County Can’t Protect Residents’ Interests in Cell Tower Fight vs. AT&T: Motion to Intervene

Five individual residents of Kootenai County, Idaho, plus the 250 residents belonging to the Potlatch Hill Neighborhood Group, can’t rely on the county to protect their interests in AT&T’s fight with the municipality over a disputed cell tower, said the residents’ motion to intervene Thursday (docket 2:23-cv-00124) in U.S. District Court for Idaho. AT&T’s March 29 complaint seeks declaratory and injunctive relief based on the county’s denial of its application for a conditional use permit to build the 150-foot lattice tower in the northwest corner of the state near the Washington border (see 2303300046).

The proposed intervenors presented testimony and evidence documenting the allegedly negative impact of the proposed cell tower on "nearby property values,” plus the “substantial obstruction of views and other legitimate aesthetic concerns,” said their motion. Because a court decision in AT&T’s favor “would effectively serve as final approval of the permits” that the carrier seeks to build the tower, the intervenors would be "substantially affected in a practical sense," and should be entitled to intervene "as of right," it said.

There's "minimal" burden on the proposed intervenors to show the county lacks adequate "representation” of their interests, said the motion. There’s a “presumption of adequacy” in 9th Circuit U.S. Court of Appeals case law “where, as here, the government -- as an existing party -- is acting on behalf of a constituency it represents,” it said.

But there are two bases on which to overcome the presumption of adequacy, and grant the residents their motion to intervene, said the motion. The “gravamen” of the county’s position is “fundamentally distinct” from that of the intervenors, it said. That presents “a likelihood” that the intervenors’ position and arguments won’t be advanced by an existing party, it said. The county denied the cell tower application by reference to various provisions of the county’s land use and development code, it said. AT&T now contends the county’s denial on that basis violated the Telecommunications Act, it said.

The county’s primary objective will be to demonstrate that its consideration and denial of the application “adhered to established standards” of the applicable code and the TCA, said the motion. The county won’t likely focus on testimony and evidence about the intervenors’ “unique and personal interests,” it said.

Without intervention, the county “would be free to settle” its dispute with AT&T “at any time,” said the motion. A settlement “could result in approval of the permit sought and imminent installation of the facility” the intervenors have already demonstrated an interest in opposing, on grounds “distinct from those asserted” by the county, it said. Such a scenario would leave the intervenors on the outside looking in, “completely at the mercy” of the county’s preferences, it said.

The intervenors have “an identifiable, protectable interest relating to the subject of the action,” said their motion. They also are “so situated that the disposition of the action may practically impair or impede their ability to protect that interest, and the interest may not be adequately represented by the existing parties to the action,” it said: “Intervention as of right is appropriate.”

The court also has broad discretion “to grant a motion for permissive intervention,” said the motion. The testimony and evidence presented by the intervenors during the application and hearing phase before the county “helped inform the very decision being challenged now” by AT&T, it said. The connection between the intervenors’ interests and the claims and defenses at issue among the existing parties “is apparent,” it said.

In light of the fact the proceedings are at “the early stage,” intervention won’t cause “undue delay or prejudice to the adjudication of the existing parties’ rights,” said the motion. “For these reasons, permissive intervention is, as an alternative to intervention as of right, appropriate.”