Vt. SC sides with board, AT&T in installation of cell tower


MONTPELIER, Vt. (Legal Newsline) - The Vermont Supreme Court ruled last week that a group of landowners do not have a constitutionally-protected property interest at stake in the installation of a cell phone tower.

In its June 14 ruling, the Court said the state's Public Service Board and New Cingular Wireless PCS LLC d/b/a AT&T Mobility satisfied the procedural requirements under state law and the board's own rules.

Barrett Holby, Grethe Holby, Kristin Holby and Wegard Holby appealed the board's order granting AT&T a certificate of public good, or CPG. The certificate authorized the installation of a monopine telecommunications tower and associated facilities in Weston.

The landowners also appealed the board's order denying their motion to alter the CPG order.

Their properties either abut the property on which the proposed cell tower is to be built, or are nearby.

The Holbys contend they were denied procedural due process in connection with the board's proceedings.

In October 2010, AT&T provided a 45-day pre-filing notice to various entities and at least some of the Holbys. The notice provided a detailed description of the proposed project and its impacts, and signaled that AT&T would be filing a petition with the board for authorization to construct the facility.

On March 18, 2011, AT&T filed its petition seeking a CPG along with supporting pre-filed testimony. On the same day, AT&T also sent a notice of filing of application to the Holbys, stating, "If you determine that you would like to intervene in the (board) docket, you must file a motion to intervene with the (board) by no later than April 8, 2011."

The Holbys filed a motion to intervene on April 6, 2011, alleging they had "substantial interests which may be adversely affected by the outcome of this proceeding."

On June 6, 2011, the board issued an order granting the Holbys' motion.

Soon after, it concluded that "the petition does not raise a significant issue with respect to the relevant substantive criteria of 30 V.S.A. § 248a, the public interest is satisfied by the procedures authorized in 30 V.S.A. § 248a, and the proposed project will promote the general good of the State."

Accordingly, the board granted the requested CPG.

On June 14, 2011, the Holbys filed a motion to alter the board's order on both substantive and procedural grounds, which the board denied.

On appeal to the state's high court, the Holbys argue they were denied procedural due process because the notice of the board proceedings distributed by AT&T did not inform them of the 21-day deadlines for hearing requests and submission of comments, nor of the board's procedures order.

They further argue that the board's award of the CPG, along with its grant of their intervention motion, effectively denied them the opportunity to "meaningfully participate" in the proceedings.

Justice Beth Robinson said the "only potential hooks" on which the Holbys can "hang" their constitutional claims are:

- The fact that the statute does require that AT&T provide the adjoining landowners notice of the proposed project 45 days before AT&T files its petition, and that AT&T provide notice to the adjoining landowners that it has filed the petition; and

- The fact that, in this case, the board concluded the Holbys had articulated a sufficient interest in ensuring that certain impacts do not come to pass to warrant the grant of permissive intervention pursuant to the board's rules.

"The statutory notice requirement, however, is not sufficiently robust to confer upon the adjoining landowners a constitutionally protected right. In fact, the statute requires only that, upon filing its petition, AT&T notify the adjoining landowners that it has done so," Robinson wrote. "It need not even provide the adjoining landowners with a final copy of the petition as filed."

She continued, "Likewise, the court's grant of permissive intervention was expressly limited to the concerns expressed in the respective motions to intervene, and was granted solely in the discretion of the board pursuant to its rules."

The Court said these factors are not sufficient to support a "legitimate claim of entitlement" to a particular outcome, as opposed to a "unilateral expectation."

"Without a property interest at stake, the procedure and notice requirements provided by statutory and board rules do not merit additional constitutional scrutiny," Robinson concluded.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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