The following summary is based on an opinion of the U.S. Court of Appeals for the First Circuit, which is the appellate court for decisions of the U.S. District Court for the District of New Hampshire. Opinions of the First Circuit are binding on issues of federal law in New Hampshire.
In May of 2010 we included this matter in Court Update as it was reported from the U.S. District Court, District of New Hampshire. The plaintiff seeks to construct a cellphone tower in the Town of Alton. It sought a variance from the zoning board of appeals for relief from a height restriction, and was denied. The plaintiff did not appeal the denial of the variance to the superior court, and the denial of the variance became final under New Hampshire law. Instead, the plaintiff went to federal court, and argued that the federal Telecommunications Act (TCA) gave it a right to construct the tower regardless of the local zoning restrictions. The case was defended by the Town, and abutters also intervened in the case seeking to protect their nearby property against a diminution of value that might result if their view of Lake Winnipesaukee was impaired.
At the District Court level, the plaintiff and the Town reached a settlement that would have allowed the tower to be constructed, although at a lower height. The abutters objected and sought to block the settlement. The District Court refused to allow the litigation to continue, and the abutters appealed to the First Circuit. The appeals court vacated the original order, holding that the abutters had standing to continue with the litigation, despite the Town's willingness to settle. A key to the analysis was that the plaintiff's failure to appeal the denial of its request for a height variance gave the abutters a protectable legal interest in that final decision under state zoning law. If the federal court approved a settlement under the TCA and made it a judgment, it would have the effect of extinguishing that protectable interest. The Court held that, given the abutters' objection, their interest can only be extinguished under the federal law if the plaintiff proves its case under the TCA. Thus, the matter was remanded for further proceedings to resolve the abutters' claims. The Court was careful to emphasize that its order did not compel the Town to continue to contest the case, or even prevent it from joining forces with the plaintiff to resist the abutters' claims.
As the opinion notes, "The [TCA] creates a complicated and relatively unusual scheme of its own; the job of the courts is to make it work effectively consistent with its language and aims; and that is what we have sought to do." It highlights the difficulty faced by local land use boards as they strive to understand this complicated area, and make decisions that often will lead to litigation.
Please be advised that the foregoing summary of a New Hampshire Supreme Court case is based on a slip opinion. Slip opinions are subject to change following motions for rehearing and/or motions for reconsideration. The Court may also modify an opinion without motion. The final version of the Court's opinion is that which appears in the New Hampshire Reports. A yearly compilation of municipal law cases is presented each fall at LGC's annual conference. For your copy of the 2010 Court Update, call 800.852.3358, ext. 100.