Crown Castle Towers v. Town of Bedford

2016 DNH 051

• Court: District Court, D. New Hampshire
• Decided: March 10, 2016
• Docket: 15-cv-507-PB
• Status: Published

Opinion

Case 1:15-cv-00507-PB Document 19 Filed 03/10/16 Page 1 of 7

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Crown Castle Towers 06-2 LLC

v. Case No. 15-cv-507-PB Opinion No. 2016 DNH 051 Town of Bedford, New Hampshire, et al.

MEMORANDUM AND ORDER

In 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 Ricciardi’s motion. Case 1:15-cv-00507-PB Document 19 Filed 03/10/16 Page 2 of 7

I. BACKGROUND1

Crown 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.

In July 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.

1Unless I indicate otherwise, I have drawn the facts presented here from Crown Castle’s complaint, Doc. No. 1. 2 Case 1:15-cv-00507-PB Document 19 Filed 03/10/16 Page 3 of 7

In 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.

On 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.

Crown 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

3 Case 1:15-cv-00507-PB Document 19 Filed 03/10/16 Page 4 of 7

24.2 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.

II. ANALYSIS

Federal 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 that interest.

Fed. R. 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-

2 Crown Castle further argues that I should deny Ricciardi’s motion because her filings do not comply with the Federal Rules of Civil Procedure or the Local Rules. Under the facts of this case, and in light of Ricciardi’s pro se status, I conclude that these errors were inadvertent, and do not warrant denying intervention here. 4 Case 1:15-cv-00507-PB Document 19 Filed 03/10/16 Page 5 of 7

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).

In this 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

5 Case 1:15-cv-00507-PB Document 19 Filed 03/10/16 Page 6 of 7

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)).

Despite 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 prejudicial to

[Ricciardi’s] interests.” Id. Therefore, consistent with

previous decisions in this district, it is appropriate to grant

Ricciardi’s motion.

Nonetheless, I note that it is somewhat unclear whether

Ricciardi actually wants to intervene. See Doc. No. 11 at 1

(titling her motion a motion to “interrence[sic]/appear”).

Given that potential confusion, and Ricciardi’s pro se status, I

grant Ricciardi fourteen days in which to withdraw her motion,

6 Case 1:15-cv-00507-PB Document 19 Filed 03/10/16 Page 7 of 7

if she does not wish to intervene. Otherwise, I will assume

that Ricciardi intended to intervene.

III. CONCLUSION

For the reasons provided above, I grant Ricciardi’s motion

to intervene (Doc. No. 11). If Ricciardi wishes to withdraw her

motion, she may do so on or before March 24, 2016.

SO ORDERED.

/s/ Paul Barbadoro Paul Barbadoro United States District Judge March 10, 2016

cc: Earl W. Duval, Esq. Russell F. Hilliard, Esq.