2012 VT 46


In re Petition of New Cingular
Wireless PCS, LLC d/b/a AT&T Mobility (2011-328)
 
2012 VT 46
 
[Filed 14-Jun-2012]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
first class mail at: Vermont Supreme Court, 109 State Street, Montpelier,
Vermont 05609-0801, of any errors in order that corrections may be made before
this opinion goes to press.
 
 

2012 VT 46

 

No. 2011-328

 

In re Petition of New Cingular
  Wireless PCS, LLC d/b/a AT&T Mobility


Supreme Court


 


On Appeal from


 


Public Service Board


 


 


 


February Term, 2012


 


 


 


 


James
  Volz, Chair


 

C. Daniel Hershenson and Nathan H. Stearns
of Hershenson, Carter, Scott & McGee, P.C.,
  Norwich, for Appellant.
 
William J. Dodge and Elizabeth R. Wohl of Downs Rachlin Martin
PLLC, Burlington, for
  Appellee.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Burgess and
Robinson, JJ.
 
 
¶ 1.            
ROBINSON, J.  Barrett Holby, Grethe Holby, Kristin Holby,
and Wegard Holby appeal orders of the Public Service Board granting New
Cingular Wireless PCS, LLC d/b/a AT&T Mobility (AT&T) a Certificate of
Public Good (CPG) authorizing the installation of a monopine telecommunications
tower and associated facilities in Weston, and denying the Holbys’ motion to
alter the CPG order.  The Holbys’ properties either abut the property on
which the proposed project is to be built, or are in close proximity to
it.  The Holbys’ appeal is grounded on their claims that they were denied
procedural due process in connection with the Board proceeding.  We hold
that the Holbys do not have constitutionally protected interests at stake, and
we affirm.
¶
2.            
Pursuant to 30 V.S.A. § 248a(e), in October of 2010, AT&T provided a
forty-five day pre-filing notice to various entities and at least some of the
Holbys; this 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, pursuant to 30 V.S.A. § 248a, 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 pursuant to 30 V.S.A. § 248a. 
The notice of filing stated: “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.”  
¶
3.            
The Holbys filed a motion to intervene on April 6, 2011, alleging that
they have “substantial interests which may be adversely affected by the outcome
of this proceeding.”  Specifically, the Holbys claimed that: (1) the
project will result in “undue adverse aesthetic effects” on the views that they
currently enjoy from their respective properties; (2) the proposed tower is
located closer to Grethe and Kristin’s property than the town-mandated setback
line allows, and is closer than the height of the tower, potentially affecting
their health and safety in the event of a collapse; (3) the project’s access
road may unduly adversely affect the stream and wetlands that extend onto
Grethe and Kristin’s property; (4) erosion from construction of the project may
unduly adversely affect a stream and wetlands that extend onto Grethe and
Kristin’s property; and,  (5) “the project does not comply with applicable
portions of the town plan related to strictly enforcing development controls
above 2000 feet in elevation, and the specific development controls found in
the town bylaws and ordinances, including height limitations, proximity to
wetlands and streams, impacts on ridgelines/hilltops, access road requirements,
and setbacks for rural residential districts.”  
¶
4.            
On June 6, 2011, the Board issued an order granting the Holbys’ motion
to intervene.  The Board reasoned that, although the Holbys had failed to
provide any evidence, other than a site plan depicting the locations of their
properties, to support their contention that the project may result in the
impacts they described, they had articulated a sufficient interest in ensuring
that those impacts did not come to pass to warrant permissive intervention
pursuant to Board Rule 2.209(B). 
¶
5.            
 On the merits, the Board noted that no other person had claimed
that the application raised a significant issue, and found that the Holbys had
not provided any basis to support their contentions about the impacts of the
proposed project.  Moreover, the Board noted that the Holbys had not addressed
the evidence filed by AT&T demonstrating that the project does not raise a
significant issue under the applicable criteria.  Noting that the Holbys
had not requested a hearing or filed additional comments in the proceeding
within the prescribed period pursuant to the Board’s Procedures Order,[1] the Board concluded that the application
did not raise a significant issue and no hearing was required.
¶
6.            
The Board then made findings based on the prefiled testimony and
comments presented, and concluded that, based on the evidence, “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.
¶
7.            
On June 14, 2011, the Holbys filed a motion to alter the Board’s order
on both substantive and procedural grounds.  First, they argued that the
project would have an undue adverse impact on aesthetics because the project
would violate clear written community standards intended to preserve
aesthetics.  Second, they contended that the lack of sufficient notice,
the absence of a hearing, and the Board’s delay in granting the Holbys’ motion
to intervene until the time it granted AT&T’s CPG violated the Holbys’ due
process rights.  The Holbys argued that the notice provided to them by
AT&T at the time AT&T filed its petition with the Board only informed
them that if they wanted to intervene, they had to file their motion to
intervene by April 8.  That same notice did not explain, the Holbys
noted, that the Holbys also had only twenty-one days—until April 8—to file a
request for a hearing and to file any substantive comments supporting their
position.  Nor did the notice reference the Board’s Procedures Order,
noted above, that sets forth these requirements.  The Holbys apparently
believed that they did not need to take any steps to advance their substantive
case or to request a hearing until after the Board reviewed and ruled upon
their motion to intervene.    
¶
8.            
The Board denied the Holbys’ motion to alter on August 10, 2011.
 In its denial, the Board noted that AT&T provided notice of its
intent to seek a CPG five months in advance of its application, complying with
the prefiling notice requirements of 30 V.S.A. § 248a(e).  In its advance
notice, AT&T included a section informing interested parties that they may
“submit comments and seek intervention in the proceeding within 21 calendar
days of the date the petition was filed.”  The Board found that, even
though AT&T’s advance notice did not make reference to the Board’s Section
248a Order, the actual petition filed with the Board did.[2]  The Board concluded that the Holbys
were given sufficient notice of the deadline for submitting comments and of the
Procedures Order, and therefore rejected the Holbys’ procedural due process
claims. 
¶
9.            
On the substantive issues, the Board denied the Holbys’ argument that
the project violates a clear written community standard.  First, the Board
ruled that the argument should have been raised within the twenty-one day
comment period following AT&T’s filing and was thus untimely.  The
