Town of North Hempstead v. Village of North Hills

80 F.R.D. 714, 12 ERC 1923, 27 Fed. R. Serv. 2d 147, 12 ERC (BNA) 1923, 1978 U.S. Dist. LEXIS 7149
CourtDistrict Court, E.D. New York
DecidedDecember 19, 1978
DocketNo. 78 C 520
StatusPublished
Cited by3 cases

This text of 80 F.R.D. 714 (Town of North Hempstead v. Village of North Hills) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Town of North Hempstead v. Village of North Hills, 80 F.R.D. 714, 12 ERC 1923, 27 Fed. R. Serv. 2d 147, 12 ERC (BNA) 1923, 1978 U.S. Dist. LEXIS 7149 (E.D.N.Y. 1978).

Opinion

[715]*715MEMORANDUM AND ORDER

NEAHER, District Judge.

This is an action brought by plaintiffs, the' Town of North Hempstead, New York, two homeowners associations, and several residents of the Village of North Hills, to enforce various obligations they claim are imposed on the defendants by virtue of federal environmental laws. Their claim arises from the downzoning by the Village defendants of various parcels of land located in the Village of North Hills. This action comes before the court on.the application of Frank Martucci1 and Roslyn Pines, Inc. for an order permitting tneir intervention in this action as parties defendant pursuant to Rule 24(a), F.R.Civ.P. Martucci is the president and sole shareholder of Roslyn Pines, which owns a 29.1-acre tract of land in the Village, presently operated as the Renaissance Country Club, but which has been rezoned, pursuant to a resolution of the Village Board of Trustees, to permit the construction of six dwelling units per acre.2 The application is opposed by plaintiffs only.

Rule 24(a)(2) provides as follows:

“Upon timely application anyone shall be permitted to intervene in an action: . (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.”

Thus, Martucci and Roslyn Pines must make sufficient showing of each of three requirements: (i) an interest in the transaction or property; (ii) an impediment in protecting their interest because of the action; and (iii) inadequate representation of their interest by the named defendants. Nuesse v. Camp, 128 U.S.App.D.C. 172, 385 F.2d 694 (1967); British Airways Bd. v. Port Authority of N. Y. &. N. J., 71 F.R.D. 583, 584 (S.D.N.Y.), aff’d, 556 F.2d 554 (2 Cir. 1976) (mem.). Cf. New York Public Interest Research Group, Inc. v. Regents of University of State of New York, 516 F.2d 350 (2 Cir. 1975). . For the reasons which follow, the court is of opinion that the proposed intervenors have made such a showing and that they are, therefore, entitled to intervene in this action as of right.

First, the interests of the proposed intervenors in property and transactions which form the subject matter of the action, as well as the potential effect of a determination on those interests, are plain. The gravamen of plaintiffs’ claim is the purported inconsistency with federal environmental policy and law of certain land use and zoning decisions made by the Village defendants. Among the specific decisions complained of is the downzoning of the Roslyn Pines parcel, listed in a schedule appended to the complaint as Exhibit A, from “R-2” to “R-M”. Moreover, in their ad damnum clause plaintiffs request judgment, inter alia,

“(b) enjoining the defendants and each of them, from any actions in their official capacities in furtherance of any of the projects set forth in Exhibit A. . . .;
“(c) enjoining defendants Nassau County Sewer District No. 2 and Manhasset-Lakeville Water District from permitting any of the projects listed in Exhibit A to use the facilities and [716]*716services of said defendants until and unless each of said defendants has the capacity to permit such uses without resulting in any violations of the federal statute hereinbefore cited; . . .

Plaintiffs do not seriously dispute that proposed intervenors come within the first two components of the Rule 24(a) test. Their sole challenge is to the technical sufficiency of the moving papers,3 originally supported solely by an attorney’s affidavit made on information and belief but since supplemented by an affidavit of Martucci (July 14, 1978), setting forth his status as sole shareholder and president of Roslyn Pines.

Plaintiffs’ objections on this score are without merit. Rule 24(c), which governs intervention procedure, requires only that the motion be served upon the parties in accordance with Rule 5, and that it “shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought.” Where, as here, the proposed intervenors’ interests as well as the potential effect of the litigation on those interests fairly appear from pleadings properly before the court, any additional showing would be superfluous. Cf. Clark v. Sandusky, 205 F.2d 915, 918 (7 Cir. 1953). Indeed, paragraph 7 of the proposed answer admits plaintiffs’ allegation that Roslyn Pines is the owner of the Renaissance Country Club parcel described in paragraph 5 of Exhibit A to the complaint, Martucci has attested to his interest in Roslyn Pines, and the complaint recites that the contested downzoning and other actions of the Village defendants

“have greatly increased the values of properties in the Village held and owned by members of the Village Board and other Village agencies of government, with the affected owner and trustee or other officer in each case abstaining from voting on his own application but approving the applications of co-trustees or other officers. The said Village governmental actions included, inter alia, those downzoning and variance grants set forth in Exhibit ‘A.’ ” Complaint (3/20/78), ¶ 21.4

Although the proposed intervenors have offered additional bases for intervention — notably, the adverse effect of the pendency of the action upon Roslyn Pines’ ability to obtain necessary development financing— we think the foregoing facts sufficient to satisfy the first two prongs of the Rule 24(a) test. See New York Public Interest Research Group, Inc. v. Regents of the State of New York, supra, 516 F.2d at 352.

Hence, the only substantial issue raised by plaintiffs concerns the third component of the Rule 24(a) test, the adequacy of representation of the proposed intervenors’ interests by the existing parties to the action.

As the Second Circuit has lately written, “[a]n applicant for intervention as of right has the burden of showing that representation may be inadequate, although the burden ‘should be treated as minimal.’ ” United States Postal Service v. Brennan, 579 F.2d 188 at 191 (2 Cir., 1978) (quoting from Trbovich v. United Mine Workers, 404 U.S. 528, 538 n. 10, 92 S.Ct. 630, 30 L.Ed.2d 686 (1974)) (emphasis added). Plaintiffs urge that Martucci and Roslyn Pines cannot sustain this burden because the “Village is [717]*717committed to the defense of this action and the defense of its actions, which were directly related to the property owned by proposed intervenor-defendants.” Plaintiffs’ Mem. (7/10/78), at 7.5 They place principal reliance on the district court’s decision in

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Vale Properties, Ltd. v. Canterbury Tales, Inc.
431 A.2d 11 (District of Columbia Court of Appeals, 1981)
United States v. Columbia Pictures Industries, Inc.
88 F.R.D. 186 (S.D. New York, 1980)

Cite This Page — Counsel Stack

Bluebook (online)
80 F.R.D. 714, 12 ERC 1923, 27 Fed. R. Serv. 2d 147, 12 ERC (BNA) 1923, 1978 U.S. Dist. LEXIS 7149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/town-of-north-hempstead-v-village-of-north-hills-nyed-1978.