: “Is there a structure on which antennas might be physically mounted?”
Rather, it is: “If the applicant used that existing structure, could it achieve the necessary coverage and network performance?”

3. Supreme Court’s Legal Conclusion Under § E.5

The Supreme Court agreed that the boards did not err in finding § E.5 satisfied. It emphasized:

Vertex’s maps and affidavit constitute “substantial evidence” that no existing facility within four miles could accommodate its needs;
These materials fit within § E.5(e)’s category of “other substantial evidence as may reasonably be required”; and
The existence of the Whittier Tower did not undercut the conclusion, because the Vertex Towers would still provide coverage where existing facilities could not.

Whittier argued that Vertex’s evidence was “inaccurate and lacked credibility,” citing:

Public comments; and
Statements by Planning Board members questioning the evidence.

However, relying on N.H. Alpha of SAE Trust v. Town of Hanover, 172 N.H. 69 (2019), the Court reiterated that:

It is for local boards to resolve competing expert opinions and to determine credibility;
The superior court, and in turn the Supreme Court, may not reweigh that evidence; and
“Simply because the Planning Board and the ZBA rejected evidence that the plaintiff cites and relied upon contrary evidence does not mean that they acted unreasonably.”

The Court thus effectively:

Validated RF maps and expert affidavits as a viable way to satisfy § E.5; and
Confirmed that proximity to an “existing” competitor tower within four miles does not automatically preclude new towers, if the applicant can show that co-location on that tower would not achieve the necessary coverage objectives.

D. Applying Article 24, § F: “No Existing Structures Available and Suitable”

1. Substantive Requirement Under § F

Vertex had to show that “there are no existing structures available and suitable” to host its wireless facility. The boards, again relying on the RF evidence, found that:

No existing structures, including the Whittier Tower, could fill the coverage gaps that the Vertex Towers were designed to cover; and
Therefore, there were effectively no “available and suitable” existing structures.

The Supreme Court agreed, finding no legal or factual error in that conclusion. The same technical evidence that satisfied § E.5 was sufficient to meet the substantive requirement of § F.

2. Procedural Requirements: Contacts and Letters

Whittier’s primary attack under § F focused not on the substantive coverage analysis, but on the procedural components:

Vertex allegedly failed to submit “a list of all contacts made with owners of potential sites,” including Whittier; and
Vertex allegedly failed to provide copies of inquiry letters and any rejection letters, as contemplated by § F(1)-(2).

Whittier argued this “strict noncompliance” mandated denial of the applications.

The Court’s response had two important features:

It declined to definitively construe § F(1)-(2)’s mandatory force. The Court stated, “To the extent that the Ordinance has such a requirement, we need not decide this issue…,” leaving open whether lists and letters are strictly mandatory or simply illustrative of “appropriate actions.”
It invoked the material prejudice doctrine from Patenaude v. Town of Meredith, 118 N.H. 616 (1978). In Patenaude, the Court held that “not all procedural irregularities require a reviewing court to set aside an administrative decision; material prejudice to the complaining party must be shown.”

Applying Patenaude, the Court treated any failure to produce lists and letters as, at most, a “procedural irregularity” that would justify relief only if Whittier could demonstrate material prejudice.

3. Material Prejudice Analysis

The Court concluded that Whittier failed to show material prejudice because:

Whittier actively participated in the application process and had a full opportunity to present its views;
Both the Planning Board and the ZBA “expressly considered the existence of the Whittier Tower and other existing structures” in their decisions; and
The boards found that Vertex met its burden under the ordinance “regardless of the existence of those structures.”

Thus, even if formal lists and letters had been submitted, the outcome would not plausibly have changed, and Whittier’s ability to participate was not meaningfully impaired.

This is a crucial doctrinal point: the Court treats ordinance-specified documentation requirements as procedural tools to assist in proving the substantive question (availability and suitability), not as jurisdictional conditions whose violation per se invalidates a decision. Without proof that the irregularity actually mattered, relief is unavailable.

E. Precedents and Their Influence

1. Monadnock Rod and Gun Club v. Town of Peterborough (2024)

The Court cited Monadnock, 177 N.H. 70, 2024 N.H. 61, ¶ 10, for the general standard of review in zoning appeals:

Planning and zoning boards’ findings are presumed lawful and reasonable;
The challenging party carries the burden to show unreasonableness or legal error; and
The superior court’s decision is upheld unless unsupported by the evidence or legally erroneous.

In Whittier, this framework operates to:

Foreclose any attempt by Whittier to have the courts reweigh RF evidence; and
Channel the analysis into whether there was at least a rational basis for the boards’ conclusions (which the Court found there was).

2. N.H. Alpha of SAE Trust v. Town of Hanover (2019)

Alpha of SAE, 172 N.H. 69 (2019), is cited for the principle that courts do not substitute their judgment for that of local boards on factual or credibility issues. In that case, the Court admonished that:

Trial courts in zoning appeals function in an appellate capacity; and
Findings about which evidence to credit are for boards, not judges, to make.

