Posted by: Patricia Salkin | September 17, 2019

Fed. Dist. Court in NY Grants Motion to Intervene by School District in Telecommunications Act Case

This post was authored by Matthew Loeser, Esq.

In 1985, the West Seneca Central School District executed a conveyance that transferred real property to the Southline Little League, Inc., formerly known as the Southline Athletic Association. The District’s conveyance was “subject to the restriction that the use of the Proposed Site shall be limited to recreational purposes only in accordance with the purposes set forth in the certificate of incorporation of Southline Athletic Association, Inc. In 2016, Plaintiffs applied for a special use permit to construct the tower on the Proposed Site to remedy an alleged gap in cellular service coverage. Town Board denied the application, because Plaintiffs Up State Tower Co., LLC and Buffalo-Lake Erie Wireless Systems Co., LLC d/b/a Blue Wireless failed to verify that they had “the right to proceed as proposed on the site” as required by the Town Code. Plaintiffs filed this suit against the Town and the Town Board, alleging that the defendants’ actions in denying their application for a special use permit to construct the towers violated the federal Telecommunications Act. The District filed a motion to intervene on April 15, 2019, seeking to intervene as a party defendant as of right or, in the alternative, by permission under Federal Rule of Civil Procedure 24.

The Complaint was filed on March 1, 2019 and served on March 25, 2019. The District filed its motion to intervene on April 15, 2019, about three weeks after the Town and the Town Board were served with the Complaint. Since the motion was made at the outset of the case, the court held the District’s motion was timely. Additionally, in light of the District’s participation in the zoning determination proceedings, the significant role the restrictive covenant played in the Town Board’s denial decision, and the fact that the District held the restrictive covenant, the court found that the District’s intervention would “significantly contribute to full development of the underlying factual issues and to the just and equitable adjudication of the legal questions presented.”

The District further claimed that it was entitled to intervene as a matter of right as it had an interest in enforcing the restrictive covenant on the proposed site. The court determined that the District raised a claim “that shares with the main action a common question of law or fact” for the purposes of permissive intervention. The court further found that neither the Town nor the Town Board could adequately represent the District’s interests, as the defendants were not parties to the conveyance and might not have standing to enforce the restrictive covenant. Moreover, the Town’s authority to make zoning determinations was “separate and distinct from the District’s right to enforce the restrictive covenant, a right only the District could enforce. Accordingly, the court granted the District’s request for permissive intervention under Rule 24(b)(1)(B).

Up State Tower Co v Town of Cheektowaga, 2019 WL 4452413 (WDNY 9/17/2019)


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