UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

USCOC of New Hampshire,

RSA #2, Inc., d/b/a US Cellular

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

Town of Bow

REPORT AND RECOMMENDATION

 Defendant moves to dismiss under Fed. R. Civ. P. 12(b)(1)

for lack of subject matter jurisdiction (document no. 38). 

Intervenors also move to dismiss for the same reasons, citing the

same cases, and making the same arguments as the Town of Bow 

(document no. 48). Plaintiff, of course, objects to both motions

(document nos. 42 and 49). For the reasons set forth below, I

recommend that the motions to dismiss be denied. 

Facts

The critical facts are not in dispute. 

At a regular meeting on May 17, 2005, of the Town of Bow’s

Zoning Board of Adjustment (“ZBA”), a public hearing was held

regarding US Cellular’s request for a variance to erect a 125

foot cell phone tower on a parcel of land located in a rural

zoning district in western Bow. See Complaint (“document no.

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1"), ¶ 30; Town of Bow’s Motion to Dismiss, (“Document no. 38”),

Exhibit 2. The minutes of that meeting reflect that the ZBA had

walked the site on January 15, 2005, and that the May 17 hearing

was a continuation of the ZBA’s April 19, 2005 hearing. See id.

Defendant represents that the ZBA “held several public meetings

in which it heard testimony from plaintiff’s agents, abutters/

interested residents and experts hired to assist the Board with

this application.” Memorandum of Law in Support of Town of Bow’s

Motion to Dismiss, Document no. 38, Exhibit 1 (“38-1") at 2. A

variance would be granted if plaintiff were able to show that it

satisfied the four criteria justifying a variance outlined in

defendant’s zoning ordinance, Article 13.02.B.2. See Document

no. 38, Exhibit 2. 

At the May 17 meeting, a “straw poll vote” indicated the ZBA

determined that plaintiff had met the following two hardship

factors, which weighed in favor of granting the requested

variance:

Article 13.02.B.2. -

a. Denial of the variance would impose unnecessary

 hardship upon the applicant in that:

i. enforcement of the zoning restriction

involved, as applied to the applicant’s

property, would interfere with the 

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applicant’s reasonable use of its property,

having regard for the unique setting of the

property in its surrounding environment;

ii. no fair and substantial relationship exists

between the purposes of the zoning ordinance

and specific restriction on the applicant’s 

property as to which the variance is sought.

The ZBA concluded the remaining criteria, however, had not been 

met. These included:

Article 13.02.B.2. -

a. Denial of the variance would impose unnecessary

 hardship upon the applicant in that:

 iii. approval of the variance will not injure

 the public or private rights of others;

b. Authorization of a variance will not be contrary to 

 the public interest; and

c. The spirit of this Ordinance shall be observed and 

 substantial justice done in the authorization of a 

 variance; and

d. No diminution in the value of surrounding properties 

 would be suffered as a result of the authorization of

 a variance. 

See Document no. 38, Exhibit 2. Accordingly, the ZBA issued a

Notice of Decision on May 20, 2005, denying plaintiff’s

application for a variance from the local zoning ordinance to

construct its requested cell tower, finding plaintiff had not

satisfied Article 13.02.B.2.a.iii, b, c and d. See id.

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U.S. Cellular moved for rehearing. See Document no. 1, ¶

31; document no. 38-1 at 3. Certain “interested parties,” who

are the intervenors here, also moved for a rehearing; they sought

review of the two hardship factors which the straw pole vote had

approved, Article 13.02.B.2.a. i and ii. See id. On July 19,

2005, the ZBA conducted a public hearing on the motions for

reconsideration. See id. On August 23, 2005, the ZBA held a

“public, deliberative session on plaintiff’s application for a

variance,” id., and voted to adopt a ten-page written decision

which again denied the requested variance. Document no. 1 at ¶

33; Document no. 38-1 at 3. That decision was far more detailed

than the first and affirmed the prior ruling in part and reversed

it in part. The two matters on which the ZBA reversed itself on

rehearing were the two matters which had been approved by the May

17 straw poll vote, set forth in its Article 13.02.B.2.a.i. and

13.02.B.2.a.ii. See document no. 38, Exhibit 3 at 3-4. 

Plaintiff brought this suit without a further request for

rehearing. 

