New Cingular Wireless PCS, LLC v. The Planning Board of the Town of East Hampton

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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NEW CINGULAR WIRELESS PCS, LLC

d/b/a AT&T Mobility,

MEMORANDUM & ORDER

Plaintiff, 20-CV-3555 (JS)(SIL)

-against-

THE PLANNING BOARD OF THE TOWN OF

EAST HAMPTON; THE TOWN OF EAST

HAMPTON; THE TOWN OF EAST HAMPTON

ARCHITECTURAL REVIEW BOARD; and

THE TOWN OF EAST HAMPTON BUILDING

DEPARTMENT,

Defendants.

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APPEARANCES

For Plaintiff: Kenneth J. Wilbur, Esq.

Andrew B. Joseph, Esq.

Faegre Drinker Biddle & Reath

600 Campus Drive

Florham Park, New Jersey 07932

For Defendants: Kelly E. Wright, Esq.

Thomas Roy Crouch, Esq.

Crouch McWilliams Law Group, PLLC

10 Pantigo Road

East Hampton, New York 11937

Intervenor Andrew J. Campanelli, Esq.

Defendants: Jean Marie Smyth, Esq.

Campanelli & Associates, P.C.

1757 Merrick Avenue, Suite 204

Merrick, New York 11566

SEYBERT, District Judge:

SEYBERT, District Judge:

Peter Corbett, Nicole Corbett, Valerie Coster, Karen

Simon, Matthew Sargenti, and Christopher Katsaros (collectively

the “Proposed Intervenors”) move to intervene (the “Motion”) in

this case pursuant to either Federal Rule of Civil Procedure

(“Rule”) 26(a) or 26(b). (See Motion, ECF No. 40.) By Report &

Recommendation dated December 1, 2022 (the “R&R”), Magistrate

Judge Steven I. Locke recommended the Court grant the Proposed

Intervenors’ request to intervene as of right, or, in the

alternative, grant the Proposed Intervenors’ request to intervene

permissively. (See R&R, ECF No. 46, at 11-20.) For the following

reasons, Plaintiff’s objections1 to the R&R are SUSTAINED, the R&R

is REJECTED in part, and the Proposed Intervenor Defendants’ Motion

is DENIED in its entirety.

BACKGROUND

The Court adopts the relevant factual background stated

by Magistrate Judge Locke in his R&R, finding that the R&R

accurately summarized the relevant facts pertinent to this case,

which are incorporated herein. (See id. at 2-6.) Similarly, the

Court adopts the Magistrate Judge’s recitation of the relevant

procedural history, which is also incorporated herein. (See id.

at 6-9.) For the reader’s convenience, however, the Court briefly

reiterates the following.

1 Within the designated time-period to object to the R&R,

Defendants filed a letter joining in Plaintiff’s objections

without expounding upon them. (See Defs.’ Obj.’s to R&R, ECF No.

48.) While recognizing that Defendants join in Plaintiff’s

objections, for convenience when referring to the specific

objections, the Court will refer to them as Plaintiff’s objections.

I. Facts2

New Cingular Wireless PCS, LLC (the “Plaintiff” or

“AT&T”) “is a provider of personal wireless services pursuant to

licenses issued by the Federal Communications Commission.”

(Compl., ECF No. 1, ¶ 10.) The Planning Board of the Town of East

Hampton, New York (the “Planning Board”); the Town of East Hampton,

New York (the “Town”); the Town of East Hampton Architectural

Review Board (the “Architectural Review Board”); and the Town of

East Hampton Building Department (the “Building Department” and

collectively with the Planning Board, the Town, and the

Architectural Board the “Defendants”) are each “local government

entit[ies] or instrumentalit[ies] thereof duly constituted and

established pursuant to New York law.” (Id. ¶ 2-5.) St. Peter’s

Chapel (the “Chapel”) “is located in the Springs section of East

Hampton, a heavily-wooded area consisting of single-family homes.”

(Id. ¶ 13.) The Proposed Intervenors “are individual property

owners whose respective homes are each situated in close proximity

to” the Chapel. (Campanelli Decl., ECF No. 41, ¶ 22.)

