T-Mobile Ne. LLC v. Town of Barnstable, No. 19-2121

Decision Date07 August 2020
Docket NumberNo. 19-2121
Citation969 F.3d 33
Parties T-MOBILE NORTHEAST LLC, Plaintiff, Appellee, v. TOWN OF BARNSTABLE, et al., Defendants, Appellees. Nancy Snell ; Lorraine O'Connor, Putative Intervenors, Appellants.
CourtU.S. Court of Appeals — First Circuit

Paul Revere, III on brief for appellants.

Thomas Scott Thompson, Courtney DeThomas, Patrick J. Curran Jr., Washington, DC, and Davis Wright Tremaine LLP on brief for appellee T-Mobile.

Before Lynch, Selya, and Kayatta, Circuit Judges.

SELYA, Circuit Judge.

Plaintiff-appellee T-Mobile Northeast LLC (T-Mobile) wants to operate a wireless telecommunications facility in an existing church steeple in a bucolic Cape Cod community. It sought the required municipal permissions and, when it was unsuccessful in obtaining them, it sued the Town of Barnstable (the Town), two of its agencies, and a coterie of municipal officials in the United States District Court for the District of Massachusetts pursuant to the Telecommunications Act of 1996 (TCA). See 47 U.S.C. § 332(c)(7). Two local residents (appellants Nancy Snell and Lorraine O'Connor) sought leave to intervene. T-Mobile opposed their motions, and the district court denied them. This appeal followed. Discerning neither legal error nor abuse of discretion, we affirm.


We briefly rehearse the relevant facts and travel of the case, drawing upon facts proffered by the appellants in support of their nearly identical motions to intervene and supplementing those proffers with undisputed facts contained elsewhere in the record. See B. Fernández & Hnos., Inc. v. Kellogg USA, Inc., 440 F.3d 541, 543 (1st Cir. 2006). Our starting point is in 2017, when T-Mobile obtained a building permit to install an antenna array concealed within the steeple of South Congregational Church in the Centerville section of the Town.

The appellants — who own properties abutting the Church and represent a civic group called Centerville Concerned Citizens (CCC) — entered the fray in April of 2018. At that time, CCC petitioned the Town's Building Commissioner to revoke T-Mobile's permit on the ground that the Centerville Village District had been designated a District of Critical Planning Concern (DCPC) and was therefore subject to zoning restrictions prohibiting the installation of wireless telecommunications facilities. In July of 2018, the Commissioner denied CCC's request as untimely but nonetheless issued a stay of the permit.

T-Mobile spent the next nine months seeking relief from the Town's Planning Board and Zoning Board of Appeals. At every turn, CCC and the appellants appeared in opposition and participated in hearings. At the end of the line, though, the Zoning Board of Appeals denied T-Mobile's requests for a variance and a special use permit, largely adopting CCC's argument that the board lacked jurisdiction to grant relief under the operative DCPC regulations. Similarly, the Planning Board denied T-Mobile's application for a regulatory agreement to install the antenna array in the church steeple and ancillary equipment in the church basement.

Having exhausted all available avenues for local relief, T-Mobile repaired to the federal district court. Its complaint asserted TCA claims against the Town, the Planning Board, the Zoning Board of Appeals, and the members of each board in their representative capacities.1 Enacted by Congress to accelerate the development of personal wireless networks nationwide, the TCA limits local land-use regulatory authority over the placement and construction of such networks and creates a federal cause of action for parties adversely affected by local regulations that transgress those limitations. See 47 U.S.C. § 332(c)(7) ; Omnipoint Holdings, Inc. v. City of Cranston, 586 F.3d 38, 45-47 (1st Cir. 2009) ; Nat'l Tower, LLC v. Plainville Zoning Bd. of Appeals, 297 F.3d 14, 19-20 (1st Cir. 2002).

T-Mobile challenged the Town's denial of regulatory relief as unsupported by substantial evidence, an unlawful prohibition on the provision of wireless services, and an exercise in regulatory excess. See 47 U.S.C. § 332(c)(7)(B). The Town disputed these challenges and interposed a salmagundi of affirmative defenses.

More than two months after the commencement of suit, the appellants moved to intervene as of right, see Fed. R. Civ. P. 24(a), or in the alternative, to intervene permissively, see Fed. R. Civ. P. 24(b). They anchored their motions on claims that they were abutting landowners who had a stake in both enforcing the DCPC zoning regulations and in upholding the decisions of the Town's land-use boards. T-Mobile opposed the motions. Ruling on the papers, the district court summarily refused the requests for intervention. This timely appeal ensued.