Discussion

The key question is whether the ZBA’s reversal of position

on the first two “hardship” factors required plaintiff to seek a

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rehearing before the ZBA, or whether the August 23, 2005 decision

can be deemed the ZBA’s “final action” on the application. This

court has jurisdiction over the matter only after a “final

action” by the local zoning authority. See 47 U.S.C.A. §

332(c)(7)(B)(v) (2001) (permitting “[a]ny person adversely

affected by any final action or failure by a state or local

government or any instrumentality thereof that is inconsistent

with this subparagraph . . . to commence an action in any court

of competent jurisdiction.” (emphasis added)). The case is not

ripe for review for purposes of Article III’s “case and

controversy” requirement unless the ZBA was given the opportunity

to “arriv[e] at a final, definitive position regarding how it

will apply the regulations at issue to the particular land in

question.” Williamson County Reg’l Planning Comm’n v. Hamilton

Bank, 473 U.S. 172, 191 (1985); see also Sprint Spectrum L.P. v.

City of Carmel, 361 F.3d 998, 1002-04 (7th Cir. 2004) (following

Williamson County to construe when a case arises under § 332(c)

(7)); Omnipoint Commc’ns v. Zoning Hearing Bd., 4. F. Supp. 2d

366, 370 (E.D.Pa. 1998) (dismissing claim on ripeness grounds

because local land use authorities had not rendered a final

decision). The parties dispute whether the August 23, 2005

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decision was a “final action,” for purposes of triggering this

court’s jurisdiction.

The Telecommunications Act (the “TCA”) does not define

“final action,” see 47 U.S.C.A. § 153 (2001), nor does the

specific provision within the TCA governing mobile services. See

id. § 332(c)(7)(C) (defining certain terms). The few cases on

point are unanimous that, based on legislative history, “‘final

action’ means ‘final administrative action at the State or local

governmental level’.” Sprint Spectrum, 361 F.3d 998 at 1004

(quoting H.R. Conf. Rep. No. 104-458, at 9 (1996)); see also

AT&T Wireless PCS, Inc. v. Town of Porter, 203 F. Supp. 2d 985,

989 (N.D. Ind. 2002) (“final action” is final administrative

action at the local level); Laurence Wolf Capital Mgmt. Trust v.

City of Ferndale, 176 F. Supp. 2d 725, 727 (E.D. Mich. 2001)

(same). That “final action” must be a written decision,

“supported by substantial evidence,” 47 U.S.C. § 332(c)(7)(B)

(iii), so the reviewing court is in a position to assess the

merits of the decision below. See id. at 727; see also Nat’l

Tower, LLC. v. Plainville Zoning Bd. of Appeals, 297 F.3d 14, 21

(1st Cir. 2002) (explaining scope of written decision). The

existence of a final administrative action enables a party to

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seek review in federal court without needing to exhaust State

court remedies. See Williamson County, 473 U.S. at 193

(explaining “finality” provides a definitive position on the

issue which gives rise to an actual, concrete injury while

“exhaustion” refers to review procedures the injured party may

pursue); see also AT&T Wireless, 203 F. Supp. 2d at 989

(distinguishing the need to exhaust administrative remedies to

reach a final decision from an exhaustion of state judicial

review procedures).

Under New Hampshire law, parties aggrieved by a zoning

board’s decision may seek review pursuant to three statutes which

work in tandem: N.H. Rev. Stat. Ann. (“RSA”) §§ 677:2, 677:3 and

677:4. RSA § 677:2 sets forth the procedures for seeking a

rehearing of any matter resolved by a zoning board’s decision;

RSA § 677:3 provides the details of what the motion for rehearing

must include and how the zoning board must respond to it; and RSA

§ 677:4 allows for an appeal from a decision on a motion for

rehearing to the superior court. “Final administrative action”

is determined by RSA 677:3, which provides that no basis for a

decision can be appealed to a court unless and until it has been

challenged in a motion for rehearing before the local zoning

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authority.

No appeal from any order or decision of the

zoning board of adjustment, a board of appeals,

or the local legislative body shall be taken

unless the appellant shall have made application

for rehearing as provided in RSA 677:2; and, when

such application shall have been made, no ground

not set forth in the application shall be urged,

relied on, or given any consideration by a court

unless the court for good cause shown shall allow

the appellant to specify additional grounds.

RSA 677:3, I (1996). 

Defendant and intervenors rely on this language to argue

that plaintiff, as appellant, was required to seek another

rehearing on the two issues which the ZBA reversed in its August

23, 2005 decision. Those issues were the two hardship factors on

which plaintiff had prevailed initially and, therefore, had not

sought a rehearing. Although the ZBA in fact reconsidered these

two issues, it had been the interested parties, not plaintiff,

who had applied for a rehearing on them. Movants argue that

because plaintiff had not sought a rehearing on the first two

hardship issues, Articles 13.02.B.2.a.i. and 13.02.B.2.a.ii., it

must apply again for another rehearing on those two issues, in

order to obtain the “final decision” of the ZBA needed before

this court has jurisdiction to review the application. 