On October 22, 2015, “[t]o remedy a service gap in the

Springs section of East Hampton . . . AT&T submitted an

application to locate a personal wireless facility at the Chapel.”

(Id. ¶ 16.) Since “the Chapel’s existing belfry [was] too low to

2 The relevant facts are taken from Plaintiff’s Complaint, and

where necessary, the parties’ respective filings.

provide sufficient height to mount the antennas at the 45 feet

above ground level center-line height needed for reliable services

in the service gap,” Plaintiff “initially proposed to replace the

belfry with a new, taller steeple.” (Id. ¶ 20.) Plaintiff has

received conflicting requests from Defendants with regard the

design of the proposed wireless facility. After reviewing the

initial application, the Planning Board requested Plaintiff “limit

any facility at the Chapel to the height of the existing belfry.”

(Id. ¶ 22.) “On December 21, 2015, the Architectural Review

Board’s Vice-Chair” requested “that the antennas be placed within

a campanile (a stand-alone bell tower) set back farther from the

street.” (Id. ¶ 23.) “After reviewing AT&T’s revised proposal at

a July 3, 2016, meeting, the Planning Board recommended that

[Plaintiff] consider three other options: relocate the campanile,

consider a shorter steeple, or mount the antennas on a 50-foot-

tall pole.” (Id. ¶ 25.) “Taking feedback from the Planning Board

and Architectural Review Board into account, AT&T submitted an

updated and refined application, dated December 15, 2017, for a

facility utilizing a campanile on the northern portion of the

Chapel property.” (Id. at ¶ 28.) “After discussing the

application at meetings on February 7, 2018, and February 28, 2018,

on March 1, 2018, the Planning Board backtracked . . . and

informed AT&T that the Planning Board was unable to form a

consensus on a proposed configuration.” (Id. at ¶ 29.)

In sum, Plaintiff contends that “there have been at

least 16 public meetings or hearings of the Boards on [Plaintiff’s]

application.” (Id. ¶ 75.) Ultimately, “[o]n July 22, 2020, the

Planning Board” denied Plaintiff’s request for a “Special Permit

and Site Plan approvals for the Chapel Facility.” (Id. ¶ 61.)

The present litigation ensued.

II. Procedural History

On August 6, 2020, Plaintiff filed its Complaint against

the Defendants, alleging, inter alia, various violations of the

Telecommunications Act (the “TCA”). (See generally, Compl. ¶ 76-

97.) The Defendants answered the Complaint on September 15, 2020.

(Answer, ECF No. 8.) On July 15, 2021, the parties reported to

the Court that the matter was settled, and they were in the process

of executing an agreement. (See Settlement Status Letter, ECF No.

25.) “All of the interested Town Boards approved the settlement

agreement at public sessions of the respective boards, and

thereafter, the Settlement Agreement was executed by the

representatives of the various boards (on December 17, 21, and 29,

for the Planning Board, the Town Board, and Architectural Review

Board, respectively)”. (Defs.’ Opp’n to Mot., ECF No. 37, at 4;

see also Pl.’s Opp’n to Mot., ECF No. 38, at 4-5.) The Proposed

Intervenors deny that the public sessions took place. (Campanelli

Decl. ¶ 9 n.1.)

On February 10, 2022, a proposed Settlement Agreement

was submitted for the Court’s approval. (Proposed Consent Order,

ECF No. 27-1, attached to Letter Regarding Settlement.) The

Proposed Settlement Agreement was approved on February 11, 2022.

(See Consent Order, ECF No. 29.) In short, the Settlement

Agreement provides that the Defendants shall provide Plaintiff

“all reasonable cooperation and assistance necessary to facilitate

AT&T’s submission” of materials identified by Defendants as

“reasonable and necessary to permit Defendants to review and

approve [a] Monopole Facility, and to permit AT&T to construct,

operate, and maintain the Monopole Facility.” (Id. at 2.)

