Aust v. Platte Cnty.

• Decision Date: 29 December 2015
• Docket Number: WD 78181
• Citation: 477 S.W.3d 738
• Parties: Rita Aust, et al., Appellants, v. Platte County, Missouri, PC Homes L.L.C., Kelly Jo Yulich Trust, Arlene Kagan and Wendy Winer, Respondents.
• Court: Missouri Court of Appeals

477 S.W.3d 738

Rita Aust, et al., Appellants,

v.Platte County, Missouri, PC Homes L.L.C., Kelly Jo Yulich Trust, Arlene Kagan and Wendy Winer, Respondents.

WD 78181

Missouri Court of Appeals, Western District.

FILED : December 29, 2015

William M. Quitmeier, Kansas City, MO, for appellant.

Michael P. Keleher, Gladstone, MO, for Platte County, MO and Mary J. Shaney, Kansas City, MO, for respondents.

Before Division Two: Mark D. Pfeiffer, Presiding Judge, Lisa White Hardwick and James E. Welsh, Judges

LISA WHITE HARDWICK, Judge

Rita Aust and 41 other Platte County property owners ("Appellants") appeal the circuit court's judgment dismissing their petition for a writ of certiorari, declaratory judgment, and preliminary and permanent injunctions against Platte County. Appellants filed the petition after the Platte County Commission approved PC Homes, LLC's request to rezone certain property from "agricultural" and "rural estates" to "planned residential." Appellants contend the court erred in dismissing their petition because: (1) they provided proper notice to all parties; (2) their failure to file the record of the administrative proceedings within the statutorily-required time frame was not fatal to their claim; (3) declaratory relief was available to them; and (4) they sufficiently pled a claim for injunctive relief. For reasons explained herein, we affirm.

FACTUAL AND PROCEDURAL HISTORY

PC Homes, a real estate developer, entered into a purchase agreement with the Kelly Jo Yulich Trust, Arlene Kagan, and Wendy Winer¹ to buy their real property for the purpose of developing it into the Chapel Ridge Development, a residential single-family community in Platte County. In July 2013, Intervenors submitted an application to the Platte County Planning and Zoning Commission to rezone the Chapel Ridge Development property. In that application, Intervenors sought to change the property's zoning designation from "agricultural" and "rural estates" to "single family high density." Following a public hearing, the planning and zoning commission voted unanimously to deny the application.

Intervenors submitted a second application modifying their request to the Platte County Planning and Zoning Commission in October 2013. Instead of seeking the "single family high density" classification, Intervenors requested to change the property's zoning classification to "planned residential." Following another public hearing, the Platte County Planning and Zoning Commission voted unanimously to deny Intervenors' second application.

Intervenors then submitted their request to rezone the property to the Platte County Commission ("Commission"). The Commission held a hearing. One Commissioner recused himself from the proceedings due to a conflict of interest. As for the two remaining Commissioners, one voted against Intervenors' request, while the Presiding Commissioner voted in favor of it. By statute, the Presiding Commissioner's vote prevails in the event of a tie.

Thus, the Commission approved the Intervenors' request to rezone the Chapel Ridge Development property from "agricultural" and "rural estates" to "planned residential."

Appellants subsequently filed a petition in the Circuit Court of Platte County for a writ of certiorari and declaratory judgment declaring that the Commission's decision was illegal, unreasonable, and arbitrary and ordering that the "planned residential" zoning and platting be denied or rescinded. Appellants also sought injunctive relief enjoining Platte County from allowing the Chapel Ridge Development to develop under the "planned residential" zoning classification. The only named defendant in their petition was Platte County. Less than a month later, Appellants filed a first amended petition. Their first amended petition sought the same relief and again named Platte County as the only defendant. Shortly thereafter, Intervenors filed a motion to intervene.

Platte County filed a motion to dismiss Appellants' first amended petition. Platte County asserted four grounds for dismissal: (1) Appellants failed to join necessary and indispensable parties, specifically, Intervenors and the Commission; (2) Appellants failed to file, within 30 days after filing their petition, the record of the proceedings before the Commission as required by Section 536.130, RSMo 2000;² (3) Appellants could not obtain declaratory relief because a writ of certiorari was the only available method for judicial review of the Commission's decision; and (4) Appellants could not obtain injunctive relief because their petition had little probability of success on the merits and they failed to plead facts sufficient to entitle them to injunctive relief.

