Agenda - Planning Commission - 08/04/2011

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Zoning Bulletin June 25, 2011 1 Volume 5 1 No. 12 claimed that only one site was suitable for the tower and that the tower needed to be 120 feet above ground level to be effective. The Town's zoning ordinance limited cell phone towers to 10 feet above the average tree canopy. In this case, the ordinance would have lim- ited Industrial Communications tower to 71 feet above ground lev- el. Industrial Communications applied for a variance to construct the tower. The Town's Zoning Board of Adjustment (the "Board") denied the variance. The Board found that Industrial Communications "failed to meet the criteria for a variance under New Hampshire law." Industrial Communications and the two wireless providers then filed a lawsuit in federal district court against the Town un- der % 704(a) of the federal Telecommunications Act of 1996 (the "Act"), 47 U.S.C.A. § 332(c)(7). Section 704(a) allows —in de- fined circumstances —an aggrieved person or entity to bring a suit to override state or local law in order to construct cell phone tow- ers. Section 704(a) allows a court to override a local restriction if the court finds that the local action or refusal to act violates one or more of the Act's grounds for relief. Here, Industrial Communica- tions claimed that the Town's denial of the variance would effective- ly "prohibit[] the provision of personal wireless services in violation of the Act." The Town initially defended the case. David and Marilyn Slade (the "Slades"), who owned property within 200 feet of the pro- posed tower, intervened in the case. The Slades "stood silent as the Town handled the defense." Eventually, the Town and Industrial Communications negotiated a settlement. They agreed to vacate the Board's variance denial and to permit a 100-foot tower —without further meetings, hearings, or decisions of the Board. The federal court entered, as a judgment in the case, the consent decree proposed by Industrial Communications. The Slades then appealed. On appeal, Industrial Communica- tions argued that the Slades were not entitled to make claims on their own behalf under the Act and therefore did not have standing (i.e., the legal right) to pursue the case. DECISION: Vacated, and matter remanded. The United States Court of Appeals, First Circuit, first agreed with Industrial Communications that the Slades were not entitled to © 2011 Thomson Reuters 3