In re Petition of New Cingular Wireless PCS, LLC d/b/a AT&T Mobility
54 A.3d 141
Vt.2012Background
- Holby neighbors appeal Public Service Board orders granting AT&T a Certificate of Public Good for a monopine tower in Weston.
- Holbys alleged they were denied due process due to notice and hearing issues and alleged aesthetic and safety impacts.
- AT&T provided 45-day pre-filing notice to adjoining landowners, including Holbys, signaling an application would be filed.
- AT&T filed its petition for a CPG on March 18, 2011 and sent a Notice of Filing to Holbys with an intervention deadline of April 8, 2011.
- Holbys moved to intervene on April 6, 2011; Board granted permissive intervention June 6, 2011 based on a sufficient interest.
- Board granted the CPG on June 14, 2011; Holbys challenged via motion to alter on August 10, 2011; Board denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do Holbys have a constitutionally protected property interest in the CPG proceeding? | Holbys argue due process protects their interest as adjoining landowners. | Statutory framework creates no constitutionally protected property interest; interest is public only. | No protected property interest; no due process entitlement. |
| Does the notice/intervention scheme satisfy due process for Holbys? | Notice and hearing rights were insufficient; lack of final petition copy and brief deadlines violated due process. | Notice to adjoining landowners plus Board rules provide adequate due process and allow intervention. | Procedural requirements satisfied; no constitutional violation. |
| Did the Board comply with § 248a notice and procedures for the CPG? | Procedural flaws in notice and timing harmed Holbys' participation. | AT&T complied with § 248a notices; Board followed its procedures; no error. | Yes, § 248a procedures satisfied; no due process defect. |
Key Cases Cited
- Town of Randolph v. Estate of White, 166 Vt. 280 (1997) (regulatory notice related due process under local enforcement)
- Great Waters of Am., Inc. v. Town of Dover, 140 Vt. 105 (1980) ( Act 250 due process limits; adjoining landowners' rights not automatic)
- Vt. Elec. Power Co. v. Bandel, 135 Vt. 141 (1977) (public-interest focus; no automatic private interests in CPG-like proceedings)
- Petition of St. George, 125 Vt. 408 (1966) (due process rights for nearby property with respect to nuisance findings)
- Brennan v. Town of Colchester, 169 Vt. 175 (1999) (legitimate claim of entitlement versus unilateral expectation)
- Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) (property cannot be defined by deprivation procedures; due process requires more)
- Hillside Cmty. Church v. City of Golden, 58 P.3d 1021 (Colo. 2002) (no property right in mere procedure)