The same principle is applied in Whittier:

The Planning Board and ZBA were entitled to accept Vertex’s RF engineer’s affidavit and coverage maps as credible;
The existence of contrary comments or skepticism did not require them to reject that evidence; and
The superior court properly refrained from re-evaluating that technical record.

3. Patenaude v. Town of Meredith (1978)

Patenaude, 118 N.H. 616 (1978), is the source of the “material prejudice” rule:

“[N]ot all procedural irregularities require a reviewing court to set aside an administrative decision; material prejudice to the complaining party must be shown.”

By importing this doctrine into the wireless-tower context, the Court:

Classifies deficiencies in ordinance-specified filing materials (like contact lists and letters) as “procedural irregularities,” not inherently outcome-determinative defects; and
Places the burden squarely on challengers to show how such defects concretely harmed them – either by denying them a fair opportunity to participate or by plausibly affecting the decision.

This is perhaps the most consequential doctrinal refinement in the decision, as it limits the effectiveness of purely procedural attacks on tower approvals.

4. Vogel v. Vogel (1993)

Vogel, 137 N.H. 321 (1993), is cited for the Court’s practice of declining to address arguments that do not warrant further discussion. Its use here underscores that the Court viewed the central issues as:

The sufficiency of evidence under §§ E.5 and F; and
The application of the material-prejudice rule to alleged procedural deficiencies.

F. Doctrinal Themes and Legal Reasoning

1. Deference to Local Fact-Finding in Technical Land-Use Disputes

The decision reinforces that:

Planning boards and ZBAs are the primary fact finders in land-use matters;
They are permitted to choose among competing experts, especially on highly technical matters such as RF propagation; and
Courts will not retry those factual issues under the guise of reviewing for “sufficiency” of the evidence.

This is particularly important in wireless cases, where opponents often challenge the credibility or accuracy of complex engineering studies. Whittier confirms that such disputes are to be resolved at the local board level, not in later judicial proceedings.

2. Functional Understanding of “Existing Facility” and “Can Accommodate the Applicant’s Needs”

Without formally construing the term “existing facility,” the Court’s reasoning implies a functional interpretation:

What matters is not simply whether a tower physically exists within four miles;
The critical inquiry is whether that facility, if used by the applicant, would actually provide the needed coverage and service.

By affirming the boards’ focus on coverage gaps “even assuming that the Whittier tower location was operational with a carrier,” the Court implicitly holds that:

An “existing facility” that cannot technically solve the relevant coverage problem does not “accommodate the applicant’s needs” for purposes of § E.5; and
Competitor towers therefore cannot, by their mere presence, block new facilities; their technical adequacy is the key factor.

3. Harmless-Error Approach to Procedural Violations of Zoning Ordinances

The opinion applies a classic harmless-error principle to municipal ordinance compliance:

Even assuming a procedural requirement exists (e.g., contact lists and letters under § F(1)-(2));
A failure to satisfy that requirement does not automatically compel reversal; instead, the challenger must show material prejudice.

For future litigants, this means:

Merely pointing to an applicant’s failure to file a particular document will generally be insufficient;
The challenger must connect the failure to a plausible change in the outcome or to a meaningful impairment of participation.

This approach moderates the risk that minor procedural oversights will invalidate otherwise well-supported land-use approvals.

4. Substantive vs. Procedural Requirements in Article 24

The Court’s reasoning draws a practical distinction:

Substantive requirements (e.g., demonstrating coverage gaps and lack of suitable existing structures) must be met through credible evidence.
Procedural mechanisms (e.g., contact lists and letters) are tools to demonstrate those substantive points, but failure to comply strictly is not necessarily fatal if:
- Other evidence sufficiently addresses the substantive requirement; and
- No material prejudice is shown.

This reading gives local boards some flexibility in the types of evidence they consider adequate and protects decisions grounded in robust substantive proof from being undone by technical filing defects.

5. The Appellate Role of the Superior Court

The opinion reiterates that in zoning appeals, the superior court sits as an appellate tribunal, not as a fact finder. It:

Must accept the local boards’ factual findings unless they are unreasonable or unlawful; and
May not “second guess” those findings or make contrary credibility determinations.

This reinforces prior case law cautioning trial courts against treating zoning appeals as opportunities to conduct a de novo review of the evidence.

V. Impact and Implications

A. For Wireless Infrastructure Developers

Importance of RF engineering evidence. Thorough coverage maps and expert affidavits are effective and court-endorsed tools for satisfying ordinance provisions like § E.5 and § F. Developers should invest in clear, well-documented RF studies that:
- Map existing coverage;
- Identify gaps; and
- Show how proposed facilities will address those gaps.
Existing competitor towers do not create absolute barriers. Even where a competitor owns a nearby tower, an applicant can justify a new facility by proving that co-location on that tower would not provide adequate coverage to the target area.
Procedural compliance still prudent, but non-fatal if harmless. Developers should nonetheless comply with contact-and-letter requirements to avoid litigation risk. However, Whittier suggests that inadvertent procedural omissions may not doom an application if the substantive record is strong and no party can show prejudice.

