AT&T Opposes N.Y. Village Resident’s Plan to Intervene in Tower Dispute, Judge Told

AT&T intends to oppose as “futile” any motion by Oyster Bay Cove, New York, resident David Savetz to intervene to defend the village’s denial of the carrier's tower application (see 2405240010), AT&T’s counsel wrote U.S. District Judge Joan Azrack for Eastern New York in Central Islip Thursday (docket 2:22-cv-07807). Savetz contends that his home would be “adversely affected” by AT&T construction of the 85-foot tower on the property “immediately adjacent” to his. But he has no “property interest” in the tower site, “or any right to control its development,” Andrew Joseph of Faegre Drinker, told the judge. New York federal courts have long held that objecting neighbors lack a “sufficient interest to intervene” in a Telecommunications Act challenge to a tower application denial, said Joseph. Savetz’s concern that the proposed tower might devalue his property doesn’t give him an interest relating to the property or transaction that is the subject of the action, the lawyer said. “The case law is clear that intervention as of right is limited to persons who have a property interest in the site on which a proposed facility would be located, or in other property whose legal status would be changed by the challenged decision,” he said. AT&T believes that the existing defendants “adequately protect” Savetz’s “limited interests,” Joseph told the judge. “This is a second independent ground to deny intervention,” he said. Savetz isn’t invoking his own rights but merely seeks to defend the village’s denial of the carrier’s application, he said. In light of this “confessed identity of interests,” Savetz can’t satisfy Rule 24’s requirement “that an existing party not adequately represent his interest,” the lawyer said. Savetz’s concern that Oyster Bay Cove might settle “is not only baseless,” but also irrelevant, said Joseph. “Absent collusion or the like,” a municipality has the power to settle if it determines that settlement would best serve the public interest, he said. Savetz “incredibly” argues that he should be allowed to intervene so he can exercise the village’s litigation authority “for his own ends,” because the village itself wouldn’t be permitted to place the interests of one homeowner over the residents of the entire village, he said. “This is exactly why individual residents are not permitted to intervene in this context,” he said. While Savetz also seeks permissive intervention under Rule 24(b), the cases are clear that permissive intervention is inappropriate, given that the village “adequately represents his legitimate interests,” Joseph said. Savetz also never offers how his participation will contribute to the full development of the underlying factual issues in the dispute, he said. Savetz’s delay in not seeking to intervene in AT&T’s December 2022 complaint against the village until May 2024 is “also unexplained,” he said. It’s also impossible to “reconcile” Savetz’s desire to develop the facts “with his claim that intervention would not cause delay or prejudice to parties that have already completed discovery and commenced summary judgment briefing,” said Joseph. As several courts have noted, avoiding undue delay is particularly important in TCA cases, “which are required to be resolved on an expedited basis,” he said. AT&T asks that Savetz not be permitted to file a motion to intervene, “as it would be futile and itself a source of delay,” he said.