UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

USCOC of New Hampshire

RSA #2, Inc., a Delaware

Corp., d/b/a US Cellular

v. Civil No. 05-cv-327-PB

Town of Bow, NH, et al.,

Defendants

AMENDED REPORT AND RECOMMENDATION

Plaintiff USCOC of New Hampshire RSA # 2 (“US Cellular”) is

a provider of personal wireless telecommunication service (“PWS”)

and has brought this action under § 704 of The Telecommunications

Act of 1996, 47 U.S.C. § 332(c)(7) (the “TCA”), in further

pursuit of its efforts to fill a significant gap in its service

to portions of the Town of Bow, New Hampshire (“Town” or “Bow”). 

US Cellular initially sought a variance from Bow’s Zoning Board

of Adjustment (“ZBA”) to construct a 125-foot PWS facility on

residential property on Wood Hill, located within a rural zone of

Bow. Several residents opposed the proposal. Among the

residents who opposed the proposed facility are Lee and Joan

Herrington, who also are intervenors in this action (the

“Herringtons” or “intervenors”). After a lengthy deliberative

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process, the ZBA denied US Cellular’s application for a variance

on August 23, 2005. Because US Cellular could not proceed with

construction of the proposed facility without that variance, it

commenced this action in September 2005, seeking to invoke the

preemptive power of this court authorized by the TCA.

Currently before the court for a recommendation of

disposition are cross motions for summary judgment, filed by the

plaintiff and the intervenors. See Document nos. 25 and 45. The

parties dispute whether the ZBA denial of the variance request is

supported by substantial evidence, as required by 47 U.S.C. §

337(c)(7)(B)(iii), and, if so, whether Bow’s zoning regulations

effectively prohibit US Cellular from providing wireless service

to Bow, in violation of 47 U.S.C. § 337(c)(7)(B)(i)(II). As

explained below, I recommend that plaintiff’s motion be denied

and the intervenors’ motion be granted. 

Discussion

1. Standard of Review

Under Fed. R. Civ. P. 56(c), a party is entitled to judgment

as a matter of law “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

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affidavits, if any, show that there is no genuine issue as to any

material fact.” A “genuine issue” is one which raises a factual

dispute which could be resolved in favor of either party, and a

“material fact” is one that could affect the ultimate disposition

of the matter. See Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 250 (1986); see also Navarro v. Pfizer Corp., 261 F.3d 90,

93-94 (1st Cir. 2001). The party moving for summary judgment

bears the burden of demonstrating the absence of any genuine

issue of material fact. See Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986); see also Rojas-Ithier v. Sociedad Espanola de

Auxilio Mutuo, 394 F.3d 40, 42 (1st Cir. 2005). 

The evidence submitted in support of the motion must be

considered in the light most favorable to the non-moving party. 

See Navarro, 261 F.3d at 94. While all reasonable inferences

must be indulged in favor of the party opposing summary judgment, 

conclusory allegations, improbable inferences, or unsupported

speculation cannot defeat summary judgment. See Carroll v. Xerox

Corp., 294 F.3d 231, 236-37 (1st Cir. 2002). Instead, if the

moving party demonstrates that no genuine issue of material fact

exists, the burden shifts to the nonmoving party to “produce

evidence on which a reasonable finder of fact, under the

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appropriate proof burden, could base a verdict for it; if that

party cannot produce such evidence, the motion must be granted.” 

Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 94 (1st

Cir. 1996) (citing Celotex, 477 U.S. at 323; Anderson, 477 U.S.

at 249); see also Rojas-Ithier, 394 F.3d at 43 (finding summary

judgment appropriate against a party that fails to establish an

essential element of its case). 

Here both the plaintiff and the intervenors have moved for

summary judgment. Both sides argue the record contains no

genuine issue of material fact and that judgment can be entered

in favor of their respective positions. On cross motions for

summary judgment, the standard of review is applied to each

motion separately. See Am. Home Assur. Co. v. AGM Marine

Contractors, 467 F.3d 810, 812 (1st Cir. 2006) (applying standard

to each motion where cross motions were filed); see also Mandel

v. Boston Phoenix, Inc., 456 F.3d 198, 205 (1st Cir. 2006) (“The

presence of cross-motions for summary judgment neither dilutes

nor distorts this standard of review.”). 

Plaintiff first claims the ZBA’s decision denying its

request for a variance is not supported by substantial evidence,

in violation of 47 U.S.C. § 332(c)(7)(B)(iii) (requiring local

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decisions on requests to construct PWS facilities to be supported

by substantial evidence contained in a written record). If

plaintiff is correct, then the local decision may be pre-empted

to effectuate the wireless service goals enunciated in the TCA. 

See Second Generation Props. v. Town of Pelham, 313 F.3d 620, 627

(1st Cir. 2002) (explaining the balance between local zoning

authority and national policy goals struck in the TCA). “The

substantial evidence test is highly deferential to the local

board.. . . Judicial review under this standard, even at the

summary judgment stage, is narrow.” Id. The court is limited to

reviewing only the administrative record to see if it contains 

substantial evidence to support the local board’s decision. See

id. Substantial evidence is “such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion.” Id. (citing Sw. Bell Mobile Sys. v. Todd, 244 F.3d

51, 58 (1st Cir. 2001)). Significantly, if the evidence can

support one of two conclusions, the court must affirm the

administrative agency’s decision on summary judgment and not

substitute its own judgment for that of the local board. See id.

(citing Nat’l Tower, LLC v. Plainville Zoning Bd. of Appeals, 297

F.3d 14, 20-21 (1st Cir. 2002); see also Sw. Bell Mobile Sys.,

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244 F.3d at 58 (contradictory evidence does not undermine

substantial evidence finding). 

Plaintiff’s second claim charges the ZBA decision to deny

its variance application effectively prohibits it from providing

wireless service to Bow, in violation of 47 U.S.C. § 332(c)(7)(B)

(i)(II). Unlike a substantial evidence claim, an effective

prohibition claim may be based on newly proffered evidence and is

reviewed de novo. See Second Generation, 313 F.3d at 629 (citing

authority). The anti-prohibition clause “present[s] questions

that a federal district court determines in the first instance

without any deference to the board.” Nat’l Tower, 297 F.3d at

22. Additional evidence may supplement the administrative record

in order to resolve the dispute. See id. Summary judgment

appropriately follows if the submitted facts demonstrate no

genuine disputes of material fact. See Nextel Commc’ns v. Town

of Wayland, 231 F. Supp. 2d 396, 408 (D. Mass. 2002) (explaining

how TCA claims reviewed de novo are treated like all other

federal claims on summary judgment).

