On Wednesday, the Sixth Circuit issued a decision allowing an advocacy group, Protect the Peninsula, Inc. to intervene in litigation regarding zoning restrictions between a group of wineries on the Old Mission Peninsula in Michigan and the Township of Peninsula, the “municipality ‘[that] occupies Old Mission Peninsula, a land mass that juts north out onto, and is surrounded on three sides, by, Lake Michigan.” The District Court denied Intervenor’s motion to intervene as of right under FRCP 24(a)(2). The Sixth Circuit reversed and remanded.
The first named plaintiff is the Wineries of the Old Mission Peninsula Association. The remaining plaintiffs are eleven individual wineries. Protect the Peninsula describes itself on its website as a “citizen advocacy group that has been working for decades to preserve the scenic and rural character of the peninsula.”
The Township’s adoption of zoning ordinances restricting the wineries’ commercial activities, followed by failed negotiations to modify those ordinances, resulted in the wineries filing suit in October 2020. The wineries alleged that the ordinances “were both unconstitutional on various grounds and violated state laws, including being preempted under the Michigan Liquor Control Code.” The wineries sought both injunctive relief against enforcement of the ordinances and damages.
The Intervenor moved to intervene under FRCP 24(a)(2) “soon after” the Wineries brought suit, a motion the Wineries “contest” and the Township “did not oppose.” The district court denied the motion to intervene in October 2021. The appeal ensued.
The Sixth Circuit addressed three legal issues on appeal regarding intervention as of right under FRCP 24(a), ruling in favor of Intervenors on all issues.
First, Intervenor must show that it has a “substantial interest” in the litigation. The court ruled that “the property interests of Protect the Peninsula’s members satisfy this requirement.” The court rejected the wineries’ argument that “Protect the Peninsula is an advocacy group” as a “red herring.” Quoting prior case law, the court noted, “Although we have previously denied intervention as of right to advocacy groups who ‘only have a general ideological interest in the lawsuit,’ “ Intevenor “also offered affidavits of its members whose property interests are implicated by the lawsuit.” The “substantial interest” analysis is “fact specific,” and the affidavits seemed to provide key support to the Intervenor’s position in the court’s analysis.
The second issue is “impairment.” The court, again quoting prior case law, noted the burden is “minimal” and that a “would-be intervenor must only show that impairment of its substantial legal interest is possible if intervention is denied.” This minimal burden can be satisfied by the potential stare decisis effects of the litigation, and in this instance, because the District Court enjoined enforcement of portions of the zoning ordinances, and, by doing so,”already limited the abilities of Protect the Peninsula’s members to protect their property interests through nuisance per se claims against the vineyards,” Intervenors met the requirement.
Finally, the court addressed the issue of “adequate representation, i.e., ”whether the Township would adequately represent Protect the Peninsula’s interests.” The court noted that because the Intervenor and the Township currently share “ ‘ the same ultimate objective’ (e.g. defending the zoning ordinances), a presumption of adequate representation arises.” However, that burden may be overcome by, among other things, showing an adverse interest between the party to the suit and a would-be intervenor. The court noted that FRCP 24(a) is satisfied if the representation “may be” inadequate and that “certainty about future events is not required.” The court noted the Township, in advising the district court that it did not oppose intervention, “conceded that it was limited in how much it could do to represent the interests of individual citizens implicated by this lawsuit, such as the interest in maintaining the value of certain properties.” Moreover, The court also emphasized that “the possibility of damages looms large in this case,” citing an expert report with a damage figure over $200 million. The Intervenors do not face an exposure to damages, and the Township, in the Court’s view, may have an interest at some point inconsistent with the interests of the Intervenors as it may wish to settle to avoid a potentially significant damage award.
Intervenors’ counsel is the Law Office of Tracy Jane Andrews; counsel for plaintiffs/appellees Wineries is Miller, Canfield, Paddock and Stone PLC.