Board went on to address the merits of the argument, however, summarizing its
prior analysis of the very issue raised by the Holbys and concluding that even
if the Board were to consider the Holbys’ claims, the Holbys had not provided a
basis for altering the Board’s decision.  
¶ 10.         On
appeal, the Holbys argue that they were denied procedural due process because
the notice of the Board proceedings distributed by AT&T did not inform them
of the twenty-one day deadlines for hearing requests and submission of
comments, nor of the Board’s Procedures Order embodying those deadlines. 
They further argue that the Board’s award of the CPG simultaneous with its
grant of the Holbys’ intervention motion effectively denied them the
opportunity to meaningfully participate in the proceedings.
¶ 11.         We
review questions of law, including whether the requirements of due process have
been satisfied, de novo.  See, e.g., In re R.W.,
2011 VT 124, ¶ 34, ___ Vt. ___, 39 A.3d 682.
¶ 12.         The
threshold question is whether the Holbys have a constitutionally protected
interest at stake.  See, e.g., In re Great Waters of Am., Inc., 140
Vt. 105, 108, 435 A.2d 956, 958 (1981) (“Analysis of a claim of deprivation of
property without due process of law commences with a determination of whether
any right requiring constitutional protection in fact is involved.”).
¶ 13.         The
Fourteenth Amendment to the United States Constitution prohibits the
deprivation of life, liberty, or property without due process of law.  The
Holbys do not assert that the Board’s action deprived them of a possessory
interest in any physical property, but rather, they assert a property interest
in connection with the award of a CPG for construction of telecommunications
facilities on adjoining land.[3]
 Such inchoate property interests “are not created by the Constitution,
but rather are ‘created and their dimensions are defined by existing rules or
understandings that stem from an independent source such as state law—rules or
understandings that secure certain benefits and that support claims of
entitlement to those benefits.’ ”  Brennan
v. Town of Colchester, 169 Vt. 175, 179, 730 A.2d 601, 605 (quoting Bd.
of Regents of State Colleges v. Roth, 408 U.S. 564, 571 (1972)).  A
property interest arises when a person has a “legitimate claim of entitlement”
to a governmental benefit rather than a “unilateral expectation.”  Id. (quoting Roth, 408 U.S. at 571.). 
¶ 14.         The
first question, then, is whether, by virtue of state law and rules, landowners
have a constitutionally protected interest with respect to the erection of
telecommunications facilities on adjoining or nearby land.  For the
reasons set forth above, the constitutional dimension of the rights of
landowners with respect to permitting on adjoining properties depends upon the
legal framework applicable to the permitting scheme in question.  Where
the availability of a permit for a garbage disposal facility was conditioned by
the applicable statute on a finding that the permit would not give rise to a
nuisance—implicitly implicating the rights of neighboring inhabitants and
property owners—we concluded that neighbors had a due process right to be heard
on the matter.  Petition of St. George, 125 Vt. 408, 412-13, 217 A.2d 45, 47-48 (1966).  On the other hand, where a
permitting statute, Act 250, allowed for participation by adjoining landowners
upon request within a specified period following constructive notice by
publication, we concluded the statute did not create a due process right
affording the adjoining landowner full due process notice and hearings
protections with respect to the Act 250 proceedings.  Great Waters,
140 Vt. at 109-10, 435 A.2d at 959.[4]  
¶ 15.         In
contrast to the statute governing garbage disposal sites at issue in St.
George, the permitting statute at issue here, 30 V.S.A. § 248a, does not
call for findings or analysis of the proposed project that are tied to the
specific interests of adjoining landowners.  Rather, the statute requires
the Board to consider a host of enumerated factors relating to aesthetics,
historic sites, air and water purity, the natural environment, and the public
health and safety, with due consideration to the relevant criteria in
referenced statutes.  30 V.S.A. § 248a(c). 
The statute does require that substantial deference be given to the
plans and recommendations of municipal legislative bodies and regional planning
commissions, § 248a(c)(2), but does not require any
consideration of the interests of adjoining or neighboring landowners per
se.  Like CPG proceedings pursuant to a closely analogous statute, 30
V.S.A. § 248, proceedings pursuant to § 248a “relate only to the issues of
public good, not to the interests of private landowners who are or may be
involved.”  Vt. Elec. Power Co. v. Bandel, 135
Vt. 141, 145, 375 A.2d 975, 978 (1977).  As this Court concluded in
Bandel, because the sole issue was whether the requested certificate
advanced the public interest, and the individual property rights of property
owners who might be subject to condemnation proceedings as a result of the CPG
were not at issue in that proceeding, those property owners were not entitled
to any special recognition or consideration.  Id.  
¶ 16.         Moreover,
although § 248a does provide for notice to adjoining (but not nonadjoining,
neighboring) landowners, the statute does not afford adjoining neighbors
automatic party status.  Rather, an adjoining landowner stands in the same
shoes as any member of the public with respect to intervention; the landowner
can file an application to intervene pursuant to Rule 2.209 of the Board’s
Rules, and may be allowed intervention as of right or permissive intervention
if the landowner makes the requisite showing.  
¶ 17.         The
only potential hooks on which the Holbys may hang their constitutional claims
are: (1) the fact that the statute does require that AT&T provide the adjoining
landowners notice of the proposed project forty-five days before AT&T files
its petition, and that AT&T provide notice to the adjoining landowners that
it has filed the petition;[5]
and (2) the fact that in this case the Board concluded that 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 Board Rule
2.209(B).  
¶ 18.         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.  It need not even
provide the adjoining landowners with a final copy of the petition as
filed.  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.  These factors are not sufficient to support a “legitimate
claim of entitlement” to a particular outcome in the § 248a proceeding, as
opposed to a “unilateral expectation.”[6] 
Brennan, 169 Vt. at 179, 730 A.2d at 605 (quoting Roth, 408 U.S.
at 577).   
¶
19.        
We thus conclude that the Holbys do not have a constitutionally
protected property interest at stake and our analysis ends, as, by all
accounts, AT&T and the Board satisfied the procedural requirements of 30
V.S.A. § 248a, as well as the Board’s own rules.  Without a property
interest at stake, the procedure and notice requirements provided by statutory
and Board rules do not merit additional constitutional scrutiny.  
Affirmed.