After Platte County filed its motion to dismiss, Appellants filed a motion for leave to file a second amended petition and to join additional parties. In their motion, Appellants stated that they wanted to add the Platte County Commissioners, in their official capacities, as defendants and to add a specific request that the court direct Platte County and the Platte County Commissioners to file responsive pleadings, prepare a record of the pertinent Commission proceedings, and transmit the record to the Platte County Clerk of the Court.

The circuit court held a hearing on Intervenors' motion to intervene, Platte County's motion to dismiss, and Appellants' motion for leave to file a second amended petition and to join additional parties. During the hearing, the court granted Intervenors' motion to intervene. Following the hearing, the court entered an order dismissing Appellants' first amended petition. At Appellants' request, the court designated the dismissal order as a final judgment for purposes of appeal. Appellants filed this appeal.

STANDARD OF REVIEW

We review the grant of a motion to dismiss de novo . Vogt v. Emmons, 158 S.W.3d 243, 247 (Mo.App. E.D.2005). In reviewing the petition, we accept the allegations in the petition as true and grant the plaintiffs all reasonable inferences from those allegations. Campbell v. Cty. Comm'n of Franklin Cty., 453 S.W.3d 762, 767 (Mo. banc 2015). We will affirm the dismissal on any meritorious ground stated in the motion. Bethman v. Faith , 462 S.W.3d 895, 899 (Mo.App. E.D.2015).

ANALYSIS

In their four points on appeal, Appellants challenge each of the grounds raised in Platte County's motion to dismiss. We will address Points I and II together. In Point I, Appellants assert that the circuit court erred in dismissing their petition for failure to join the Commission as a party. In Point II, Appellants contend the circuit court erred in dismissing their petition for failing to timely file the record. As both of these points concern the procedure for judicial review of zoning actions, a brief discussion of that procedure is in order.

The circuit court's authority to review the Commission's decision arises from Section 64.660. This statute provides the procedure for judicial review of zoning actions in second and third class counties. According to Platte County, although it is a non-charter first class county, its planning and zoning program continues to operate pursuant to Sections 64.510 to 64.690, the statutory scheme applicable to second and third class counties.³ To change its planning and zoning program and adopt the program applicable to non-charter first class counties under either Sections 64.211 to 64.295 or Sections 64.800 to 64.905, Platte County would have to hold an election and obtain voter approval. §§ 64.211 and 64.800. It is undisputed that Platte County has never held such an election. Therefore, Platte County's planning and zoning program is subject to the provisions of Section 64.510 to 64.690, including Section 64.660's provision for judicial review.

Section 64.660 is to be read in pari materia with Chapter 536, the Administrative Procedures Act. State ex rel. State Tax Comm'n v. Luten, 459 S.W.2d 375, 378 (Mo. banc 1970). Pursuant to Rule 100.01, "The provisions of sections 536.100 through 536.150, RSMo, shall govern procedure in circuit courts for judicial review of actions of administrative agencies unless the statute governing a particular agency contains different provisions for such review." Hence, Sections 536.100 through 536.150 govern any procedural matters not addressed in Section 64.660.

Section 64.660.2 provides, in pertinent part, that any owners of land aggrieved by any decision of the board of adjustment or county commission under the provisions of Sections 64.510 to 64.695 "may present to the circuit court of the county in which the property affected is located, a petition, duly verified, stating that the decision is illegal in whole or in part, specifying the grounds of the illegality and asking for relief therefrom." The petition is to be presented to the circuit court within 30 days after the mailing or delivery of the notice of the agency's decision. § 536.110.1; Luten, 459 S.W.2d at 378.

After the petition is presented to the circuit court, Section 64.660.2 details what happens next:

Upon the presentation of the petition the court shall allow a writ of certiorari directed to the board of adjustment or the county commission, respectively, of the action taken and data and records acted upon, and may appoint a referee to take additional evidence in the case. The court may reverse or affirm or may modify the decision brought up for review.

Thus, after an aggrieved landowner presents a petition to the circuit court challenging an agency's zoning action, the court is to issue a writ of certiorari directed to the agency, which in this case is the Commission, compelling it to provide the court with the complete record upon which the action was taken. See, e.g., Campbell, 453 S.W.3d at 764 (noting that, after a petition seeking judicial review under an identical provision in Section 64.870.2 was filed, the circuit court "issued a writ of certiorari to the commission, directing it to provide the court with a certified copy of the complete...