United States District Court, D. Colorado
ECO-SITE LLC, a Delaware limited liability company, and T-MOBILE WEST LLC, a Delaware limited liability company, Plaintiffs,
COUNTY OF PUEBLO, COLORADO, a Colorado County, acting by and through its Board of County Commissioners, Defendant,
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
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.
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).
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”) 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.)
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).
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. (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).
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.)
STANDARD OF REVIEW
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).
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.
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. (Doc. # 40.) The Court will consider each
objection in turn.
DIRECT, SUBSTANTIAL, AND LEGALLY PROTECTABLE INTEREST RELATED
TO THE PROPERTY IN DISPUTE
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