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





[1] 
The Board’s “Section 248a Order,” issued on August 14, 2009, pursuant to 30
V.S.A. § 248a(k), provided that “If any person
wishes to submit comments to the Board concerning an application filed pursuant
to Section 248a or request a hearing, such correspondence is due at the Board
within 21 calendar days of the date that the application was submitted to the
Board and all required parties.”  Public Service Board: Section 248a
Order (August 14, 2009),
http://psb.vermont.gov/sites/psb/files/orders/2009/248aStdsandProcOrder.pdf.
 


[2] 
The Board noted that AT&T was not statutorily required to send the petition
itself to the Holbys, but concluded that it was clear from their motion to
intervene that the “Holbys had either acquired a copy of the petition, or had
otherwise reviewed the petition.”    


[3] 
For that reason, Town of Randolph v. Estate of White, 166 Vt. 280, 693
A.2d 694 (1997), is inapposite.  In that case, a property owner raised a
due process challenge to the notice and procedures provided in connection with
the zoning administrator’s enforcement of a local ordinance with respect to
the landowner’s own property, directly and clearly implicating his property
rights.  Id. at 282, 693 A.2d at 695.


[4] 
In our discussion in Great Waters, we cited a U.S. Supreme Court opinion
holding that where the grant of a substantive right is inextricably intertwined
with the limitations on the procedures which are to be employed in determining
that right, a litigant must “take the bitter with the sweet.”  140 Vt. at
109, 435 A.2d at 959 (quoting Arnett v. Kennedy, 416 U.S. 134, 153-54
(1974)).  That Court has since repudiated the bitter-with-the-sweet
rationale, holding that “property” cannot be defined by the procedures provided
for its deprivation any more than can life or liberty.  Cleveland
Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985).  Although
that aspect of our reasoning in Great Waters no longer survives, the
core holding—that the statute in question did not afford adjoining landowners a
constitutionally protected interest in the outcome of Act 250 proceedings—does
survive. 
 


[5] 
This factor provides no support for the claims of Barrett Holby, a neighboring
but nonabutting landowner.


[6] 
Nor can the Holbys argue that their constitutionally protected interest is in a
particular manner of notice or process.  In the absence of a
constitutionally protected property interest in the issuance or denial of
AT&T’s requested CPG, the Holbys have no
constitutional claim to any particular procedures to protect such an
interest.  See Hillside Cmty. Church v. City of Golden, 58 P.3d
1021, 1026 (Colo. 2002) (explaining that the U.S. Supreme Court and many state
courts hold that there is “no property right in mere procedure.”).  



