I n d . Comm. v . Alton & I n d . Tower v . Epping, CV-07-82-JL, CV-08-122-JL 5/7/10 P UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Industrial Communications and Electronics, Inc. et al.
v. Civil N o . 07-cv-82-JL
Town of Alton, David Slade, and Marilyn Slade
Industrial Tower and Wireless, LLC
v. Civil N o . 08-cv-122-JL Opinion N o . 2010 DNH 081 Town of Epping and Jane Burley
MEMORANDUM ORDER
These cases raise the question of whether an intervenor who
presents no independent federal claims can persist in litigating
an action that the principal parties seek to resolve upon a
negotiated settlement. As explained below, the answer is n o .
I. Background
Each of the cases was commenced by a provider of personal
wireless services to challenge a decision by a local land use
authority denying permission to construct a cellphone tower. The
providers claimed that the decisions violated the
Telecommunications Act of 1996 (the “TCA”), specifically 47 U.S.C. §§ 332(a)(7)(B)(i)(II) and 332(a)(7)(B)(iii), and, in one
case, asked for judicial review of the decision as authorized by
N.H. Rev. Stat. Ann. § 677:15. Each provider sought, among other
relief, a declaration that the decision was therefore invalid and
an injunction requiring the defendant town to allow construction
of the proposed tower.
In each case, a local landowner whose property abuts the
proposed tower site subsequently moved to intervene, both as of
right and permissively, under Rule 24 of the Federal Rules of
Civil Procedure. These abutters--David and Marilyn Slade in the
case against the Town of Alton and Jane Burley in the case
against the Town of Epping--argued that the proposed tower would
adversely impact their property interests, particularly by
obstructing their views. The Slades’ motion was granted without
any objection from the provider or explanation by the court. See
Order of Aug. 2 , 2007 (Barbadoro, J . ) . In granting Burley’s
motion over the provider’s objection, the court noted in a margin
order that “[t]he motion satisfies the criteria for intervention
as of right under Rule 24(a)(2). See Nextel Commc’ns of the Mid-
Atl. Inc. v . Town of Hanson, 311 F. Supp. 2d 1 4 2 , 150-52 & 160
(D. Mass. 2004).” Order of Sept. 3 0 , 2008 (Laplante, J . ) .
Following substantial motion practice in each case, the
provider and the town notified the court that they had settled.
2 Alton and the provider in its case filed an “Agreement for Entry
of Consent Decree,” while Epping and the provider in its case
filed a “Joint Motion to Approve and Implement Settlement
Agreement.” Each of these filings called upon the court to issue
an order granting the provider permission to build a cellphone
tower at the proposed location subject to a number of conditions
and, implicitly or explicitly, to enter judgment ending the case.
Each of the filings also noted that the intervenor purported
to “object” to the settlement. The court therefore ordered the
intervenors “to file a memorandum regarding their continued
standing in this matter following such a settlement under
applicable law.” Each intervenor did s o , and responses from the
provider and the town followed (as well as an additional round of
briefing in the Alton case).
II. Analysis
A. The abutters never presented any claims for adjudication
“It has never been supposed that one party--whether an
original party, a party that was joined later, or an intervenor--
could preclude other parties from settling their own disputes and
thereby withdrawing from the litigation.” Local N o . 9 3 , Int’l
Ass’n of Firefighters v . City of Cleveland, 478 U.S. 5 0 1 , 528-29
(1986). In light of this inarguable reality, the intervenors’
3 position that they “object” to the settlement is difficult to
understand. They can no more “object” to the town’s settlement
of claims brought against it than any third party--including,
even, a co-defendant to a claim asserting joint and several
liability--could “object” to another defendant’s settlement of
the plaintiff’s claim against i t .
“Of course, parties who choose to resolve litigation through
settlement may not dispose of the claims of a third party,” so
that “approval of a consent decree between some of the parties
therefore cannot dispose of the claims of nonconsenting
intervenors; if properly raised, these claims remain and may be
litigated by the intervenor.” Id. at 529. The problem here, as
the towns appropriately point out, is that the intervenors have
not “properly raised” any claims of their own. When their
motions to intervene were granted, in fact, Burley filed an
answer without making any counterclaims or cross-claims, and the
Slades did not file any pleading whatsoever. Like the intervenor
in Local 9 3 , the intervenors here “did not allege any causes of
action or assert any claims against” any of the original parties
to the lawsuit. Id. at 507. Just as in Local N o . 9 3 , then, this
court can enter judgment based on the consent of all parties to
the only claims that have in fact been asserted, despite the
intervenors’ purported “objections.” See id. at 529.
