Wash. Judge Grants B&B Owners Intervention in Walla Walla’s Dispute vs. AT&T

U.S. District Judge Stanley Bastian for Eastern Washington in Richland granted Barbara and Everett Knudson's motion to intervene on the side of Walla Walla, Washington, in the city's cell tower dispute with AT&T (see 2401170024), said his signed order Thursday (docket 4:23-cv-05162). The city backed the Knudsons' motion, but AT&T opposed it (see 2402010001).

AT&T's Dec. 1 complaint seeks declaratory and injunctive relief challenging Walla Walla's denial of the carrier's application for a conditional use permit to build, operate and maintain a 65-foot "faux tree" cell tower and accessory equipment on church property on the city's east side (see 2312040002). The Knudsons own and live on property abutting the site proposed for the new cell tower and they own and operate a bed and breakfast located less than 500 feet from the site. They sought to intervene in support of the city's cell tower denial to protect their property interests.

The judge found that the Knudsons met their burden for establishing intervention "as of right" under Rule 24(a), and alternatively that permissive intervention under Rule 24(b) is also "warranted," said his order. The Knudsons have identified interests in safety, aesthetics and effects on the quiet enjoyment of their home and their investment in their B&B business, it said.

In Washington, "abutter interest in the use of a property is well-settled," said the order. The judge found that the Knudsons satisfy "the significant protectable interest requirement" for intervention under Rule 24(a), it said.

On the adequacy of representation requirement for intervention as of right, the "presumption" applies that the Knudsons' interests are adequately represented by the city, said the order. The Knudsons "must make a compelling showing to overcome that presumption" because it shares the same ultimate objective in upholding the denial of the tower, it said. But the burden of overcoming that presumption isn’t “onerous,” it said. The intervenor need only show that representation of its interests may possibly be inadequate, not that it actually is inadequate, it said.

The city doesn’t have interests that extend beyond its own and the public's interest, said the order. As such, the Knudsons’ interests go beyond the city’s, it said. Moreover, counsel for Walla Walla has asserted that the Knudsons have taken positions not taken by the city, and that the city doesn’t intend to advance all of their arguments in this proceeding, it said.

There’s clearly “a genuine potential for divergence of interests,” said the order. While the city opposes AT&T’s claim for relief, its position “could change or soften based on broader geographic or institutional interests,” it said. The court concludes that the Knudsons' interests may not be adequately represented by the city, it said.

In the alternative, even if the Knudsons weren’t entitled to intervention as of right, the court “would exercise its discretion" to grant permissive intervention under Rule 24(b), said the order. The Knudsons’ defense of the hearing examiner’s decision denying AT&T’s tower application “shares common issues of fact and law with the propriety of the hearing examiner’s decision” under the Telecommunications Act in this action, it said.

The TCA requires that AT&T demonstrate that its proposed tower would close its wireless coverage gap by the least intrusive means, said the order. The Knudsons intend to argue that AT&T’s failure to provide documentation of comprehensive efforts to identify alternative locations as required by the city code is grounds to deny the claim and the carrier’s request that the court order the approval of the proposed tower, it said.

Intervention won’t “unduly delay or prejudice the adjudication of the rights of the original parties because this case is still in an early stage,” said the order.