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Eco-Site LLC v. County of Pueblo

United States District Court, D. Colorado

October 29, 2018

ECO-SITE LLC, a Delaware limited liability company, and T-MOBILE WEST LLC, a Delaware limited liability company, Plaintiffs,
v.
COUNTY OF PUEBLO, COLORADO, a Colorado County, acting by and through its Board of County Commissioners, Defendant,
v.
SAM C. BROWN, Intervenor Defendant.

          ORDER AFFIRMING UNITED STATES MAGISTRATE JUDGE'S ORDER GRANTING INTERVENOR DEFENDANT SAM BROWN'S MOTION TO INTERVENE AND OVERRULING PLAINTIFF T-MOBILE'S OBJECTION

          CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.

         The matter before the Court is Plaintiff T-Mobile West LLC's Objection (Doc. # 38) to an Order issued by Magistrate Judge Scott T. Varholak (Doc. # 36), wherein he permitted Sam C. Brown to intervene as an Intervenor Defendant (Doc. # 27). For the following reasons, this Court overrules Plaintiff's Objection and affirms Magistrate Judge Varholak's Order. The Order is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(A); Federal Rule of Civil Procedure 72(a).

         I. BACKGROUND

         On October 23, 2017, Plaintiffs Eco-Site, LLC and T-Mobile West, LLC (“Plaintiff T-Mobile”) brought an action under the Federal Telecommunications Act of 1996 (“TCA”)[1] against Defendant County of Pueblo, Colorado, through its Board of County Commissioners (“Defendant Board”), for allegedly unlawfully denying Plaintiffs a special use permit to construct a wireless communications facility. (Doc. # 1.)

         On May 7, 2018, Sam Brown, a private citizen of and property owner in Pueblo, filed a Motion to Intervene as a defendant in the matter. (Doc. # 27.) Mr. Brown argued that his quiet enjoyment of his land and his property value will diminish if the Court orders Defendant Board to issue Plaintiffs a special use permit because his property is adjacent to the proposed site for the wireless communications facility. (Id. at 4.) After both Plaintiffs opposed Mr. Brown's Motion to Intervene on May 25, 2018 (Doc. ## 30, 32), Mr. Brown filed a reply in support of intervention on June 4, 2018 (Doc. # 34).

         On June 11, 2018, Magistrate Judge Varholak held a hearing on Mr. Brown's Motion to Intervene. (Doc. # 35.) Magistrate Judge Varholak subsequently concluded that Mr. Brown may intervene as a defendant as a matter of right and granted his Motion to Intervene on June 21, 2018.[2] (Doc. # 36 at 8.) Magistrate Judge Varholak therefore declined to address Mr. Brown's alternative argument regarding permissive intervention. (Id. at 2.) On June 22, 2018, Mr. Brown filed his Answer to Plaintiffs' Complaint (Doc. # 37), as Magistrate Judge Varholak had ordered (Doc. # 35 at 2).

         Plaintiff T-Mobile now objects to Magistrate Judge Varholak's conclusion that Mr. Brown may intervene as a matter of right. (Doc. ## 38, 40.) Plaintiff T-Mobile further argues that Mr. Brown may not permissively intervene in the matter. (Doc. # 40 at 16- 17.) Accordingly, it urges this Court to reverse Magistrate Judge Varholak's Order and deny Mr. Brown's Motion to Intervene. (Id. at 18.)

         II. STANDARD OF REVIEW

         When a magistrate judge issues an order on a nondispositive pretrial matter, “[t]he district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law.” Fed.R.Civ.P. 72(a). Under the clearly erroneous standard, “the reviewing court [must] affirm unless it ‘on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'” Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)); Allen v. Sybase, Inc., 468 F.3d 642, 658 (10th Cir. 2006).

         III. ANALYSIS

         Magistrate Judge Varholak's Order is not clearly erroneous or contrary to law. Federal Rule of Civil Procedure 24(a)(2) provides that a non-party may intervene in a pending action as a matter of right when: (1) the motion is timely; (2) the applicant claims an interest relating to the property that is the subject of the action; (3) the applicant's interest “may as a practical matter” be impaired or impeded; and (4) existing parties do not adequately represent the applicant's interests. United States v. Albert Inv. Co., 585 F.3d 1386, 1391 (10th Cir. 2009). As to the second element, the Tenth Circuit has determined that the applicant's interest must be “direct, substantial, and legally protectable.” Utah Ass'n of Ctys., 255 F.3d 1246, 1251 (10th Cir. 2001) (quoting Coal. of Ariz./N.M. Ctys. for Stable Econ. Growth v. Dep't of Interior, 100 F.3d 837, 839 (10th Cir. 1996)). The Tenth Circuit follows a “somewhat liberal line in allowing intervention.” Id. at 1249.

         Plaintiff T-Mobile argues that Magistrate Judge Varholak's Order is contrary to law because Mr. Brown cannot satisfy the second, third, and fourth requirements for establishing intervention as a matter of right.[3] (Doc. # 40.) The Court will consider each objection in turn.

         A. DIRECT, SUBSTANTIAL, AND LEGALLY PROTECTABLE INTEREST RELATED TO THE PROPERTY IN DISPUTE

         Magistrate Judge Varholak determined that Mr. Brown has a direct, substantial, and legally protectable interest in this matter because the construction of the wireless telecommunications facility will adversely impact the aesthetic and value of his property and that Mr. Brown therefore satisfies the second element of Rule 24(a)(2). (Doc. # 36 at 5.) Plaintiff T-Mobile objects to that determination and argues that neither aesthetics nor property value are legally protectable interests when evaluated in the context of Section 332. (Doc. # 40 at 9.) Further, Plaintiff T-Mobile asserts the cited legal ...


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