UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Industrial Communications

and Electronics, Inc. et al.

v. Civil No. 07-cv-82-JL

Town of Alton,

David Slade, and Marilyn Slade

Industrial Tower

and Wireless, LLC

v. Civil No. 08-cv-122-JL

Opinion No. 2010 DNH 081

Town of Epping and

Jane Burley

MEMORANDUM ORDER

These cases raise the question of whether an intervenor who

presents no independent federal claims can persist in litigating

an action that the principal parties seek to resolve upon a

negotiated settlement. As explained below, the answer is no.

I. Background

Each of the cases was commenced by a provider of personal

wireless services to challenge a decision by a local land use

authority denying permission to construct a cellphone tower. The

providers claimed that the decisions violated the

Telecommunications Act of 1996 (the “TCA”), specifically 47

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U.S.C. §§ 332(a)(7)(B)(i)(II) and 332(a)(7)(B)(iii), and, in one

case, asked for judicial review of the decision as authorized by

N.H. Rev. Stat. Ann. § 677:15. Each provider sought, among other

relief, a declaration that the decision was therefore invalid and

an injunction requiring the defendant town to allow construction

of the proposed tower. 

In each case, a local landowner whose property abuts the

proposed tower site subsequently moved to intervene, both as of

right and permissively, under Rule 24 of the Federal Rules of

Civil Procedure. These abutters--David and Marilyn Slade in the

case against the Town of Alton and Jane Burley in the case

against the Town of Epping--argued that the proposed tower would

adversely impact their property interests, particularly by

obstructing their views. The Slades’ motion was granted without

any objection from the provider or explanation by the court. See

Order of Aug. 2, 2007 (Barbadoro, J.). In granting Burley’s

motion over the provider’s objection, the court noted in a margin

order that “[t]he motion satisfies the criteria for intervention

as of right under Rule 24(a)(2). See Nextel Commc’ns of the MidAtl. Inc. v. Town of Hanson, 311 F. Supp. 2d 142, 150-52 & 160

(D. Mass. 2004).” Order of Sept. 30, 2008 (Laplante, J.).

Following substantial motion practice in each case, the

provider and the town notified the court that they had settled. 

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Alton and the provider in its case filed an “Agreement for Entry

of Consent Decree,” while Epping and the provider in its case

filed a “Joint Motion to Approve and Implement Settlement

Agreement.” Each of these filings called upon the court to issue

an order granting the provider permission to build a cellphone

tower at the proposed location subject to a number of conditions

and, implicitly or explicitly, to enter judgment ending the case.

Each of the filings also noted that the intervenor purported

to “object” to the settlement. The court therefore ordered the

intervenors “to file a memorandum regarding their continued

standing in this matter following such a settlement under

applicable law.” Each intervenor did so, and responses from the

provider and the town followed (as well as an additional round of

briefing in the Alton case).

II. Analysis

A. The abutters never presented any claims for adjudication

“It has never been supposed that one party--whether an

original party, a party that was joined later, or an intervenor--

could preclude other parties from settling their own disputes and

thereby withdrawing from the litigation.” Local No. 93, Int’l

Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 528-29

(1986). In light of this inarguable reality, the intervenors’

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position that they “object” to the settlement is difficult to

understand. They can no more “object” to the town’s settlement

of claims brought against it than any third party--including,

even, a co-defendant to a claim asserting joint and several

liability--could “object” to another defendant’s settlement of

the plaintiff’s claim against it.

“Of course, parties who choose to resolve litigation through

settlement may not dispose of the claims of a third party,” so

that “approval of a consent decree between some of the parties

therefore cannot dispose of the claims of nonconsenting

intervenors; if properly raised, these claims remain and may be

litigated by the intervenor.” Id. at 529. The problem here, as

the towns appropriately point out, is that the intervenors have

not “properly raised” any claims of their own. When their

motions to intervene were granted, in fact, Burley filed an

answer without making any counterclaims or cross-claims, and the

Slades did not file any pleading whatsoever. Like the intervenor

in Local 93, the intervenors here “did not allege any causes of

action or assert any claims against” any of the original parties

to the lawsuit. Id. at 507. Just as in Local No. 93, then, this

court can enter judgment based on the consent of all parties to

the only claims that have in fact been asserted, despite the

intervenors’ purported “objections.” See id. at 529.

