City of Clinton v. Terra Foundation, Inc.

• Court: Missouri Court of Appeals
• Writing for the Court: Harold L. Lowenstein
• Citation: City of Clinton v. Terra Foundation, Inc., 139 S.W.3d 186 (Mo. App. 2004)
• Decision Date: 22 June 2004
• Docket Number: No. WD 62813.,WD 62813.
• Parties: CITY OF CLINTON, Missouri, Respondent, v. TERRA FOUNDATION, INC., Appellant, Elmer L. Flick, Defendant, Ricci L. McCallister a/k/a Ricci L. Turner, Appellant, and David L. Flick, Appellant.

139 S.W.3d 186

CITY OF CLINTON, Missouri, Respondent, v. TERRA FOUNDATION, INC., Appellant Elmer L. Flick, Defendant Ricci L. McCallister a/k/a Ricci L. Turner, Appellant, and David L. Flick, Appellant.

No. WD 62813.

Missouri Court of Appeals, Western District.

June 22, 2004.

Motion for Rehearing and/or Transfer to Supreme Court Denied July 27, 2004.

Appeal from the Circuit Court, Henry County, William J. Roberts, J Joann T. Sandifer, St. Louis, MO, for Appellant.

J. Eric Mitchell, Clinton, MO, for Respondent.

Before: LOWENSTEIN, P.J., EDWIN H. SMITH and HOWARD, JJ.

HAROLD L. LOWENSTEIN, Judge.

Appellants David L. Flick, Ricci L. McCallister, and Terra Foundation, Inc. used land in the city of Clinton to grow wild flowers and prairie grasses. Clinton sought and the trial court issued a permanent injunction, which, among other things, barred appellants from using land zoned R-1 (Residential) for business or commercial purposes. Appellants claim the trial court misinterpreted Clinton's zoning code and that the injunction violates Rule 92.02(e).

I. FACTS

David L. Flick and Ricci L. McCallister grow prairie grasses and wildflowers on a tract of land initially owned by Terra Foundation, Inc. but now owned by Flick. Terra, a non-profit organization, was incorporated by Flick, who remains its president. Flick is a horticulturist who specialized in the propagation of indigenous prairie grasses. The grasses and wildflowers are then sold, exchanged, or given away off-site. (In 2001, the land yielded around 9,500 plants.) The land is in the City of Clinton's zone R-1 single-family residential district. In 1998, Terra had attempted to have the land rezoned C-O office district, but its application was denied.

There are two buildings on the land. The first is a thirty-by-twenty-five foot shed that Flick occasionally uses as a residence. It has a bathroom, bathing facilities, and a refrigerator in it. Its principal use is as Terra Foundation's business office, though Flick spent the night there for months in 2001. The second building is a sixty-by-forty foot metal building that has a loading dock for semi-trucks. It is used to store seeds, mulch, and containers used to grow the wildflowers and prairies grass. The grass and wildflowers are sold or given away at another location.

The City told Flick that he was violating Clinton's zoning ordinances and that he should stop. Flick ignored the City's warnings, and the City then brought this petition seeking a permanent injunction barring Flick, McCallister and the Terra Foundation from using the land for "commercial purposes, contrary to the [o]rdinances of the [c]ity ..." It also sought any other relief that the trial court deemed "just and proper under the circumstances."

After a hearing, the trial court found that "[t]he use of this property has principally been commercial, in that all of the grasses and plants produced on the property have been sold or given, and transported off the property to other places" and that "[t]he use of this property has not been agricultural, as defined by the Code, because it is the primary purpose of the use this property is put to — not secondary to normal agricultural activities." The trial court issued a permanent injunction that barred Flick, McCallister, and the Terra Foundation from "(1) utiliz[ing] [the land] for commercial or business purpose [sic]; (2) produc[ing] or grow[ing] grasses, plants, flowers for sale, gift, exchange, donation or off-site use at [the land's address]; (3) us[ing] the smaller of two buildings now on the premises [of Terra's land] for any business being conducted on the property; or (4) us[ing] [the land] for any purpose or use that violates the Clinton Zoning Code.".¹

Terra claims that the trial court misinterpreted the Clinton zoning code and that the injunction violates Rule 92.02(e).