In support of their position, defendant and intervenors rely

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on the following language in Dziama v. City of Portsmouth, 140

N.H. 542, 545, 669 A.2d 217, 219 (1995):

RSA 677:3 requires the aggrieved party to

file a new motion for rehearing that raises

any new issues that are thrust upon the

appealing party [by the zoning board’s

decision upon rehearing]. 

Movants assert that when the ZBA reversed itself on the two

hardship factors, it “thrust” new “aggrievements” upon plaintiff

that Dziama requires be reconsidered before an appeal may be

taken. The language in Dziama must be read in context. In

Dziama, the court attempted to clarify its prior decision in Shaw

v. City of Manchester, 118 N.H. 158, 160, 384 A.2d 491, 493

(1978), where the court held that when the ZBA reverses itself

and thereby creates a newly aggrieved party, that party also must

request a rehearing before filing an appeal. Dziama explicitly

expanded the rule of Shaw to “circumstances under which the

board’s decision . . . creates a new aggrievement without

creating new aggrieved parties.” Dziama, 140 N.H. at 545. 

Dziama stands for the proposition that where “[t]he aggrieved

party remained the same, but . . . upon rehearing, it was

aggrieved by a substantive issue rather than a procedural issue,”

that party must seek a new rehearing. Id. 

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1Even the Dziama dictum, however, assumes the denial on the

merits would be on “a new second issue,” id. (emphasis added),

not a change in position on the same issue, as is the case here.

10

Dziama arguably is factually distinguishable from the

instant matter, because, unlike here where the merits were

considered both initially and on rehearing, there the zoning

board did not consider the merits of the application until the

rehearing, having denied the request initially on procedural

grounds. The court in Dziama dismissed the appeal and remanded,

to give the zoning board “‘the first opportunity to pass upon any

alleged errors in its decisions so that the court may have the

benefit of the board’s judgment in hearing the appeal.’” Id. at

544 (quoting Fisher v. Town of Boscawen, 121 N.H. 438, 440, 431

A.2d 131 (1981)). Despite this factual distinction, the Dziama

court almost anticipated the situation here, when it explained

“[a] similar situation would have occurred if the board’s

original decision had been a denial on the merits based on one

issue, and following rehearing, the board had admitted its error

as to that issue but had denied the petition on the merits based

on a new second issue.” Id. at 545. 

If that were the latest pronouncement from the New Hampshire

Supreme Court, it might end the matter.1 Since Dziama, however,

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the Court has decided McDonald v. Town of Effingham Zoning Bd. of

Adjustment, 152 N.H. 171, 872 A.2d 1018 (2005), which further

clarified when a rehearing is necessary before an appeal is

appropriate, on facts similar to those presented here. In

McDonald, the plaintiff had filed an application for a variance

which was denied on the merits. The plaintiff filed a timely

motion for rehearing, which the zoning board considered and also

denied. In that decision, the zoning board concluded plaintiff

had not presented any new evidence warranting a change in the

original denial, plus it determined there was an additional basis

to deny the application. See id. at 172. Plaintiff next

appealed to the superior court, which dismissed the case for lack

of jurisdiction based on Dziama, because plaintiff had not first

sought a rehearing on the new, independent basis for the denial. 

Id. at 173. The Supreme Court reversed, concluding that:

[a] literal reading of the rehearing and appeal 

statutes . . . would require a party in a case 

such as this one to simultaneously pursue an 

appeal to the superior court from the initial

variance denial once the rehearing request was

rejected and a second motion for rehearing to 

challenge the issue that was newly raised by the

ZBA in its decision denying the initial request

for a rehearing.. . . We conclude that a literal 

reading of the rehearing and appeal statues . . .

leads to absurd results, which were not intended

by the legislature. It would be illogical and 

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unduly cumbersome on the parties and the judicial 

process for a single variance matter to be 

simultaneously pending before two different 

tribunals: the superior court and the ZBA.. . .

The statutory scheme for zoning appeals to the 

superior court does not envision a bifurcated 

appeal process on a single variance denial, and

we will not create one.

Id. at 174-75 (emphasis added). Accordingly, the court remanded

the case to the superior court for further consideration.

