Cuddy & Feder partners, Christopher B. Fisher and Brendan M. Goodhouse, authored an insightful article for the New York State Bar Association and published in this month’s Municipal Lawyer magazine. Titled “Do Members of the Public Have a Right to Intervene in Telecommunications Act Cases Involving Municipal Defendants?”, they address the effect of a 2023 Second Circuit Court of Appeals decision which restricts residents opposed to wireless projects from intervening in federal TCA cases that challenge local permit denials. The authors provide a thorough analysis of both the Eastern District and Second Circuit opinions in a case they litigated for ExteNet against the Village of Kings Point and offer strategic guidance for TCA plaintiffs where residents are already aligned with a permit denial defended by the municipality.
Key Highlights:
- Local Permitting Decisions: The District Court confirmed that such decisions must be based on locally legislated right of way and permitting requirements, distinct from New York’s public necessity standard and the federal prohibition of service standard. This clarification prevents municipalities and project opponents from asserting inappropriate requirements during administrative reviews.
- Preliminary Injunctions: The District Court’s willingness to grant ExteNet’s motion for a preliminary injunction highlights the potential for early motion practice to expedite case resolutions, providing a strategic advantage in future TCA litigations.
- Adequate Representation Presumption: The Second Circuit upheld the presumption of adequate representation when interests in litigation outcomes align, setting a high bar for would-be intervenors who must now demonstrate significant inadequacies such as “collusion, adversity of interest, nonfeasance, or incompetence” on the part of the municipality.
The article is a quick read for professionals navigating TCA litigation and local land use disputes and offers valuable insights into more nuanced strategic considerations that can arise at the cross sections of federal, state and municipal law.
Read the full article here.
