Posted by: Patricia Salkin | May 7, 2019

Fed. Dist. Court in NY Declines Motion to Intervene Made by Adjacent Property Owners in Lawsuit over Proposed Cellular Tower

This post was authored by Amy Lavine, Esq.

The Southern District of New York ruled in April that it would deny a request by adjacent property owners to intervene in a Telecommunications Act lawsuit involving the siting of a proposed cellular tower in the Village of Nelsonville.
The underlying lawsuit in this case arose after the village denied approval for a new 110-foot cellular tower and the cellular companies sought relief under the Telecommunications Act (TCA). The owners of a parcel that was located adjacent to the proposed tower site then sought to intervene. They alleged that tower site was landlocked and could only be accessed via a private road over their property, and that this road would need to be widened and resurfaced to accommodate the tower’s construction. They also claimed that while the owner of the tower site had a right-of-way over their private road, he had made false representations throughout the application process that he could unilaterally authorize the road improvements and modifications that would be necessary for the tower’s construction.
The court determined that the adjacent property owners failed to qualify for intervention as of right because their interests in the litigation would be adequately protected by the village defendants. As the court explained, a presumption of adequate protection exists whenever a proposed intervenor and a party to the litigation have an “identity of interest.” Such a presumption applied in this case because the adjacent property owners and the village defendants both claimed that the tower’s application should be denied, and the adjacent property owners failed to rebut this presumption with any allegations that the village defendants were somehow unable or unlikely to adequately represent their interests. The court also agreed with the cellular companies that a separate lawsuit would be more appropriate to resolve the dispute between the adjacent property owners and the owner of the tower site, since the present litigation was limited to determining whether the village’s permit denial complied with the TCA.
The court also declined to grant permissive intervention, for mostly similar reasons. The court reiterated that the interests of the adjacent property owners were aligned with those of the village defendants, and it also found that intervention would cause undue delay to the resolution of the cellular companies’ TCA claims, which would be inconsistent with the statutory requirement that such claims be heard and decided “on an expedited basis.”
N.Y. SMSA L.P. v. Vill. of Nelsonville, 2019 WL 1877335 (SDNY 4/26/19).


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