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Burley does not argue to the contrary. Indeed, she concedes

“that if the Town and [the provider] have, in fact, reached a

valid and enforceable settlement of this dispute, then there is

no need for her claims to continue in this forum,” without

identifying what those claims are or whether they were ever

presented here. Again, she never raised any counterclaims.

The Slades, in contrast, argue that despite the settlement

they “retain the right to press their claims that the proposed

telecommunications tower violates local zoning ordinances and

that the ZBA’s decision does not contravene the Federal

Telecommunications Act.” Again, though, the Slades never made

any such claims: they never filed any pleading, and even their

motion to intervene and supporting memorandum do not assert that

Alton’s decision to disallow the tower was consistent with the

TCA. Indeed, until their recently filed briefing on whether

judgment could enter without their consent, the Slades have

submitted nothing whatsoever on the merits of the provider’s TCA

claims, leaving the litigation of that issue to the principal

parties, who filed voluminous summary judgment papers.

 Yet the Slades intervened in this case more than two years

ago, and the deadline for amendment of pleadings has long since

passed, with the trial date approaching. This unexplained delay

is reason enough to conclude that the Slades cannot now start

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pursuing a claim that Alton’s decision to disallow the proposed

tower complied with the TCA. See Quaker State Oil Refining 1

Corp. v. Garrity Oil Co., 884 F.2d 1510, 1518 (1st Cir. 1989).

That assumes, of course, that the Slades could have brought 1

such a “claim” in the first place, essentially putting

themselves, as private citizens, in the position of defending a

decision rendered by a public authority. This court has serious

doubts about a private citizen’s ability to do so, particularly

after (as has happened here) the public authority decides that it

no longer wants to defend the decision. See S. Cal. Edison Co.

v. Lynch, 307 F.3d 794, 807 (9th Cir. 2002) (ruling that a

consumers’ group, which had intervened to defend state utilities

commissioners against a challenge to their ratesetting practices

brought by a utility had no “valid claims” to assert once the

commissioners settled the utility’s claims). That would seem to

allow private citizens--whose interests in upholding the

authority’s decision are necessarily their own, rather than those

of the public at large--to arrogate the authority’s

decisionmaking power to themselves simply by intervening in

litigation challenging such decisions, and then refusing to go

along with the authority’s subsequent choice to stop defending

the decision and settle the case.

The cases cited by the Slades do not address this problem,

because they allowed an intervenor to maintain a challenge to

administrative action brought, but later abandoned, by another

private citizen. They did not allow a private citizen to

maintain the defense of an administrative action abandoned by the

administrator itself. See U.S. Steel Corp. v. EPA, 614 F.2d 843,

844-45 (3d Cir. 1979); Bates v. D.C. Bd. of Zoning Adjustment,

639 A.2d 607, 609-11 (D.C. 1994); cf. City of New Haven v. Chem.

Waste Mgmt. of Ind., L.L.C., 685 N.E.2d 97, 98-102 (Ind. Ct. App.

1997) (allowing a city to continue pursuing claims settled by its

zoning officers). In those cases, then, the question was not

whether the authority would have to continue defending its

decision in court, but simply against whom. The Slades have

presented no authority for the troubling proposition that an

intervenor can take over a public entity’s authority to defend

one of its decisions in the way they seek to do here.

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The Slades’ purported claim that the proposed tower violates

local zoning law, however, stands on slightly different footing.

That claim was not ripe until Alton agreed to allow the provider

to put up a cell tower as a settlement of the case and therefore

could not have been asserted earlier. Yet it does not follow

that the Slades can now bring that claim in this court.

As the Supreme Court recognized in Local No. 93, “‘an

intervenor can continue to litigate after dismissal of the party

who originated the action.”’ Benavidez v. Eu, 34 F.3d 825, 830

(9th Cir. 1994) (quoting U.S. Steel Corp., 614 F.2d at 845). 

Nevertheless, once the claim that originally gave rise to federal

subject-matter jurisdiction is dismissed, the court cannot

adjudicate the intervenor’s claim unless it provides “‘a separate

and independent basis for jurisdiction.’” Id. (quoting Fuller v.

