## Facts

- A homeowner in Hudson, New Hampshire, living in an R-2 residential zone, sought a building permit to erect three amateur (“ham”) radio towers approximately 90 feet tall, with antennae increasing each to about 100 feet.
- At the time, the town’s zoning ordinance did not contain specific limits on the number or height of amateur radio towers.
- The zoning administrator issued the permit.
- Neighboring property owners appealed to the zoning board of adjustment (ZBA), arguing radio towers were not permitted in the R-2 zone.
- The ZBA upheld the permit, treating amateur radio as a permitted accessory residential use and reasoning the ordinance’s accessory-use list was not exclusive.
- On rehearing, the ZBA again upheld the permit.
- The neighbors appealed to the superior court on the ZBA record; the court rescinded the permit, finding insufficient evidence that residential ham radio customarily involves installations approaching three towers of this size.
- The town appealed to the state supreme court, arguing the superior court misapplied accessory-use law and failed to account for federal policy favoring accommodation of amateur radio facilities.

## Issues

1. Whether amateur radio operations may qualify as a permissible accessory use in a residential zoning district.
2. Whether the ZBA erred by treating three approximately 100-foot towers as automatically permissible as an accessory use without considering customary scale and intensity.
3. Whether relief invalidating the permit improperly amounted to a prohibition inconsistent with federal policy requiring reasonable accommodation of amateur radio antenna structures.

## Decision

- The court held amateur radio may be a permissible accessory use in a residential district.
- The court agreed the ZBA misapplied accessory-use doctrine by failing to evaluate whether the particular proposal—three towers of approximately 100 feet—was customarily incidental to residential use.
- The court rejected any approach that would categorically bar amateur radio antennae in residential districts.
- The court ruled that local zoning may regulate the size, number, and placement of amateur radio towers, so long as regulation reasonably accommodates amateur communications and does not operate as a de facto prohibition.
- The court affirmed in part, reversed in part, vacated in part, and remanded for further proceedings consistent with these standards.

## Legal Principles

- An accessory use must be customarily incidental to the principal permitted use; “customarily” requires attention to typicality, including scale and intensity, not merely whether the underlying activity can occur in residential areas.
- Zoning boards receive deference on supported factual findings, but courts review ordinance interpretation and legal standards for accessory use without deference.
- Federal policy regarding amateur radio requires reasonable accommodation of antenna structures and forbids local regulation that functions as a de facto prohibition, while permitting reasonable local controls over height, siting, and number of structures.
- Remedies in zoning disputes should invalidate unlawful approvals without imposing categorical bans that conflict with the requirement of reasonable accommodation.

## Conclusion

The court recognized amateur radio as potentially accessory to residential use but required a fact-specific assessment of whether three approximately 100-foot towers are customarily incidental and whether any local limits reasonably accommodate amateur radio without effectively prohibiting it; the case was remanded for application of that standard.


Marchand v. Town of Hudson, 147 N.H. 380, 788 A.2d 250 (N.H. 2001)