NEEDHAM ENTERPRISES, LLC v. NEEDHAM PLANNING BOARD & Others.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-838

NEEDHAM ENTERPRISES, LLC

vs.

NEEDHAM PLANNING BOARD & others.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A group of abutters to a property in Needham appeal from

the denial of their motion to intervene in an action between

Needham Enterprises, LLC (developer) and the Needham planning

board (board). The abutters maintain that they met all

requirements to intervene as of right, including that the board

did not adequately represent the abutters' interests. We

affirm.

1Paul Alpert, Adam Block, Martin Jacobs, Jeanne McKnight,
and Natasha Espada, in their capacity as members of the Needham
planning board, and Gregg Darish, Matthew Heideman, Nicole
Heideman, Peter Lyons, Ann Lyons, Robert Dimase, Eileen
Sullivan, Carl Jonasson, and Holly Clarke, abutters and proposed
intervenors.
Background. The developer applied for a special permit to

build a 10,034 square foot childcare facility, pursuant to a

provision of the Needham zoning bylaw mandating a site plan

review and special permit from board for "major projects,"

defined to include "[a]ny construction project which involves:

the construction of 10,000 or more square feet gross floor

area." In March 2022, the board approved the project and issued

the requested special permit with conditions. The developer

appealed the board's decision to the Land Court, seeking to void

the decision in its entirety or to void some or all of the

conditions imposed. Before the Land Court, the developer

primarily argued that its childcare facility project was not

subject to the town's special permit process because the project

was protected by the Dover Amendment, G. L. c. 40A, § 3, which

prohibits local zoning bylaws from requiring special permits for

childcare facilities.

Several abutters to the developer's property moved to

intervene in the Land Court case pursuant to Mass. R. Civ. P.

24 (a) (2), 365 Mass. 769 (1974), seeking to protect their

claimed interest in preserving the board's decision. The judge

denied the abutters' motion, concluding that their interests

were adequately represented by the board in the Land Court, but

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noting that the abutters could renew their motion if

"circumstances change[d]."

In 2023, shortly before the case was set to go to trial,

the abutters renewed their motion to intervene, claiming that

circumstances had changed such that the board would not

adequately represent the abutters' interests. According to the

abutters, the board was no longer defending certain conditions

in its decision.

The judge denied the renewed motion after a hearing at

which the board confirmed that its interests were not

necessarily aligned with those of the abutters. The judge ruled

that the abutters were not "aggrieved" within the meaning of

G. L. c. 40A, § 17 because the abutters were not aggrieved by

the board's decision and therefore had no cognizable "interest"

under Mass. R. Civ. P. 24 (a) (2). She further concluded that

regardless of the result at trial, the abutters would have

another chance for their concerns to be heard, either before the

board on remand or by challenging a future building permit

issued by the board. Further, the judge reasoned that the

board's decision to not defend certain conditions was likely an

acknowledgement that those conditions would not survive a Dover

Amendment analysis and did not affect its ability to defend the

validity of its decision.

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Discussion. A proposed intervenor as of right must satisfy

four requirements:

"(1) the application must be timely; (2) the applicant must
claim an interest relating to the property or transaction
which is the subject of the litigation in which the
applicant wishes to intervene; (3) the applicant must show
that, unless able to intervene, the disposition of the
action may, as a practical matter, impair or impede his
ability to protect the interest he has; and (4) the
applicant must demonstrate that his interest in the
litigation is not adequately represented by existing
parties."

Bolden v. O'Connor Cafe of Worcester, Inc., 50 Mass. App. Ct.

56, 61 (2000). "Whether the prospective intervener has met the

requirements for intervention is a question of law, and

therefore we review the ruling de novo" (quotation and citation

omitted). Beacon Residential Mgt., LP v. R.P., 477 Mass. 749,

753 (2017).

"We focus our inquiry on the [fourth] of these factors,

inadequacy of representation, because our conclusion on that

issue eliminates the necessity of addressing the other [three]."