Volk, 351 F.2d 323, 328-29 (3d Cir. 1965), and citing cases from

other federal courts of appeals)). Indeed, the Slades themselves

expressly acknowledge that “[t]he key requirement for [them] to

continue this case is an independent jurisdictional basis for

their claim.” Yet they do not identify any.

A complaint that local officials violated state and local

law generally does not itself present any federal question, see,

e.g., Coyne v. City of Somerville, 972 F.2d 440, 444 (1st Cir.

1992), and the Slades have not attempted to explain how theirs

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nevertheless would. The Slades’ claim that the tower would

violate local zoning law, then, does not allow them to continue

litigating here even though the provider wants to settle its

claims against Alton under the TCA, which were the basis for this

court’s subject-matter jurisdiction in the first place. 

The Slades also argue that “[i]f this Court enters the

consent decree . . . it will create an independent claim” by them

under the TCA and hence federal law. There are at least two

fatal problems with this argument. First, the Slades did not

raise it until their reply memorandum, so it is waived. See,

e.g., Doe v. Friendfinder Network, Inc., 540 F. Supp. 2d 303 n.16

(D.N.H. 2008). Second, the TCA provision they cite does not

authorize a claim where permission to construct a wireless

facility is granted rather than denied. The provision, 47 U.S.C.

§ 332(c)(7)(B)(v), creates a private right of action in “[a]ny

person adversely affected by any final action or failure to act

by a State or local government or instrumentality thereof that is

inconsistent with this subparagraph” (emphasis added). The

Slades ignore this crucial limiting language.

The “subparagraph” in question prohibits states and

localities from (i) regulating the placement of personal wireless

service facilities so as to unreasonably discriminate among

providers of functionally equivalent services, or to prohibit or

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have the effect of prohibiting the provision of those services,

(ii) failing to act on a request to place wireless facilities

within a reasonable time, (iii) denying such a request unless the

denial is in writing and supported by substantial evidence in a

written record, and (iv) regulating the placement of personal

wireless services facilities based on the environmental effect of

radio frequency emissions that comply with FCC regulations. See

47 U.S.C. §§ 332(c)(7)(B)(i)-(iv). Aside from, potentially, the

ban on discrimination among providers, which is not at issue

here, the subparagraph imposes no restrictions on a state or

locality’s decision to allow the placement of personal wireless

service facilities. Such a decision, then, cannot be

“inconsistent with this subparagraph” so as to give rise to a

private cause of action under 47 U.S.C. § 332(c)(7)(B)(v), as a

number of courts have held. See Jaeger v. Cellco P’ship, No. 09-

567, 2010 WL 965730, at *8 (D. Conn. Mar. 16, 2010); Drago v.

Garment, ___ F. Supp. 2d ___, No. 08-6356, 2010 WL 769692, at *3-

*4 (S.D.N.Y. Mar. 2, 2010); Mason v. O’Brien, No. 01-1556, 2002

WL 31972190, at *3-*4 (N.D.N.Y. Sept. 30, 2002). The Slades

provide no authority to the contrary. Because they have not

properly presented any claim within this court’s subject-matter

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jurisdiction, the Slades cannot continue litigating here now that

the claim which created that jurisdiction has been settled.2

The Slades urge the court to “consider the practical impact 2

of its possible ruling and how that ruling will be viewed by the

users of the federal court system,” arguing that “expediency in

the conclusion of this matter cannot be a justification for

setting aside the merits of all the claims and defenses put

forward by the various parties.” First, this completely ignores

the fact that, as just discussed, the Slades never tried to put

forward any claim or defense until the original parties had

announced their settlement. Indeed, when the court originally

ordered them in September 2009 to explain their “continued

standing in this matter following such a settlement,” based on

the original parties’ indication that one was imminent, the

Slades asked for--and were granted--relief from having to make

such a showing until a settlement had actually been reached. In

light of this, and the fact that, as also just discussed, the

Slades have not filed anything of substance in this case until

now, their complaint that entering judgment over their

“objection” would “threaten future intervenors with incurring

large expenses of both time and funding only to find themselves

disenfranchised” is completely without merit.

