State ex rel. Algonquin Golf Club v. Lewis, 31992
| Citation | 395 S.W.2d 522 |
| Decision Date | 19 October 1965 |
| Docket Number | No. 31992,31992 |
| Parties | STATE of Missouri ex rel. ALGONQUIN GOLF CLUB, a Corporation, Relator, v. James A. LEWIS, Charles M. Harrold, Jr., J. Buchner Morse, Arthur W. Green, Jr., and Robert D. Evans, the Members of the Board of Adjustment of the City of Webster Groves, Missouri, Respondents, and L. Joseph Mulligan, Jr., et al., Proposed Intervenors, Respondents-Appellants. |
| Court | Court of Appeal of Missouri (US) |
Jackson F. Adams, Clayton, Charles E. Gray, J. Terrell Vaughan, St. Louis, for relator.
H. Jackson Daniel, St. Louis, for respondents.
Susman, Willer, Rimmel & Elbert, Harold I. Elbert, St. Louis, for proposed intervenors-respondents-appellants.
BROADDUS, Special Commissioner.
This appeal is from a judgment denying appellants the right to intervene as parties respondent in a certiorari proceeding brought by relator to have a decision of the Board of Adjustment of the City of Webster Groves, denying it a permit to erect a parking lot, set aside.
Relator, Algonquin Golf Club, is located at 340 North Berry Road, Glendale, Missouri. Of its 85 to 90 acres of land, approximately 50 acres are within the corporate limits of Webster Groves and 40 acres are in the City of Glendale. On December 10, 1962, the Club applied to the Board of Adjustment of the City of Webster Groves to construct a parking facility on property known as 30 Algonquin Lane, in the City of Webster Groves. The Building Commissioner of Webster Groves denied the application for a permit and Algonquin Golf Club appealed to the Board of Adjustment of that city.
A hearing was held before the Board on January 28, 1963. At that hearing Mr. Carroll J. Donohue, an attorney, appeared on behalf of the residents opposed to the construction of the parking facility. And Mr. Thomas J. Diviney, one of the appellants, testified that 'his premises are directly opposite the property under consideration.' On the same date the application for construction of a parking lot was denied.
Thereafter, on February 23, 1963, this proceeding was filed. In its petition Relator asserts that the right to construct a parking facility on the property in question is an accessory use within the meaning of the Webster Groves Zoning Ordinance. The minutes of the hearing before the Board of Adjustment show that this dispute involves the interpretation of the zoning ordinance in that Relator claims that the parking facility to be located at 30 Algonquin Lane is part of the same premises as the Golf Club, and that the residents of the area claimed and the Board held that it was not a part of the same premises because it was separated from the Golf Club by Algonquin Lane, a private street.
In their Motion to Intervene filed on March 7, 1963, appellants alleged that:
'2. Applicants state that they have a substantial interest in the pending action in that they are the owners and occupants of property in the immediate neighborhood of the tract for which the said permit was sought; that the real properties of Intervenors Mulligan and Noble are adjacent and abut upon the real property of relator; the real property of Intervenor Diviney is situated immediately across Berry Road from the real property of relator and the real property of the remaining Intervenors is in the immediate neighborhood of the property of relator; that the issuance of a permit as requested by relator herein would adversely affect the property values of applicants and the general welfare of the applicants, and that thereby said applicants have a very substantial interest in the subject matter of this cause.
The Citcuit Court denied the Motion and this appeal followed.
Civil Rule 52.11(a), V.A.M.R. gives an applicant an absolute right to intervene 'when the representation' of his 'interest by existing parties is or may be inadequate' and he 'is or may be bound by a judgment in the action.' State ex rel. Aubuchon v. Jones, an opinion by this court, Mo.App., 389 S.W.2d 854.
Civil Rule 52.11 is substantially the same as F.R.Civ.P. 24. The Federal Courts in construing Rule 24 hold that the allegations of the motion to intervene are taken as true in the absence of sham, frivolity and other similar objections. Clark v. Sandusky, 7 Cir., 205 F.2d 915; Otis Elevator Co. v. Standard Construction Co., D.C., 10 F.R.D. 404.
In this instance, appellants will be bound by the decision of the court. If Relator obtains a permit to construct a parking facility, appellants will have no further recourse to the courts. They will have had no opportunity to participate in the determination of the circuit court. Two of the appellants will live next door to a parking lot and one will live across the street from it. They certainly have a direct interest in the decision of the court and they may be aggrieved by it.
Both the statute (Sec. 89.110 V.A.M.S.) and the ordinance of the City of Webster Groves authorize any person or persons 'aggrieved' by any decision of the Board of Adjustment to file a verified petition for writ of certiorari to the circuit court. By reason of the trial court's refusal to allow their motion appellants now find themselves in the peculiar position of being deprived of the right to intervene in an effort to uphold the decision of the Board of Adjustment,...
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