MORGAN, Judge.
The initial and perhaps dispositive issue before this court is the right of one resident of the City of Bridgeton to intervene after entry of judgment in two lawsuits, consolidated for purposes of trial, wherein said city was a losing party and elected not to appeal. The trial court denied intervention.
Both cases arose out of a zoning dispute in said city involving land contiguous to the Earth City development project in St. Louis County. The city had rezoned certain land from residential to industrial use in order to permit the construction of a railroad spur to serve the Earth City area; and, Anne Eng-lert, appellant — and would-be intervenor, is credited with organizing a successful referendum to force the city to rezone the land [100]*100in question from industrial back to residential use.
In No. 58,772, the city filed suit against Norfolk and Western Railway Company and Linclay Development Corporation to enjoin construction of a railroad spur through a portion of the city zoned residential and further requested a mandatory injunction to compel the removal of such part of the track as had been constructed. The spur was to serve an industrial tract outside the city.
In No. 58,773, suit was filed by Linclay and its affiliate, Earth City Corporation, against the City of Bridgeton seeking an injunction against enforcement of the ordinance and other relief. That portion of this case seeking an injunction against enforcement of the zoning ordinance was consolidated for trial with No. 58,772.
On June 20, 1974, the Circuit Court of St. Louis County entered a judgment to the effect that the only reasonable use of the land was for industrial purposes in light of the use of the surrounding lands; and, that the repeal by the city of the industrial zoning was “unreasonable, arbitrary, capricious and void,” and that a residential zoning would constitute a denial of due process as to Linclay and Earth City Corporation.
On July 3, 1974, the City Council of the City of Bridgeton decided not to appeal and so instructed the City Attorney.
On July 5, 1974, Anne Englert filed a motion for leave to intervene in the consolidated cases. An evidentiary hearing was held on July 12, 1974, and arguments were made on July 16, 1974.
On August 13,1974, the trial court denied her motion (in each case) and she has appealed. r
Supreme Court Rule 52.12 reads, in part, as follows:
(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of this state confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition, of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
In Hobson v. Hansen, 44 F.R.D. 18, 22 (D.C.1968), the court said:
Petitioner Hansen and a group of 20 parents seek to intervene as a matter of right pursuant to Rule 24(a), Ped.R.Civ.P. That rule, in relevant part, provides:
“Intervention of right. Upon timely application anyone shall be permitted to intervene in an action: * * * (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.”
To intervene, then, petitioners must establish, first, that they have an interest in the proceeding, second, that they are “so situated that the disposition of the action may as a practical matter impair or impede [their] ability to protect” it, and, third, that their interest is not being adequately represented by existing parties. And in seeking to intervene after final judgment, petitioners must meet an especially heavy burden. For though the rule does not in terms distinguish between intervention before and after final judgment, post-judgment motions are rare and at this stage of the proceedings Rule 24 should generally be applied less liberally.
This is so because the rule is couched in terms of “timely application,” which makes it appropriate to take into account the stage of the proceedings. (Emphasis added.)
The “interest in the proceeding” which Anne Englert seeks to establish is set forth in her brief as follows: “Appellant claims multiple interests in the subject matter of [101]*101this action. First, as a citizen of a suburban community; as a civic leader and Councilwoman of Bridgeton, representing the ward in which the subject property is located; as the leader (or one of the principal leaders) of the four-year fight to preserve the agricultural flood plain in Bridgeton and prevent excessive industrial development in Bridgeton; as a founder and Board member of a citizens’ organization the purpose of which is to preserve a healthful, pleasant, residential, and open environment in Bridgeton, as a principal leader of the referendum drive which obtained the required signatures on referendum petitions, and then won the referendum vote by 2064 to 1686, thus overruling the City Administration; as a plaintiff in two lawsuits (now consolidated into one, Coalition for the Environment, etc. et al. v. Volpe, No. 72 C 32(1), United States District Court for the Eastern District of Missouri) to enjoin further development by Linclay and Earth City in the unincorporated area immediately south of the subject property; and as appellant in another lawsuit now pending in the Kansas City Court of Appeals (Englert v. Public Service Commission, No. KCD 26919), contesting the Public Service Commission’s approval of Norfolk and Western’s application for authority to construct a tunnel under St. Charles Rock Road, she has a dominant interest in preserving the validity and enforceability of Bridgeton’s zoning ordinance, and particularly the zoning of the subject flood plain property (Tr. 269-72, 289). Kellog v. Joint Council of Women’s Auxiliaries Welfare Association, supra, at 376-77. [265 S.W.2d 374 (Mo.1954)] * *
Free access — add to your briefcase to read the full text and ask questions with AI
MORGAN, Judge.
The initial and perhaps dispositive issue before this court is the right of one resident of the City of Bridgeton to intervene after entry of judgment in two lawsuits, consolidated for purposes of trial, wherein said city was a losing party and elected not to appeal. The trial court denied intervention.
Both cases arose out of a zoning dispute in said city involving land contiguous to the Earth City development project in St. Louis County. The city had rezoned certain land from residential to industrial use in order to permit the construction of a railroad spur to serve the Earth City area; and, Anne Eng-lert, appellant — and would-be intervenor, is credited with organizing a successful referendum to force the city to rezone the land [100]*100in question from industrial back to residential use.
In No. 58,772, the city filed suit against Norfolk and Western Railway Company and Linclay Development Corporation to enjoin construction of a railroad spur through a portion of the city zoned residential and further requested a mandatory injunction to compel the removal of such part of the track as had been constructed. The spur was to serve an industrial tract outside the city.
In No. 58,773, suit was filed by Linclay and its affiliate, Earth City Corporation, against the City of Bridgeton seeking an injunction against enforcement of the ordinance and other relief. That portion of this case seeking an injunction against enforcement of the zoning ordinance was consolidated for trial with No. 58,772.
On June 20, 1974, the Circuit Court of St. Louis County entered a judgment to the effect that the only reasonable use of the land was for industrial purposes in light of the use of the surrounding lands; and, that the repeal by the city of the industrial zoning was “unreasonable, arbitrary, capricious and void,” and that a residential zoning would constitute a denial of due process as to Linclay and Earth City Corporation.
On July 3, 1974, the City Council of the City of Bridgeton decided not to appeal and so instructed the City Attorney.
On July 5, 1974, Anne Englert filed a motion for leave to intervene in the consolidated cases. An evidentiary hearing was held on July 12, 1974, and arguments were made on July 16, 1974.
On August 13,1974, the trial court denied her motion (in each case) and she has appealed. r
Supreme Court Rule 52.12 reads, in part, as follows:
(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of this state confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition, of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
In Hobson v. Hansen, 44 F.R.D. 18, 22 (D.C.1968), the court said:
Petitioner Hansen and a group of 20 parents seek to intervene as a matter of right pursuant to Rule 24(a), Ped.R.Civ.P. That rule, in relevant part, provides:
“Intervention of right. Upon timely application anyone shall be permitted to intervene in an action: * * * (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.”
To intervene, then, petitioners must establish, first, that they have an interest in the proceeding, second, that they are “so situated that the disposition of the action may as a practical matter impair or impede [their] ability to protect” it, and, third, that their interest is not being adequately represented by existing parties. And in seeking to intervene after final judgment, petitioners must meet an especially heavy burden. For though the rule does not in terms distinguish between intervention before and after final judgment, post-judgment motions are rare and at this stage of the proceedings Rule 24 should generally be applied less liberally.
This is so because the rule is couched in terms of “timely application,” which makes it appropriate to take into account the stage of the proceedings. (Emphasis added.)