Second, this court is not entering judgment out of a desire

for “expediency in the conclusion of this matter,” but because,

as just explained, the original parties have resolved the only

properly presented claim that gave this court jurisdiction over

this dispute. This court cannot exercise jurisdiction it does

not have, regardless of how it might “be viewed” (to use the

Slades’ words) by litigants unfamiliar with the limited nature of

federal jurisdiction. The Slades seem to be missing the point: 

this court is not saying that they have no remedy for the injury

they claim the proposed tower will cause them, only that this

court would have no jurisdiction to provide it (assuming they are

entitled to one, an issue on which this court expresses no

opinion whatsoever). That is not “disenfranchisement” or

anything of the sort. 

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B. The Towns’ power to settle these cases

Both the Slades and Burley argue at length that the Towns’

agreement to issue the required permits for the towers as a

settlement of these lawsuits is in violation of state law

requiring land use permits to issue only as the result of public

meetings and the like. This court, however, expresses no views

on the merits of those arguments, and need not resolve them in

order to enter the judgments that the providers and the towns

have requested. “[I]n the usual litigation context courts have

inherent power summarily to enforce a settlement agreement with

respect to an action pending before it; the actual merits of the

controversy become inconsequential.” Dacanay v. Mendoza, 573

F.2d 1075, 1078 (9th Cir. 1978); see also 18A Charles Alan Wright

et al., Federal Practice & Procedure § 4443, at 257 (2d ed.

1997).

Thus, this court need no more inquire into any aspect of the

settlements here--including the Towns’ legal authority to agree

to them--than this court need inquire into any party’s legal

authority to enter into a settlement of any case. To take one

example, this court regularly allows corporations to settle

actions brought by and against them without inquiring into

whether the corporation had the authority to do so without the

consent of its board of directors, or some committee thereof,

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and, if so, whether that consent was properly given and so forth. 

Neither Burley nor the Slades has provided any caselaw to support

their view that this court must prevent the towns from settling

these cases unless they can show that they did so in full

compliance with the procedural demands of state land-use law. 

Furthermore, as the towns and providers point out, the court

of appeals has expressly upheld--in circumstances similar, if not

identical, to those here--a district court’s approval of a

settlement agreement in a case under the TCA that called for the

issuance of “injunctive relief in the form of an order requiring

that the wrongfully withheld permit issue,” despite objections

that this course violated “the procedural strictures of

Massachusetts zoning law.” Brehmer v. Planning Bd. of Town of

Wellfleet, 238 F.3d 117, 118-21 (1st Cir. 2001). The Slades

argue that Brehmer nevertheless provides no authority for this

court to issue such an order over their objections because the

town “has not admitted a violation of the TCA.” But neither did

the town in Brehmer: it “essentially admitted as much when it

entered into a negotiated settlement with [the provider] and

agreed to issue, without further process, a permit it had already

denied.” Id. at 120 (emphasis added). That is what Alton has

done here. Thus, just as in Brehmer, “a remand to the [local

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land use] Board would serve no useful purpose,” whatever

procedural requirements state law might impose. Id. at 121.

III. Conclusion

For the foregoing reasons, the clerk shall enter judgment in

the Alton case, No. 07-cv-082-JL, in the form of the proposed

“Judgment and Order” submitted by the Town and the provider,3

except that the following language shall be added to the end of

subparagraph 6(d): “Nothing in this order shall prevent this

court from staying or otherwise granting relief from it according

to applicable law.” In the Epping case, No. 08-cv-122-JL, the

“Joint Motion to Approve and Implement Settlement Agreement” is 4

granted and the clerk shall enter judgment accordingly.

SO ORDERED.

____________________________

Joseph N. Laplante

United States District Judge

Dated: May 7, 2010

Document no. 66-1. 3

Document no. 37. 4

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cc: Steven E. Grill, Esq.

Anthony S. Augeri, Esq.

Katherine Blackall Miller, Esq.

Robert D. Ciandella, Esq.

Robert M. Derosier, Esq.

Paul T. Fitzgerald, Esq.

Lawrence M. Edelman, Esq.

Robert M. Derosier, Esq.

John T. Ratigan, Esq.

Jeffrey C. Spear, Esq.

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