UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Industrial Communications

and Electronics, Inc. et al.

v. Civil No. 07-cv-082-JL

Opinion No. 2010 DNH 175

Town of Alton,

David Slade, and Marilyn Slade

MEMORANDUM ORDER

David and Marilyn Slade, who intervened in this action by

wireless service providers challenging the Town of Alton’s

decision denying a variance to construct a cellphone tower as a

violation of the Telecommunications Act of 1996 (“TCA”), move to

stay the court’s order granting the variance with certain

modifications. The order entered on the joint request of the

providers and the town, who agreed to its terms as a settlement

of the providers’ claims. As a result of that settlement--which

did not include any claims by the Slades--this court directed the

entry of final judgment in this action. Indus. Commc’ns &

Elecs., Inc. v. Town of Alton, 2010 DNH 081 (“Order for

Judgment”). This was done over the Slades’ objections, including

that judgment could not enter before they were permitted to

Case 1:07-cv-00082-JL Document 86 Filed 10/04/10 Page 1 of 18
resolve their own purported claims, and that the settlement

violated the procedural requirements of local land use law.

As fully explained infra, the Slades’ motion to stay is

denied. In support of their motion, the Slades rely on their

pursuit of unspecified “remedies” against the construction of the

tower in state court, arguing that the providers have invoked the

Order for Judgment as “preempting” those proceedings. Whether

the providers are correct, however, is an issue to be decided by

the state court, not by this court, so that situation does not

support the requested stay.

The Slades also suggest that, should those proceedings

result in the relief they seek--which, presumably, includes an

order preventing the construction of the tower--allowing

construction to proceed in the interim threatens “unnecessary

waste and costly land reclamation processes.” But this concern

does not justify staying this court’s order because (1) the

burdens of that waste and cost will fall exclusively on the

providers, should they elect to proceed with the construction in

the face of a lawsuit that seeks to enjoin it, and (2) this court

cannot meaningfully assess the Slades’ likelihood of prevailing

in such a lawsuit, because they have provided virtually no

information about it. For largely the same reasons, the fact

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that the Slades have appealed the Order for Judgment to the court

of appeals also does not justify staying it.

I. Background

This case began when the providers challenged a decision by

the town denying them the variance necessary to construct a

cellphone tower as a violation of the TCA, specifically 47 U.S.C.

§§ 332(a)(7)(B)(i)(II) and 332(a)(7)(B)(iii). About three months

later, the Slades, who own property abutting the site of the

proposed tower, moved to intervene both as of right and

permissively. See Fed. R. Civ. P. 24. The motion was granted

without any objection from the providers or explanation by the

court. See Order of Aug. 2, 2007 (Barbadoro, J.).

The providers and the town proceeded to engage in extensive

motion practice over the next two and a half years. The Slades,

meanwhile, filed nothing of substance, including any pleading

setting forth whatever claims they wished to assert. Eventually,

the providers advised the court that they had settled their

claims against the town, and filed, together with the town, an

“Agreement for Entry of Consent Decree.” Among other things, the

proposed consent decree ordered the town’s decision denying the

variance for the tower to be “vacated . . . amended and modified

to grant” the variance subject to certain conditions, and

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directed the providers to “submit revised site plans for site

plan review by the Alton Planning Board” in connection with the

proposed tower. The court then ordered the Slades—-who had

refused to join in the settlement—-“to file a memorandum

regarding their continued standing in this matter following [the]

settlement under applicable law.” Order of Mar. 9, 2010.

In response, the Slades argued that they “retain[ed] their

right to press their claims that the proposed communications

tower violates local zoning ordinances and that the . . .

decision [to deny the variance] does not contravene the [TCA].” 

They further argued that entering the consent decree granting the

variance would “create an independent claim” by the Slades under

the TCA and would also violate New Hampshire law. Importantly,

the Slades did not ask the court to conduct a hearing on the

fairness or appropriateness of the proposed consent decree.

