Great Atlantic & Pacific Tea Co. v Town of East Hampton
Author: Lindsey

Group for the South Fork, Inc. (“Group”) requests leave to intervene as defendants either as of right under FRCP 24(a)(2) or, alternatively, as a matter of discretion under FRCP 24(b)(2).

• Facts: in 1996, the town of East Hampton adopted and filed with the state of NY a local zoning law called the “superstore law” which restricts the establishment of very large retail stores within East Hampton outside of the central business zone. The effect of this law was to prevent P (Great A&P) from developing a large supermarket on a site that is in a neighborhood business zone.
• • The Group is an environmental organization and actively supports the superstore law. They wish to intervene and bring similar arguments to the Town’s. A&P objects to their intervention.
• Procedural History: A&P brings this suit against the Town seeking declaratory judgment that the passage of this law was beyond its legislative authority, the Town moves to dismiss.
• Issue #1: can the Group intervene as of right?
• Holding: NO
• Rule: Intervention as of Right Rule 24(a): To intervene as of right under 24(a)(2), the would be intervenor must establish the following:

1)      a timely motion

2)      an interest relating to the property or transaction that is the subject matter of the action

3)      an impairment of that interest without intervention

4)      the movant’s interest is no adequately represented by the parties to the litigation

a.       an applicant for intervention as of right must show that it may not be adequately represented by a named party. This places only a minimal burden on the would be intervenor.

• Reasoning: adequate representation is presumed b/c the Group and the Town share the same ultimate objective in this litigation, namely, a declaration that the Superstore Law was validly enacted and constitutional. The Group’s interest coincide with the interests of the Town, so they may not intervene as of right.
• Issue #2: Can the Group intervene under permissive intervention?
• Holding: Yes, but the court has discretion and is not going to allow intervention.
• Rule: Rule 24(b)(2) permissive intervention may be granted “when an applicant’s claim or defense and the main action have a question of law or fact in common.” However, permissive intervention is left to the discretion of the court.
• Reasoning: This threshold test is clearly met b/c both the Group and the Town seek a declaration that the Superstore Law is valid and constitutional. However, the Group’s interest in intervening is identical to that of the Town. therefore, motion to intervene is denied with leave to renew at a later stage in the proceedings if the Group can make a factual showing that the Town is not vigorously litigating this action.