While this appeal was pending, the district court granted summary judgment in T-Mobile's favor on the merits of its TCA claims. See T-Mobile Ne. LLC v. Town of Barnstable, No. 19-CV-10982, 2020 WL 3270878, at *9 (D. Mass. June 17, 2020). The court concluded that the Town's denial of regulatory relief was not supported by substantial evidence and served, in effect, as an unlawful prohibition on the provision of wireless services. See id. at *5-8. T-Mobile advised us of this decision, see Fed. R. App. P. 28(j), suggesting that the ruling bolstered its argument that the proposed intervention was untimely. The appellants did not reply to T-Mobile's Rule 28(j) letter.


The Civil Rules establish two modes of intervention: intervention as of right, see Fed. R. Civ. P. 24(a), and permissive intervention, see Fed. R. Civ. P. 24(b). The appellants claim an entitlement to both modes. We first discuss the standard of review and then discuss each of the appellants' claims.

A. Standard of Review.

We review a district court's denial of a motion for intervention as of right through an abuse-of-discretion lens. See Negrón-Almeda v. Santiago, 528 F.3d 15, 21 (1st Cir. 2008). We use the same abuse-of-discretion lens when reviewing the denial of a motion for permissive intervention. See Int'l Paper Co. v. Inhabitants of Town of Jay, 887 F.2d 338, 343 (1st Cir. 1989). We remain mindful, of course, that the abuse-of-discretion standard is not a monolith: within it, abstract legal rulings are scrutinized de novo, factual findings are assayed for clear error, and the degree of deference afforded to issues of law application waxes or wanes depending on the particular circumstances. See Candelario-Del-Moral v. UBS Fin. Servs. Inc. of P.R. (In re Efron ), 746 F.3d 30, 35 (1st Cir. 2014) ; Cotter v. Mass. Ass'n of Minority Law Enf't Officers, 219 F.3d 31, 34 (1st Cir. 2000).

We add, though, that in the Rule 24(a) context, abuse-of-discretion review has a special gloss. A district court's discretion to deny a motion to intervene as of right is circumscribed by Rule 24(a)'s explicit directive that the court "must" allow intervention as of right by parties who satisfy the enumerated requirements. See Cotter, 219 F.3d at 34.

Because of its relationship to the standard of review, we pause to draw out a common thread that runs through all of the appellants' arguments. They assail the cryptic nature of the district court's summary denial of their motions to intervene. In their view, the court's failure to explicate its reasoning amounts to a per se abuse of discretion, requiring vacation of its order. This argument is unavailing.

The appellants offer no precedential support for their ipse dixit that brevity in denying a motion for intervention, without more, constitutes a per se abuse of discretion. What is more, the case law is inhospitable to this notion. See, e.g., Ungar v. Arafat, 634 F.3d 46, 51 (1st Cir. 2011) (rejecting claim that district court abused discretion by conclusorily denying intervention as of right because appellate court could review record and "gauge whether the court applied the ... factors appropriately"). Where, as here, the district court does not state its reasons for denying intervention, abuse-of-discretion review simply becomes less deferential because "there is nothing to which to give deference." Cotter, 219 F.3d at 34. In other words, "[w]here ... the district court made no specific findings, we can do so, relying on the record." Geiger v. Foley Hoag LLP Ret. Plan, 521 F.3d 60, 64 (1st Cir. 2008) ; cf. R & G Mortg. Corp. v. Fed. Home Loan Mortg. Corp., 584 F.3d 1, 12 (1st Cir. 2009) (stating that "when a trial court's order is imprecise, the court of appeals frequently ‘can comb relevant parts of the record to discern the authoring court's intention’ " (quoting Negrón-Almeda, 528 F.3d at 23 )).

The upshot is that where, as here, the district court summarily denies a motion to intervene, the court of appeals must review the record as a whole to ascertain whether, on the facts at hand, the denial was within the compass of the district court's discretion. See Ungar, 634 F.3d at 51 & n.4 ; cf. Geiger, 521 F.3d at 64-65 (holding that district court did not abuse discretion by summarily granting intervention where "record amply demonstrate[d] that [intervenor] satisfied the requirements of Rule 24(a)"). It is against this backdrop that we turn to the denial of the appellants' motions.

B. Intervention as of Right.

To prevail on a motion for intervention as of right, a putative intervenor must demonstrate (1) the timeliness of her motion; (2) a concrete interest in the pending action; (3) "a realistic threat" that resolution of the pending action will hinder her ability to effectuate that interest; and (4) the absence of adequate representation by any existing party. R & G Mortg., 584 F.3d at 7. It is black letter law that a failure to satisfy any one of these four requirements sounds the death knell for a motion to intervene as of right. See Ungar, 634 F.3d at 50-51 ; Pub. Serv. Co. of N.H. v. Patch, 136 F.3d 197, 204 (1st Cir. 1998). In this instance, the most obvious shortcoming in the appellants' asseverational array relates to the fourth requirement: adequacy of...

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