The court subsequently issued the Order for Judgment,

entering--with one alteration described infra--the consent decree

proposed by the providers and the town as the final judgment in

this matter. The court overruled the Slades’ purported

“objections” to the settlement, noting that an intervenor cannot

“‘preclude other parties from settling their own disputes and

thereby withdrawing from the litigation.’” Order for Judgment at

3 (quoting Local No. 93, Int’l Ass’n of Firefighters v. City of

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Cleveland, 478 U.S. 501, 528-29 (1986)). The court also noted

that “‘approval of a consent decree between some of the parties 

. . . cannot dispose of the claims of nonconsenting intervenors;

if properly raised, these claims remain and may be litigated by

the intervenor.’” Id. at 4 (quoting Local No. 93, 478 U.S. at

529). The court ruled, however, that the Slades “have not

‘properly raised any claims of their own . . . . Like the

intervenors in Local [No.] 93, [they] ‘did not allege any causes

of action or assert any claims against’ any of the original

parties to the lawsuit.” Id. (quoting 478 U.S. at 507).

The court rejected the Slades’ attempt to raise, for the

first time in their “recently filed briefing on whether judgment

could enter without their consent,” a claim that the town’s

denial of the variance for the tower did not violate the TCA. 

Id. at 4-5. The court reasoned that, because the Slades had

previously “submitted nothing whatsoever on the merits of the

provider’s TCA claims,” yet had intervened more than two years

ago, “[t]his unexplained delay is enough to conclude that the

Slades cannot now start pursuing a claim that [the town’s]

decision to disallow the proposed tower complied with the TCA.” 

Id. at 5-6 (footnote omitted).

The court acknowledged that, while the Slades’ “purported

claim that the proposed tower violates local zoning law” did not

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become “ripe until [the town] agreed to allow the provider to put

up a cell tower as a settlement of the case and therefore could

not have been asserted earlier, . . . it does not follow that the

Slades can now bring that claim in this court.” Id. at 7. The

court observed that, “once the claim that originally gave rise to

federal subject-matter jurisdiction is dismissed, the court

cannot adjudicate the intervenor’s claim unless it provides ‘a

separate and independent basis for jurisdiction.’” Id. (quoting

Benavidez v. Eu, 34 F.3d 825, 830 (9th Cir. 1994) (further

quotation marks omitted)). The court ruled that, while the

Slades expressly acknowledged this requirement, they failed to

comply with it. See id. Although the Slades claimed that the

town’s decision to allow the tower violated both the TCA and

local zoning law, that first claim was forfeited because it did

not appear until their reply memorandum and, in any event, was

foreclosed by both the language of the TCA and unanimous caselaw,

see id. at 8-9, and the second claim “did not itself present any

federal question,” id. at 7-8 (citing Coyne v. City of

Somerville, 972 F.2d 440, 444 (1st Cir. 1992)).

Relatedly, the court ruled that the Slades’ argument that

the town’s “agreement to issue the required permit[] for the

tower[] as a settlement . . . is in violation of state law

requiring land use permits to issue only as the result of public

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meetings and the like” did not prevent the court from “entering

the judgment[] that the providers and the town[] have requested.”

Id. at 10. The court reasoned that it “need no more inquire into

any aspect of the settlement[] here--including the [town’s] legal

authority to enter into [it]--than this court need inquire into

any party’s legal authority to enter into a settlement of any

case.” Id. at 11. The court also relied on a decision by the

court of appeals that “expressly upheld--in circumstances

similar, if not identical, to those here--a district court’s

approval of a settlement agreement in a case under the TCA that

called for the issuance of ‘injunctive relief in the form of an

order requiring that the wrongfully withheld permit issue,’

despite objections that this course violated ‘the procedural

strictures of Massachusetts zoning law.’” Id. at 12 (quoting 

Brehmer v. Planning Bd. of Town of Wellfleet, 238 F.3d 117 (1st

Cir. 2001)).

The court was careful to note, however, that it was

expressing no view on the merits of the Slades’ state-law

arguments--because, again, those arguments simply had no bearing

on the court’s ability to enter final judgment in the case. Id.

at 11. Indeed, the court specifically cautioned that it was “not

saying that [the Slades] have no remedy for the injury they claim

the proposed tower will cause them, only that this court would

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have no jurisdiction to provide it (assuming they are entitled to

one, an issue on which this court expresses no opinion

whatsoever).” Id. at 10 n.2. Furthermore, the court added a

proviso to the proposed judgment that “‘[n]othing in this order

shall prevent this court from staying or otherwise granting

relief from it according to applicable law.’” Id. at 13. 1

The Slades then filed a timely appeal of the judgment. 

