Clay County ex rel. County Com'n of Clay County v. Harley and Susie Bogue, Inc.

• Decision Date: 09 March 1999
• Docket Number: No. WD,WD
• Citation: Clay County ex rel. County Com'n of Clay County v. Harley and Susie Bogue, Inc., 988 S.W.2d 102 (Mo. App. 1999)
• Parties: CLAY COUNTY, Missouri, By and Through the COUNTY COMMISSION OF CLAY, Missouri, Appellant, v. HARLEY AND SUSIE BOGUE, INC., A Missouri Corporation, Respondent. 54427.
• Court: Missouri Court of Appeals

Page 102

988 S.W.2d 102

CLAY COUNTY, Missouri, By and Through the COUNTY COMMISSION OF CLAY, Missouri, Appellant, v.HARLEY AND SUSIE BOGUE, INC., A Missouri Corporation, Respondent.

No. WD 54427.

Missouri Court of Appeals Western District.

March 9, 1999.

Kevin A. Graham, Liberty, for appellant.

Randall Dean Crawford, Kansas City, for respondent.

Before HOWARD, P.J., BRECKENRIDGE and SPINDEN, JJ.

BRECKENRIDGE, Judge.

Clay County, Missouri, by and through the County Commission of Clay County, Missouri, appeals from the trial court's order entering judgment in favor of Harley and Susie Bogue, Inc.On appeal, Clay County contends that the trial court erred by holding that it had effected a taking of the Bogues' property because the Bogues had failed to exhaust their administrative remedies before filing their taking claim.Clay County also contends that the trial court erred in its entry of judgment because the Bogues failed to present sufficient evidence to establish that a temporary taking occurred or that they were damaged.Because the trial court's order is not final with regard to the taking issue, the appeal is dismissed.

This case involves a zoning dispute between Clay County and Harley and Susie Bogue, Inc.In 1941, Harley and Susie Bogue purchased farmland located in Clay County.Since that time, the Bogue family has continuously farmed the land and raised hogs for commercial purposes.Over the years, the Bogues' hog and grain operations have expanded.Initially, the Bogues conducted the hog operation entirely on land.In 1971, to increase efficiency and profitability, the Bogues partially moved the operation into a farrowing house.The farrowing house was and is used for birthing and weaning the piglets.The piglets are then moved outside.In 1974, the Bogues incorporated their farming operation for estate planning purposes.¹

In the mid-1990's, the Bogues contemplated further expansion of their hog operation.The Bogues wished to increase the population of eighty-five breeding sows and one thousand five-hundred finished hogs to a minimum of three hundred breeding sows and five thousand finished hogs annually.The Bogues consulted experts at the University of Missouri Agricultural Department, who recommended moving the operation entirely indoors to comply with profitability demands and laws pertaining to water and soil conservation.To accomplish these goals, the Bogues planned to construct additional buildings.Upon completion, the entire hog population would be contained in one of four separate buildings from the time of birth to sale at the market.

After making this decision, the Bogues' son met with Stuart Borders, the Director of the Clay County Planning and Zoning Department, to discuss the proposed expansion and obtain a building permit.During the course of the discussions, Mr. Borders questioned whether the proposed expansion should be classified as a "feedlot."If classified as a "feedlot," the expansion would require a conditional use permit to conform to Clay County zoning ordinances.Because Clay County's zoning ordinances lacked a definition of "feedlot," Mr. Borders consulted three outside sources and determined that the proposed expansion was a "feedlot" and thus required a conditional use permit.Mr. Borders informed the Bogues of his decision by a letter dated February 8, 1996.

Shortly thereafter, the Bogues filed an application with the Clay County Planning and Zoning Commission seeking the conditional use permit.In accordance with zoning regulations, the Commission held two public hearings on the application.In a letter dated April 10, 1996, however, the Bogues' counsel notified Clay County that the Bogues were withdrawing their application for the conditional use permit.The Bogues' counsel informed the County that "[i]t has always been applicant's position that a Conditional Use Permit is not required for the expansion of the Bogue family farm," and that under § 64.620, RSMo 1994, ² farming is exempted from zoning laws.According to counsel for the Bogues, Mr. Borders' classification of the farming operation as a "feedlot" was not supported by the zoning regulations because the term "feedlot" was not defined in the regulations.The Bogues' counsel went on to state in the letter that Clay County's attempt to require a conditional use permit, or any type of permit, prior to expansion of the Bogues' farming operation was a denial of the Bogues' substantive due process rights, and he notified Clay County that the Bogues intended to commence construction of the expansion of its farming operation by April 18, 1996.

