368 S.W.3d 204
Mo. Ct. App.2012Background
- Underwood sought a variance to build a detached garage larger than allowed by the city ordinance; the BZA denied the variance.
- Underwood obtained a building permit for a 1,328-square-foot garage, later found to be 1,427 square feet.
- City issued a stop-work order after discovering the discrepancy and offered to cover 76% of the downsizing cost due to its permit error; Underwood would bear the remaining excess.
- Kennedy, a nearby landowner, submitted written opposition to the variance before the initial BZA hearing.
- Circuit court reversed the BZA and remanded with an order to grant the variance; City and BZA did not appeal the circuit court’s judgment.
- Kennedy filed a direct appeal to this court challenging the circuit court’s judgment as an aggrieved non-party.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Kennedy has standing to appeal | Kennedy claims statutory standing under §536.100 and transfer of standing via City/BZA. | Underwood argues Kennedy was not a party and therefore lacks standing. | Kennedy lacks standing; appeal dismissed. |
Key Cases Cited
- F.W. Disposal South, LLC v. St. Louis Cnty. Council, 266 S.W.3d 334 (Mo.App. E.D.2008) (only a party may appeal a judgment)
- Marino v. Ortiz, 484 U.S. 301 (1988) (better practice is for nonparties to seek intervention for appeal)
- State ex rel. Dolgin’s, Inc. v. Bolin, 589 S.W.2d 106 (Mo.App. W.D.1979) (interventional rights depend on showing inadequate representation)
- Landolt v. Glendale Shooting Club, Inc., 18 S.W.3d 101 (Mo.App. E.D.2000) (neighboring landowners’ intervention not automatic; depends on representation)
- Algonquin Golf Club v. Lewis, 395 S.W.2d 522 (Mo.App.1965) (allows timely intervention where representation may be inadequate)
- City of Bridgeton v. Norfolk & W. Ry. Co., 535 S.W.2d 99 (Mo. banc 1976) (neighbor intervention analyzed; timeliness matters)
- Wolpe v. Poretsky, 144 F.2d 505 (D.C.Cir.1944) (governmental representation of public interests may not equal individual interests)
- Drury Displays, Inc. v. Bd. of Adjustment of City of St. Louis, 781 S.W.2d 201 (Mo.App. E.D.1989) (supplements Ch. 536 where 89 does not specifically cover method of review)