Indus. Commc’ns & Elecs., Inc. v. Town of Alton, No. 10-1738 (1st

Cir. June 21, 2010). The providers filed a “Motion for Summary

Disposition for Lack of Standing,” see 1st Cir. R. 27.0(c),

arguing that the Slades had no standing to maintain the appeal

under Article III of the Constitution. The court of appeals

denied the motion, ruling that the Slades had “alleged sufficient

individualized concrete harm to satisfy the actual injury prong

of Article III standing.” Order of Aug. 19, 2010. So the court

ordered full briefing, with the Slades filing their opening brief

on September 7, 2010, and the providers’ brief due 10 days later.

The relevant paragraph of the proposed judgment stated that 1

“[n]otwithstanding the provisions of [N.H. Rev. Stat. Ann. §]

677:15 or any other law or regulation . . . the filing of any

appeal or challenge to any decision or action of the [town]

Planning Board shall [not] operate as a stay.” This refers to

the fact that, before construction of the tower can commence, the

providers need to obtain site plan approval from the Alton

Planning Board. Their application for that relief is pending,

but the Planning Board has yet to act or even hold a public

hearing on it. 

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II. Analysis

In support of their motion, the Slades rely solely on cases

considering whether a federal court should “for reasons of comity

and efficiency stay an action when a suit is pending in a state

court between the same parties which will conveniently and

authoritatively dispose of the issues in dispute between the

federal litigants.” Centronics Data Computer Corp. v. Merkle- 2

Korff Indus., 503 F. Supp. 168, 169-70 (D.N.H. 1980); see also

Companion Life Ins. Co. v. Matthews, 547 F. Supp. 836, 837-38

(S.D.N.Y. 1982); Alameda Room, Inc. v. Pitta, 538 F. Supp. 1072,

1077 (S.D.N.Y. 1982); Universal Gypsum of Ga., Inc. v. Am.

Cyanamid Co., 390 F. Supp. 824, 826 (S.D.N.Y. 1975). But that

does not aptly describe the relationship between this action and

the state-court litigation commenced by the Slades, which

presumably (again, they have provided virtually no information

about it) challenges the variance for the tower as at odds with

state land use law. This court has already entered judgment

The Slades also rely on a Supreme Court case discussing 2

whether to stay a lower federal court judgment pending

certiorari. Barnes v. E-Sys., Inc. Med. & Surgical Ins. Plan,

501 U.S. 1301 (1991). If that case provides any guidance here at

all, it is by way of analogy to the issue of staying an order

pending appeal, discussed infra.

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here, and did so without considering the merits of any state-law

claim by the Slades. See Order for Judgment at 10. This is not

a situation, then, where a state and federal court simultaneously

have similar issues under consideration, threatening “‘economy of

time and effort for [the courts], for counsel, and for

litigants’” if both actions proceed. Centronics, 503 F. Supp. at

170 (quoting Landis v. N. Am. Co., 299 U.S. 248, 254-55 (1936)).

In fact, unlike in the cases they cite, the Slades do not

seek to stay this litigation--which has already ended--but to

stay the implementation of the court’s order which ended it. 

They need this relief, they suggest, “so as to allow the State

proceedings to proceed unimpeded,” because the providers and the

town have argued to the state court that the this court’s Order

for Judgment “preempts State action.” Though the Slades do not

explain further, the providers say that they have argued to the

state court that “the Slades cannot use state law or state or

local forums to mount a collateral attack on a federal court

judgment.” Thus, the Slades seem to want this court to stay its

Order for Judgment so that the providers can no longer make this

argument to the state court.

If granted, however, that relief would effectively usurp the

state court’s authority to decide the merits of the providers’

argument. And there is no question that the authority to make

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that decision belongs to the state court, not this one. The 3

court of appeals has held that raising a federal court’s consent

decree as a defense to state-law claims in state court does not

create federal subject-matter jurisdiction where it does not

otherwise exist—-and reached that conclusion specifically in the

case of a decree resolving TCA claims by directing the issuance

of a variance for a cell tower. See Metheny v. Becker, 352 F.3d

458, 460-61 (1st Cir. 2003). More generally, “[t]he first court

does not get to dictate to other courts the preclusion

consequences of its own judgment.” 18 Charles Alan Wright et

al., Federal Practice & Procedure § 4405, at 82 (2d ed. 2002)

(footnote omitted).

