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Court Order in Falmouth Appeal: DENIED

The Massachusetts Appeals Court upheld a lower court's decision to deny intervention involving action between the town of Falmouth and the Falmouth zoning board of appeals in which judgment had already entered. The judgment declared that two wind turbines operated by the town were a nuisance and ordered that their operation cease and desist. The proposed interveners claimed that they were entitled to intervention as of right because they had compelling interests that were no longer being adequately represented by the town. The lower court ruled, and the appellate court affirmed that the motion be denied since the interveners could not likely establish standing, and that the motion was untimely. A portion of the 10-page order is provided below. The full order can be accessed by clicking the links on this page.

Decision

Dr. George Woodwell and The Green Center, Inc. (proposed interveners) appeal from the denial of their motion to intervene in an action between the town of Falmouth (town) and the Falmouth zoning board of appeals (board) in which judgment had already entered. The judgment declared that two wind turbines operated by the town were a nuisance and ordered that their operation cease and desist. The town did not appeal from that judgment. The proposed interveners sought to defend the interests of the town by intervening for the purpose of filing a motion for relief from judgment to modify the remedy pursuant to Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974). The judge denied the motion concluding that the interveners could not likely establish standing, and that the motion was untimely. We affirm.

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We see no reason to disturb the judge's ruling. He was aware of the history of this litigation, including negotiations between the town and the proposed interveners beginning in 2013. The judge was required to consider whether intervention would delay or prejudice the adjudication of the rights of the original parties. Here, he properly considered that intervention would delay and complicate the final resolution that was achieved between the original parties, and would therefore prejudice those parties. Indeed, the original parties considered the matter to be concluded. Moreover, reopening the case would cause the original parties to incur additional legal expenses. See Peabody Fed'n of Teachers, Local 1289, AFT, AFL-CIO v. School Comm. of Peabody, 28 Mass. App. Ct. 410, 414 (1990) (no abuse of discretion where "reopening the judgment would have been delay in the payment of back pay . . . [and] [a]dditional legal expenses would be incurred which would likely deplete the settlement pot"). For these reasons, the judge did not abuse his discretion in denying the motion.

Lastly, the proposed intervener's motion did not comply with Mass. R. Civ. P. 24 (c), which states that "[a] person desiring to intervene shall serve a motion to intervene upon the parties . . . . The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought." The proposed interveners did not file a "pleading," but argue that their rule 60 (b) motion suffices for the purposes of rule 24 (c).

The rule 60 (b) motion did not constitute a pleading under Mass. R. Civ. P. 7, as amended, 385 Mass. 747 (1974), and therefore did not cure this procedural defect. For this reason alone, the motion to intervene was properly denied. See Board of Selectmen of Stockbridge v. Monument Inn, Inc., 8 Mass. App. Ct. 158, 162 (1979) (no error denying intervention when proposed interveners failed to submit pleading).

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Falmouth Green Center Appeal Decision Denied

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Source: https://www.mass.gov/files/...

NOV 6 2018
http://www.windaction.org/posts/49053-court-order-in-falmouth-appeal-denied
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