B. For Competing Tower Owners and Other Objectors

Ownership of a nearby tower is not enough. Objectors cannot rely solely on the presence of their facility within the ordinance’s radius. They must:
- Engage substantively with RF data; and
- Demonstrate that their facility is technically “available and suitable” to remedy the claimed coverage gap.
Procedural challenges require a showing of prejudice. Allegations that an applicant failed to send inquiry letters or list contacts will not succeed without evidence that:
- The objector was denied a fair opportunity to participate; or
- The failure plausibly altered the decision-making process.
Public skepticism is not a litigation strategy. Generalized doubts about engineering evidence, expressed during public comment, do not, by themselves, support a finding that the boards’ decisions are unreasonable in the face of competing expert evidence accepted by the boards.

C. For Local Boards and Municipalities

Boards retain broad discretion in evaluating technical evidence. Courts will respect decisions that demonstrate engagement with the record and articulate a reasoned basis for accepting one expert’s view over another’s.
Ordinance drafting considerations. Towns that wish procedural steps (like contact lists) to be truly mandatory might consider:
- Using clearer, unequivocally mandatory language; and
- Specifying consequences for noncompliance.
Even then, Patenaude’s material-prejudice doctrine may still temper the effect of violations.
Importance of explicit findings. Boards should:
- Explicitly address existing structures (by name, location, and attributes); and
- Explain why those structures do not eliminate the coverage gaps.
Such findings were key to the Court’s willingness to uphold the decisions here.

D. Relationship to Federal Telecommunications Policy (Contextual Note)

Although the opinion does not invoke the federal Telecommunications Act of 1996 or federal preemption principles, its logic is broadly compatible with federal policy. Federal law generally discourages local regulations that effectively prohibit the provision of wireless services while allowing municipalities to regulate siting and aesthetics.

By:

Focusing on objectively demonstrated “gaps in wireless coverage and inadequate network service”; and
Allowing new towers where existing structures cannot close such gaps;

the decision implicitly promotes a balance between:

Local interests in limiting proliferation of towers and encouraging co-location; and
Network reliability and coverage for end users.

VI. Clarification of Key Legal and Technical Concepts

Prima facie lawful and reasonable: A presumption that a decision is valid and made on proper grounds. The challenger must produce sufficient evidence to overcome this presumption by showing that the decision was unlawful or unreasonable.
Substantial evidence: Evidence that a reasonable person could accept as adequate to support a conclusion, even if other evidence supports a different view. It is less demanding than “beyond a reasonable doubt” or even a “preponderance,” and it reflects a deferential standard of review.
Material prejudice: Harm from a procedural error that is significant enough that it likely affected the outcome of the decision or impaired a party’s ability to participate meaningfully. Without such prejudice, procedural irregularities are treated as harmless.
Co-location: Placement of multiple wireless providers’ antennas and related equipment on a single tower or structure, thereby minimizing the number of separate towers. Ordinance provisions like §§ E.5 and F are designed to encourage co-location where technically and practically feasible.
Radio-frequency (RF) coverage maps and engineering studies: Technical documents that depict signal strength and coverage areas of wireless infrastructure, usually by color-coding service levels over geographic maps. In this case, such studies were used to show existing gaps and the incremental coverage that the Vertex Towers would provide.
Appellate vs. fact-finding roles: Local boards (Planning Boards and ZBAs) hear evidence and make initial factual determinations. The superior court and Supreme Court review those decisions for legal error or unreasonableness but do not make their own factual findings or reassess credibility.

VII. Conclusion

Whittier Communications, Inc. v. Town of Wakefield provides clear guidance on how New Hampshire courts will approach disputes over wireless tower siting under local ordinances:

Local boards’ factual and technical judgments, particularly regarding RF coverage and tower suitability, receive substantial deference.
Applicants may satisfy requirements like Article 24, § E.5 and § F through robust engineering evidence demonstrating persistent coverage gaps that existing facilities cannot remedy, even when competitor towers exist nearby.
Procedural irregularities in ordinance compliance will not invalidate board decisions absent a documented showing of material prejudice.
The superior court’s role in zoning appeals is strictly appellate; it must not substitute its view of the facts for that of the boards.

In the broader landscape of land-use and infrastructure law, the decision underscores a pragmatic approach: emphasis on substantive, technically grounded showings of need and suitability; tolerance for minor procedural imperfections where no one is harmed; and fidelity to longstanding principles of deference to local decision-makers. For municipalities, developers, and competitors alike, Whittier clarifies both the evidentiary burdens and the limits of judicial review in New Hampshire’s evolving wireless infrastructure regime.