New Cingular Wireless PCS, LLC v. City of Manchester et al

Filing 58

ORDER OF REMAND to the Zoning Board of Adjustment of the City of Manchester. Parties shall report to the Court as to the Board's final decision on remand, and an updated Stipulation for the expedited resolution of the case (supplementing Stipulation (doc. no. 50) on or before October 31, 2013.( Notice of Compliance Deadline set for 10/31/2013.) So Ordered by Judge Steven J. McAuliffe.(jab)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Civil Action No. 1:11-cv-00334-SM

NEW CINGULAR WIRELESS PCS, LLC,
Plaintiff,
v.
CITY OF MANCHESTER, NEW HAMPSHIRE, and
ZONING BOARD OF ADJUSTMENT of the CITY OF
MANCHESTER, NH,
Defendants.

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ORDER OF REMAND
This matter having come before the Court on the parties’ Joint Motion to Remand for a
Limited Purpose, it is hereby ordered that:
1. This matter is hereby remanded to the Zoning Board of Adjustment (“Board”) of the City
of Manchester (“City”) for the limited purpose of allowing the Board to consider AT&T’s
additional information concerning its coverage gap and the absence of feasible alternatives
developed after the Board issued its decision dated April 14, 2011 (A.938). AT&T will file this
additional information with the Board on or before August 19, 2013.
2. On or before October 18, 2013, the Board shall conduct and complete expedited
proceedings on remand and issue its final written decision as to whether the Board (a) continues
to deny a variance for the reasons stated in its decision dated April 14, 2011 (A.938), or (b)
reverses that decision and grants variance relief (consistent with the Board’s original decision
dated February 10, 2011 (A.930).
3. As the Board previously allowed multiple opponents’ motions for rehearing concerning
the Board’s original approval decision and denied AT&T’s motion for rehearing concerning the

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Board’s subsequent denial decision, as this litigation is in an advanced stage, as cross motions
for summary judgment are pending, as the case is ready for trial, and as the Board’s vote on
remand is sought for the limited purpose of assisting the Court in connection with the imminent
trial and potential resolution of this litigation, AT&T “need not file a second motion for
rehearing to preserve for appeal any new issues, findings or rulings first raised by the ZBA in” a
denial decision under paragraph 3(a). See McDonald v. Town of Effingham Zoning Bd. of
Adjustment, 152 N.H. 171, 176, 872 A.2d 1018, 1023 (N.H. 2005).
4. On or before October 31, 2013, the parties shall report to the Court as to (a) the Board’s
final decision on remand, and (b) an updated Stipulation for the expedited resolution of this case
supplementing the Stipulation previously filed (ECF No. 50).
5. This Court shall retain exclusive jurisdiction for all purposes concerning judicial review
of the Board’s final decision on remand.
6. Except for any standard charges for mailed and published notice of the public hearing on
remand, the Defendants shall not request or assess any additional charges or fees to AT&T with
respect to the remand proceedings.
7. The Board shall reference this Order of Remand in its notice of the public hearing on
remand and shall include this Order of Remand and in the record of the remand proceedings.
BY THE COURT:
________________
, U.S.District Judge
Steven J. McAuliffe
Chief Judge
Dated:

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July 25,

, 2013

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