With these standards in mind, I turn to the summary judgment

motions before the court. The facts are discussed in the context

of the two separate claims, because they are subject to different

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1Because Kozyra has served as US Cellular’s agent throughout

the approval process before the ZBA, both parties represent

plaintiff’s position here and are analyzed as though they were a

single entity. 

7

standards of review. Only those facts relevant to the

disposition of the two claims are considered. Unless otherwise

indicated, the facts are undisputed.

2. Factual Background

a. Significant Gap in Coverage

US Cellular has a significant gap in its wireless service to

a large portion of western Bow, including Bow center and points

south. In 2003, US Cellular decided to fill that gap and hired

Kenneth J. Kozyra, a principal of KJK Wireless consulting firm

(“Kozyra”), to facilitate its effort to find a suitable site and

obtain the requisite approvals.1 US Cellular sought a location

high enough to enable its facility to propagate radio frequencies

to customers’ cell phones without interference from the hills,

ledges and trees that dominate the Bow landscape. Kozyra studied

an area of western Bow including Tower Hill (also known as Picket

Hill) and Wood Hill, and concluded that Wood Hill would be the

preferable location. See Pl.’s Br. Summ. J., Attachment 1,

Kozyra Decl. (“Kozyra Decl.”) ¶¶ 5-8. 

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2Since this action commenced and the variance at issue was

denied, Bow amended its zoning ordinance and now allows PWS

facilities throughout the town with a “conditional use” permit. 

See Intervenors’ Mem. in Supp. of Cross-Motion for Summ. J.

(document no. 44), Exhibit A (document nos. 44-1 and 56) (amended

Article 7.10, at subsection C, to permit PWS facilities “as a

principal or accessory (secondary) use in all zoning districts

within the Town of Bow”). The amendment is relevant to the

effective prohibition claim and is discussed there. See supra, §

4 at 37-38. The administrative record, however, is based on the

status of the local zoning law before the amendment, which

disallowed PWS facilities in more than 87% of Bow and in all of

the area where plaintiff had a gap in its service coverage. 

8

Kozyra determined a facility on Wood Hill would have minimal

visual impact, because its high elevation would enable the tower

to be of relatively modest height, its flat top would enable the

base to be well-shielded with vegetation, and the relatively

unpopulated area meant few neighbors would abut the facility. 

See id. ¶¶ 8-10. The Wood Hill area of Bow, however, has unique

scenic vistas of several New Hampshire mountain peaks as well as

expensive homes built to take advantage of those views. At the

time, the area was zoned for rural and residential uses and

disallowed PWS facilities.2 Despite that fact, US Cellular

proceeded to lease a 5 acre parcel of land at 54 Wood Hill Road

for the proposed facility (the “Wood Hill site”) and planned to

obtain a variance from the ZBA. In an effort to minimize the

visual impact of the facility, plaintiff proposed a tower

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disguised as a pine tree (a “monopine”) and limited its height to

125 feet, with an additional 6 foot cap on top. 

Prior to filing its variance application, US Cellular

contacted the Bow Historical Commission to inquire whether the

proposed facility would have an adverse impact on, or present

concerns about, any historic properties in the area. The

Historical Commission responded on October 12, 2004, that the

land had historical significance because it was the longtime

homestead/residence of Mr. James Langley, a prominent citizen and

local newspaper editor and publicist. The Historic Commission

also cited the 2004 Bow Master Plan, which listed the Wood Hill

area in its “Natural, Cultural, and Historical Resources

Inventory” because of its scenic views of the White Mountains. 

See Kozyra Decl., Ex. D. Nonetheless, US Cellular proceeded with

its plans to fills its coverage gap by erecting the monopine at

the Wood Hill site.

b. The Variance Application Proceedings

On November 4, 2004, plaintiff filed its variance

application with the ZBA. It presented evidence to demonstrate

how US Cellular satisfied the criteria for a variance set forth

in Bow’s Zoning Ordinance, Article 13.02.B.2. Three real estate

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valuation reports were submitted with the variance application to

demonstrate that PWS facilities did not adversely affect property

values. See Kozyra Decl. Exs. I, J and K. The application

contained “Coverage Plots & 20-Mile Radius Map” to demonstrate

how radio frequencies from this elevation would reach customers

who live or travel along roads in western Bow, and would link

into existing facilities in neighboring communities to facilitate

US Cellular’s goal of providing a complete network of coverage. 

See Kozyra Decl., Ex. F (application for variance, tab 6). The

application also contained photographs of the proposed site from

various angles. The ZBA determined a site walk and “balloon

test,” to simulate the height and location of the proposed

monopine, would enhance its perception of the facility’s impact

on the neighborhood and, therefore, postponed further

consideration of the application until the site walk occurred. 

See Kozyra Decl. Ex. G.

After the site walk, a public hearing was held on January

18, 2005, when the variance application was reviewed in detail. 

See Kozyra Decl. Ex. K. At the hearing, Kozyra explained US

Cellular had a significant gap in its coverage to the Wood Hill

area and along Dunbarton Center Road, Woodhill Hooksett Road and

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the Branch Londonderry Turnpike. Kozyra discussed how the

proposed site, at the proposed height, in combination with its

existing network, would largely, although not entirely, fill that

gap. See id. Several ZBA board members questioned the

feasibility of locating the facility on another hill or at a

lower height, since Wood Hill is the highest elevation in Bow. 

Kozyra stated there were “no other locations in the Town of Bow

that would give US Cellular the same level of coverage or better,

. . . that would be acceptable to their R[adio] F[requency]

Engineers . . ..” Id. at 8. Kozyra conceded that another

location could fill the gap if a substantially taller tower were

built. Id. Several neighbors appeared at the hearing to express

their opposition to the proposal and submit a petition against

the project signed by 36 residents. See Def.’s Opp’n Br. to

Pl.’s Summ. J. Mot. (document no. 28) (“Def.’s Opp’n Br.”), Ex. 8

(document no. 28.27). The residents were concerned about the

adverse impact of the facility on views and property values, and

the possible health concerns the RF frequencies could cause. See

Kozyra Decl. Ex. K at 9-15.

