Agenda - Planning Commission - 04/05/2012

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Zoning Bulletin February 25, 2012 J Volume 6 J No, 4 noted that the statute expressly indicates that ' [a]fter entry of judgment in the circuit court in the action in review, any party to the cause may prosecute an appeal to the appellate court ...." Again, since Kennedy was not a party to the cause the circuit court case the court conclud- ed that she could not prosecute an appeal. Kennedy, however, argued that she still had standing despite her non- party status. First, she contended that § 536.100 of the Missouri Admin- istrative Procedures Act expressly conferred standing upon her as a "per- son ... aggrieved by a .final decision in a contested case." Second, she ar- gued that even if she did not having standing under § 536.100, the City's standing should be deemed to have transferred to her for purposes of ap- peal once the City acted in an allegedly arbitrary and capricious manner in choosing not to pursue the appeal. The court rejected both arguments. The court found that § 536.100 did not confer standing to nonpar- ties on appeal in the appellate courts. Rather, § 64.660.2 provided the mechanism for judicial review here. Again, that section conferred stand- ing only upon parties to the cause of which Kennedy was not one. The court also concluded that standing could not automatically trans- fer from a named party (e.g., here, the City) to a nonparty (e.g., here, Kennedy) for purposes of appeal. Kennedy had argued that she would have been unable to intervene in the circuit court case because the City was adequately representing her interests. As such, she contended that it was not until the City decided not to pursue the appeal that their in- terests diverged. The court rejected that argument as speculative. More- over, the court found that, had she tried, Kennedy would not have been precluded from seeking permissive intervention ( "which does not involve the question of adequate representation") to become a party to the litiga- tion, and thereby acquire standing to appeal the circuit court's judgment. See also: F. Disposal South, LLC v. St. Louis County Council, 266 S. Wad 334 (Mo. Ct. App. E.D. 2008). See also: City of Bridgeton v. Norfolk & W Ry. Co., 535 S. W.2d 99 (Mo. 1976). Case Note: This case makes clear that opponents of land use re- quests should intervene in any original court action rather than re- lying on the municipality to represent their interests. Otherwise, as was the case with Kennedy here, they lose all opportunity to chal- lenge the matter, and risk. a municipality's decision to deny a land use request being overturned without further appeal. © 2012 Thomson Reuters 9