Indus. Commc'n and Electronics, Inc. v. Town of Alton
| Decision Date | 07 May 2010 |
| Docket Number | Civil Nos. 08-cv-122-JL,Civil Nos. 07-cv-82-JL |
| Citation | 710 F.Supp.2d 189,2010 DNH 081 |
| Parties | INDUSTRIAL COMMUNICATIONS AND ELECTRONICS, INC. et al. v. TOWN OF ALTON, David Slade, and Marilyn Slade. Industrial Tower and Wireless, LLC v. Town of Epping and Jane Burley. |
| Court | U.S. District Court — District of New Hampshire |
Steven E. Grill Devine Millimet & Branch PA, Manchester, NH, Anthony S. Augeri Devine Millimet & Branch PA, Andover, MA, for Industrial Communications and Electronics, Inc.
Katherine Blackall Miller, Robert D. Ciandella, Robert M. Derosier, Donahue Tucker & Ciandella PLLC, Exeter, NH, for Town of Alton, David Slade, and Marilyn Slade, and Town of Epping and Jane Burley.
These cases raise the question of whether an intervenor who presents no independentfederal claims can persist in litigating an action that the principal parties seek to resolve upon a negotiated settlement. As explained below, the answer is no.
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"), 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 Order of Sept. 30, 2008 (Laplante, J.).
Following substantial motion practice in each case, the provider and the town notified the court that they had settled. 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 so, and responses from the provider and the town followed (as well as an additional round of briefing in the Alton case).
"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 No. 93, Int'l Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501, 528-29, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986). In light of this inarguable reality, the intervenors' 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 it.
"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, 106 S.Ct. 3063. 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 93, 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, 106 S.Ct. 3063. Just as in Local No. 93, 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, 106 S.Ct. 3063.
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 pursuing a claim that Alton's decision to disallow the proposed tower complied with the TCA.1See Quaker State Oil Refining Corp. v. Garrity Oil Co., 884 F.2d 1510, 1518 (1st Cir.1989).
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 No. 93, " 'an intervenor can continue to litigate after dismissal of the party who originated the action.' " Benavidez v. Eu, 34 F.3d 825, 830 (9th Cir.1994) (quoting U.S. Steel Corp., 614 F.2d at 845). 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. (). 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 440, 444 (1st Cir.1992), and the Slades have not attempted to explain how theirs 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 288, 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 have the effect of prohibiting the provision of those services, (ii) failing to act on a requestto place wireless facilities within a...
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Indus. Commc'n & Elecs., Inc. v. Town of Alton
...now start pursuing a claim that Alton's decision todisallow the proposed tower complied with the TCA." Indus. Commc'ns & Elecs. v. Town of Alton, 710 F. Supp. 2d 189, 193 (D.N.H. 2010). So the court approved the agreement for judgment, with one modification, and directed the Clerk to close ......