The ZBA concluded that further information was needed and

continued the hearing to February 15, 2005. It ordered US

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Cellular to prepare documentation regarding alternative locations

and heights; and it allowed the abutters to submit additional

documentation. The ZBA also decided to hire its own independent

RF engineer and real estate appraiser to assist the decisionmaking process. See Kozyra Decl. Ex. V. Over the course of the

following three months, the administrative record was

supplemented by several expert reports, opinion letters and

hearing testimony debating the existence and extent of any

adverse impact of the facility at the Wood Hill site, and the

feasibility and desirability of alternative locations for the

facility. The February 15 hearing was continued to February 22,

and again to March 15, April 19 and finally May 17, 2005, after

which the Notice of Decision was issued. See Kozyra Decl. Exs.

U, V, X, CC, GG and HH.

In support of its position, US Cellular supplemented its

variance application with several reports. It submitted a Site

Review Report, prepared with the assistance of an RF engineer,

Dan Goulet, which analyzed six other sites and concluded

plaintiff’s choice of the Wood Hill site was the only feasible

option “to achieve an optimal balance between meeting coverage

objectives, reducing the number of antenna sites required in Bow

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and minimizing impact on the neighborhood.” See Kozyra Decl. Ex.

L at 8. Correspondence between Kozyra and the Town of Bow Board

of Selectmen indicates that nine additional parcels of public

property offered by the Town also were rejected because of

anticipated technical and legal barriers. See Kozyra Decl. Exs.

S, T, Y and Z. US Cellular also submitted a report to the ZBA

explaining why the Town properties would not work. See Kozyra

Decl. Ex. Z. Finally, US Cellular critiqued the independent

expert reports, arguing the RF engineer corroborated US

Cellular’s technical data, while the real estate appraiser did

not disprove plaintiff’s claim that property values are not

diminished because of proximity to PWS towers. See Kozyra Decl.

Exs. DD, EE and FF. 

Public reaction to the proposed facility was overwhelmingly

against the sited location. Opponents of the project focused on

the facility’s potential negative impact on their property’s

aesthetic and financial value. See Kozyra Decl. Exs. M, N, O,

and Q. Three local real estate brokers opined that the size and

proximity of the proposed monopine would affirmatively detract

from the views the abutting homes enjoy and diminish their value

as a result. See Def.’s Opp’n Br. Ex. 10. Town residents

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proposed using multiple sites with shorter towers, despite the

engineering, zoning or business challenges that solution might

present. See e.g., Kozyra Decl. Ex. K at 7, 15-16, Ex. BB at 7,

Ex. CC at 12-13. As noted above, the Town Board of Selectmen

offered nine alternative sites to US Cellular and approved a

warrant article at Bow’s annual meeting authorizing the selectmen

to lease town property to US Cellular for construction of its PWS

facility. See id. Ex. 13. While construction on the Town-owned

sites also would require approvals, the parcels were on large

tracts of land, generally not close to residences. See Kozyra

Decl. Ex. CC at 12.

Finally, the ZBA considered the results of its two

independent experts. First it reviewed the real estate appraisal

report of David Rauseo (the “Rauseo report”). The ZBA had

criticized US Cellular’s property valuation studies for not using

comparable sales correlated to a cell tower or neighborhoods

analogous to the Wood Hill area. See Kozyra Decl. Ex. V at 2. 

It charged Rauseo with examining sales of homes proximate to

transmission towers to similar homes not near a tower, and to

report all data irrespective of the positive, negative or neutral

impact the tower had. See Kozyra Decl. Ex. V at 2, Ex. AA at 1. 

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Rauseo compared sales of homes with a “view amenity” proximate to

a transmission tower but isolated from other negative external

influences, such as highway or commercial noise, to similar homes

without a tower influence. See id. Rauseo conducted a similar

comparison of vacant lots in relation to towers. 

The Rauseo report concluded that the presence of a tower did

not cause the sales price of a home to reduced, but rather

extended the time such a house remained on the market before an

interested buyer was found. It also concluded that the values of

vacant lots were adversely affected by the presence of a tower. 

“The sales data shows that in some cases the sale price, and most

other cases the marketing times, is [sic] sensitive to

orientation of the view of a nearby tower.” Kozyra Decl., Ex.

AA. As a result, Rauseo determined that the presence of a tower

does negatively impact property values and that it would be

prudent to reduce the price of an impacted property to effect a

sale within a reasonable market time. See Kozyra Decl. Exs. AA

and CC. Rauseo explained, however, that there was “no evidence

of sales that support an appropriate discount to attract these

types of buyers,” in part because the owners of the homes at

issue usually could afford to hold the property until they got

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the price they wanted. 

Next, the ZBA considered the findings of Mark Hutchins, the

independent RF engineer (the “Hutchins report”). The Hutchins

report confirmed US Cellular’s need to locate a facility in a

rural zone of Bow to fill its coverage gap in western Bow. See

generally Kozyra Decl. Ex. BB (the Hutchins report), Ex. CC at 6-

13 (minutes of the 4/19/05 ZBA hearing). It also confirmed US

Cellular’s representation that the tower had to be at least 100

feet tall to avoid landscape interference with the radio

frequencies emitted. Hutchins found unreliable, however, US

Cellular’s projection of the distance the Wood Hill site would be

able to propagate radio frequencies. See Kozyra Decl. Ex. CC at

6. The report compared the coverage of 125 foot towers on each

of Brown Hill, Picket/Tower Hill, Great Hill and South Bow and

concluded that, with the exception of South Bow, each of the

alternative facilities provided “pretty good coverage,” which

would adequately serve the critical area if deployed in

conjunction with other existing towers. See id. at 9-10. 

Hutchins concluded the best alternative coverage could be

achieved from Great Hill at heights of 125, 150 or 190 feet, with

coverage effectiveness positively correlated to the height of the

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tower. See id. The report discounted residents’ concerns

pertaining to radiation and noise, stating that the TCA removed

health concerns as a factor relevant to the analysis of facility

need or location, and that noise can be mitigated. See id. at

11. Ultimately, the Hutchins report concluded that “location at

Great Hill would address some - but not all – of the area of

concern, but with an antenna C/L height much greater than 125

feet.” See Kozyra Decl. Ex. BB at 9.

c. The ZBA’s Decision

Based on all the submissions received, the ZBA voted to deny

US Cellular’s application for a variance at its May 17, 2005

hearing. See Kozyra Decl. Ex. GG. The ZBA found US Cellular had

satisfied only two of the sub-criteria needed to show that denial

of the variance would impose an unnecessary hardship. Although

the ZBA found (1) that enforcement of the ordinance would

interfere with US Cellular’s reasonable use of its property, and

(2) that no fair and substantial relationship existed between the

purposes of the zoning ordinance and the specific restriction on

the property for which the variance was sought, it also concluded

that approving the variance (1) would injure the public and

private rights of others, (2) would be contrary to the public

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interest, (3) would not advance the spirit of the zoning

ordinance or do substantial justice, and (4) would adversely

impact surrounding property values. See id. at 2-4. The ZBA then

issued a written denial of the requested variance. See Kozyra

Decl. Ex. HH.

