Opinion
Case No. 3:21 CV 1988
2022-01-10
TARPON TOWERS II, LLC, et al., Plaintiffs, v. CITY OF SYLVANIA, Defendant.
Garrick O. White, Mark W.T. Sandretto, Matthew D. Harper, Eastman & Smith, Toledo, OH, for Plaintiffs. David J. Sipusic, Frank H. Scialdone, Mazanec, Raskin & Ryder, Cleveland, OH, John T. McLandrich, Terence L. Williams, Mazanec, Raskin & Ryder, Solon, OH, for Defendant.
Garrick O. White, Mark W.T. Sandretto, Matthew D. Harper, Eastman & Smith, Toledo, OH, for Plaintiffs.
David J. Sipusic, Frank H. Scialdone, Mazanec, Raskin & Ryder, Cleveland, OH, John T. McLandrich, Terence L. Williams, Mazanec, Raskin & Ryder, Solon, OH, for Defendant.
ORDER DENYING MOTION TO INTERVENE
JACK ZOUHARY, UNITED STATES DISTRICT JUDGE
INTRODUCTION
Plaintiffs Tarpon Towers II, LLC, and Cellco Partnership d/b/a Verizon Wireless filed suit in October 2021 against Defendant City of Sylvania. Plaintiffs allege the City violated 47 U.S.C. § 332 by failing to provide a written decision supported by substantial evidence when the City denied the application for the installation of a 140-foot personal wireless communication facility (Doc. 1). In December 2021, Sylvania for Responsible Technology ("SRT") filed a Motion to Intervene (Doc. 12). Plaintiffs oppose (Doc. 14); SRT replies (Doc. 16).
DISCUSSION
SRT is a self-described "unincorporated association of citizens of Sylvania that supports the use of wireless technologies that are minimally harmful to the public structurally, aesthetically and operationally" (Doc. 12 at 2). Its four founding members live near the proposed installation and were involved in the zoning proceedings conducted by the City (id. ). SRT seeks intervention under Federal Civil Rule 24 as of right or, alternatively, permissive intervention.
Intervention as of Right
This Court must permit any party to intervene who, in a timely manner, "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." Federal Civil Rule 24(a). When applying this rule, the Sixth Circuit enforces a four-factor test:
(1) the motion to intervene is timely; (2) the proposed intervenor has a substantial legal interest in the subject matter of the case; (3) the proposed intervenor's ability to protect their interest may be impaired in the absence of intervention; and (4) the parties already before the court cannot adequately protect the proposed intervenor's interest.
Coalition to Defend Affirmative Action v. Granholm , 501 F.3d 775, 779 (6th Cir. 2007). The party seeking to intervene has the burden of demonstrating each of the four prongs. Johnson v. City of Memphis , 73 F. App'x 123, 131 (6th Cir. 2003).
While SRT's Motion to Intervene is timely, it fails to satisfy the other three factors. The second factor requires SRT to have a direct, legal interest in the litigation that is "significantly protectable." Donaldson v. United States , 400 U.S. 517, 531, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971) (superseded by statute on other grounds ); Jansen v. City of Cincinnati , 904 F.2d 336, 341 (6th Cir. 1990). SRT's concerns about the tower include the potential for falling ice, damage by windstorm, negative impact on property values, negative aesthetic appearance, and other potential public-health effects (Blakely Dec. ¶¶ 4-5; Stonehill Dec. ¶ 4; Metzger Dec. ¶ 5; Samuelson Dec. ¶¶ 4-5). SRT argues in favor of "an expansive notion of the interest sufficient to invoke intervention of right" (Doc. 12 at 7) (citing Grutter v. Bollinger , 188 F.3d 394, 398 (6th Cir. 1999) ). While this Court may take an expansive view of the interests required to intervene, that view cannot be without limit. The interests outlined by SRT are subjective, speculative, and unsubstantiated. In the context of this case, more is needed.
