Fed. Dist. Court in NY Allows Intervenor Status to Challenge Wireless Facility

This post was authored by Sebastian Perez, J.D.

Proposed intervenors sought to challenge AT&T’s application for a wireless facility at St. Peter’s chapel (the “Chapel”) as violative of the Telecommunications Act of 1996 (“TCA”).  The judge had previously ordered Plaintiff’s and Defendant’s proposed settlement agreement (“Settlement Agreement”), but the Court granted the Proposed Intervenors’ motion (the “Motion”) finding all of the factors in FRCP 24(a)(2) governing intervention were met: (1) timeliness of the motion; (2) the movant’s interest related to the property or transaction that constituted the subject of the action; (3) absent intervention, the movant’s ability to protect its interest would be impaired or impeded, and (4) the parties to the action did not adequately represent the movant’s interest.

First, the Motion was timely because the Proposed Intervenors were not originally joined in the underlying proceeding and only learned of the Settlement Agreement through word of mouth but took immediate action by retaining counsel to file an Article 78 petition and subsequently filed their initial letter motion to intervene. Second, the Court agreed that the Proposed Intervenors’ attempt to protect against potential economic harm to their properties of a potential decline in property value ranging from 15-30 percent was not only “more than a remote or contingent interest” and satisfied the legal interest requirement. Third, the Court concluded that denial of the Motion would have impeded the Proposed Intervenors’ legal rights because the Settlement Agreement would have overridden those rights by providing that a 50–70-foot cell tower be built at the Chapel in any scenario in violation of their economic property interest. Lastly, the Court determined there was not an adequate representation of the Proposed Intervenors’’ interests by the existing parties to the proceeding because the Plaintiff sought to build a cell tower at the Chapel and Defendants sought to act in the public interest and represent the interests of the Town as whole rather than protecting the Proposed Intervenors’ specific property rights. 

New Cingular Wireless PCS, LLC v Planning Board of the Town of East Hampton, 2022 WL 18859063 (EDNY 12/1/2022)