Agenda - Planning Commission - 08/04/2011

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June 25, 2011 ( Volume 5 I No. 12 Zoning Bulletin make claims on their own behalf under the Act. The Act empowers only those "adversely affected" by denials of requests to construct wireless facilities, found the court. Therefore, the Slades, who were offended by the grant of the variance under the settlement, had no claim of their own under the Act. However, the court held that the Slades did have standing to de- fend the denial of the zoning variance even after the town sought to enter into the consent decree. The court found that the Slades had standing under Article III of the United States Constitution. The court explained that to have Article III standing to act as in- dependent litigants, the Slades had to have "suffered an `injury in fact' that [was] causally connected to the complained -of conduct and that [would] likely be redressed by a favorable federal court decision." The court found that the Slades had claimed protectable economic and other interests that would be directly impaired by the construction of a tower. (They had claimed that the tower would "stand[ ] prominently in the line of sight of the panoramic view ... of Lake Winnipesaukee and the surrounding mountains" that they currently enjoyed from their property, and that the construction of the tower would cause them economic as well as aesthetic harm by diminishing the property's value.) More importantly, found the court, the Slades had a legal interest under state law in the protec- tion that the zoning laws afforded to their property (i.e., they could sue in state court to overturn the variance if it were granted unlaw- fully). In other words, the consent decree would effectively serve as a "legally operative judgment that overrides state law and the Slades' rights under state law that would prevail unless overridden by the decree." The court found this injury fulfilled the Article III requisites. The court therefore concluded that, unless a violation of the Act was proven, the Slades were entitled to resist the entry of the consent decree between the Town and Industrial Communica- tions because the consent decree would terminate the Slades' pro- tectable state rights. Industrial Communications maintained that denial of the vari- ance did violate the Act. The court found the Slades could defend that denial of the variance, as parties to the case, with independent interests to protect that were threatened by the decree. The court concluded that the Town was not obliged to defend the suit but that the Slades were free to carry on the suit and protect their in- terests directly. 4 © 2011 Thomson Reuters