Both US Cellular and the Intervenors moved for

reconsideration of that decision, which motions were granted. 

The ZBA held two more hearings on June 21 and July 19 about the

application and allowed additional testimonial and documentary

evidence from all interested parties. See Kozyra Decl. Ex. LL. 

US Cellular challenged the ZBA’s finding that property values

would be diminished if the monopine were located at the Wood Hill

site, and that alternative sites were feasible. Intervenors

sought reversal of the two findings in favor of US Cellular and a

more comprehensive explanation of the decision. 

There was extensive debate about how much the facility would

detract from the views on Wood Hill and the resulting impact on

both public and private interests. The intervenors submitted

additional information about the feasibility of different designs

and locations for a facility. See Def.’s Opp’n Br. Ex. 24. On

August 23, 2005, in a lengthy written decision, the ZBA affirmed

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3Although Article 13.02.B.2 has only four factors that must

be met, the first factor pertaining to unnecessary hardship

actually consists of three sub-factors. The total number of

criteria that are considered, therefore, is actually six, not

four. 

19

its original denial and reversed its decision on the two

unnecessary hardship sub-criteria it initially had found in favor

of US Cellular. The ZBA concluded US Cellular had failed to

satisfy any one of the four criteria needed for a variance under

Article 13.02.B.2 of the Bow Zoning Ordinance.3 See Kozyra Decl.

Ex. OO at 2-7. 

Having failed to obtain the necessary approval from the ZBA,

US Cellular commenced this action in September 2005.

3. Substantial Evidence Claim

As explained above, my review of the ZBA decision denying

plaintiff’s variance application is limited to whether the

administrative record contains substantial evidence to justify

that conclusion, regardless of whether or not this court would

reach the same result. See Second Generation, 313 F.3d at 627-

28; see also Town of Amherst v. Omnipoint Commc’ns, 173 F.3d 9,

168 (1st Cir. 1999). Plaintiff argues it does not; intervenors

argue it does. Specifically, plaintiff contends the record does

not support the ZBA’s conclusions that: (a) there is no

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unnecessary hardship to plaintiff because alternative sites exist

which could fill the coverage gap and address the concerns of

Town residents; (b) the facility would have an “undue visual

impact” on the Town in general and the specific neighborhood in

particular; and (c) the proposed facility would adversely affect

property values. Plaintiff argues the ZBA was confused by the

evidence and misunderstood the Rauseo report. The Town objects. 

Intervenors argue the evidence readily supports the ZBA’s

conclusion that US Cellular had not satisfied the criteria to

justify issuance of the requested variance. The challenges to

the variance decision are addressed below, in turn.

a. No Unnecessary Hardship because of the

Feasibility of Alternative Sites

Unnecessary hardship is the first factor to be satisfied

before a variance can be awarded. See Article 13.02.B.2.a

(listing criteria that must be met to justify a variance); see

also Second Generation, 313 F.3d at 628 (citing Olszak v. Town of

New Hampton, 139 N.H. 723, 661 A.2d 768, 771 (1995) for the

proposition that a landowner must show the zoning ordinance

imposes an unnecessary hardship on his use of the property before

a variance can be obtained). To demonstrate unnecessary hardship

under New Hampshire law, an applicant for a variance must satisfy

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the following three-prong test:

(I) enforcement of the zoning restriction involved,

 as applied to the applicant’s property, would interfere

with the applicant’s reasonable use of its property,

having regard for the unique setting of the property

in the surrounding environment;

(ii) no fair and substantial relationship exists 

between the purposes of the zoning ordinance and

specific restriction on applicant’s property as to

which the variance is sought; and

(iii) approval of the variance will not injure the

public or private rights of others.

See Simplex Tech., Inc. v. Town of Newington, 145 N.H. 727, 766

A.2d 713, 717 (2001) (enunciating test). Bow’s zoning ordinance

mirrors that test. See Bow Zoning Ordinance, Article 13.02.B.2.a

(I), (ii) and (iii) (“Article 13.02.B.2").

The August 23, 2005 ZBA decision sets forth in detail how US

Cellular had not met any of the three prongs for unnecessary

hardship. The ZBA found first that the intended use of the

rental property may have been obstructed by denying the variance,

but that use was not uniquely available at the Wood Hill site and

that other reasonable uses of the property existed. The ZBA

concluded that US Cellular’s use of the parcel for the proposed

facility did not require the unique setting of the Wood Hill site

but could reasonably be accomplished with other properties. It

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also found that the lessor of the parcel, Jane Strablizky, could

use the property for its intended residential purposes, either in

its current wooded state, or developed with a house either to

rent or to sell, which would offset any financial loss caused by

the termination of the US Cellular lease agreement. 

US Cellular strongly objects to the finding that other

feasible sites exist to meet its coverage objectives and contends

there is no substantial evidence to support that conclusion. US

Cellular argues the Wood Hill site uniquely fills its coverage

gap in the least intrusive manner, because of its high elevation

and wooded land. It asserts that the Hutchins report

corroborates its conclusions that none of the 15 other sites

considered meets its coverage objectives as well as the Wood Hill

site does.

The record, however, fairly supports the ZBA’s understanding

of the feasibility of alternative sites. As an initial matter,

the evidence suggests the ZBA was motivated to find another site

in order to protect the natural beauty of the Wood Hill area and

preserve the historic, rural atmosphere of the neighborhood. See

e.g. Letter from the Historic Commission and the Master Plan’s

“Natural, Cultural and Historic Resources Inventory,” Kozyra

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4Plaintiff objects to any consideration of this option,

claiming the July 25, 2005 David P. Maxson letter which presented

the plan, see Def.’s Opp’n Br. Ex. 24 (the “Maxson letter”), was

not part of the record before the ZBA. Based on the date of the

Maxson letter (just one day before the deadline for written

submissions, see Kozyra Decl. Ex. LL at 3), the Town’s submission

of it as part of the record, and the ZBA’s reversal of its

opinion about the reasonable use of the property hardship sub23

Decl. Ex. D. That is a reasonable goal that appropriately may be

advanced by zoning decisions and regulations, provided it does

not foreclose opportunities to provide wireless service. See Sw.