4 Burley does not argue to the contrary. Indeed, she concedes
“that if the Town and [the provider] have, in fact, reached a
valid and enforceable settlement of this dispute, then there is
no need for her claims to continue in this forum,” without
identifying what those claims are or whether they were ever
presented here. Again, she never raised any counterclaims.
The Slades, in contrast, argue that despite the settlement
they “retain the right to press their claims that the proposed
telecommunications tower violates local zoning ordinances and
that the ZBA’s decision does not contravene the Federal
Telecommunications Act.” Again, though, the Slades never made
any such claims: they never filed any pleading, and even their
motion to intervene and supporting memorandum do not assert that
Alton’s decision to disallow the tower was consistent with the
TCA. Indeed, until their recently filed briefing on whether
judgment could enter without their consent, the Slades have
submitted nothing whatsoever on the merits of the provider’s TCA
claims, leaving the litigation of that issue to the principal
parties, who filed voluminous summary judgment papers.
Yet the Slades intervened in this case more than two years
ago, and the deadline for amendment of pleadings has long since
passed, with the trial date approaching. This unexplained delay
is reason enough to conclude that the Slades cannot now start
5 pursuing a claim that Alton’s decision to disallow the proposed
tower complied with the TCA.1 See Quaker State Oil Refining
Corp. v . Garrity Oil Co., 884 F.2d 1510, 1518 (1st Cir. 1989).
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I n d . Comm. v . Alton & I n d . Tower v . Epping, CV-07-82-JL, CV-08-122-JL 5/7/10 P UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Industrial Communications and Electronics, Inc. et al.
v. Civil N o . 07-cv-82-JL
Town of Alton, David Slade, and Marilyn Slade
Industrial Tower and Wireless, LLC
v. Civil N o . 08-cv-122-JL Opinion N o . 2010 DNH 081 Town of Epping and Jane Burley
MEMORANDUM ORDER
These cases raise the question of whether an intervenor who
presents no independent federal claims can persist in litigating
an action that the principal parties seek to resolve upon a
negotiated settlement. As explained below, the answer is n o .
I. Background
Each of the cases was commenced by a provider of personal
wireless services to challenge a decision by a local land use
authority denying permission to construct a cellphone tower. The
providers claimed that the decisions violated the
Telecommunications Act of 1996 (the “TCA”), specifically 47 U.S.C. §§ 332(a)(7)(B)(i)(II) and 332(a)(7)(B)(iii), and, in one
case, asked for judicial review of the decision as authorized by
N.H. Rev. Stat. Ann. § 677:15. Each provider sought, among other
relief, a declaration that the decision was therefore invalid and
an injunction requiring the defendant town to allow construction
of the proposed tower.
In each case, a local landowner whose property abuts the
proposed tower site subsequently moved to intervene, both as of
right and permissively, under Rule 24 of the Federal Rules of
Civil Procedure. These abutters--David and Marilyn Slade in the
case against the Town of Alton and Jane Burley in the case
against the Town of Epping--argued that the proposed tower would
adversely impact their property interests, particularly by
obstructing their views. The Slades’ motion was granted without
any objection from the provider or explanation by the court. See
Order of Aug. 2 , 2007 (Barbadoro, J . ) . In granting Burley’s
motion over the provider’s objection, the court noted in a margin
order that “[t]he motion satisfies the criteria for intervention
as of right under Rule 24(a)(2). See Nextel Commc’ns of the Mid-
Atl. Inc. v . Town of Hanson, 311 F. Supp. 2d 1 4 2 , 150-52 & 160
(D. Mass. 2004).” Order of Sept. 3 0 , 2008 (Laplante, J . ) .
Following substantial motion practice in each case, the
provider and the town notified the court that they had settled.
2 Alton and the provider in its case filed an “Agreement for Entry
of Consent Decree,” while Epping and the provider in its case
filed a “Joint Motion to Approve and Implement Settlement
Agreement.” Each of these filings called upon the court to issue
an order granting the provider permission to build a cellphone
tower at the proposed location subject to a number of conditions
and, implicitly or explicitly, to enter judgment ending the case.
Each of the filings also noted that the intervenor purported
to “object” to the settlement. The court therefore ordered the
intervenors “to file a memorandum regarding their continued
standing in this matter following such a settlement under
applicable law.” Each intervenor did s o , and responses from the
provider and the town followed (as well as an additional round of
briefing in the Alton case).