Alternatively, if any Defendant “fail[s] to grant any variance,

approval or permit necessary to construct, operate and maintain

the Monopole Facility . . . Defendants shall be deemed to have

granted all variances, permits and approvals necessary for

construction, operation and maintenance of the Campanile

Facility.” (Id.) Therefore, the practical effect of the

Settlement Agreement is that Plaintiff is guaranteed a facility,

but the Defendants may choose between a Monopole or Campanile

Facility.

On March 21, 2022, the Proposed Intervenors filed a

letter motion to intervene.3 (See Letter Motion to Intervene, ECF

3 The Proposed Intervenors’ Notice of Motion was not filed until

June 24, 2022.

No. 30.) Both Plaintiff and all Defendants opposed the Proposed

Intervenors’ Motion. This Court referred the Proposed

Intervenors’ Motion to Magistrate Judge Wicks for decision on April

8, 2022. (See April 8, 2022 Elec. Order Referring Mot.) After

Magistrate Judge Wicks’ recusal on July 11, 2022, the Motion was

referred to Magistrate Judge Locke who issued his R&R on December

1, 2022.

III. Judge Locke’s R&R

In the R&R, after summarizing the material facts and

procedural history of the action, Magistrate Judge Locke

identified the appropriate Rules which govern intervention as of

right under Rule 24(a)(2). (See R&R at 9-11.) Specifically, the

Magistrate Judge found:

[a] motion to intervene as of right will be

granted where the movant demonstrates:

(1) timeliness of the motion; (2) the movant’s

interest relates to the property or

transaction that constitutes the subject of

the action; (3) absent intervention, the

movant’s ability to protect its interest will

be impaired or impeded; and (4) the parties to

the action do not adequately represent the

movant’s interest.

(Id. at 10.) The Magistrate Judge next determined that any

“permissive intervention analysis[,]” governed by Rule 24(b),

should be “informed by the same four factors considered in

connection with motions for intervention as of right.” (Id. at

11.)

A. Standing

Before analyzing the enumerated intervention factors,

the Magistrate Judge undertook a standing analysis finding that

“the Proposed Intervenors have standing to pursue the relief they

seek, namely[,] to vindicate economic interests in their

properties.” (Id. at 12.) The Magistrate Judge highlighted that

the “alleged injury is that the construction of a 50-to-70-foot

monopole or campanile in close proximity to their homes will reduce

their property values, which is recognized under local zoning

rules.” (Id.) Magistrate Judge Locke found this injury to be

“imminent” since Plaintiff and Defendants had “entered into a

Settlement Agreement which provides that a cell tower will be built

at the Chapel whether as a monopole or campanile.” (Id.)

Magistrate Judge Locke dismissed Defendants’ argument that the

Proposed Intervenors’ complained-of injury was “speculative,”

finding the Proposed Intervenors “cite to various studies on this

issue and argue that they would further establish the impact on

their property values with probative evidence in a motion to vacate

the consent order.” (Id. at 12-13.) Additionally, Magistrate

Judge Locke stated that “rather than seek relief under the TCA”

the Proposed Intervenor Defendants’ Answer, Counterclaims and

Cross Claims, “demonstrate they seek relief under the local zoning

codes specific to a reduction in property values, and this proposed

pleading is different from the answer filed by Defendants who

asserted no counterclaims.” (Id. at 13.)

B. Timeliness

Regarding timeliness, Magistrate Judge Locke concluded

that “the Proposed Intervenors’ motion is timely” because, inter

alia, they did not receive notice of the litigation “until they

learned of the Settlement Agreement through ‘word of mouth.’”4

(Id. at 14.) Upon learning of the Settlement Agreement, Magistrate

Judge Locke noted that the Proposed Intervenors: (1) “immediately

consulted with and retained counsel”; (2) “filed a NYCPLR Article

78 petition in the New York Supreme Court, Suffolk County on March

11, 2022”; and (3) “filed their initial letter motion to intervene

in this Court on March 21, 2022.” (Id.) Magistrate Judge Locke

also found that, given Plaintiff’s “initial application for the

cell tower was ultimately denied by Defendants” it “does not

necessarily follow that the proposed intervenors should have

intervened when the litigation was filed in August 2020.” (Id.)