To the extent the health and safety claims are based on the alleged effects of radio frequencies, such claims are not a protected legal interest under federal statute. See 47 U.S.C. § 332(c)(7)(B)(iv) ("No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission's regulations concerning such emissions."). Further, this Court can find no in-circuit authority holding that mere aesthetic concerns or highly-speculative physical risks, such as the tower falling over, meet the bar of a "substantial legal interest." While direct economic loss may sometimes satisfy the requirement, speculative claims of future property value depreciation are insufficient to support intervention under Rule 24(a)(2). See, e.g. , New Par v. Lake Twp. , 2007 WL 128944, at *4 (W.D. Mich. 2007) (citing Montana v. U.S. Envtl. Prot. Agency , 137 F.3d 1135, 1142 (9th Cir. 1998) ); Nextel West Corp. v. Township of Scio , 2007 WL 2331871 at *2 (E.D. Mich. 2007) ; ReliaStar Life Ins. Co. v. MKP Investments LLC , 2013 WL 12099305 at *6 (S.D. Ohio 2013). Likewise, future, contingent interests are insufficient to support intervention under Rule 24(a). See, e.g. , Redland Ins. Co. v. Chillingsworth Venture, Ltd. , 171 F.R.D. 206, 208 (N.D. Ohio 1997) ; QBE Ins. Corp. v. Green , 2014 WL 5107409, at *2 (E.D. Ky. 2014). Because there is no significantly protectable legal interest in the issues raised by SRT, it fails to satisfy the second and third factors noted above.
Further, even if SRT could satisfy the second and third factors, it cannot satisfy the fourth. Each member of SRT resides in the City of Sylvania, which this Court presumes will adequately represent their interests. See 7C Fed. Prac. & Proc. Civ. § 1909 (3d ed.) ("The rare cases in which a member of the public is allowed to intervene in an action in which the United States, or some other governmental agency, represents the public interest are cases in which a very strong showing of inadequate representation has been made."). The presumption that a government entity will act on behalf of the constituency it represents is widely recognized. See U.S. v. City of Los Angeles , 288 F.3d 391, 401–02 (9th Cir. 2002) ; T-Mobile Northeast LLC v. Town of Barnstable, et al. , 969 F.3d 33, 39 (1st Cir. 2020). SRT may rebut this presumption, but it fails to do so here. While SRT offers different interests and affirmative defenses, it seeks precisely the same relief sought by the City -- the dismissal of the Complaint. This is insufficient to justify intervention. Blount-Hill v. Ohio , 244 F.R.D. 399, 404 (S.D. Ohio 2005) (citing Jansen , 904 F.2d at 341 ) ("Where the proposed intervenor and the defendants seek the same outcome, the fact that there is a difference in interests is not by itself sufficient to demonstrate the possibility of inadequate representation."). The City has done nothing to demonstrate it would fail to adequately represent the interests of its citizens, including the members of SRT. Even if the additional interests raised by SRT are legitimate, those concerns would not absolve the City of its responsibility to provide a written decision under Section 332.
Permissive Intervention
If timely requested, "the court may permit anyone to intervene who ... has a claim or defense that shares with the main action a common question of law or fact." Federal Civil Rule 24(b)(1)(B). However, the district court "must then balance undue delay and prejudice to the original parties, if any, and any other relevant factors to determine whether, in the court's discretion, intervention should be allowed." United States v. Michigan , 424 F.3d 438, 445 (6th Cir. 2005). Whether to permit intervention under Rule 24(b) is within the sound discretion of the court. Id.
In the Complaint, Plaintiffs seek injunctive and declaratory relief based on the City's alleged violation of 47 U.S.C. § 332. SRT argues their members raise separate interests, unrelated to Section 332, and would assert unique defenses. However, the concerns raised by SRT's members were shared with the City during the zoning proceedings (Doc. 12 at 2–3). There is a presumption a government entity will adequately represent the interests of its constituents. To introduce an additional party now -- one which raises overlapping issues and is seeking the same ultimate result as the City -- would prejudice Plaintiffs, who are entitled to expedited review under 47 U.S.C. § 332(c)(7)(B)(v). Moreover, as noted above, the issues raised by SRT are speculative and unsupported. SRT fails to demonstrate how its intervention will add to the resolution of this case.
CONCLUSION
Neither mandatory nor discretionary Intervention under Federal Civil Rule 24 is warranted in this case. The Motion to Intervene (Doc. 12) is denied.
IT IS SO ORDERED.