II. Analysis
A. The abutters never presented any claims for adjudication
“It has never been supposed that one party--whether an
original party, a party that was joined later, or an intervenor--
could preclude other parties from settling their own disputes and
thereby withdrawing from the litigation.” Local N o . 9 3 , Int’l
Ass’n of Firefighters v . City of Cleveland, 478 U.S. 5 0 1 , 528-29
(1986). In light of this inarguable reality, the intervenors’
3 position that they “object” to the settlement is difficult to
understand. They can no more “object” to the town’s settlement
of claims brought against it than any third party--including,
even, a co-defendant to a claim asserting joint and several
liability--could “object” to another defendant’s settlement of
the plaintiff’s claim against i t .
“Of course, parties who choose to resolve litigation through
settlement may not dispose of the claims of a third party,” so
that “approval of a consent decree between some of the parties
therefore cannot dispose of the claims of nonconsenting
intervenors; if properly raised, these claims remain and may be
litigated by the intervenor.” Id. at 529. The problem here, as
the towns appropriately point out, is that the intervenors have
not “properly raised” any claims of their own. When their
motions to intervene were granted, in fact, Burley filed an
answer without making any counterclaims or cross-claims, and the
Slades did not file any pleading whatsoever. Like the intervenor
in Local 9 3 , the intervenors here “did not allege any causes of
action or assert any claims against” any of the original parties
to the lawsuit. Id. at 507. Just as in Local N o . 9 3 , then, this
court can enter judgment based on the consent of all parties to
the only claims that have in fact been asserted, despite the
intervenors’ purported “objections.” See id. at 529.
4 Burley does not argue to the contrary. Indeed, she concedes
“that if the Town and [the provider] have, in fact, reached a
valid and enforceable settlement of this dispute, then there is
no need for her claims to continue in this forum,” without
identifying what those claims are or whether they were ever
presented here. Again, she never raised any counterclaims.
The Slades, in contrast, argue that despite the settlement
they “retain the right to press their claims that the proposed
telecommunications tower violates local zoning ordinances and
that the ZBA’s decision does not contravene the Federal
Telecommunications Act.” Again, though, the Slades never made
any such claims: they never filed any pleading, and even their
motion to intervene and supporting memorandum do not assert that
Alton’s decision to disallow the tower was consistent with the
TCA. Indeed, until their recently filed briefing on whether
judgment could enter without their consent, the Slades have
submitted nothing whatsoever on the merits of the provider’s TCA
claims, leaving the litigation of that issue to the principal
parties, who filed voluminous summary judgment papers.
Yet the Slades intervened in this case more than two years
ago, and the deadline for amendment of pleadings has long since
passed, with the trial date approaching. This unexplained delay
is reason enough to conclude that the Slades cannot now start
5 pursuing a claim that Alton’s decision to disallow the proposed
tower complied with the TCA.1 See Quaker State Oil Refining
Corp. v . Garrity Oil Co., 884 F.2d 1510, 1518 (1st Cir. 1989).
1 That assumes, of course, that the Slades could have brought such a “claim” in the first place, essentially putting themselves, as private citizens, in the position of defending a decision rendered by a public authority. This court has serious doubts about a private citizen’s ability to do s o , particularly after (as has happened here) the public authority decides that it no longer wants to defend the decision. See S . Cal. Edison C o . v . Lynch, 307 F.3d 7 9 4 , 807 (9th Cir. 2002) (ruling that a consumers’ group, which had intervened to defend state utilities commissioners against a challenge to their ratesetting practices brought by a utility had no “valid claims” to assert once the commissioners settled the utility’s claims). That would seem to allow private citizens--whose interests in upholding the authority’s decision are necessarily their own, rather than those of the public at large--to arrogate the authority’s decisionmaking power to themselves simply by intervening in litigation challenging such decisions, and then refusing to go along with the authority’s subsequent choice to stop defending the decision and settle the case. The cases cited by the Slades do not address this problem, because they allowed an intervenor to maintain a challenge to administrative action brought, but later abandoned, by another private citizen. They did not allow a private citizen to maintain the defense of an administrative action abandoned by the administrator itself. See U.S. Steel Corp. v . EPA, 614 F.2d 843, 844-45 (3d Cir. 1979); Bates v . D.C. Bd. of Zoning Adjustment, 639 A.2d 6 0 7 , 609-11 (D.C. 1994); c f . City of New Haven v . Chem. Waste Mgmt. of Ind., L.L.C., 685 N.E.2d 9 7 , 98-102 (Ind. C t . App. 1997) (allowing a city to continue pursuing claims settled by its zoning officers). In those cases, then, the question was not whether the authority would have to continue defending its decision in court, but simply against whom. The Slades have presented no authority for the troubling proposition that an intervenor can take over a public entity’s authority to defend one of its decisions in the way they seek to do here.