Massachusetts Fed'n of Teachers v. School Comm. of Chelsea, 409

Mass. 203, 205 (1991). The abutters claim that their interest

is not adequately represented by the board because the board

"solely represented municipal interests" and had represented to

the Land Court that its "interest in defending a decision under

the Dover Amendment and the reach of [its] defenses do not match

up with the interest that the abutters are seeking to protect."

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Mass. R. Civ. P. 24 (a) (2). Assuming without deciding that the

abutters have an interest in the litigation, we are not

convinced.

"The burden of showing the inadequacy of the representation

is on the applicant." Attorney Gen. v. Brockton Agric. Soc'y,

390 Mass. 431, 434 (1983). "When the applicant for intervention

and an existing party have the same interests or ultimate

objectives in the litigation, the application should be denied

unless a showing of inadequate representation is made."

Massachusetts Fed'n of Teachers, 409 Mass. at 206, quoting 3B

Moore's Federal Practice § 24.07[4] (2d ed. 1987). Where, as is

the case here, "one party is charged by law with representing

its own interest and the interests are the same as or similar to

the potential intervener's, a compelling showing of inadequate

representation must be made. Adequate representation is

presumed." Massachusetts Fed'n of Teachers, supra, at 206-207

citing Morgan v. McDonough, 726 F.2d 11, 14 (1st Cir. 1984). A

potential intervenor "may overcome this presumption and

demonstrate inadequate representation if the applicant proves

that the [other party]'s interest is adverse to [theirs], or

that the [other party] has colluded with the opposing party or

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has failed to fulfil its duty of representation."2 Massachusetts

Fed'n of Teachers, supra, at 207.

While the abutters emphasize the board's admission that

their interests were not the same, this reading ignores that

they and the board share the same ultimate goal, preserving the

board's decision, and there is thus "no actual disagreement" as

relates to goals. Massachusetts Fed'n of Teachers, 409 Mass. at

207 (affirming denial of intervention as of right to parents of

school children because interests of parents would be adequately

represented by school committee). Despite its decision to not

defend all the conditions of its special permit in the Land

Court, the board gave no indication that it would not vigorously

defend its decision. See id. at 208, citing Natural Resources

Defense Council v. New York State Dep't of Envtl. Conservation,

834 F.2d 60 (2d Cir. 1987). Unanimity of interest is not the

same as unanimity of arguments. See Massachusetts Fed'n of

Teachers, supra, at 207. Accordingly, the abutters have not met

their burden for showing inadequacy in the board's

representation, see Brockton Agric. Soc'y, 390 Mass. at 434, and

2 While these are not the only means of demonstrating
inadequate representation, Massachusetts Fed'n of Teachers, 409
Mass. at 207 n.4, citing Brockton Agric. Soc'y, 390 Mass. at
435, we discern no such showing by any means here.

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the abutters do not meet the requirements for intervention as of

right.3 See Bolden, 50 Mass. App. Ct. at 61.

Order denying motion to
intervene affirmed.

By the Court (Rubin, Grant &
Hershfang, JJ.4),

Clerk

Entered: September 20, 2024.

3 In any event, even if the interests of the abutters and
the board are adverse, the abutters' claim would fail, as the
developer maintains, on prong three. As the Land Court judge
predicted in her order, the abutters have another opportunity to
represent their interests and have their concerns heard in their
ongoing challenge to the board’s subsequent building permit
decision in the Land Court. Having argued before us that
neither the abutters' failure to appeal in this case, nor any
other action the abutters have taken or failed to take, will
prevent them from raising all their issues de novo in that
proceeding, the appellees are, as counsel agreed at argument,
judicially estopped from raising any claim to the contrary in
that litigation. To the extent their answer in the Land Court
action does so, as indicated by the letters of the parties
submitted under Mass. R. A. P. 22 (c) (2), as appearing in 481
Mass. 1651 (2019), we trust they will amend it forthwith. If
not, the abutters may move to strike the relevant portions of
that answer.

4 The panelists are listed in order of seniority.

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