Bell Mobile Sys., 244 F.3d at 61 (allowing municipalities to

retain control over aesthetic considerations provided judgment

does not mask a de facto prohibition of wireless service).

The evidence consistently demonstrated that while

alternative sites might not provide better coverage than the Wood

Hill site, similar, adequate coverage could be provided. 

Further, the Wood Hill site also did not completely fill the

void. In particular, a tower on Great Hill combined with other

existing facilities would serve most of the deficient area. The

evidence also supported the conclusion that multiple smaller

facilities disbursed throughout western Bow might overcome the

topographical challenges that impair the effectiveness of a

single tower, and could avoid the visual impact of the proposed

monopine.4 The fact that the Wood Hill site might have been US

Case 1:05-cv-00327-PB Document 66 Filed 04/02/07 Page 23 of 43
factor in its August 23, 2005 decision, I conclude the document

was part of the administrative record considered by the ZBA. See

USCOC of NH RSA # 2 v. City of Concord, No. 05-268, 2006 WL

2482010, *5 (D.N.H. Aug. 28, 2006) (designation of certified

record is presumptively correct). Moreover, the concept of

multiple smaller facilities was considered well before the

submission of the Maxson letter. The ZBA asked about that

option at the January 18, 2005 hearing. See Kozyra Decl. Ex. K

at 7, 16. And the Hutchins report specifically addressed the

feasibility of constructing multiple smaller facilities on

telephone poles: “From an engineering standpoint, the simple

answer is that they can be . . .[b]ut the main factor is

financial: the mall or airport system usually has heavy usage

and greater revenue, along with a small geographic area, which

means coverage can be achieved at lower cost than would be the

case trying to cover Bow in this manner with today’s hardware.” 

See id. Ex. BB at 7-8. 

24

Cellular’s first choice to meet its financial and technical

objectives neither militates against the feasibility of

alternative sites nor precludes the ZBA from pursuing other

options. See Town of Amherst, 173 F.3d at 15 (explaining how

Congress reserved the Town’s right to choose between competing

aesthetic, technical and financial concerns). 

The ZBA next found that denying the variance would not

impose undue hardship on US Cellular because the prohibition

against the proposed monopine fairly and substantially advances

the zoning regulation’s purpose of preserving the “aesthetic

nature and rustic appearance” of Bow. Kozyra Decl. Ex. OO at 4. 

Although US Cellular argues its monopine would blend into the

Case 1:05-cv-00327-PB Document 66 Filed 04/02/07 Page 24 of 43
25

wooded landscape, its enormous size and artificial design would

convey its industrial purposes and starkly distinguish the

facility from the natural beauty and rural atmosphere of Wood

Hill. The Master Plan, the Capital Improvements Program and the

zoning ordinance all intend to regulate and control development

in Bow “in a manner consistent with the qualities of a typical

small New Hampshire town.” Id. By preventing the construction

of the monopine, the regulation advances the stated goal of

maintaining the rustic charm of the community, which still may be

appropriately regulated by local zoning authorities. See Sw.

Mobile Sys., 244 F.3d at 61 (explaining how the TCA preserved for

the Town traditional zoning prerogatives). 

Finally, the ZBA concluded that approval of the requested

variance would injure the public or private rights of others. 

The ZBA explicitly found that construction of the tower “shall

ensure a blight on a beautiful and scenic part of Bow” and

detract from the scenic vistas the site affords. Kozyra Decl.

Ex. OO at 5. Plaintiff contends the evidence demonstrated its

monopine would not impede the scenic views from Wood Hill, and

that only a few influential residents were vetoing the project. 

The record, however, undermines that claim. 

Case 1:05-cv-00327-PB Document 66 Filed 04/02/07 Page 25 of 43
26

First, several photographs from the balloon test clearly

depict how prominently the facility would protrude above the

horizon. The balloon not only loomed large over the Herrington

property, but was visible more than one mile away from the

Swetts’ home. Second, while the monopine might not be directly

in the line of sight of the mountain views enjoyed from the Fox

property, the proposed location would render the monopine a

noticeable feature on the panorama and would certainly detract

from the pastoral vista. Third, many residents opposed

constructing the facility at the Wood Hill site. Twenty

residents spoke against US Cellular’s application at the January

18, 2005 hearing, and two more residents objected to it at the

July 19, 2005 reconsideration hearing. A petition rejecting the

proposal was signed by 36 residents; and the Town Board of

Selectmen offered Town-owned parcels as alternatives to

construction on Wood Hill. This evidence wholly supports the

ZBA’s finding that both private and public interests would be

injured by granting the variance. 

In balancing the various factors to be considered in making

a variance determination, the ZBA may properly weigh heavily the

aesthetic values identified in the Master Plan, advanced by the

Case 1:05-cv-00327-PB Document 66 Filed 04/02/07 Page 26 of 43
5 The ZBA’s August 23, 2005 decision addressed separately

the two parts of Article 13.02.B.2.c, which provides “the spirit

of the ordinance shall be observed and substantial justice

requires authorization of the variance.” While the pleadings

reflect some confusion over the proper numerical form for the

27

zoning regulations and articulated by the numerous residents who

opposed the proposed facility. See id. (preserving Town’s

traditional zoning authority); see also Town of Amherst, 173 F.3d

at 14-15 (discussing the town’s role in balancing the competing

goals). The record contains substantial evidence to support the

ZBA’s conclusion that US Cellular had not met any of the three

prongs necessary to show how denial of the requested variance

would cause it to suffer unnecessary hardship. See Article

13.02.B.2.a (I), (ii) and (iii).

b. Undue Visual Impact of the Proposed Facility

US Cellular’s second challenge to the ZBA decision contends

that there is no substantial evidence to support its conclusion

that the proposed monopine will have a negative visual impact. 

This finding encompasses the next two criteria that must be met

before a variance can be granted, namely that authorization of

the variance (1) will not be contrary to the public interest, and

(2) will be consistent with the spirit of the zoning ordinance

and, therefore, is required by substantial justice.5 See Article

Case 1:05-cv-00327-PB Document 66 Filed 04/02/07 Page 27 of 43
subsections of the variance ordinance, the substance of the

factors relevant to the analysis is exactly the same.