Accordingly, if the Slades want to argue that this court’s

order does not foreclose their state-law claims--whatever those

claims are; again, the Slades do not say--they must make that

argument to the state court, which is the forum with the

jurisdiction to consider it. Indeed, the Slades essentially

concede as much, arguing that the state court “has appropriate

jurisdiction to hear” their claims. So this court will not,

under the guise of staying the Order for Judgment, decide its

According to the providers, the state court has scheduled a 3

hearing on the merits of their argument for October 6, 2010.

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effect on the Slades’ yet-unidentified state-law claims. This

court expresses no view on that subject.4

In seeking the stay, the Slades also argue that “[i]t would

lead to unnecessary economic waste and costly land reclamation

processes if [the providers] were to build the intended phone

tower to, only then, be ordered to remove it,” presumably as a

result of the state-court proceedings should the Slades prevail

in them. Because this court’s order, in relevant part,

effectuates the variance needed to build the tower, staying the

order pending the outcome of the state-court litigation would

certainly prevent any such waste or cost. To achieve a stay for

that purpose, however, the Slades would need to show that “the

harm caused [them] without the stay, in light of [their]

likelihood of eventual success on the merits [in the state-court

action], outweighs the harm the stay will cause the non-moving

party.” Acevedo-Garcia v. Vera-Monroig, 296 F.3d 13, 17 (1st

This court is nevertheless constrained to point out that 4

the Slades’ motion grossly mischaracterizes the order as “noting

that the Slades had clearly articulated a state claim to [sic]

which they were entitled to pursue at this point.” The order

could not have been clearer that this court was expressing no

view as to the Slades’ “entitlement” to any state-law relief. 

See Order for Judgment at 10 n.2 (“this court is not saying that

they have no remedy for the injury they claim the proposed tower

will cause them, only that this court would have no jurisdiction

to provide it (assuming they are entitled to one, an issue on

which this court expresses no opinion whatsoever)”) (emphasis

added), 11 (“This court, however, expresses no views on the

merits of [the Slades’ state-law] arguments”). 

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Cir. 2002) (quotation marks and bracketing omitted). They have

failed to make that showing.

First, the Slades have not explained how leaving the order

in place while they pursue the state-court action threatens any

harm to them (aside from their point that staying the order would

stop the providers from arguing that it precludes their state-law

claims which, again, needs to be considered by the state

tribunal, not this one). Indeed, the harm from any “waste” or

“costs” that would follow should the providers begin to build the

tower--only to be told to stop if the Slades ultimately prevail

before the state court--fall on the providers, not on the

Slades. Second, this court cannot meaningfully assess the 5

Slades’ likelihood of prevailing in the state-court litigation

because, again, they have provided virtually no information about

it. Third, the providers quite plausibly assert that they will

suffer harm from a stay, in the form of further delays to the

construction of the tower.

The Slades also point out that they have appealed the Order

for Judgment to the court of appeals, though they stop short of

specifically arguing that this court should stay the order

Furthermore, as discussed supra at note 1, construction of 5

the tower cannot commence until the providers obtain site plan

approval from the town’s planning board—-which has yet even to

hold a hearing on that application--so any harm to the Slades

from the construction remains speculative at this point.

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pending the outcome of that appeal. See Fed. R. Civ. P. 62(c).6

In any event, they would not be entitled to that relief, which

depends, again, on “(1) whether the stay applicant has made a

strong showing that he is likely to succeed on the merits; (2)

whether the applicant will be irreparably injured absent a stay;

(3) whether issuance of the stay will substantially injure the

other parties interested in the proceeding; and (4) where the

public interest lies.” Hilton v. Braunskill, 481 U.S. 770, 776

(1987). The Slades cannot satisfy these criteria, largely for

the reasons just discussed: any injury to them as a result of

variance effectuated through the Order for Judgment can be

remedied by taking the tower down, should the providers start

building only to lose the appeal, while further delays pending

the appeal would injure both the providers and the public

interest in improved wireless coverage in the area.

