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An oral argument at the U.S. Court of Appeals for the 1st Circuit in a dispute over a cell tower featured a spirited debate between retired U.S. Supreme Court Justice David Souter and the cell tower companies’ lawyer. At issue in the Feb. 9 hearing was the right of property owners as intervenors to keep alive a lawsuit against a town, challenging the placement of a cell tower near their property, after the town and companies had settled. The property owners’ lawyers believe the case, Industrial Communications and Electronics Inc. v. Town of Alton, N.H., to be among the first under the Telecommunications Act of 1996 to tackle the issue of intervenor rights. Industrial Communications, a wireless project developer, and two Federal Communications Commission-licensed wireless companies, RCC Atlantic Inc. — a Verizon Communications Inc. indirect subsidiary — and U.S. Cellular Corp., wanted to build a 120-foot wireless telecommunications antenna facility in Alton. Industrial Communications and RCC filed their initial application with the town’s zoning board in September 2005. U.S. Cellular joined the application in June 2006. The town had an interim growth management ordinance at the time of the initial application. In March 2006, it revised the ordinance to restrict tower height to “ten feet above average tree canopy height of trees within an area defined by a fifty (50) foot radius or perimeter of the mount, security barrier, or designated clear area for access to equipment, whichever is greatest.” The cell tower companies filed suit in the District of New Hampshire against the town in March 2007, shortly after the Alton zoning board denied their height variance request. That June, David and Marilyn Slade, whose property border is less than 200 feet from the tower’s proposed location, filed a motion to intervene to defend the town, which the court granted. The Slades claimed the tower would diminish the aesthetic and economic value of their property which “includes panoramic views of Lake Winnipesaukee and the White Mountains.” Alton’s selectmen changed their position and started settlement negotiations with the cell tower companies in the summer of 2009. The Slades opposed the eventual settlement terms, and filed a notice of nonparticipation in settlement in March 2010. In May, District Judge Joseph Laplante ruled against the Slades’ objection to the settlement. He also entered a consent decree allowing a 100-foot tall tower. After the federal court consent decree, the Slades filed a state court land use law appeal in Belknap County Superior Court on the state law issues in the case, Slade v. Town of Alton, N.H. The town moved to dismiss, but the case remains open. The tower companies intervened on the ground that the litigation involved a federal question. The Slades also appealed the district court case to the 1st Circuit. The town joined the cell tower companies’ brief and did not separately participate in oral argument. Souter sat on the panel by designation. Circuit Judges Michael Boudin and Juan Torruella also sat on the panel at the oral argument. The Slades’ lawyer, Paul Fitzgerald of Laconia, N.H.-based Wescott, Dyer, Fitzgerald & Nichols, said the lower court’s refusal to let the couple continue the lawsuit was “a question of fundamental due process for abutters of cell tower cases.” “Do you even have to get into due process?,” asked Souter. “All you have to argue is that a party of a case cannot be thrown out without [agreeing to a] settlement or [a] judgment [removing the party].” Later in the oral argument, Souter asked Fitzgerald to assume that the Telecommunications Act was passed to protect cell phone companies. “[So] you’re claiming you stand in the same position as the town, [but you] have a right to be protected by the zoning ordinance just as the town has a right to be protected by the zoning ordinance,” Souter said. “That’s the strongest position I have,” Fitzgerald said. “So if you continue to litigate and win, you’ll have a right to enforce the zoning ordinance,” Souter said. “That’s our goal in this case,” Fitzgerald said. Boudin asked Fitzgerald to address the fact that the telecommunications is designed to override state and local rules in many instances. Fitzgerald said that was true on certain issues, but not for the issues in this case. “The primary issue before state court is the selectmen’s authority to enter into the settlement itself,” Fitzgerald said. Fitzgerald also noted that if the zoning board ruled for the cell tower companies, his clients would have been able to appeal to state court. “[Instead] they had to go along for the ride in federal district court [on the town's side], Fitzgerald said. Souter told Fitzgerald that the only way his clients can get out of being bound by the selectmen’s variance for the cell tower companies is to “show that the selectmen didn’t have the authority to grant a variance.” Arguing for the cell tower companies was Steven Grill, a partner at Manchester-based Devine, Millimet & Branc. He said that Laplante’s ruling spelled out that the Telecommunications Act grants a private right of action only to parties aggrieved by a local government’s final action that also violates one of the act’s limits on local power. The limiting language bars state and local governments from the following: regulating wireless facility placement in a way that discriminates among providers; not taking timely action on companies’ requests; denying requests without substantial written evidence; and applying environmental regulation to facilities that comply with Federal Communication Commission radio frequency emissions regulations. Souter said that the Slades are “claiming a right to defend themselves. They have the same ultimate interest a town has in defending a town’s ordinance.” Grill conceded that the Slades and the town have similar interests, but said the town’s interests were broader. Grill later argued that the Slades had no standing to litigate because they were not injured. Souter replied that he didn’t think that this type of standing was in question because the tower would block the Slades’ views. “I respectfully disagree,” Grill said. “Although they allege a property interest, there’s nothing in the record showing that a 100-foot tower would have [any impact on them].” “That’s why it should be litigated,” Souter said. Grill cited limiting language in a 2008 9th Circuit case, U.S. v. Carpenter, which vacated the approval of a settlement because the intervenors were not permitted to participate. “The court emphasized that the intervenor does not have the power to block the settlement,” Grill said. The Carpenter case was about a road on U.S. Forest Service land in Elko County, Nev., that involved environmental intervenor groups. “Although our prior opinion foreclosed any argument that appellants were not entitled to intervene, we did not suggest that the appellants’ approval of the settlement was required,” stated the Carpenter ruling. “We recognize that the intervenors whose claims are not the subject of a settlement cannot veto that settlement.” Souter said that Grill was confusing two arguments of the property owners. One, the notion that ‘I as intervenor can block a settlement.’ Two, that ‘whether they settle or not…I have a property interest in enforcement of an ordinance that violates the Telecommunications Act.’ “ “I agree that he can’t stop the settlement between your client and the town, but he’s claiming the right to litigate by himself to protect his own interests,” Souter said. Grill said that the Slades also have a problem with the third prong of standing, how can they get a federal remedy from the courts if there’s a consent decree allowing the settlement. “It means that your settlement agreement is not worth a nickel,” Souter retorted. “You settled with one party but haven’t settled with another party.” Grill said there’s no precedent anywhere for an intervenor to make these kinds of claims. “It’s not a claim, it’s a defense,” Souter said. The Slades’ defense to the tower companies’ case is that the town’s zoning ordinance does not violate the Telecommunications Act. In an interview after the hearing, Grill said he’s “a little surprised by Souter’s approach.” Also after the hearing, Fitzgerald said he’s “encouraged.” He said he believes the court “is going to recognize that the Slades do have status as full parties based on the district court’s granting of intervenor status.” Sheri Qualters can be contacted at [email protected].

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