Posted by: Patricia Salkin | May 12, 2014

Fed Dist Court in Alabama Finds No Constitutional or TCA Standing for Non-Party Plaintiff to Challenge Variance Denial for Wireless Telecomm Tower

A non-party to this matter (“AT & T”) filed an application with defendant Mobile City, Alabama Planning Commission (“Commission”) for a new wireless telecommunication facility to be built on a site leased by AT & T. AT & T also presented to the Board of Zoning Adjustment (“Board”) a zoning application seeking variances for placement of a tower on the site. The Commission and the Board denied the applications. The plaintiff Foresite LLC alleged that the actions violated the Telecommunications Act of 1996 (“TCA”) and sought a declaration that the defendants violated the TCA, with an issuance of a writ of mandamus ordering them to approve the applications.

The defendants challenged the plaintiff’s standing to bring this action. They asserted that plaintiff’s connection with this matter was that it entered in to a contract (“ Purchase Order”) with AT & T to provide services related to construction of the tower after zoning and planning approval was obtained. It was not to receive compensation unless the applications were approved.

The Court found that the element that the plaintiff did not suffer an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. The plaintiff did not claim any legally protected interest in the grant of AT & T’s applications. The plaintiff identified its only interest as its “interest in the Purchase Order, which was only an interest in earning compensation by performing post-approval work. The court stated that in order to establish constitutional standing to pursue a claim for breach of contract, a non-contracting party “must show that it held a legally protected interest in the contract.” By analogy, the plaintiff here had to show it held a legally protected interest in AT & T’s applications and the rulings. Because the plaintiff claimed no such interest in the applications or rulings they lacked standing. Further, the plaintiff lacked even a legally protected interest in performing post-approval work and receiving compensation. The plaintiff was to perform work only “upon approval” of the applications.

Lastly, the plaintiff insisted it had statutory standing under the TCA. The constitutional standing requirements apply to all cases brought in federal courts. Whether or not the plaintiff has statutory standing, it must still satisfy constitutional standing in order to successfully invoke federal subject matter jurisdiction. Therefore, the defendants’ motion to dismiss was granted and the plaintiff’s action was dismissed for lack of subject matter jurisdiction.

Foresite, LLC v City of Mobile Bd. of Zoning Adj., 2014 WL 1760992 (SDAL 5/2/2014)


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