33 Misc. 2d 381 | N.Y. Sup. Ct. | 1962
The Village of Freeport, its Mayor and Trustees, seek to intervene in this action brought against the Town of Hempstead by the owner of a large tract of land in the town to obtain a judicial declaration that the present town zoning (Industrial Y) is unconstitutional and that any zoning imposing standards higher than single-family residences on plots of not more than 6,000 square feet would also be unreasonable and unconstitutional. None of the plaintiff’s land is within the village. However, the land is bounded on three sides by water, its northern boundary line adjoins the southerly boundary line of the village, and there is no vehicular or pedestrian access to the parcel except over and across one street leading from the village to the peninsula on which lies the plaintiff’s land.
Decision of the motion rests upon the application of section 193-b of the Civil Practice Act. Added by the Laws of 1946, it provides for mandatory and discretionary intervention. Subdivision 1 recites four situations in which a person “ shall be permitted to intervene ” as of right. Only one is relied upon by the movants, to wit, “ when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action ”. Both statutory requirements must be met (2 Carmody-Wait, New York Practice, p. 656).
There is no factual showing that the town will omit any duty imposed upon it by law. The expression of an opinion that the action of the town in noticing a public hearing of a proposed rezoning 1 ‘ indicates an attitude toward the action less than conducive to a strenuous defense ’ ’ is not evidence of inadequacy of representation. The town, which has taken no position on this application, is still entitled to the benefit of the presumption that its officials will omit no duty which the law imposes upon them (Matter of Whitman, 225 N. Y. 1, 9; Schieffelin v. Goldsmith, 253 N. Y. 243, 252; Matter of Evans v. Berry, 262 N. Y. 61, 72).
Furthermore, it is by no means clear that the applicant, in the statutory sense, is or may be bound by the judgment in the action. Any taxpayer or resident is affected in some degree by judicial declarations or determinations with respect to zoning of areas adjacent to or near his property. To say that this automatically furnishes a basis for intervention would be to
Permissive intervention is available when a statute grants a right to intervene in the discretion of the court or when an applicant’s claim or defense and the main action have a question of law or fact in common (Civ. Prac. Act, § 193-b, subd. 2). No permissive statute is invoked and the applicant must therefore rely upon the presence of common questions of law or fact. No such common question has been established. While the notice of motion recites the complaint in the action as an enumerated paper, the complaint is not before the court, and the proposed answer, denying allegations of that missing document, is of no assistance in determining the questions of law or fact which will be in issue in the main action. Without knowing what the questions are, the court cannot determine with assurance whether there will be any which could be said to be in common with the applicant’s defense. The motion to intervene as a party defendant is accordingly denied without prejudice to a renewal if the applicant be so advised.
Enough has been shown, however, to entitle the village to appear herein as amicus curia for the purpose of submitting legal argument and authorities to the court. In this county of multiple sovereignties it is frequently observed that our towns and villages do not always enjoy an identical community of interest. It is entirely appropriate in such eases that these differing viewpoints have expression before our courts.