28

13.02.B.2. b and c. Plaintiff’s argument here also is

unavailing, as the record amply supports the ZBA’s conclusion.

The written and oral evidence submitted throughout the

application process consistently informed the ZBA of the public’s

strong interest in preserving the scenic beauty and rustic

atmosphere of the Wood Hill rural zone. That public support is

detailed immediately above, infra § 3.a., and need not be

repeated here. The Master Plan, the zoning regulations and the

Town Board of Selectmen’s initiative all underscore the public’s

desire to protect Bow from uncontrolled development and to

preserve large portions of the Town in their historic, rural

state. The ZBA’s recognition that granting the requested

variance would be contrary to the public interest is supported by

the individual and municipal interests reflected in the record.

The ZBA also determined that the public relies on the zoning

ordinance to ensure development is controlled in a manner that is

consistent with those objectives. The record supports the ZBA’s

finding that the public need to protect Wood Hill’s unique

landscape outweighed US Cellular’s need to construct its facility

on the proposed site. The ZBA reasonably decided US Cellular

Case 1:05-cv-00327-PB Document 66 Filed 04/02/07 Page 28 of 43
29

could locate its facility elsewhere and fill its coverage gap. 

Accordingly, substantial justice dictated that the variance be

denied to promote the spirit of the zoning ordinance to preserve

the “rustic nature” of western Bow and promote the Town’s quality

of life. See Kozyra Decl. Ex. OO at 6. While US Cellular may

disagree with the value ascribed to Wood Hill’s views and natural

beauty, and the record may contain evidence of that disagreement,

it also contains evidence that reasonably supports the ZBA’s

conclusion that the proposed facility will have an adverse visual

impact on Wood Hill. Accordingly, the ZBA decision must be

upheld. See Sw. Mobil Sys., 244 F.2d at 58 (finding substantial

evidence to uphold decision even where two inconsistent

conclusions may be drawn). 

c. The Proposed Facility’s Adverse Impact

 on Surrounding Property Values

Plaintiff next submits the ZBA’s finding that the proposed

facility would diminish surrounding property values was not

supported by substantial evidence. That is the final criterion

to be satisfied to justify issuance of a variance. See Article

13.02.B.2.d. The record contains voluminous evidence regarding

the impact of a PWS facility on property values, and the parties

spend significant portions of their pleadings arguing this issue. 

Case 1:05-cv-00327-PB Document 66 Filed 04/02/07 Page 29 of 43
30

Plaintiff argues the evidence demonstrates there is no negative

impact on the value of property located near a PWS facility;

defendant and intervenors argue the evidence shows there is. 

Even if the record is contradictory, there is enough relevant

evidence to support a finding that the ZBA reached a reasonable

conclusion and to uphold that decision on summary judgment. See

id. (explaining deference accorded substantial evidence review). 

Plaintiff attacks the ZBA’s decision regarding the negative

impact on property values on several fronts. First, it questions

the objectivity of the independent appraiser, David Rauseo,

suggesting an “inside deal” of sorts was arranged between him and

ZBA chairman Hadaway whereby Rauseo would reach preordained

conclusions in exchange for continued business from Hadaway in

both Hadaway’s role as ZBA chairman and as Chief Right-of-Way

Inspector for the New Hampshire Department of Transportation

(“NHDOT”). That argument is utterly unpersuasive. The evidence

shows that Rauseo was the fourth appraiser considered and the

second person contacted by the ZBA, and that his professional

relationship with Chairman Hadaway through the NHDOT is

attenuated, at best. See Def.’s Opp’n Br. Ex. 29, Deposition of

Harry Hadaway at 48-52 (explaining both how Rauseo was selected

Case 1:05-cv-00327-PB Document 66 Filed 04/02/07 Page 30 of 43
31

by the ZBA and the NHDOT bidding process for selecting appraisers

for its public jobs). The record also establishes that the ZBA

discussed hiring Rauseo at its public hearings and selected him

after reviewing his written proposal. See Kozyra Decl. Exs. U, V

and W. These facts completely undermine plaintiff’s claim that

Rauseo’s report was biased because of a surreptitious arrangement

with Chairman Hadaway.

Plaintiff next makes a substantive assault on the Rauseo

report, challenging the data used and the conclusions drawn

therefrom. US Cellular contends that Rauseo, in fact, did not

utilize a comparable sales approach and did not analyze

facilities or communities similar to the Wood Hill site proposal. 

US Cellular asserts Rauseo ignored relevant data from Manchester

and Amherst because it was inconsistent with his findings. US

Cellular now claims it was error for the ZBA to reject

plaintiff’s contrary evidence, which this court must take into

account when evaluating the variance denial. See USCOC of N.H. #

2 v. Town of Hopkinton, 137 F. Supp. 2d 9, 15 (D.N.H. 2001)

(requiring the complete record of both supporting and

contradictory evidence be reviewed). 

The evidence supporting plaintiff’s position is strong. US

Case 1:05-cv-00327-PB Document 66 Filed 04/02/07 Page 31 of 43
6The property values varied, but were relatively modest

compared to the more than $900,000 the Intervenors paid for their

property abutting the Wood Hill site. See Def.’s Opp’n Br., Ex.

10.

32

Cellular submitted three property valuation studies with its

application, see Kozyra Decl. Exs. H, I and J, which all

consistently held that “properties in the vicinity of the []

towers described herein did not experience any diminution of

value due to the construction of the telecommunications towers

nearby.” Id. Ex. H at 18. These studies comprehensively

assessed several different communities throughout southern New

Hampshire, including older neighborhoods and new homes under

construction. Based on the record, the sales generally were of

homes in neighborhood communities with property values less than

$200,000.6 The result was always the same: PWS towers did not

have a detrimental impact on the values. Additionally, US

Cellular submitted two critiques of the Rauseo report, which both

reiterated plaintiff’s position that the data indicates no

negative impact on property values from PWS facilities.

The evidence showing a negative impact was also strong. The

Rauseo report contained carefully hedged language, which added

credibility to its conclusions. See e.g. Kozyra Decl. Ex. AA,

Rauseo report at 1 (“The sales data shows that in some cases the

Case 1:05-cv-00327-PB Document 66 Filed 04/02/07 Page 32 of 43
7Rauseo explained his conclusion as follows: “there is no

evidence that exposure to transmission towers has a negative

impact on sale price of residences. However, the impacted

residential properties generally experience longer marketing

times. In short, prospective buyers of these properties either

overlook the negative influence of the tower and pay market value

for the property without discounting, or no longer consider the

property. This is supported by numerous discussions with brokers

that cite examples of homes and lots where prospective buyers

have turned away from properties which are impacted by towers. 

