Allen v. Coffel

Decision Date04 December 1972
Docket Number25737,Nos. 25734,s. 25734
Citation488 S.W.2d 671
PartiesNellie ALLEN et al., Plaintiffs-Appellants, v. Donald COFFEL et al., as the Mayor and Board of Aldermen of the City ofPeculiar, Missouri and Excalibur Enterprises, Ltd., a corporation,Defendants-Respondents. STATE of Missouri ex rel. Nellie ALLEN et al., Plaintiffs-Appellants, v. Donald COFFEL et al., the Mayor and Members of the Board of Aldermen of theCity of Peculiar, Missouri, Defendants-Respondents.
CourtMissouri Court of Appeals

Elvin S. Douglas, Jr., Crouch, Crouch, Spangler & Douglas, Harrisonville, for plaintiffs-appellants.

Lynn K. Ballew, Shubert, Hight & Ballew, Harrisonville, for defendants-respondents Excalibur Enterprises, Ltd.

Paul E. Panek, City Atty., Belton, for defendants-respondents Donald Coffel, Glen Mullen, Les Johnson, Ralph Hetherington, Robert Bulard, as Mayor and Board of Aldermen of City of Peculiar, Mo.

Before SHANGLER, C.J., and CROSS and DIXON, JJ.

SHANGLER, Chief Judge.

The plaintiffs filed, successively, a Petition for Review under Section 89.110, V.A.M.S., and then a Petition for Declaratory Judgment, each of which undertook to challenge the legality of two zoning ordinances enacted by the Board of Aldermen of the City of Peculiar. The trial court dismissed the Petition for Review upon the ground that the statutory review by writ of certiorari was not an appropriate remedy to test the lawfulness of the exercise of the legislative function. The trial court dismissed the Petition for Declaratory Judgment upon the ground that the plaintiffs lacked standing to contest the validity of the zoning ordinances. The plaintiffs have appealed from each judgment. We have consolidated these appeals.

The plaintiffs virtually acknowledge that their initial choice of remedy was not apt for the purpose intended. The power to zone property is conferred by statute upon the legislative body of a municipality. Sections 89.020--89.060, V.A.M.S. The exercise of that power, then, is a legislative function. Standberg v. Kansas City, Mo. banc, 415 S.W.2d 737, 742(3). The statutory procedure prescribed by Section 89.110, V.A.M.S., and invoked by plaintiffs in their first petition, is for review by certiorari 'by any decision of the board of adjustment, or any officer, department, board or bureau of the municipality.' The effect of that statute is to limit review by certiorari to the decisions, that is, the judicial acts of the agencies therein specified. Certiorari does not lie, however, to review the exercise of the legislative power. State ex rel. Croy v. City of Raytown, Mo.App., 289 S.W.2d 153, 156(3, 4); State ex rel. Adams v. Crain, Mo.App., 201 S.W.2d 426, 429(2). The trial court properly dismissed the petition because review by certiorari was not available under the statute to test the validity of the zoning ordinances. Accordingly, appeal number 25,737 taken from that judgment of dismissal is affirmed.

In their Petition for Declaratory Judgment, the plaintiffs alleged they were owners of land outside the corporate limits of the City of Peculiar, but adjacent and contiguous to a certain tract located within the city which the Board of Aldermen had undertaken to rezone by ordinance for use as a mobile home park. The petition further alleged numerous irregularities in the legislative procedure by which the ordinances were adopted and sought a declaration that the enactments were unlawful. The count for declaratory relief was joined with counts for prohibitory injunction and mandatory injunction to enjoin defendant Excalibur Enterprises, Ltd., which had been granted a permit under the ordinances to develop the tract as a mobile home park, from exercising that permit and to have it annulled. It should be noted also that the stipulation of the parties, which has become part of the transcript record, shows that only one of the five plaintiffs was a resident of the city.

The defendants moved to dismiss this petition on the ground that no justiciable controversy was shown, that is, that plaintiffs had not alleged that they owned property within the corporate limits of the City of Peculiar and were without standing, therefore, to contest the validity of the zoning ordinances of that city. The trial court adopted the rationale of these contentions as is made explicit in the Memorandum Opinion appended to the judgment:

'The basis of the Court's ruling is that none of the plaintiffs are aggrieved persons since the property which they own lies outside of the city limits of Peculiar, Missouri. It is the opinion of the Court that in order for the defendants (sic) to have a cognizable interest which would give them standing to protect the zoning ordinance of the City of Peculiar, it would be necessary that plaintiffs be owners of the property located within the city limits of Peculiar, Missouri, and which is affected by the change in zoning classifications.'

