Jensen et al v. Town of Brookline

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 25-11600-GAO
DAVID A. JENSEN, as Trustee of the PLATFORM 9¾ TRUST,
DAWN OATES, JUSTIN OATES, and H.O., a minor child,
Plaintiffs,
v.
TOWN OF BROOKLINE,
Defendant.
OPINION AND ORDER
March 12, 2026
O’TOOLE, D.J.
Plaintiffs Dawn and Justin Oates are parents of a child who has quadriplegia and uses a
wheelchair. They have engaged in several years of advocacy and litigation against the defendant
Town of Brookline to obtain what they claim to be reasonable accommodations from town zoning
bylaws to proceed to renovate their Brookline home to construct a multi-purpose, accessible
addition for the benefit of their child that does not conform to Brookline’s by-laws governing
minimum front and side yard setbacks and minimum percentage of usable open space. The
complaint alleges that the Town of Brookline has violated the Fair Housing Amendments Act of
1988 (the “FHAA”), the Americans with Disabilities Act (the “ADA”), and Section 504 of the
Rehabilitation Act by failing to create a legally compliant process through which it could receive
and review requests for a proposed reasonable accommodation. The plaintiffs seek, in relevant
part, an order that Brookline provide them with a reasonable accommodation from its zoning
bylaws and concomitant declarations that Brookline has violated the FHAA, ADA, and
Rehabilitation Act; that it may not force the plaintiffs to use the special permit or variance process
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to request a reasonable accommodation from zoning bylaws; and, that Brookline must establish a
legally adequate and compliant process for considering reasonable accommodations such as the
ones sought by the plaintiffs. Specifically, they request an order that the Town “provide a permit .
. . for the family to build the attached, covered, two-bay garage.”1 (Compl. ¶ 180.)
Robert and Cathleen Schoen, neighbors abutting the subject property, seek to intervene in
this action under Rule 24(a) of the Federal Rules of Civil Procedure.2 Rule 24(a), in relevant part,
provides that “[o]n timely motion, the court must permit anyone to intervene who . . . claims an
interest relating to the property or transaction that is the subject of the action, and is so situated
that disposing of the action may as a practical matter impair or impede the movant’s ability to
protect its interest, unless existing parties adequately represent that interest.” Fed. R. Civ. P.
24(a)(2); see also T-Mobile Ne. LLC v. Town of Barnstable, 969 F.3d 33, 39 (1st Cir. 2020).
Although each element must be fulfilled, the “inherent imprecision of Rule 24(a)(2)’s individual
elements dictates that they ‘be read not discretely, but together,’ and always in keeping with a
commonsense view of the overall litigation.” Pub. Serv. Co. of N.H. v. Patch, 136 F.3d 197, 204
(1st Cir. 1998) (quoting United States v. Hooker Chems. & Plastics Corp., 749 F.2d 968, 983 (2d
Cir. 1984)). “Determining whether the necessary showings have been made requires a series of
judgment calls—a balancing of factors that arise in highly idiosyncratic factual settings.” Ungar v.
Arafat, 634 F.3d 46, 51 (1st Cir. 2011).
1 Since filing the present motion, the plaintiffs have moved to amend this paragraph of the
complaint to more vaguely claim that they are entitled to, in relevant part, equitable, declaratory,
and injunctive relief (dkt. no. 23). They have not otherwise dropped their request for a declaratory
judgment nor disavowed the relief it previously requested more explicitly. The plaintiffs’ request
to amend is hereby granted, but contrary to the plaintiffs’ contention, the proposed amendment
does not moot the intervenors’ motion.
2 The abutters also move for permissive intervention under Rule 24(b) of the Federal Rules of Civil
Procedure. While they could also likely intervene under Rule 24(b), it is unnecessary to reach the
alternative argument in light of the following determinations.
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There is no dispute that the request is timely. The parties do disagree, however, whether
the abutters have a concrete interest in the action and whether the Town provides adequate
representation of that interest.
The abutters’ professed interest is sufficient. “There is no precise and authoritative
definition of the interest required to sustain a right to intervene” under Rule 24(a)(2). Conservation
L. Found. of New England, Inc. v. Mosbacher, 966 F.2d 39, 42 (1st Cir. 1992) (quotation omitted).
However, the intervenor’s claims “must bear a sufficiently close relationship to the dispute
between the original litigants” and cannot be “too contingent or speculative—let alone . . . wholly
nonexistent.” Ungar, 634 F.3d at 51–52 (quotation omitted).