33

sales price, and most other cases the marketing time, is [sic]

sensitive to orientation of the view of a nearby tower.”). While

Rauseo might not have considered all relevant data, his report

indicates a very deliberate effort to narrow the field of

properties considered to those most comparable to the Wood Hill

area, and admits the “remaining, limited list of comparable sales

which do not suffer from significant highway, commercial, or

other negative neighborhood influences are noted in this

analysis.” Id. (emphasis added). Rauseo explains his study

excluded most comparable sales because transmission towers

typically are located near highways or commercial areas. Id. at

20. He focused his attention on properties with a view amenity

and limited his conclusion to the Fox and Herrington residences

because they offered the “90 degree or less orientation of the

tower to the primary view,” which Rauseo had determined was the 

benchmark for influencing property values significantly.7

Case 1:05-cv-00327-PB Document 66 Filed 04/02/07 Page 33 of 43
It is reasonable to conclude that in order to attract the more

limited quantity of buyers to purchase an impacted property

within typical marketing times, an assumption of this appraisal,

the sale price should be reduced. Otherwise, longer marketing

times are experienced. The intensity of this price reduction

should be adequate to be recognized by a prospective buyer. 

However, as noted above, there is no evidence of sales which

support an appropriate discount to attract these types of

buyers.” Kozyra Decl. Ex. AA at 2.

34

Plaintiff takes great issue with how different the tower

influences were in Springfield and Bedford, two communities from

which comparable sales data were taken. While plaintiff

correctly notes the Bedford “tower” was actually a windmill and

an easement for a PWS facility, and the Springfield homes were

adversely impacted by the granite ledge on which they were built

and a tower nearly three times the size of the proposed monopine, 

the ZBA was aware of those distinctions and was free to evaluate

the data accordingly. Significantly, none of the neighborhoods

included in plaintiff’s valuation studies was described as having

unique views or other exceptional characteristics like the Wood

Hill area boasts. By contrast, the Rauseo report sought out

properties with view amenities and that were located in rural

settings. The ZBA simply could have found Rauseo’s findings more

persuasive than plaintiff’s results. See Richmond Co. v. City of

Concord, 149 N.H. 312, 316, 821 A.2d 1059, 1063 (2003)(allowing

Case 1:05-cv-00327-PB Document 66 Filed 04/02/07 Page 34 of 43
35

zoning boards to rely on their own judgment and experience).

In short, while the record does contain contradictory

evidence, it has “‘such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.’” Town of

Hopkinton, 137 F. Supp. 2d at 15 (quoting Penobscot Air Servs.

Ltd. v. Fed. Aviation Admin., 164 F.3d 713, 718 (1st Cir. 1999)

(internal quote omitted)). The comparable sales data, the

photographs, and the hearing testimony all provided evidence that

could satisfy a reasonable factfinder that the proposed monopine

would diminish surrounding property values. 

Finally, even if plaintiff had demonstrated that the

administrative record does not support the ZBA’s conclusion

regarding diminished property values, that showing would not

affect the outcome here. Before reaching the property value

issue, the ZBA had already concluded that denying the variance

(a) would not impose unnecessary hardship on US Cellular, (b)

would be in the public interest, and (c) would observe the spirit

of the zoning ordinance and would, therefore, effect substantial

justice. See Article 13.02.B.2 (listing criteria that must be

satisfied before a variance can issue). Whether or not it

concluded the proposed facility would adversely impact property

Case 1:05-cv-00327-PB Document 66 Filed 04/02/07 Page 35 of 43
8The anti-prohibition provision presumes that, in a disputed

case, a gap in wireless service exists that local regulations are

preventing providers from filling. See Second Generation, 313

F.3d at 631-35 (rejecting the “any service equals no effective

prohibition” rule to focus on the consumer’s need for service by

its particular provider); see also Nat’l Tower, 297 F.3d at 20

36

values, the variance would have been denied because US Cellular

had not met any of the other necessary criteria for a variance. 

Under such circumstances, any dispute about the impact of the

monopine on property values, however genuine, does not raise a

material fact that would affect the ultimate disposition of this

matter; either way the matter arguably might have been resolved,

the ZBA’s denial would still have issued. Accordingly, I find

the record contains substantial evidence to support the ZBA’s

decision to deny US Cellular’s variance application. 

4. The Effective Prohibition Claim

US Cellular’s final challenge to the ZBA’s denial of its

variance application contends that even if the decision is

supported by substantial evidence in the administrative record,

the denial effectively prohibits US Cellular from providing

wireless service and, therefore, must be reversed. See 47 U.S.C.

§ 332 (c)(7)(B)(i)(II) (limiting the power of local regulators if

their decisions have the effect of prohibiting the provision of

wireless service).8 The anti-prohibition clause extends to

Case 1:05-cv-00327-PB Document 66 Filed 04/02/07 Page 36 of 43
(holding that decisions which prevent the closing of a

significant gap in service violate § 332(c)(7)(B)(i)(II)). 

37

individual denials that “effectively prohibit” wireless service

if the provider can show either (1) that “the town sets or

administers criteria which are impossible for any applicant to

meet,” or (2) that its application is the only feasible plan to

fill the gap in service. Second Generation, 313 F.3d at 630. 

The burden of proof falls on the provider and demands a showing

“from language or circumstances not just that this application

has been rejected but that further reasonable efforts are so

likely to be fruitless that it is a waste of time even to try.” 

Town of Amherst, 173 F.3d at 14 (emphasis in original). US

Cellular has not met its burden of proof with regard to any of

these showings.

US Cellular makes four arguments in support of its effective

prohibition claim. Essentially it argues that to provide service

it must be granted a variance, and that based on the ZBA’s

decision, it is impossible to satisfy the criteria required to

obtain that variance. Each of the four arguments is addressed

below.

a. Impossibility of Meeting Criteria

Case 1:05-cv-00327-PB Document 66 Filed 04/02/07 Page 37 of 43
38

Plaintiff first argues the zoning regulations set forth

criteria that are impossible to meet and, therefore, it cannot

satisfy the requirements to obtain a variance. It is undisputed

that US Cellular has a gap in service in the western and southern

portions of Bow, which had all been zoned rural or residential

and had all disallowed PWS facilities, mandating that US Cellular

obtain a variance in order to fill its coverage gap. Since this

action began, Bow has amended its zoning ordinance and now allows

PWS facilities throughout the town with a conditional use permit. 