6 The Slades’ purported claim that the proposed tower violates
local zoning law, however, stands on slightly different footing.
That claim was not ripe until Alton agreed to allow the provider
to put up a cell tower as a settlement of the case and therefore
could not have been asserted earlier. Yet it does not follow
that the Slades can now bring that claim in this court.
As the Supreme Court recognized in Local N o . 9 3 , “‘an
intervenor can continue to litigate after dismissal of the party
who originated the action.”’ Benavidez v . E u , 34 F.3d 825, 830
(9th Cir. 1994) (quoting U.S. Steel Corp., 614 F.2d at 8 4 5 ) .
Nevertheless, once the claim that originally gave rise to federal
subject-matter jurisdiction is dismissed, the court cannot
adjudicate the intervenor’s claim unless it provides “‘a separate
and independent basis for jurisdiction.’” Id. (quoting Fuller v .
Volk, 351 F.2d 323, 328-29 (3d Cir. 1965), and citing cases from
other federal courts of appeals)). Indeed, the Slades themselves
expressly acknowledge that “[t]he key requirement for [them] to
continue this case is an independent jurisdictional basis for
their claim.” Yet they do not identify any.
A complaint that local officials violated state and local
law generally does not itself present any federal question, see,
e.g., Coyne v . City of Somerville, 972 F.2d 4 4 0 , 444 (1st Cir.
1992), and the Slades have not attempted to explain how theirs
7 nevertheless would. The Slades’ claim that the tower would
violate local zoning law, then, does not allow them to continue
litigating here even though the provider wants to settle its
claims against Alton under the TCA, which were the basis for this
court’s subject-matter jurisdiction in the first place.
The Slades also argue that “[i]f this Court enters the
consent decree . . . it will create an independent claim” by them
under the TCA and hence federal law. There are at least two
fatal problems with this argument. First, the Slades did not
raise it until their reply memorandum, so it is waived. See,
e.g., Doe v . Friendfinder Network, Inc., 540 F. Supp. 2d 303 n.16
(D.N.H. 2008). Second, the TCA provision they cite does not
authorize a claim where permission to construct a wireless
facility is granted rather than denied. The provision, 47 U.S.C.
§ 332(c)(7)(B)(v), creates a private right of action in “[a]ny
person adversely affected by any final action or failure to act
by a State or local government or instrumentality thereof that is
inconsistent with this subparagraph” (emphasis added). The
Slades ignore this crucial limiting language.
The “subparagraph” in question prohibits states and
localities from (i) regulating the placement of personal wireless
service facilities so as to unreasonably discriminate among
providers of functionally equivalent services, or to prohibit or
8 have the effect of prohibiting the provision of those services,
(ii) failing to act on a request to place wireless facilities
within a reasonable time, (iii) denying such a request unless the
denial is in writing and supported by substantial evidence in a
written record, and (iv) regulating the placement of personal
wireless services facilities based on the environmental effect of
radio frequency emissions that comply with FCC regulations. See
47 U.S.C. §§ 332(c)(7)(B)(i)-(iv). Aside from, potentially, the
ban on discrimination among providers, which is not at issue
here, the subparagraph imposes no restrictions on a state or
locality’s decision to allow the placement of personal wireless
service facilities. Such a decision, then, cannot be
“inconsistent with this subparagraph” so as to give rise to a
private cause of action under 47 U.S.C. § 332(c)(7)(B)(v), as a
number of courts have held. See Jaeger v . Cellco P’ship, N o . 09-
567, 2010 WL 965730, at *8 (D. Conn. Mar. 1 6 , 2010); Drago v .
