T-MOBILE NORTHEAST LLC v. THE TOWN OF ABINGTON (United States District Court, District of Massachusetts, May 16, 2011).
Abington ReAct, an unincorporated group of residents of the Town of Abington who believe that they are potential abutters or neighbors of a yet-to-be-approved T-Mobile cellular telephone tower, sought to intervene as a matter of right in T-Mobile's appeal of a decision of the Town of Abington Zoning Board of Appeals (Town) denying its application to site a tower on Hancock Street in Abington, Massachusetts. Citing federal law, the court stated that a would-be intervenor under Fed. R. Civ. P. 24(a) must satisfy a four-pronged test focusing on whether it has: (i) made a timely motion; (ii) demonstrated an interest relating to the property or transaction that forms the basis of the ongoing suit; (iii) shown that resolution of the suit in its absence threatens to prejudice its interests; and (iv) negated the likelihood that none of the existing parties can be expected adequately to protect its interests. A failure to satisfy any one of the four prongs is fatal to the motion to intervene. Both T-Mobile and the Town opposed the motion.
The Court decided that is was doubtful that Abington ReAct met any of the four requisite prongs other than the first. The Court stated that Abington ReAct certainly did not meet the second. As the Town apparently pointed out, T-Mobile is not seeking to locate a tower on the property in which the members of Abington ReAct claim an interest. T-Mobile is seeking to reverse the decision of the Town to deny it a permit to build on its preferred Hanover Street site. Moreover, the Court stated that to the extent that Abington ReAct seeks to force the Town to acquiesce in the siting of the tower on Hanover Street (rather than at the location in which its members claim an interest), its desires are identical with those of T-Mobile, which is fully capable of advocating that goal. Therefore, the motion to intervene was denied.
Anthony Dorland
Dorlanda@moss-barnett.com
(612) 877-5258