Magistrate Judge Locke next determined that the Proposed

Intervenors would be prejudiced if their Motion was denied since

their “interests [would be] extinguished, and a cell tower [would]

4 Defendants claim that the Proposed Intervenors had constructive

Notice of the Settlement Agreement because “they held public

sessions of the respective boards, on December 17, 21, and 23,

2021;” however, Magistrate Judge Locke highlighted that the

Proposed Intervenors dispute such meetings took place. (R&R at

14.)

be built at the Chapel” in accordance with the terms of the Consent

Decree. (Id. at 15.) He found this prejudice to the Proposed

Intervenors outweighed the effect of any delay since “the relief

negotiated in the Settlement Agreement may still be obtained, at

least in some form.” (Id.)

C. Legal Interest

As to the Proposed Intervenors’ legal interest in the

transaction, Magistrate Judge Locke first found that while the

Proposed Intervenors’ aesthetic impact arguments failed, “they

also [sought] to protect against potential economic harm to their

properties, which are in close proximity to the site of the

proposed tower.” (Id. at 16. (emphasis added)). Specifically,

the Magistrate Judge highlighted the Proposed Intervenors’

contention that construction of the tower would reduce the values

of their properties by “15 to 30 percent.” (Id.) In support of

this argument, the Proposed Intervenors cited “to various studies

on this issue and argue[d] that they would further establish the

impact on their respective property values with probative evidence

in a motion to vacate the consent order.” (Id.) Accepting the

Proposed Intervenors’ contentions as true, the Magistrate Judge

concluded that this purported injury was “certain rather than

contingent” since “the Settlement Agreement provides that either

a 50-to-70-foot monopole or campanile will be placed at the Chapel

site.” (Id.)

D. Impairment of Legal Interest

In analyzing the third requirement of intervention as of

right, Magistrate Judge Locke reasoned that “the Proposed

Intervenors’ interests, namely their property rights under local

zoning rules, are impeded by performance under the Settlement

Agreement.” (Id. at 17.) This is so, Magistrate Judge Locke

concluded, because “[t]he Agreement overrides these rights

providing that a 50-to-70-foot cell tower will be built at the

Chapel in any scenario.” (Id.) Evaluating the Proposed

Intervenors’ proposed Answer, Counterclaims and Cross Claims,

Magistrate Judge Locke found “that denying the motion will impede

the Proposed Intervenors’ legal rights” reasoning:

[t]he Proposed Intervenors seek to defend the

initial determination of Defendants’ denial of

AT&T’s application and ultimately vacate the

Settlement Agreement which overrides their

economic property interests. Moreover, the

Proposed Intervenors allege that AT&T failed

to meet local zoning provisions, and the

denial of the application was valid in that

they failed to provide evidence to establish

the actual location of purported gaps in

service and why or how its proposed tower is

the best and/or least intrusive means in

remedying those gaps. They also argue that

the Chapel is recently eligible for inclusion

in the State and National registers of

Historic Places, which was not contemplated in

the Settlement Agreement and inconsistent with

local zoning regulations.

(Id. at 17-18.)

E. Adequate Representation

Finally, Magistrate Judge Locke found that, presently,

“the parties to the action do not adequately represent the Proposed

Intervenors’ interests.” (Id. at 19.) Specifically, the

Magistrate Judge identified that “Plaintiff seeks to build a cell

tower at the Chapel[,]” and “Defendants seek to act in the public

interest and represent the interests of the Town as a whole “rather

than protecting the Proposed Intervenors’ specific property

rights.” (Id.)

F. Permissive Intervention

On the issue of permissive intervention, Magistrate

Judge Locke found that since “the Court recommend[ed] granting the

Proposed Intervenors’ motion to intervene as of right and the

permissive intervention analysis is informed by the same four

factors, it need not reach this argument.” (Id. at 19-20.)

“Nevertheless,” for “the sake of a complete record,” the Magistrate

Judge recommended “in the alternative that the Proposed

Intervenors’ motion . . . be granted” for the same reasons set

forth in support of his recommendation that the Proposed

Intervenors be permitted intervention as of right. (Id. at 20.)

DISCUSSION

I. Legal Standards

A. R&R5

A district court “may accept, reject, or modify, in whole

or in part, the findings or recommendations made by the magistrate

judge.” 28 U.S.C. § 636(b)(1)(C); see also FED. R. CIV. P. 72(b)(3).

The district judge must evaluate proper objections de novo;

however, where a party “makes only conclusory or general

objections, or simply reiterates [the] original arguments, the

Court reviews the Report and Recommendation only for clear error.”

Pall Corp. v. Entegris, Inc., 249 F.R.D. 48, 51 (E.D.N.Y. 2008)

(quoting Barratt v. Joie, No. 96–CV–0324, 2002 WL 335014, at *1

(S.D.N.Y. Mar. 4, 2002)); FED. R. CIV. P. 72(b)(3). The Court need

5 “[T]here is authority within the Second Circuit holding that a

motion to intervene is dispositive, at least insofar as it is

brought as of right under Rule 24(a)[.]” Global Auto, Inc. v.

Hitrinov, No. 13-CV-2479, 2021 WL 1220712, at *4 (E.D.N.Y. Mar.

31, 2021) (quoting Madison Stock Transfer, Inc. v. Marine Expl.,

Inc., No. 15-CV-6394, 2017 WL 383351, at *1 n.2 (E.D.N.Y. Jan. 27,

2017)). As such, notwithstanding this Court’s April 8, 2022

Electronic Order referring the Proposed Intervenors’ Motion for

decision, and out of an abundance of caution, the Court will treat

the instant motion as dispositive and review de novo the portions

of Magistrate Judge Locke’s recommendation to which Plaintiff and

Defendants have properly objected. See Stackhouse v. McKnight,

168 F. App’x 464, 467 (2d Cir. 2006) (summary order) (finding that

where all parties had not consented to the jurisdiction of the

magistrate judge under § 636, that “[the] Magistrate Judge[]’s

order denying the motion to intervene was the equivalent of a

report and recommendation subject to [the District] Judge[]’s de

novo review.”).

not review the findings and conclusions to which no proper

objection has been made. Thomas v. Arn, 474 U.S. 140, 150 (1985).

B. Intervention as of Right

To intervene as of right a movant must demonstrate:

(1) the motion is timely; (2) the applicant

asserts an interest relating to the property

or transaction that is the subject of the

action; (3) the applicant is so situated that

without intervention, disposition of the

action may, as a practical matter, impair or

impede the applicant’s ability to protect its

interest; and (4) the applicant’s interest is

not adequately represented by the other

parties.

ExteNet Sys. Inc. v. Vill. of Lake Success, No. 19-CV-3471, 2020

WL 1862948, at *2 (E.D.N.Y. Feb. 21, 2020) (citing MasterCard Int’l

Inc. v. Visa Int’l Serv. Ass’n, Inc., 471 F.3d 377, 389 (2d Cir.

2006)). “Failure to satisfy any one of these requirements is a

sufficient ground to deny [intervention].” Id. (quoting Catanzano

by Catanzano v. Wing, 103 F.3d 223, 232 (2d Cir. 1996) (emphasis

and alteration in original; further citation omitted)).

C. Permissive Intervention

Pursuant to Rule 24(b) “[o]n timely motion, 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.

FED. R. CIV. P. 24(b). “Permissive intervention lies within the

Court’s ‘broad discretion,’ . . . and in exercising that

discretion, the Court ‘must consider whether the intervention will

unduly delay or prejudice the adjudication of the original parties’

rights.’” N.Y. SMSA Ltd. P’ship v. Town of Carmel,

No. 19-CV-10793, 2022 WL 12064663, at *3 (S.D.N.Y. Oct. 20, 2022)

(first quoting AT&T Corp. v. Sprint Corp., 407 F.3d 560, 561 (2d

Cir. 2005) then quoting Fed. R. Civ. P. 24(b)(3)).

II. Analysis

Plaintiff raises three specific objections to Magistrate

Judge Locke’s R&R which the Court will review de novo pursuant to

28 U.S.C. § 636(b)(1). First, Plaintiff argues that Magistrate

Judge Locke’s R&R ignores binding Second Circuit authority;

specifically, Plaintiff avers that claims by neighboring property

owners that a wireless facility will devalue their property is an

insufficient basis for intervention under the TCA. (Pl.’s R&R

Obj.’s, ECF No. 47, at 6-12.) Second, Plaintiff contends that the

Proposed Intervenors’ interests are adequately represented by

Defendants, and, that moreover, Defendants’ decision to settle

this matter has no bearing on this analysis. (Id. at 12-14.)

Finally, Plaintiff argues that “[t]here are . . . no grounds to

grant permissive intervention” under Rule 24(b). (Id. at 14-15.)

A. The Proposed Intervenors Lack an Interest That Relates to

the Property or Transaction Which is the Subject of This

Action

Plaintiffs first contend that “[t]he Recommendation

accepts, without citing any supporting authority, Movants’ bald

assertion that an interest in protecting property values is

sufficient to support intervention in a TCA Action.” (Id. at 8.)

Plaintiff brings to the Court’s attention numerous cases which it

contends support its position. Specifically, Plaintiff highlights

that “a party must demonstrate either an interest in the property

on which the facility is located or one that is protected by the

TCA,” and that the Proposed Intervenors’ claim that the proposed

wireless facility “might impair property values does not affect

the intervention analysis.” (Id. at 9.) The Proposed Intervenors

attempt to distinguish this case law and argue that they have

“clearly demonstrated that they have a protectable interest in

preventing economic harm to their properties under the local zoning

code [and] [i]t is this interest that gives them standing.”

(Proposed Intervenors’ Mem. in Supp. of R&R, ECF No. 50, at 8.)

The Proposed Intervenors contend that this “interest [] meets the

criteria for intervention as of right.” (Id.) On Proposed

Intervenors’ argument that they have a protectable right under the

local zoning code, Plaintiff argues that “[i]t is well-settled in

the Second Circuit . . . that zoning statutes and ordinances do

not create property rights unless the zoning body has no discretion

in the matter and the movant is entitled, as a matter of right, to

a specific outcome.” (Pl.’s R&R Obj.’s, at 11-12.)

Here, the Court agrees with Plaintiff that the Proposed

Intervenors have not asserted an interest that relates to the

property or transaction that is the subject of this action.

Extenet Systems, LLC v. Village of Kings Point is

instructive; there, the proposed intervenors sought to intervene

in a TCA action asserting they possessed “‘substantial interests’”

in the wireless facilities (the “small cells”) which were the

subject of the action. No.21-CV-5772, 2022 WL 1749200, at *8

(E.D.N.Y. May 31, 2022) aff’d, No. 22-1265, 2023 WL 4044076 (2d

Cir. June 16, 2023). To support their claim, the Village of Kings

Point intervenors “submitted . . . letters from certain real

estate brokers from the area opining that the installation of small

cells in close proximity to the proposed intervenors’ homes would

result in ‘substantial losses in monetary value.’” Id. The real

estate brokers estimated that “the homes [would] lose value by ten

to twenty-five percent and will stay in the market for

substantially longer because fewer buyers are interested in homes

located near wireless facilities.” Id. Notwithstanding the

Village of Kings Point intervenors’ devaluation arguments6, Judge

Matsumoto found:

[C]ritically, the proposed intervenors do not

have a cognizable interest relating to the

property or transaction that is the subject of

this action. The property at issue consists

of thirty-one small cell sites within the

Village and ExteNet’s application for a

special exception permit, which do not belong

to the proposed intervenors. This point is

not disputed. . . . Furthermore, the

transaction at issue is the Village’s

disposition of ExteNet’s application for a

special exception permit. The proposed

intervenors do not have a cognizable interest

in the properties or in ExteNet’s application.

Id. at *9.

6 The Village of Kings Point court further found that the

intervenors’ proffered evidence of property devaluation was

unconvincing, stating:

other than the number of years of experience

of the brokers who authored the letters, no

evidentiary support is given for the

conclusory assertions that the market value of

the proposed intervenors’ homes will decrease

by as much as twenty-five percent. No

supporting data, not even a single example of

a home that declined in value as a result of

the installation of a small cell in “close

proximity,” is proffered. Accordingly, the

Court concludes that the brokers’ unsupported

assertions do not support a finding that the

proposed intervenors’ homes will suffer

substantial, or any, losses in monetary value

as a result of the proposed small cells being

located over 100 feet away.

2022 WL 1749200, at *9.

Like the proposed intervenors in Village of Kings Point,

the Proposed Intervenors here have no cognizable interest in the

property at issue, i.e., the Chapel. Furthermore, the transaction

at issue is the Defendants’ disposition of Plaintiff’s application

to construct a wireless facility at the Chapel, to which, again,

the Proposed Intervenors have not demonstrated a cognizable

interest. Indeed, the Proposed Intervenors explicitly acknowledge

that they have no property interest in the Chapel, or in AT&T’s

application. (See Proposed Intervenors’ Mem. in Supp. of R&R, at

8). Like the movants in Village of Kings Point, the Proposed

Intervenors here are merely neighboring property owners concerned

that installation of the wireless tower in close proximity to their

various properties may potentially devalue those properties.7

Consequently, the Proposed Intervenors cannot demonstrate the

second required element for intervention as of right, i.e., an

interest relating to the property or transaction that is the

7 The Court notes that while Judge Locke accepted the Proposed

Intervenors’ conclusory contention that the planned wireless

facility would devalue their properties by between 15-30 percent,

this Court finds that the Proposed Intervenors’ fear in this

regard, is speculatory and contingent on many factors. Accord

Village of Lake Success, 2020 WL 1862948, at *2 n.2. The

cherrypicked studies the Proposed Intervenors submitted in support

of their contention, and their promise to provide probative

evidence if their motion is successful is unavailing given that

the cited studies do not pertain to the specific geographical

market in which the Proposed Intervenors reside.

subject of this action.8 Accord Vill. of Lake Success, 2020 WL

1862948, at *2 (accepting as true proposed intervenors’ contention

that installation of the wireless nodes at issue would devalue

their properties but nonetheless finding “[a]s a threshold matter,

the movants’ contention that they have a cognizable interest

relating to the property or transaction that is the subject of

this action does not bear much scrutiny[,]” since “[t]he property

at issue . . . consists of the thirteen sites on public land within

the village where [plaintiff] seeks to install its nodes [and]

[t]he transaction at issue is the Board’s disposition of

[plaintiff’s] petition under applicable law”); Omnipoint Commc’ns,

Inc. v. City of White Plains, 202 F.R.D. 402, 403 (S.D.N.Y. 2001)

(finding that owner of property adjacent to proposed site for a

wireless facility had “no interest in the property or transaction

that [was] the subject of th[e] action” sufficient to warrant

8 While the Second Circuit has not explicitly addressed whether

abutting neighbors may intervene in a TCA case on the basis that

the proposed wireless facility will devalue their property, the

issue was briefed by the parties in Backus v. Town of Charlotte.

See Appellants’ Brief, 2003 WL 24154490, at *26 (arguing that the

appellant residents should be permitted to intervene where they

had, inter alia, “an interest in protecting . . . their property

values); see also Plaintiffs-Appellees’ Brief, 2003 WL 24154492,

at *27 (refuting appellants’ argument regarding the potential

devaluation of the residents’ property values by highlighting that

“not only is there no factual evidence to support the claim, but

there is . . . no legal support for it [either]”). In Backus, the

Second Circuit ultimately dismissed the appellant-residents’

appeal, holding that “[t]he Residents have failed to allege any

injury that related to enforcement of the TCA”. 75 Fed. App’x

820, 821 (2d Cir. 2003).

intervention in plaintiff’s claim against municipality asserting

violation of TCA).

The Proposed Intervenors’ argument that “the source of”

their “right to protect the value of their property” comes from

the local zoning ordinance and not the TCA is unavailing. The

Proposed Intervenors rely upon, inter alia, Wolpe v. Poretsky, for

the proposition that “in lawsuits contesting the application of

zoning restrictions to a particular parcel of land, owners of

adjoining parcels are entitled to intervene under Rule 24(a)(2).”

