United States District Court, D. New Hampshire
MEMORANDUM AND ORDER
BARBADORO, District Judge.
2015, Crown Castle Towers 06-2 LLC applied for a special
exception and variance from the Town of Bedford's Zoning
Board of Adjustment, so that the company could build a
telecommunications facility in Bedford, New Hampshire. When
the Board denied Crown Castle's application, the company
filed this suit against the Town, the Board, and five Board
members, alleging that the defendants' actions violated
federal and New Hampshire law. Since that time, Denise
Ricciardi, a Bedford homeowner whose property abuts the site
of Crown Castle's proposed facility, has filed a motion,
which the parties interpret as a motion to intervene.
Ricciardi, proceeding pro se, opposes Crown Castle's
project. Crown Castle, in turn, opposes Ricciardi's
attempt to intervene. As explained below, I grant
Castle would like to put up a 190-foot multi-user
telecommunications facility on town-owned land in Bedford
(the "Property"). Crown Castle reportedly chose
that site because it is the only location that allows Verizon
Wireless to close a significant gap in its coverage. In
December 2014, Crown Castle entered into a ground lease with
the town, whereby the town granted the company an option to
construct the proposed facility on the Property. Crown Castle
entered into a separate agreement with Cellco Partnership
d/b/a Verizon Wireless to co-locate on the tower.
2015, Crown Castle and Verizon applied for a special
exception and variance from Bedford's Zoning Board of
Adjustment. After two hearings, the Board denied the
application, concluding that Crown Castle had failed to show,
as required by town ordinance, that the proposed tower was
"the least intrusive manner" to fill the service
gap. Doc. No. 1 at 13. Thereafter, Crown Castle moved for
rehearing, arguing that its proposal satisfied both the
town's ordinance and federal requirements. The Board
denied that request.
December 2015, Crown Castle brought this action against the
Town, the Zoning Board, and five Board members (all in their
official capacities). See Doc. No. 1 (Complaint). Crown
Castle alleges that the defendants violated Section 704 of
the Telecommunications Act of 1996 ("TCA"), and the
New Hampshire Zoning Act. The company seeks both declaratory
and injunctive relief.
January 25, 2016, Denise Ricciardi, proceeding pro se, filed
a four-page handwritten document, which she titled a motion
to "interrence[sic]/appear." Doc. No. 11 at 1. In
her motion, Ricciardi states that she is "an abutter
to" the Property, and notes that "the [proposed]
tower will be [approximately] 455 feet from my home."
Id . Ricciardi contends that the tower will be
unsightly, will "diminish property values, " and
raises significant health concerns. Id . Ricciardi
filed additional materials - a two-page handwritten document,
plus several exhibits - on February 2, 2016. Doc. No. 13.
Castle responded to Ricciardi's submissions with an
"Opposition to Motion to Intervene." Doc. No. 14.
As the title implies, Crown Castle treated Ricciardi's
filings as an attempt to intervene. Crown Castle argues that
I should deny that attempt, because Ricciardi's has not
satisfied the requirements for intervention, as set out in
Federal Rule of Civil Procedure 24. Defendants "take no
position with respect to the motion to intervene filed by
Denise Ricciardi." Doc. No. 15. Ricciardi did not reply
to Crown Castle's opposition.
Rule of Civil Procedure 24 affords both intervention of
right, and permissive intervention. Rule 24(a), which allows
intervention of right, provides in relevant part:
On timely motion, the court must permit anyone to intervene
who... claims an interest relating to the property or
transaction that is the subject of the action, and is so
situated that disposing of the action may as a practical
matter impair or impede the movant's ability to protect
its interest, unless existing parties adequately represent
Civ. P. 24(a). Thus, to satisfy Rule 24(a), a putative
intervenor must establish that "(1) it timely moved to
intervene; (2) it has an interest relating to the property or
transaction that forms the basis of the ongoing suit; (3) the
disposition of the action threatens to create a practical
impediment to its ability to protects its interest; and (4)
no existing party adequately represents its interests."
B. Fernandez & Hnos., Inc. v. Kellogg USA, Inc., 440
F.3d 541, 544-45 (1st Cir. 2006). Rule 24(b), in turn, allows
for permissive intervention where the potential intervenor
both (1) files a timely motion, and (2) "has a claim or
defense that shares with the main action a common question of
law or fact." Fed.R.Civ.P. 24(b).
district, courts routinely permit abutting landowners to
intervene in lawsuits, like this one, brought under the TCA.
See, e.g., Indus. Tower & Wireless, LLC v. Town of Epping,
No. 08-cv-122-JL (September 30, 2008 endorsed order granting
abutting landowner's motion to intervene); Indus. Tower &
Wireless, LLC v. Town of E. Kingston, 07-cv-399-PB (March 11,
2008 endorsed order); Indus. Commc'ns & Elecs., Inc. v.
Town of Alton, 07-cv-82-PB (August 2, 2007 endorsed order);
USCOC of N.H. RSA #2, Inc. v. Town of Bow, No. 05-cv-327-JM,
2006 WL 2583443 (D.N.H. Aug. 15, 2006) (Report and
Recommendation, recommending that motion to intervene be
granted). These decisions recognize that there is a
"genuine potential for divergence of interest"
between a town and an abutting landowner in these disputes.
Nextel Commc'ns of Mid-Atl., Inc. v. Town of
Hanson, 311 F.Supp.2d 142, 152 (D. Mass. 2004). Indeed,
even where the town opposes a facility's construction at
the outset of a case, "it might change or soften that
position based on its broader geographic and institutional
interests." Id . The abutting landowner,
however, has an ongoing interest in protecting her
property's value. For that reason, "abutting
landowners should, as a general matter, be permitted to
intervene in federal actions brought under the TCA."
Id . (citing Metheny v. Becker, 352 F.3d
458, 462 (1st Cir. 2003); Brehmer v. Planning Bd.,
238 F.3d 117, 119 n.2, 122 (1st Cir. 2001)).
this precedent, Crown Castle opposes Ricciardi's motion,
arguing that the Town of Bedford can adequately protect her
interests. The company does not, however, address the series
of decisions in this district, cited above, that allow an
abutting landowner to intervene under these circumstances.
More fundamentally, I disagree with the company's
argument that the Town can adequately protect Ricciardi here.
On the contrary, although the Town currently opposes the
company's proposed tower, "[t]here are virtually
unlimited ways in which... the existing parties might
compromise in a manner ...