COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69685 : ACCELERATED DOCKET SENECA LAKE APARTMENTS, ET AL. : : : JOURNAL ENTRY Plaintiff-Appellee : : and v. : : OPINION CITY OF BROADVIEW HEIGHTS : : : PER CURIAM Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: MAY 30, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-291047 JUDGMENT: Reversed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: R. TODD HUNT, ESQ. JOSEPH L. MOTTA, ESQ. WALTER & HAVERFIELD McCORMACK & WOLGAMUTH 1300 Terminal Tower 450 Lakeside Place 50 Public Square 323 Lakeside Avenue Cleveland, Ohio 44113 Cleveland, Ohio 44113-1009 KEVIN P. WEILER, ESQ. WEILER & WEILER 8920 Brecksville Road Brecksville, ohio 44141 - 2 - PER CURIAM: This case is before the Court on the accelerated docket pursuant to App.R. 11.1 and Loc. App.R. 25. Argos Associates, Ltd., appeals from the judgment of the trial court, denying Argos' motion to intervene. Argos' sole assignment states as follows: I. THE TRIAL COURT ERRED IN DENYING THE APPLICATION OF ARGOS ASSOCIATES LTD. TO INTERVENE AS AN APPELLEE. Argos describes itself as the developer seeking to build a retail shopping center in Broadview Heights, Ohio. Sam Petros filed an application requesting a variance and appeared at the hearing in front of the Zoning Board on May 17, 1995. On June 15, 1995, the Broadview Heights Zoning Board granted a variance from setback requirements. Seneca Lake Apartments, which owns the land next to the property to be developed, opposed the application for the variance. When the variance was granted, Seneca filed an administrative appeal from the zoning board to the Cuyahoga County Court of Common Pleas. On September 5, 1995, before Seneca filed (on Sept. 18) its administrative appeal brief and assignments of error in common pleas court, Argos filed a motion to intervene. Argos attached the affidavit of Sam Petros, who averred as follows: 1) he is the President of Petros Development Corp., 2) Petros Development Corp. and Anna Maria, Inc. are members of Argos Associates, Ltd., 3) Argos is the developer of the land in question, 4) the property is owned by Anna Maria, Inc., and 5) in signing the application for - 3 - the variance Petros acted as the representative for Argos. Argos additionally attached the affidavit of Mary Tyrpak, the Secretary of the Broadview Heights Board of Zoning Appeals, who confirmed that (1) the property is owned by Anna Maria, Inc., (2) Argos is the developer of the property, and (3) Petros signed the application for the variance and appeared before the board as the representative of Argos. Seneca now opposes Argos' attempt to intervene. Civil R. 24 covers intervention and states 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 applicants's interest is adequately represented by existing parties. Civ.R. 24(A)(2) should be liberally construed to permit interven- tion. Ohio Dept. of Adm. Serv., Officer of Collective Bargaining v. State Emp. Relations Bd. (1990), 54 Ohio St.3d 48, 51. The first requirement under Civ.R. 24 is that the application for intervention must be timely filed. In the case at bar, Argos made a timely attempt to intervene when it filed its application almost two weeks before either side had filed its brief and assignments of error. Although Argos is not technically the owner, nothing in Civ.R. 24 requires that an intervening party be the owner of the property. In American Sand & Gravel, Inc. v. Theken (1987), 41 Ohio App.3d 98, 100, adjacent property owners who had been successful before a - 4 - zoning board were held to "have an equal right to protect their victory in an appeal to the court of common pleas." See also, Nutter v. Concord Township Board of Zoning Appeals (June 30, 1993), Lake App. No. 92-L-118, unreported. Whether as the "developer" of the property or as the umbrella "owner" through a complex business arrangement, Argos is undeniably interested in the outcome of this administrative appeal, because the administrative appeal will determine how the property will be developed. Additionally, if Argos is not permitted to intervene, its ability to protect its interest will be impaired. For example, if the administrative decision were reversed, Argos would have no avenue to challenge the denial of the variance request. Therefore, Argos has a sufficient interest in the outcome of this litigation. Finally, Civ.R. 24(A) requires the court to determine whether the existing parties to the case will adequately represent the interest of the party seeking intervention. Generally, "the burden of an applicant to show that his interest is not adequately represented by the existing parties is minimal and is met if [the applicants] show that representation of their interest may be inadequate." McCormac, Ohio Civil Rules Practice (2nd ed. 1992), p. 93, Section 4.36. Argos and the City have arguably different reasons for wanting the administrative decision affirmed. The city does not necessarily have the same interest as a commercial developer. Accordingly, Argos has made a sufficient showing that its interest may not be adequately represented by the city. - 5 - Ohio courts have permitted the successful party at the administrative level to intervene as of right in the administrative appeal to common pleas court. American Sand & Gravel, supra; Nutter, supra. Citing Schomaeker v. First National Bank (1981), 66 Ohio St.2d 304, Seneca argues, however, that in order to have standing as a party in an administrative appeal the party must have participated in the initial administrative hearing. Because the application for the variance listed Anna Maria Const. Inc. as the property owner and Sam Petros as the representative, Seneca argues that Argos cannot intervene. Seneca's argument elevates form over substance and does not comply with the liberal construction which Civ.R. 24 requires. Although the application lists Sam Petros as "Owner's Representa- tive," this form does not provide a line for anyone other than the owner to request a variance. As shown by Petros' affidavit, Argos is the developer and part of the group that owns the property. Anna Maria Const. is a member of Argos Associates. Their interests, therefore, overlap. Furthermore, the transcript of the hearing makes no distinction between the developer and the owner. Discussion was only on the "project," which Mr. Petros represented. The affidavit of Tyrpak, moreover, confirms that Petros appeared before the board as the representative of Argos, the developer of the project. These circumstances are sufficient to conclude that Argos participated in the hearing and that Argos has met the requirements of Civ.R. 24, liberally construed to permit intervention. - 6 - Accordingly, the judgment of the trial court denying Argos' application to intervene is reversed. - 7 - This cause is reversed. It is, therefore, considered that said appellant recover of said appellees its costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. TERRENCE O'DONNELL, PRESIDING JUDGE DIANE KARPINSKI, JUDGE JOHN T. PATTON, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate .