New York SMSA Limited Partnership v. The Town of Carmel

Background

New York SMSA Limited Partnership, doing business as Verizon Wireless, and Homeland Towers, LLC sued the Town of Carmel and other defendants under the Telecommunications Act of 1996. The plaintiffs sought local approvals to build and operate two wireless telecommunications facilities. In May 2020, the parties entered a court-approved settlement and consent order providing for construction of the facilities, and the plaintiffs voluntarily dismissed the action.

Six Town of Carmel residents—Jessica Gondolfo, Robert Cavallaro, Todd McCormack, Edward Wechsler, Joseph Armisto, and Gerard Hanrahan—later brought a related proceeding in New York State Supreme Court. That court held that the Town lacked authority to agree to certain terms of the consent order, annulled and vacated approvals for the Glenacom Facility, ordered construction to stop, and directed the Town and its boards to conduct the reviews required by the Town Code.

The federal parties then sought to enforce the consent order or obtain relief from it. At a pre-motion conference, the Court determined that some terms were no longer equitable because the defendants could not comply with both the federal consent order and the state-court order. The Court directed the parties to prepare a modified or new consent order reflecting the required changes.

Intervention as of Right

The residents sought intervention under Federal Rule of Civil Procedure 24(a)(2). Intervention as of right requires a timely motion, an interest related to the case, a risk that the case could impair that interest, and a showing that the existing parties do not adequately represent the proposed intervenors’ interest.

The plaintiffs argued that the residents had not shown inadequate representation. The Court agreed. Because the residents and the defendants shared the relevant objective—ensuring that the Glenacom Facility undergo the reviews required by the state-court order—the residents had to overcome a presumption that the defendants adequately represented them. The residents argued that the defendants’ failure to oppose enforcement of the consent order showed inadequate representation. But they did not claim that any defendant had colluded, failed to act, or acted incompetently.

The Court held that the residents’ disagreement with the settlement did not by itself make their interests adverse to the defendants’ interests. The modification directed by the Court would provide for the necessary reviews and therefore adequately protect the residents’ stated interest. Because the residents failed to satisfy the adequate-representation requirement, the Court did not address the other requirements for intervention as of right.

Permissive Intervention

The residents also sought permissive intervention under Rule 24(b). That rule allows a court, in its discretion, to permit intervention when the proposed intervenor has a claim or defense sharing a common legal or factual question with the main action. The court must also consider whether intervention would cause undue delay or prejudice.

The Court declined to permit intervention. It found that the residents’ interests were aligned with the defendants’ interests concerning modification of the consent order, and that the case had been closed for about two and a half years. The Court concluded that the residents’ concerns were addressed by the directed modification. To the extent they sought to prevent any consideration of the Glenacom Facility and thereby undo the settlement, intervention would prejudice the existing parties by delaying the resolution they had negotiated.

Disposition

The Court denied the residents’ motion to intervene. The ruling denied intervention as of right because the residents had not shown inadequate representation and declined permissive intervention because it could delay or prejudice the existing parties’ settlement.