Here, in its rehearing order, the ZBA affirmed that part of

its initial order that was adverse to plaintiff, but reversed

itself and ruled adversely to plaintiff on the two grounds on

which plaintiff had prevailed in the initial order. If New

Hampshire’s statutes are read literally, the portion of the

second ZBA order affirming the first order triggers the thirty

day appeal period set out in RSA 677:4, while the new adverse

substantive rulings would require a request for rehearing

pursuant to RSA 677:2 and 3. That is precisely the type of

bifurcated review process the New Hampshire Supreme Court

rejected in McDonald. See id. at 176 (holding “that when a ZBA

denies a motion for rehearing, the aggrieved party need not file

a second motion for rehearing to preserve for appeal any new

issues, findings or rulings first raised by the ZBA in that

denial order.”). 

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2Although the case law interpreting RSA 677:2, 3 and 4

arguably is somewhat contradictory, further clarification of when

an administrative decision is a final action can only be done by

the New Hampshire Supreme Court or the State Legislature. 

Interpretation of state statutes or resolution of a conflict in

New Hampshire law is the exclusive province of the New Hampshire

courts. I conclude, however, that while the interpretation of

RSA 677:2, 3 and 4 might benefit from further clarification, this

matter can be decided on the law as it currently stands. 

13

McDonald persuades me that under current New Hampshire law

the August 23, 2005, ZBA decision was a “final action” on

plaintiff’s requested variance. Although plaintiff did not

specifically raise the two hardship factors in its motion for

rehearing, the intervenors did. As a result, each of the bases

justifying a variance set forth in Article 13.02.B.2 were

presented to the ZBA both initially and upon rehearing. The ZBA

fully considered each of the variance criteria both initially and

on rehearing, and set forth the reasons for its decision in great

detail in the lengthy memorandum issued in support of the August

23, 2005 denial. Both the first and the second decisions denying

the application were based on the merits of the same issues. To

apply Dziama in the manner movants argue would cause a

“bifurcated appeal process on a single variance denial” which the 

New Hampshire Supreme Court explicitly declined to create. 

McDonald, 152 N.H. at 175.2

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I find that the case law consistently stands for the

proposition that the local zoning board must be given the first

chance to review its decisions on issues, as they pertain to

every party affected thereby, to create a thorough record for

appellate review. Once an opportunity for review has been

afforded, “an endless series of rehearing applications,” Shaw,

118 N.H. at 160, is not required. My review of the applicable

state law leads me to conclude that another rehearing on the two

hardship factors was not required. Through the local

administrative process, each issue upon which the ZBA’s decision

was based was fully considered over the course of several

meetings and two written decisions, with the assistance of

testimony by both the parties involved and expert witnesses. 

Neither the parties nor the issues changed. Under these

circumstances, I conclude the ZBA “has arrived at a final,

definitive position regarding how it will apply the regulations

at issue to the particular land in question.” Williamson County,

473 U.S. at 191. 

The intended purposes of the rehearing procedure were fully

satisfied here, because the ZBA in fact had the first opportunity

to correct any errors in its judgment and the appellate court has

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a full record upon which to review the ZBA’s decision. Whether

plaintiff adequately demonstrated hardship as required by

Articles 13.02.B.2.a.i. and 13.02.B.2.a.ii. was fully presented

to the ZBA in the applications for rehearing and fully reviewed

by it before its second denial was issued. Based on this, I find 

both the letter and the spirit of the statutory scheme have been

satisfied. See RSA 677:3 (allowing appeal on issues not first

presented in a motion for rehearing for “good cause”).

Finally, plaintiff argues jurisdiction over this matter also

arises under 47 U.S.C. § 253(a), which allows a federal court to

review local zoning regulations which prevent telecommunication

services from being provided. See 47 U.S.C.A. § 253(a) (removing

barriers to interstate or intrastate telecommunications service). 

This argument founders on the facts. The record demonstrates

that defendant’s zoning ordinance does not preclude wireless

telecommunications service, because U.S. Cellular already

operates in Bow and is seeking this variance to install another

cell phone tower to improve the service it provides and to

compete with other wireless communications providers in the area. 

Accordingly, § 253(a) is inapposite. 

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Conclusion

I find that the August 23, 2005 decision by the ZBA denying

plaintiff’s requested variance was a final action and that no

further rehearing of the two hardship factors was required under

New Hampshire law. Accordingly, this case is ripe for review and

the court may exercise its jurisdiction over the matter. I,

therefore, recommend that both defendant’s and intervenors’

motions to dismiss (document nos. 38 and 48) be denied.

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: January 10, 2007

cc: James P. Bassett, Esq.

 Paul T. Fitzgerald, Esq.

 Steven E. Grill, Esq.

 Jeffrey C. Spear, Esq.

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