The “interest in the proceeding” which Anne Englert seeks to establish is set forth in her brief as follows: “Appellant claims multiple interests in the subject matter of [101]*101this action. First, as a citizen of a suburban community; as a civic leader and Councilwoman of Bridgeton, representing the ward in which the subject property is located; as the leader (or one of the principal leaders) of the four-year fight to preserve the agricultural flood plain in Bridgeton and prevent excessive industrial development in Bridgeton; as a founder and Board member of a citizens’ organization the purpose of which is to preserve a healthful, pleasant, residential, and open environment in Bridgeton, as a principal leader of the referendum drive which obtained the required signatures on referendum petitions, and then won the referendum vote by 2064 to 1686, thus overruling the City Administration; as a plaintiff in two lawsuits (now consolidated into one, Coalition for the Environment, etc. et al. v. Volpe, No. 72 C 32(1), United States District Court for the Eastern District of Missouri) to enjoin further development by Linclay and Earth City in the unincorporated area immediately south of the subject property; and as appellant in another lawsuit now pending in the Kansas City Court of Appeals (Englert v. Public Service Commission, No. KCD 26919), contesting the Public Service Commission’s approval of Norfolk and Western’s application for authority to construct a tunnel under St. Charles Rock Road, she has a dominant interest in preserving the validity and enforceability of Bridgeton’s zoning ordinance, and particularly the zoning of the subject flood plain property (Tr. 269-72, 289). Kellog v. Joint Council of Women’s Auxiliaries Welfare Association, supra, at 376-77. [265 S.W.2d 374 (Mo.1954)] * *
“Second, as a resident in a suburban community, she has an interest in maintaining the community as a community predominantly residential and suburban; in protecting herself, her home, her family and her life from the multifarious consequences of the proposed Earth City development, including the railroad noise she would hear in her bedroom and her front yard, the airborne dirt which would soil her curtains, linens, and clothes, as well as her lungs; in preserving her freedom to traverse the streets of Bridgeton without being stalled by the excessive traffic which would result from industrial development of the bottom land, and her freedom from additional taxes which would be required to provide additional streets and other services (police, fire, etc.) to serve the proposed development and the people it will bring to Bridgeton, and her freedom to walk or drive down to the river, past the Rock Industrial Park, through or alongside the agricultural bottom land, enjoying and inhaling its freshness, openness, and beauty; in preserving ner joy in living in a small community which is predominantly residential, with a limited balancing of industrial area, with a limited balancing of agricultural open space in the bottom land, in keeping with Nature’s design, with fresh farm products available close at hand, grown locally. Village of Belle Terre v. Boraas, 416 U.S. 1 [94 S.Ct. 1536, 39 L.Ed.2d 797] (1974).
“Third, appellant alleged that the value of her property and the property of other class members would be substantially diminished by the proposed industrial development.
“Fourth, the combination of these interests, collectively, is more than sufficient to fulfill the requirements of Civil Rule 52.-12(a)(2).”
A review of the record made at the evi-dentiary hearing held on July 12, 1974, reveals that Anne Englert had knowledge of the two suits when they were filed; that she had prior knowledge the cases were coming to trial on June 19, 1974; that she was asked to testify in the case but did not (her explanation was that she had gone with her husband on a vacation required by his health); that her home is approximately two miles from the property in question; and, that the decision on the part of the City Council not to appeal was made in good faith. There was no evidence offered to support her allegation that “the value of her property . . . would be substantially diminished by the proposed industrial development.”
We hold, on these facts, that appellant’s motion to intervene, after trial and entry of [102]*102judgment, was not timely made (Cf. Stallings v. Conn, 74 F.2d 189 (5th Cir. 1934)); that her protest amounts only to a “dissent” from the Council’s good-faith decision not to appeal (Hobson, supra, 44 F.R.D., 1. c. 30); that there is no showing that her interests were inadequately represented; that “furtherance of justice” does not require her intervention (Zeitinger v. Hargadine-McKittrick Dry Goods Co., 298 Mo. 461, 472, 250 S.W. 913, 916 (banc 1923)); and, that the trial court reasonably could have found that she gambled on the outcome of the proceedings before judgment and now seeks to compel a retrial of the original issues. (Lockwood v. Hercules Powder Co., 7 F.R.D. 24, 28 (W.D.Mo.1947)). Compare also Eakins v. Burton, 423 S.W.2d 787, at 1. c. 790-791 (Mo.1968), wherein this court said: “We also have the view that the motion of Western was not timely. It had notice concerning all the proceedings, including the fact that judgments were to be taken. Western apparently assumed that defendant would make a vigorous defense and that it could safely refuse to defend under the circumstances. As we view the situation Western took a calculated risk that defendant would contest the claims of plaintiffs and, when he did not do so, sought to have the court give it another chance to defend. We think it is obvious, under these circumstances, that to be timely the motion to intervene should have been filed before the judgments were entered. * * * Western also contends that it should have been permitted to intervene under Civil Rule 52.11(b), which provides for permissive intervention, and that the court abused its discretion in failing to permit it to intervene. That subdivision of the rule also requires that the application be timely. Our ruling to the effect that Western’s motion was not timely is sufficient to dispose of this contention and it is therefore ruled adversely to Western.”
The order of the trial court, denying the motion to intervene, is affirmed; and the appeals are dismissed.
HOLMAN, HENLEY and DONNELLY, JJ., concur.
SEILER, C. J., dissents in separate dissenting opinion filed.
BARDGETT and FINCH, JJ., dissent and concur in separate dissenting opinion of SEILER, C. J.