Among other arguments, the abutters advance their interest in the use of their neighboring
property, which bears a sufficiently close relationship to the underlying dispute. The proposed
addition does not conform to bylaws regarding front setbacks, side setbacks, and open usable
space, and, according to intervenor counsel, may involve a two-story brick wall inches from the
abutters’ property line reaching to the sidewalk in front of the houses. “Abutter interest in the use
of a property is well-settled.” Nextel Commc’ns of Mid-Atl., Inc. v. Town of Hanson, 311 F. Supp.
2d 142, 150 (D. Mass. 2004) (citing Butts v. Zoning Bd. of Appeals, 464 N.E.2d 108, 111–12
(Mass. App. Ct. 1984)); accord Portland Cellular P’ship v. Inhabitants of Town of Cape Elizabeth,
No. 2:14-cv-00274-JDL, 2015 WL 12990147, at *2 (D. Me. Feb. 3, 2015); cf. Varsity Wireless,
LLC v. Town of Boxford, No. CV 15-11833-MLW, 2016 WL 11004357, at *5 (D. Mass. Sep. 9,
2016) (noting that abutters and immediate neighbors typically have been permitted to intervene in
cell phone tower litigation). Where there is a realistic threat that the resolution of this pending
action in the plaintiffs’ favor will hinder or prevent the abutters’ ability to effectuate their interest
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in this use of the neighboring property, the abutters’ interest in the unique factual circumstances
of this case is sufficient to permit intervention.
Finally, as to the third element, the defendant Town of Brookline does not adequately
represent the neighbor’s interest in this litigation. “To demonstrate inadequate representation, a
putative intervenor must show that no existing party fairly represents her interests.” T-Mobile Ne.
LLC, 969 F.3d at 39 (citing Students for Fair Admissions, Inc. v. President & Fellows of Harvard
Coll., 807 F.3d 472, 475 (1st Cir. 2015)). “Where,” as here, “the applicant seeks to intervene as a
defendant and the existing defendant is a governmental entity, there is a rebuttable presumption
that the government will defend adequately its action.” Cotter v. Mass. Ass’n of Minority L. Enf’t
Officers, 219 F.3d 31, 35 (1st Cir. 2000) (citing Daggett v. Comm’n on Governmental Ethics &
Election Pracs., 172 F.3d 104, 111 (1st Cir. 1999)); accord T-Mobile Ne. LLC, 969 F.3d at 39.
The would-be intervenor’s burden to overcome the presumption is not onerous: “[the] intervenor
need only show that representation may be inadequate, not that it is inadequate.” Conservation L.
Found., 966 F.2d at 44.
Although there is some overlap in the objectives of Brookline and the abutters, specific
aspects of the litigation support the abutters’ claim of inadequate representation. The Town and
abutters share a general common goal of defeating the plaintiffs’ claims. However, while
Brookline has an interest in defending itself from the plaintiffs’ civil rights claims, its specific
interests are not necessarily the same as those of the intervenors because the plaintiffs seek an
order granting them what they define to be “reasonable accommodations,” relief from the Town’s
permitting process, and a permit to build the addition that does not comply with setbacks from the
abutters’ property line. Brookline previously granted the plaintiffs a variance from the zoning
bylaws, and it was the abutters who challenged the proposed renovation on appeal. This is therefore
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unlike a case in which the Town has shown a “vigorous, no-holds-barred defense” of its actions.
Compare T-Mobile Ne. LLC, 969 F.3d at 39. This is also unlike a case in which the defendant
actively opposes the intervenor’s involvement and otherwise professes to adequately represent the
intervenor’s interests. On the contrary, Brookline has explicitly taken no position on the motion to
intervene, explaining that the Town tries to maintain neutrality in disputes between its neighbors.
Furthermore, the plaintiffs themselves have injected the abutters into the litigation through
numerous allegations in the complaint about their behavior and involvement.
Consequently, reading the elements together and in keeping with a commonsense view of
the overall dispute, the Court finds that the abutters may intervene as of right so long as the
plaintiffs pursue the current requested relief. See Fed. R. Civ. P. 24(a) (providing that a court “must
permit” intervention where the enumerated elements are satisfied). As the case advances, the Court
may fashion reasonable conditions on the abutters’ involvement to efficiently manage the
proceedings.
It is SO ORDERED.
/s/ George A. O’Toole, Jr.
United States District Judge
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