Jaskolka v. Town of Rochester Conservation Commission

Hely, J. G.L.c. 249, §4, third sentence, gives the court discretionary authority to allow a motion to intervene by a person whose interests may be affected by the certiorari action. This sentence seems to have been added to the statute by a 1963 amendment. Marcus v. Commissioner of Public Safety, 255 Mass. 5 (1926), and similar vintage cases can no longer be relied upon on the issue of permissive intervention in certiorari actions. M.G.L.A. c. 249, §4, Historical Notes. See Lally v. Dorchester Division of the District Court Department, 26 Mass.App.Ct. 724, 729 & n. 9 (1988). Although the motion to intervene is not particularly timely, allowing the intervention at this time will not prejudice the existing parties. The case will be decided on the administrative record. There is no sound reason for not permitting the abutters to be heard, even though they had no right to individual notice under G.L.c. 131, §40, and even though their intervention is not a matter of right. The Motion of Bruce J. Mello and Monique A. Mellow to Intervene is allowed.