The correctness of the position taken by the defendants, and hence the propriety of the trial court's judgment, is to be determined by whether plaintiffs have pleaded a cause of action cognizable by declaratory judgment.

The declaratory judgment remedy is made available by Section 527.020, V.A.M.S. to, among others, '(a)ny person . . . whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise.' The necessary condition of judicial relief in such actions is the existence of a justiciable controversy. Glick v. Allstate Insurance Company, Mo.App., 435 S.W.2d 17, 20(1). A justiciable controversy arises only when the plaintiff asserts a legally protectable interest, that is, some substantial 'right, status or other legal relation' that the defendant has some power to affect. Cotton v. Iowa Mutual Liability Co., 363 Mo. 400, 251 S.W.2d 246, 249(1--5); Borchard, Declaratory Judgments, pps. 48--50. We understand the allegations in plaintiffs' count for declaratory relief as assertions that as owners of property outside the limits of the City of Peculiar, but contiguous to property within the boundaries of the city--which property has been rezoned by ordinances--they have a legally protectable interest, and therefore standing, to contest the validity of the ordinances by declaratory judgment. We conclude that the petition sufficiently pleads an interest which will qualify plaintiffs for relief by declaratory judgment.

In their arguments to this point, both in the memoranda of authorities submitted to the trial court and in the briefs on appeal, the parties cite zoning decisions in support of their respective positions without distinguishing the form of the dispute or nature of the remedy involved. They have assumed that the qualifying interest to accord standing is the same in an original action against an ordinance, as by declaratory judgment and injunction, as it is in a review of the decision of an administrative authority, as by statutory certiorari. In this regard, one pre-eminent authority has discerned the general rule that:

'(A)ny person who can show that the existence or enforcement of a zoning restriction adversely affects, or will adversely affect, a property interest vested in him or that the grant of a permit to another or rezoning of another's land will similarly affect him, has the requisite justiciable interest in the controversy, and is a proper party plaintiff. In this aspect, the right of a litigant to sue for declaratory judgment or for an injunction is based upon the same criteria as are determinative of the status of a petitioner as a 'party aggrieved' to bring certiorari to review the determination of a board of appeals or adjustment. The difference, if any, relates only to the forum and the form of remedy.' Rathkopf, The Law of Zoning and Planning, Chapter 36, Sec. 1.

See, also, John D. Ayer, Law of Standing, 55 Iowa Law Review, 344, 346. Although the courts of this state have not consciously articulated such a rule, they have applied these criteria of standing in zoning cases interchangeably. 1

Recently, we observed in Stickelber v. Board of Zoning Adjustment, Mo.App., 442 S.W.2d 134, that whether a protectable interest is shown so as to invest standing in such controversies is a matter for ad hoc determination by the courts under the given circumstances (l.c. 136(1)) depending, not only upon the immediacy of the interest, but also the proximity of the property, affected (l.c. 137(3)). And it is now well established that an adjoining, confronting or nearby property owner has standing, without further proof of special damage, to assert the invalidity of an ordinance or the right for review of an administrative decision affecting the property in question. Hernreich v. Quinn, banc, 350 Mo. 770, 168 S.W.2d 1054, 1058(3, 4); Kellog v. Joint Council of Women's Auxiliaries Welfare Ass'n, Mo., 265 S.W.2d 374, 376(1, 2); State ex rel. Housing Authority v. Wind, Mo.App., 337 S.W.2d 554, 557(2, 3); State ex rel. Algonquin Golf Club v. Lewis, Mo.App., 395 S.W.2d 552, 524(2). The question remains whether a landowner who has a qualifying interest to contest a zoning regulation loses that standing because of the adventitious circumstance of a city boundary between his land and the questioned zoning upon which his land abuts. This question has not been ruled upon directly by any appellate court of this state.

Until recent years, the courts had generally held that a nonresident could not challenge zoning regulations, even if his property was adjacent to the questioned zoning. 2 The decline of rural residence and the burgeoning growth of suburban communities, frequently clustered on the periphery of metropolitan centers, have made it apparent that the impact of zoning is no longer of concern only to the enacting municipality, but may have extraterritorial effects as well. The landmark case of Cresskill Borough v. Dumont Borough, 28 N.J.Super. 26, 100 A.2d 182, aff'd 15 N.J. 238, 104 A.2d...

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