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04/01/76 D'AGOSTINI v. CITY ROSEVILLE

April 1, 1976

D'AGOSTINI
v.
CITY OF ROSEVILLE



Lindemer, J. Kavanagh, C. J., and Williams, Levin, Coleman, and Fitzgerald, JJ., concurred with Lindemer, J. Ryan, J., took no part in the decision of this case.

SYLLABUS BY THE COURT

1. Parties -- Intervention of Right -- Inadequate Representation.

An applicant for intervention satisfies a requirement of the court rule for intervention as of right in an action by establishing that representation of his interest is or may be inadequate and the burden of making that showing should be treated as minimal (GCR 1963, 209.1[3]).

2. Parties -- Intervention of Right -- Zoning -- Adjacent Landowners.

Adjacent landowners should be permitted intervention as of right in a zoning case because they possess rights which could be adversely affected by granting relief from a zoning ordinance to a plaintiff who owns adjoining property and a governmental body named as a defendant is primarily concerned with the overall zoning pattern and its legitimate objects and purposes could well result in compromises to the detriment of individual owner's rights (GCR 1963, 209.1[3]).

3. Parties -- Intervention of Right -- Bound by Judgment.

The mere possibility that a judgment will be binding on an applicant for intervention in an action is sufficient to permit intervention as of right (GCR 1963, 209.1[3]).

The opinion of the court was delivered by: Lindemer

Plaintiff Ugo D'Agostini, a landowner in the City of Roseville, commenced a lawsuit in Macomb Circuit Court, Edward J. Gallagher, J., seeking to enjoin the City of Roseville from interfering with plaintiff's proposed use of his property as a multi-family residential area in an area zoned single family residential after the city denied plaintiff's petition to rezone his property. Sally DiMichele and others, neighboring property owners situated within 300 feet of the subject property, moved to intervene as of right pursuant to GCR 1963, 209.1(3). The trial court denied the motion. The Court of Appeals, Bronson, P. J., and Danhof and Carland, JJ., denied application for leave to appeal (Docket No. 20144). Intervening defendants appeal. Held:

1. The intervenor satisfies the requirements of GCR 1963, 209.1(3) by establishing that the principal defendant's representation is or may be inadequate. Owners of immediately adjoining property are possessed of rights which would be adversely affected by granting relief to the plaintiff and their interest in the litigation exceeds that of the general public or other owners in the area. The city is primarily concerned with the city-wide zoning pattern and legitimate purposes of the city could well result in compromises to the detriment of individual rights such as those of the intervenors.

2. The mere possibility that a judgment will be binding on an intervenor is sufficient to permit intervention. The interpretation of the word "bound" in GCR 1963, 209.1(3) in the narrow sense that the intervenor must be bound by a judgment under the principles of res judicata to intervene in a suit poses a dilemma in which it might prove impossible for an absent party to qualify for intervention because of an undue preoccupation with strict considerations of res judicata.

Reversed and remanded.

Plaintiff owns two adjacent parcels of land within the City of Roseville. He petitioned the Roseville Planning Commission to rezone his property from single-family residential to multifamily residential. His petition was denied on March 19, 1973. Plaintiff then sought to obtain rezoning from the city council, but on April 24th, it voted to deny his request. Finally plaintiff commenced this lawsuit in Macomb Circuit Court, seeking to enjoin the City of Roseville from interfering with plaintiff's proposed use of his property. On December 17, 1973, appellants, neighboring property owners situated within 300 feet of the subject property, filed a petition to intervene as of right, pursuant to GCR 1963, 209.1(3). The trial court denied intervention on February 28, 1974, upon the ground that appellants failed to meet the requirement of the court ...


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