Posted by: Patricia Salkin | May 25, 2011

1st Circuit Court of Appeals Holds Property Owners Can Challenge Siting of Wireless Facility After Town Settles with Wireless Companies

The plaintiffs, wireless communications companies, sued the Town of Alton in the Federal District Court for the District of New Hampshire under the Telecommunications Act of 1996 due to the Town Zoning Board of Adjustment’s denial of a variance. The Slades, property owners and intervenors, opposed a settlement reached by the Town and the wireless companies, as well as the consent decree entered by the court. The Slades appealed the consent decree to the settlement and the Court of Appeals, First Circuit vacated and remanded the determination of the district court. 

The Court of Appeals had to first address whether the Shades had standing to continue the suit in the absence of the Town and whether they can make claims of their own under the Act.  The court stating that only those who are empowered by the Act can bring challenges, and that a party is empowered by the Act when they are “adversely affected” by government actions contrary to the Act. Since the Town denied the height variance for the tower, the Slades were not adversely affected by government actions contrary to the Act, thus no claim could be brought by the Slades under the Act. 

However, the Court of Appeals looked more favorably on whether the Slades could continue the present suit.  The court stated that an intervenor can continue to litigate after the original party has been dismissed if Article III is satisfied, that the Slades can act as independent litigants if they have suffered injury in fact causally connected to the conduct of the opposing party, and the injury can be redressed by the federal courts. Here the Slades claimed impairment of economic and other interests, as well as a legal interest under state law; the protection of one’s property by zoning laws through the use of state courts to overturn the variance-a variance found unlawful by the Town under state law, which the wireless companies did not appeal. Since the variance was found to be unlawful, the Slades are entitled to resist the settlement that terminates their legal rights, unless a violation of the Act is shown. 
Given that the Slades have standing to resist the settlement, the case was remanded to the district court to determine whether the act was violated by the Town.

Industrial Communications and Electronics, Inc. v. Town of Alton, —F.3d —-, 2011 WL 1887334 (U.S. Ct. App. 1st Cir., 5/19/2011)

The opinion can be accessed at:

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