The Slades’ only argument for their likelihood of success on

appeal is based on the ruling by the court of appeals denying the

provider’s motion for summary disposition; that decision, they

say, “demonstrates a higher likelihood of success on appeal than

may have been assumed by either the [providers] or the District

In relevant part, this rule provides that “[w]hen an 6

appeal is taken from . . . final judgment granting . . . an

injunction, the district court in its discretion may suspend 

. . . an injunction during the pendency of the appeal.”

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Court.” Yet, as discussed supra, the providers’ motion for

summary disposition argued only that the Slades lacked Article

III standing to pursue the appeal, and the order by the court of

appeals denying the motion addressed only that argument. This

court’s order entering judgment over the Slades’ objections,

however, was not based on any lack of standing but, as discussed

at length above, their failure to raise a claim within this

court’s subject-matter jurisdiction in a timely manner or,

indeed, at any point up to and including their briefing on

whether the judgment could enter without their consent. So the

court of appeals’ ruling that the Slades “have alleged sufficient

individualized concrete harm to satisfy the actual injury prong

of Article III standing” says little if anything about their

chances of success on appeal. It says only that their appeal

will not be dismissed for lack of Article III standing.

Aside from their reliance on the order denying the motion

for summary disposition, the Slades do not attempt to demonstrate

that they are likely to succeed on appeal but, needless to say,

this court does not believe that they are. In their opening

brief, the Slades argue principally that (1) they have Article

III standing and (2) this court erred by failing to grant them an

evidentiary hearing to contest the “fairness” of the consent

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judgment. In this court’s view, these arguments are unlikely to

succeed in overturning the judgment. 

First, as just explained, this court never ruled that the

Slades lacked Article III standing. Instead, this court ruled

that the Slades lacked a properly presented claim falling within

the court’s subject-matter jurisdiction, which they explicitly

acknowledged was necessary in order to continue litigating as

intervenors after the providers and the town settled their

claims. Rather than addressing this ruling, the Slades’

appellate brief extensively discusses a number of state-law

claims, without explaining how this court would have subjectmatter jurisdiction over them. Second, the Slades never asked 7

this court to conduct an evidentiary hearing on the “fairness,”

or any other aspect, of the proposed consent judgment. “If any

principle is settled in [the] circuit, it is that, absent the

most extraordinary circumstances, legal theories not raised

squarely in the lower court cannot be raised for the first time

on appeal.” Boroian v. Mueller, ___ F.3d ___, 2010 WL 3168654,

at *8 (1st Cir. Aug. 12, 2010) (quotation marks omitted).

The Slades also argue that they can bring a claim 7

challenging the tower under the TCA. As this court ruled,

however, that argument was not timely raised here, is

inconsistent with the language of the TCA, and has been uniformly

rejected by the caselaw. Order for Judgment at 7-9. The Slades’

appellate brief does not address these deficiencies.

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Finally, in support of their motion for stay, the Slades

rely on the fact that the Order for Judgment modified the

proposed consent decree to add that “[n]othing in this order

shall prevent this court from staying or otherwise granting

relief from it according to applicable law.” The court inserted

that provision, however, in the paragraph of the proposed decree

stipulating that any appeal from the Alton Planning Board’s

decision on the providers’ application for site plan review, see

note 1, supra, would not operate as a stay of the decree. Thus,

the provision does not contemplate that an appeal of the variance

(as opposed to any site plan approval or disapproval) would

potentially justify a stay. In any event, the provision simply

allows a stay “according to applicable law,” and, as just

discussed, the Slades have failed to demonstrate their

entitlement to stay under the applicable standards.

III. Conclusion

 For the foregoing reasons, the Slades’ motion to stay is 8

DENIED.

Document no. 78. 8

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SO ORDERED.

____________________________

Joseph N. Laplante

United States District Judge

Dated: October 4, 2010

cc: Steven E. Grill, Esq.

Anthony S. Augeri, Esq.

Katherine Blackall Miller, Esq.

Robert D. Ciandella, Esq.

Robert M. Derosier, Esq.

Paul T. Fitzgerald, Esq.

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