After receiving the Bogues' letter, the County filed a petition in the Clay County Circuit Court.In its first count, Clay County requested that the trial court declare that the proposed expansion was a "feedlot" which required a conditional use permit prior to construction.In its second count, Clay County asked the trial court to enjoin the Bogues from beginning construction on the proposed expansion without prior issuance of a conditional use permit.Thereafter, the Bogues filed a counterclaim.In their first count, the Bogues requested a judgment from the court declaring that (1) the imposition of the County's zoning regulations resulted in a taking and damaging of their property in violation of the Fifth and Fourteenth Amendments to the United States ConstitutionandArticle I, Section 26 of the Missouri Constitution;(2) the County's zoning regulations as applied to the Bogues are invalid because they are contrary to § 64.620;(3) the proposed expansion is not a "feedlot"; and (4) the Bogues' proposed farming operation is exempt under § 64.620 and not subject to the County's zoning regulations.The Bogues sought an injunction against Clay County from prohibiting construction of the proposed operation and a damage award for the temporary taking of their property.In their second count, the Bogues sought a judgment from the court declaring that Clay County's classification of their proposed farming operation as a "feedlot" was "facially unreasonable, arbitrary, capricious, unconstitutional" and constituted a denial of its substantive due process rights, and an injunction enjoining Clay County from taking any action to prohibit the Bogues from constructing and operating their proposed farming operation.In their third count, the Bogues sought an injunction and damages for violation of their civil rights under 42 U.S.C. § 1983.

The parties submitted trial briefs.After hearing arguments on the briefs, the trial court entered its judgment on April 16, 1997.In its judgment, the trial court concluded that the buildings in which the Bogues proposed to conduct their hog operation were not "feedlots," but were farm buildings or structures within the meaning of § 64.620, and were thus exempt from the Clay County zoning regulations.The court also held that the Clay County zoning regulations regarding feedlots were unconstitutionally vague, ambiguous, and unenforceable, and, if meant to apply to farm buildings, were invalid at the time of their adoption.Furthermore, the court concluded that the regulations pertaining to feedlots were invalid as applied to the Bogues.The court declared that the Bogues' proposed expansion was not a "feedlot" and was exempt from the County's zoning regulations pursuant to § 64.620.In addition, the trial court enjoined Clay County from enforcing its zoning regulations pertaining to feedlots against the Bogues and requiring the Bogues to obtain a use permit to construct their proposed hog farm expansion.Finally, the trial court determined that the Bogues had suffered a temporary taking of their property in violation of Article I, § 26 of the Missouri Constitution as a result of the lawsuit filed against them by Clay County.The trial court's judgment did not address whether the Bogues had suffered a taking under the United States Constitution or whether the Bogues' civil rights were violated under 42 U.S.C. § 1983.With respect to the taking claim, the trial court determined only liability, leaving the issue of damages to be resolved at a later date.Pursuant to Rule 74.01(b), the trial court certified the judgment as final for purposes of appeal.Clay County then filed this appeal.

In its points on appeal, Clay County contends that the Bogues failed to exhaust their administrative remedies before filing their temporary taking claim, and that there was not sufficient evidence to support the trial court's judgment that a compensable taking occurred.On its failure to exhaust administrative remedies claim, the County argues that the Bogues were precluded from bringing a taking claim because they withdrew their application for a conditional use permit prior to a final decision by the Clay County Planning and Zoning Commission on the application.

In their lawsuit against the County, the Bogues asserted that the County's regulations classifying their operation as a feedlot and requiring them to obtain a conditional use permit prior to constructing their hog farming expansion were invalid because they were contrary to § 64.620.Section 64.620 provides that the power of second and third class counties to impose zoning regulations "shall not apply to the erection, maintenance, repair, alteration or extension of farm buildings or farm structures used for such purposes...."Section 64.620.2.In its judgment, the trial court concluded that the buildings in which the Bogues proposed to conduct their hog farming operation were farm buildings or structures within the meaning of § 64.620, and thus were exempt from zoning regulations.Furthermore, the trial court found that the County's regulations concerning feedlots, if meant to apply to farm buildings, were invalid at the time the regulations were adopted.

The issues raised by the County in its first point were recently addressed by the Missouri Supreme Court in the case of Premium...