Posted by: Patricia Salkin | March 8, 2016

First Circuit Court of Appeals Upholds Dismissal Under TCA Claim Arising from Denial of Permit and Found No Unethical Conflict of Interest on the Part of Board Members

Appellants, Northeast Wireless Networks, LLC and Global Tower Assets, LLC, hold a Federal Communications Commission (“FCC”) license to provide personal communications service in and around the Town of Rome, Maine. The Applicants acquired a leasehold interest in land in Rome, on which land they sought to build a wireless communications tower. Rome regulates the siting of wireless towers via the “Town of Rome Wireless Telecommunications Facility Siting Ordinance” which requires applicants first to seek permission to build from the Rome Planning Board. After the Planning Board denied its application, appellants brought suit in District Court. The District Court granted the municipality’s motion to dismiss.

Applicants’ procedural due process claim did not address the fact that state law provided them a process for seeking relief from the action of the Planning Board through appeal to the Board of Appeals, and in state court. Thus, the court had no basis for concluding that the applicants lacked an adequate state law remedy for any of the procedural defects that they alleged. Applicants’ substantive due process claim alleged that those Planning Board members, through their membership in the Belgrade Region Conservation Association (the “BRCA”), had a financial interest in conservation easements the BRCA held. The court found these vague allegations of conflicts of interest and financially motivated conspiracy were insufficient to show that the Planning Board acted in the kind of conscience-shocking fashion required for substantive due process challenges. Accordingly, the District Court’s dismissal of the case was affirmed.

Global Tower Assets, LLC v. Town of Rome, 810 F.3d 77 (1st Cir. 1/8/2016)


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