In an interesting decision issued late last week in Industrial Communications and Electronics v. Town of Alton, the First Circuit Court of Appeals held that private citizens who had intervened to defend a local zoning limit on cell tower height could continue to do so, notwithstanding that the cell tower provider and the municipal defendant were prepared to settle the case. 

Industrial Communications sought to build a 120’ cell tower in Alton, New Hampshire. The Local zoning by-law would have limited the tower to 71’. The Town’s Zoning Board denied a variance. Industrial Communications did not appeal the denial. Instead, it sued in federal court, seeking to take advantage of the preemption provisions of the Telecommunications Act of 1996. Nearby residents, the Slades, intervened as defendants in the federal action.  

After initially defending the case, the Town negotiated a settlement with Industrial Communications that would allow a 100’ tower. The District Court concluded that, where the original defendant was no longer defending the case, the Slades had no rights themselves to continue to defend the denial of the variance. 

The Court of Appeals noted that the Slades could not compel the Town to continue to defend the denial of the zoning variance. “A government entity is free as a defendant to decline to defend or settle on the best terms it can get.” However, the Court noted, intervenors can usually continue to litigate, as long as they have Article III standing. The Slades alleged that a taller tower would impair their views and cause both economic and aesthetic harm. 

Thus, the court had to balance the rights of parties to settle a case with the rights of the intervenors to continue to litigate. To the Court, the determining factor was that the Slades

have a legal interest under state law in the protection that the zoning laws afford to their property; specifically, they could sue in state court to overturn the variance if it were granted unlawfully…. What is at issue here is not merely a private settlement … but, by virtue of the court’s adoption and entry of a consent decree, a legally operative judgment that overrides state law and the Slades’ rights under state law that would prevail unless overridden by the decree. Given that Article III requisites are established, the Slades are entitled to resist the entry of a decree that terminates their protectable rights unless a violation of the Act is proven.

While Industrial Communications alleged that the denial of the variance violated the Telecommunications Act, the District Court never made a finding to that effect – once it approved the settlement, the court thought that no such findings were necessary. The Court of Appeals therefore remanded the case, giving the plaintiff an opportunity to prove a violation and the Slades an opportunity to deny it.

Although the provisions of the Telecommunications Act may be unusual, cases of federal preemption of state and local environmental laws are not. Industrial Communications makes clear that, even where a state or municipality does not want to defend the local law or regulation, individual citizens who can establish standing may have a right to do so themselves.