Garment, ___ F. Supp. 2d ___, N o . 08-6356, 2010 WL 769692, at * 3 -
*4 (S.D.N.Y. Mar. 2 , 2010); Mason v . O’Brien, N o . 01-1556, 2002
WL 31972190, at *3-*4 (N.D.N.Y. Sept. 3 0 , 2002). The Slades
provide no authority to the contrary. Because they have not
properly presented any claim within this court’s subject-matter
9 jurisdiction, the Slades cannot continue litigating here now that
the claim which created that jurisdiction has been settled.2
2 The Slades urge the court to “consider the practical impact of its possible ruling and how that ruling will be viewed by the users of the federal court system,” arguing that “expediency in the conclusion of this matter cannot be a justification for setting aside the merits of all the claims and defenses put forward by the various parties.” First, this completely ignores the fact that, as just discussed, the Slades never tried to put forward any claim or defense until the original parties had announced their settlement. Indeed, when the court originally ordered them in September 2009 to explain their “continued standing in this matter following such a settlement,” based on the original parties’ indication that one was imminent, the Slades asked for--and were granted--relief from having to make such a showing until a settlement had actually been reached. In light of this, and the fact that, as also just discussed, the Slades have not filed anything of substance in this case until now, their complaint that entering judgment over their “objection” would “threaten future intervenors with incurring large expenses of both time and funding only to find themselves disenfranchised” is completely without merit. Second, this court is not entering judgment out of a desire for “expediency in the conclusion of this matter,” but because, as just explained, the original parties have resolved the only properly presented claim that gave this court jurisdiction over this dispute. This court cannot exercise jurisdiction it does not have, regardless of how it might “be viewed” (to use the Slades’ words) by litigants unfamiliar with the limited nature of federal jurisdiction. The Slades seem to be missing the point: this court is not saying that they have no remedy for the injury they claim the proposed tower will cause them, only that this court would have no jurisdiction to provide it (assuming they are entitled to one, an issue on which this court expresses no opinion whatsoever). That is not “disenfranchisement” or anything of the sort.
10 B. The Towns’ power to settle these cases
Both the Slades and Burley argue at length that the Towns’
agreement to issue the required permits for the towers as a
settlement of these lawsuits is in violation of state law
requiring land use permits to issue only as the result of public
meetings and the like. This court, however, expresses no views
on the merits of those arguments, and need not resolve them in
order to enter the judgments that the providers and the towns
have requested. “[I]n the usual litigation context courts have
inherent power summarily to enforce a settlement agreement with
respect to an action pending before i t ; the actual merits of the
controversy become inconsequential.” Dacanay v . Mendoza, 573
F.2d 1075, 1078 (9th Cir. 1978); see also 18A Charles Alan Wright
et a l . , Federal Practice & Procedure § 4443, at 257 (2d ed.
1997).
Thus, this court need no more inquire into any aspect of the
settlements here--including the Towns’ legal authority to agree
to them--than this court need inquire into any party’s legal
authority to enter into a settlement of any case. To take one
example, this court regularly allows corporations to settle
actions brought by and against them without inquiring into
whether the corporation had the authority to do so without the
consent of its board of directors, or some committee thereof,
11 and, if s o , whether that consent was properly given and so forth.
Neither Burley nor the Slades has provided any caselaw to support
their view that this court must prevent the towns from settling
these cases unless they can show that they did so in full
compliance with the procedural demands of state land-use law.
Furthermore, as the towns and providers point out, the court
of appeals has expressly upheld--in circumstances similar, if not
identical, to those here--a district court’s approval of a
settlement agreement in a case under the TCA that called for the
issuance of “injunctive relief in the form of an order requiring
that the wrongfully withheld permit issue,” despite objections
that this course violated “the procedural strictures of
Massachusetts zoning law.” Brehmer v . Planning Bd. of Town of
Wellfleet, 238 F.3d 1 1 7 , 118-21 (1st Cir. 2001). The Slades
argue that Brehmer nevertheless provides no authority for this
court to issue such an order over their objections because the
town “has not admitted a violation of the TCA.” But neither did
the town in Brehmer: it “essentially admitted as much when it
entered into a negotiated settlement with [the provider] and
agreed to issue, without further process, a permit it had already
denied.” Id. at 120 (emphasis added). That is what Alton has
done here. Thus, just as in Brehmer, “a remand to the [local
12 land use] Board would serve no useful purpose,” whatever
procedural requirements state law might impose. Id. at 121.
III. Conclusion
For the foregoing reasons, the clerk shall enter judgment in
the Alton case, N o . 07-cv-082-JL, in the form of the proposed
“Judgment and Order” submitted by the Town and the provider,3
except that the following language shall be added to the end of
subparagraph 6 ( d ) : “Nothing in this order shall prevent this
court from staying or otherwise granting relief from it according
to applicable law.” In the Epping case, N o . 08-cv-122-JL, the
“Joint Motion to Approve and Implement Settlement Agreement”4 is
granted and the clerk shall enter judgment accordingly.
SO ORDERED.
___ Joseph N. Laplante __ nited States District Judge
Dated: May 7 , 2010
3 Document n o . 66-1. 4 Document n o . 3 7 .
13 cc: Steven E . Grill, Esq. Anthony S . Augeri, Esq. Katherine Blackall Miller, Esq. Robert D. Ciandella, Esq. Robert M . Derosier, Esq. Paul T . Fitzgerald, Esq. Lawrence M . Edelman, Esq. Robert M . Derosier, Esq. John T . Ratigan, Esq. Jeffrey C . Spear, Esq.