Agenda - Planning Commission - 05/03/2007

Home

April 1, 20071 Volume 1\ No.7 :Mitchell and Orabella argued that, regardless of whether they had done the things listed in the complaint, the complaint did not state how their conduct violated any law or was in any way actionable. The court agreed. with this argument, finding additionally that the challenged con- duct was protected by the First Amendment. Although Eagle's Nest claimed that the neighborhood opposition fu- eled the township's alleged discriminatory conduct, the only possible ac- tionable claims here were against the township. At the crux of Eagle's Nests' complaint was the two attempted restraining orders and a per- ceived discriminatory application of zoning laws-which could only be attributed to the township. Mitchell and Orabella, as residents of the township, had the right to petition the township for redress to their grievances and to assemble peacefully. Because Eagle's Nest could not state a claim against Mitchell or Ora- bella upon which relief could be granted, and because their conduct was constitutionally protected, the claims against them had to be dismissed. See also: Eaton v. Newport Bd. of Educ., 975 E2d 292, 77 Ed. Law Rep. 681 (6th Cir. 1992). See also: Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80,9 Pair Empl. Prac. Cas. (BNA) 439, 41 L.R.R.M. (BNA) 2089, 1 Empl. Prac. Dec. (CCH) P9656, 33 Lab. Cas. (CCH) P 71077 (1957). Jurisdiction-Town claims court does not have jurisdiction over challenged variance decision Argues administrative appeals were not exhausted Citation: USCOC v. Town of Bow, 2007 WL 655471 (D.N.R. 2007) NEW HA..MPSHIRE (02/26/07)-U.S. Cellular (USC) applied to the town of Bow for a variance to construct a 125-foot cell phone tower in a rural part of the tovv-n. After a site visit and a hearing, the zoning board of adjustment found that USC met some-but not all-of the criteria for a variance. Specifically, the board found that denying the variance would inter- fere with USGs ability to use its land reasonably, and there was no sub- stantial relationship between the purpose of the zoning ordinance and the specific restriction on USe's property for which the variance was sought. However, the board found that gr3..l-"lting the variance would be contrary to public interests and the private interests of neighboring property owners. USC appealed the board's decision, asking for a rehearing on the cri- teria that the board stated were not satisfied in its application. At the same time, a neighboring property owner appealed the part of the deci- 11 49