However, Wolpe is distinguishable from the facts of this case since

the Wolpe court “allowed adjoining property owners to intervene as

of right in an action challenging a zoning order that would

necessarily determine the movants’ control of their own property.”

Vill. of Lake Success, 2020 WL 1862948, at *2 n.2. No such

considerations are implicated here.9 Neither the Proposed

Intervenors, nor the R&R cites any Second Circuit precedent that

stands for the proposition that a property owner may intervene in

9 The Proposed Intervenors also rely upon Industrial Communications

and Electronics, Inc. v. Town of Alton, N.H., a non-binding First

Circuit decision. 646 F.3d 76 (1st Cir. 2011). However, the court

in Town of Alton did not analyze the issue of intervention under

Rule 24 because the intervenors in that case had already, at some

point previously, intervened with permission of the Court. Id. at

78. Moreover, in holding that the intervenors could establish

injury in fact, the court found that the intervenors had a “legal

interest under state law,” specifically a New Hampshire statute

which allowed challenges to a zoning board’s variance decision.

Id. at 80. Here, the Proposed Intervenors do not identify any

similar or corollary New York state statute.

a TCA action, pursuant to Rule 24, to protect themselves from

potential property devaluation caused by installation of a nearby

wireless facility. This Court, likewise, has found no such

precedent.

Since the Court finds that the Proposed Intervenors lack

an interest in the property or transaction that is the subject of

this action, and since failure to demonstrate any of the four

factors under Rule 24(a) is fatal to a claim of intervention as of

right, the Court need not resolve Plaintiff’s adequate

representation objection. See Petersville Sleigh Ltd. v. Schmidt,

124 F.R.D. 67, 74 n.2 (S.D.N.Y. 1989) (“failure to satisfy any of

the four requirements is fatal to intervention [as] of right”);

accord Mastercard Int’l Inc., 471 F.3d at 389.

B. The Court Declines to Exercise its Discretion and Allow

the Proposed Intervenors to Intervene Permissibly

While Magistrate Judge Locke recommended in the

alternative that, should the Court deny the Proposed Intervenors’

request for intervention as of right, the Proposed Intervenors

should be permitted to intervene permissibly, the Court agrees

with Plaintiff that such an outcome would be prejudicial to the

original parties.

Here, the Municipal Defendants and Plaintiff have been

attempting to resolve the wireless gap in East Hampton since 2015.

Prior to the Proposed Intervenors’ Motion, a negotiated and agreed

resolution to this eight-year dispute had finally been reached.

To unravel this negotiated-for resolution based upon conjectural

fears that the wireless facility may decrease neighboring property

values would only serve to prejudice the original parties. See

Town of Carmel, 2022 WL 12064663, at *3 (declining to allow

proposed intervenors to intervene permissibly where the original

parties had negotiated a settlement two years previously as it

would be prejudicial to the original parties “by delaying the

resolution that was negotiated and agreed upon”). See also United

States v. Pitney Bowes, Inc., 25 F.3d 66, 72-73 (2d Cir. 1994)

(“jeopardizing a settlement agreement causes prejudice to the

existing parties to a lawsuit.”) Moreover, the issue of undue

delay is particularly important in this case, given that, by

statute, adjudication of Plaintiff’s claims is “to be heard and

decided ‘on an expedited basis.’” Vill. of Kings Point, 2023 WL

4044076, at *3 (citing 47 U.S.C. § 332(c)(7)(B)(v)).

CONCLUSION

For the stated reasons, Plaintiff’s objection that the

Proposed Intervenors lack an interest in the property or

transaction that is the subject of the action is SUSTAINED.

Likewise, the Court finds that allowing permissive intervention in

this case would be prejudicial to the original parties and risks

causing undue delay. Consequently, Plaintiff’s objections are

SUSTAINED, the R&R is REJECTED in part, with the Court adopting

the factual and procedural backgrounds articulated in the R&R, and

the Proposed Intervenors’ Motion to Intervene (ECF No. 40) is

DENIED.

SO ORDERED.

/s/ JOANNA SEYBERT

Joanna Seybert, U.S.D.J.

Dated: August 30, 2023

Central Islip, New York