See Ints.’ Mem. Summ. J., Ex. A (amended Article 7.10). As a

result, plaintiff’s argument that the bases for denying its

initial variance application evidence the impossibility of

obtaining a variance in the future is unpersuasive and

inapposite. A PWS facility is now a zoned use in the rural areas

where plaintiff needs to fill its coverage gap.

b. The Only Feasible Plan

The issue of whether or not US Cellular can fill its

coverage gap with a plan other than the proposed monopine at the

Wood Hill site is the very core of the instant dispute. As

discussed above, the record is replete with evidence about the

technical feasibility of alternative sites and the challenges

Case 1:05-cv-00327-PB Document 66 Filed 04/02/07 Page 38 of 43
39

presented by Bow’s topography and zoning regulations. For

purposes of summary judgment, however, the issue is simply

whether a factual dispute exists pertaining to whether the ZBA

decision to deny US Cellular’s variance application demonstrates

that the Town has effectively prohibited US Cellular from

providing wireless service to its customers in Bow. Plaintiff

argues the undisputed evidence shows not only that its plan is

the only feasible plan, but that the ZBA’s hostility to the

proposal demonstrates subsequent efforts to put forth another

plan would be futile. The record supports the opposite

conclusion.

It is undisputed that many alternative sites are available

to plaintiff. Although US Cellular provided detailed analyses of

why it had rejected those alternative sites, a careful review of

the record indicates that decision was not based solely on

technical infeasibility, but rather considered a host of factors

relevant to the business judgment about where best to locate a

facility. See e.g. Kozyra Decl. Exs. L and Z. While US Cellular

may have legitimate reasons for preferring the Wood Hill site to

alternative locations in western Bow, its preference does not

eliminate the feasibility of alternative sites. See Town of

Case 1:05-cv-00327-PB Document 66 Filed 04/02/07 Page 39 of 43
40

Amherst, 173 F.3d at 14-15 (“Under the compromise set out in the

TCA, developers of wireless networks are not entitled to locate

facilities wherever they wish to, nor are local governments

required to approve the “best” or most economical siting

proposals. . ..”). The ZBA’s decision to reject the variance

application for the Wood Hill site, therefore, does not support a

claim for effective prohibition. See Second Generation, 313 F.3d

at 635 (denying effective prohibition claim where provider failed

to show alternative efforts had also been denied); see also Town

of Amherst, 173 F.3d at 15 (denying effective prohibition claim

where provider declined to present serious options to the town);

see also Sw. Mobil Sys., 244 F.3d at 63 (requiring provider to

“develop a record demonstrating that it made a full effort to

evaluate the other available alternatives and that the

alternatives are not feasible to serve its customers”). 

The record also consistently demonstrates a concerted effort

on the part of the Town to reach a compromise with US Cellular to

enable it to satisfy its coverage needs and to allow the Town to

preserve its rural character. The proffered Town-owned parcels,

the studies showing the feasibility of multiple, smaller

facilities in lieu of one, high tower, and the amended zoning

Case 1:05-cv-00327-PB Document 66 Filed 04/02/07 Page 40 of 43
9I reach this conclusion recognizing that US Cellular still

will need town approval of any future construction plans, both to

obtain a conditional use permit and site plan approval, and

possibly also a height variance. My review of the administrative

record, however, leads me to believe the Town recognizes its

obligation to accommodate US Cellular’s right to fill its

coverage gap, and will work with US Cellular to seek a solution

that is more mutually acceptable. See Second Generation, 313 F.3d

at 630 (recognizing how local authorities are aware of the

preemptive power of the TCA and wisely consider it when making

their decisions). 

41

ordinance demonstrate that another site likely could be

identified that would be acceptable to both US Cellular and the

Town. These good-faith efforts belie any present claim of

hostility on the town’s part toward US Cellular’s efforts to fill

its coverage gap. Cf. Town of Wayland, 231 F. Supp. 2d at 408-

09 (lengthy record of repeated delays and denials showed town’s

effective prohibition). Under the circumstances as currently

presented to the court for consideration, I cannot conclude “that

further reasonable efforts are so likely to be fruitless that it

is a waste of time even to try.” Town of Amherst, 173 F.3d at

14.9 

The record contains no genuine issue of material fact as to

whether the Town has effectively prohibited US Cellular from

providing wireless service to its customers in Bow. Although US

Cellular’s variance application was denied, nothing in the record

Case 1:05-cv-00327-PB Document 66 Filed 04/02/07 Page 41 of 43
42

supports the conclusion that the Town will deny any future

application it might submit, so that its actions can be

understood to effectively prohibit the provision of wireless

service. The undisputed evidence demonstrates wireless

facilities are now a permitted use in every part of Bow, and 

other sites in the Town could, in some combination of facilities,

provide service to fill US Cellular’s coverage gap. US Cellular,

therefore, has not been effectively prohibited from providing the

needed wireless service.

Conclusion

For the reasons set forth above, I recommend that

plaintiff’s motion for summary judgment (document no. 25) be

denied, and intervenors’ cross-motion for summary judgment

(document no. 45) be granted. While this ruling may prohibit

this tower within the Town, the law clearly entitles US Cellular

to provide the service it seeks to provide and entitles it to

obtain the requisite approvals needed in order to fill any

significant gaps in its coverage. Rather than proceeding with a

series of applications and denials and ending up back in federal

court, the parties would be well advised to seek out a solution

Case 1:05-cv-00327-PB Document 66 Filed 04/02/07 Page 42 of 43
43

that recognizes their respective goals.

Any objections to this report and recommendation must be

filed within ten (10) days of receipt of this notice. Failure to

file objections within the specified time waives the right to

appeal the district court’s order. See Unauthorized Practice of

Law Comm. v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992);

United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986). 

______________________________

James R. Muirhead

United States Magistrate Judge

Date: April 2, 2007

cc: James P. Bassett, Esq.

 Paul T. Fitzgerald, Esq.

 Steven E. Grill, Esq.

 Jeffrey C. Spear, Esq.

Case 1:05-cv-00327-PB Document 66 Filed 04/02/07 Page 43 of 43