II. SCOPE OF REVIEW

A primary rule of construction in Missouri is that zoning ordinances are in derogation of property rights conferred by the common law, and as such should, wherever ambiguous, be strictly construed in favor of the landowner. City of Louisiana v. Branham, 969 S.W.2d 332, 338 (Mo.App.1998). "Where the language of a statute is clear and unambiguous, we will give effect to the language as written and will not resort to statutory construction." Cantwell v. Douglas County Clerk, 988 S.W.2d 51, 54-55 (Mo.App.1999). In construing city ordinances the same rules that apply to statutory construction apply: The cardinal rule is to give effect to the intent of the legislative body, and the words should be given their plain and ordinary meaning. State ex rel. Teefey, v. Bd. of Zoning Adjustment of Kansas City, 24 S.W.3d 681, 684 (Mo. banc 2000). Where two statutory provisions covering the same subject matter are unambiguous standing separately, but are in conflict when examined together, a reviewing court must attempt to harmonize them and give effect to both. In re K.C.M., 85 S.W.3d 682, 692 (Mo.App.2002). If that harmonization is impossible, the general statute must yield to the statute that is more specific. Day v. Wright County, 69 S.W.3d 485, 490 (Mo.App.2000). This court will affirm an injunction unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it misconstrues or misapplies the law. Kessler-Heasley Artificial Limb, Co. v. Kenney, 90 S.W.3d 181, 184 (Mo.App.2002).

III. ANALYSIS

Clinton's zoning code ("the Code") states, in a preamble titled "General Purpose," the following regarding the zoning of a district R-1 single-family residential:

This is a residential district intended for single-family development. The principle use of the land is for single-family detached dwellings and related recreational, religious and educational facilities normally required to provide the basic elements of a balanced and attractive residential area. These areas are intended to be defined and protected from the encroachment of uses not performing a function necessary to residential environment. Internal stability, attractiveness, order, and efficiency are encouraged by providing for adequate light, air, and open space for dwellings and related facilities and through consideration of the proper functional relationship of each element.

CLINTON, MO., ORDINANCES art. II, § 2(A) (1994). In the section of the zoning code immediately following this statement of general purpose, the code lists the following "permitted uses" of R-1 land:

1. Single-family detached dwellings.

2. Cemeteries.

3. Churches and other places of worship including parish houses, but excluding rescue missions.

4. Elementary and secondary schools and libraries.

5. Public and private parks.

6. Garden and agricultural crops, but not the raising of livestock.

7. Home occupations.

8. Accessory buildings which are not a part of the main buildings, including a private garage, and uses customarily incidental to any of the above permitted uses when located on the same lot.

CLINTON, MO., ORDINANCE art. II, § 2(B) (1994) (emphasis added). The word "garden" is not defined, though the code defines "agriculture" as:

The use of land for agricultural purposes, including farming, dairies, pasture, apiculture, horticulture, viticulture, and animal and poultry husbandry and the necessary accessory uses for packing, treating, or storing the produce; provided, however, that the operation of any such accessory uses shall be secondary to that of the normal agricultural activities; and further provided that the keeping of poultry and livestock shall be in accordance with other applicable city ordinances.

CLINTON, MO., ORDINANCE art. I, § 7(B)(4) (1994).

1.

Terra's first argument is that the trial court misinterpreted Clinton's zoning code as forbidding all commercial or business activity in districts zoned R-1. Nothing in Clinton's zoning code directly forbids commercial or business use of R-1 land. To the contrary, two permitted uses of R-1 land (private parks and home occupations) are explicitly commercial. And the rest are not necessarily non-commercial. A cemetery, for instance, can make money by selling plots. The code does not per se prohibit commercial activities on R-1 land.

The City maintains that the statement of general purpose makes clear that Terra's principally commercial activity is forbidden. The statement proclaims that "[t]he principle (sic) use of the land [zoned R-1] is for single-family detached dwellings and related recreational, religious and educational facilities normally required to provide the basic elements of a balanced and attractive residential area." The trial court didn't just prohibit activities that are primarily commercial; it prohibited Terra from engaging in any commercial or business activities on the land. (And the City's petition asked for precisely this.) In addition, a "statement of purpose embodied in a zoning ordinance ... cannot be employed to bypass the specific language of the ordinance." 83 AM.JUR.2D Zoning & Planning § 638 (2003). See also Lett v. City of St. Louis, 948 S.W.2d 614, 617 (Mo.App.1996) (statutory preambles "will not be considered for the purpose of contradicting the enacting portion of the statute"). So if Terra's activities fall within the ambit of the list of permitted uses, the statement of general purpose, insofar as it is to the contrary, must give way. In any event, the City has misread the statement of general purpose, which does not purport to qualify the list of permitted uses. If it did, it would make the code contradictory and, thus, provide no guidance to landowners. The list of permitted uses in II(A), would allow a landowner to use his land exclusively as a cemetery or park, but the statement of general purpose, as interpreted by the City, would require the landowner to build a residence, although there is no express requirement even in the statement of purpose. Finally, it should be noted that to adopt the City's interpretation would...