Debold v. City of Ellisville
| Decision Date | 29 August 2013 |
| Docket Number | No. ED99944,ED99944 |
| Parties | THOMAS DEBOLD, Plaintiff/Appellant, v. THE CITY OF ELLISVILLE AND ITS COUNCIL: ADAM PAUL, MATT PIRRELLO, DAWN ANGLIN, LINDA REEL, TROY PIEPER, ROZE ACUP, AND MICHELLE MURRAY, Defendants/Respondents. |
| Court | Missouri Court of Appeals |
THOMAS DEBOLD, Plaintiff/Appellant,
v.
THE CITY OF ELLISVILLE AND ITS COUNCIL: ADAM PAUL,
MATT PIRRELLO, DAWN ANGLIN, LINDA REEL, TROY PIEPER,
ROZE ACUP, AND MICHELLE MURRAY, Defendants/Respondents.
No. ED99944
Missouri Court of Appeals Eastern District DIVISION THREE
FILED: August 29, 2013
Before Mary K. Hoff, P.J., Robert M. Clayton III, C.J., and Robert G. Dowd, Jr., J.
PER CURIAM
Thomas DeBold (DeBold) appeals from the Order and Judgment of the trial court upholding the final decision of the City Council of Ellisville (City Council) to grant a conditional use permit (CUP) to Wal-Mart, Inc., and the Sansone Group (collectively Wal-Mart) to construct and operate a general merchandise department store in the City of Ellisville (the City). We affirm.
This litigation concerns the development of a Wal-Mart within the City. As part of that development, Wal-Mart applied for and was granted a CUP from the City on September 5, 2012.
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The CUP that was granted, via passage of Ordinance No. 3083 (Ordinance), is valid for 12 months from the effective date of the Ordinance, which was September 5, 2012.
Prior to the passage of the Ordinance, the CUP was the subject of numerous meetings of the City's Planning and Zoning Commission, Architectural Review Board, and City Attorney, and was the subject of review and approval by the City Planner, the City Engineer, the City's Third-Party Traffic Consultant and Landscape Architect, the City Police Chief, the Missouri Department of Transportation, the St. Louis Metropolitan Sewer District, St. Louis County, and Metro West Fire Protection District. After extensive deliberation and review, the City Council approved the application for a CUP. On July 18, 2012, at the first City Council meeting at which the CUP was discussed, the City introduced 27 documents as public exhibits. These exhibits consisted of hundreds of pages of materials, including numerous studies and reviews by City staff and outside consultants. The City approved the application for a CUP via passage of the Ordinance, first read on August 15, 2012, and second read and passed on September 5, 2012. In a Memorandum to the City's Mayor and City Council, the City's Manager, Kevin Bookout, concluded:
The project is consistent with the City's adopted Comprehensive Plan and the standards of good planning, as determined by the City Planner, City Engineer, the City's Third-Party Traffic Consultant and Landscape Architect, the City's Planning and Zoning Commission, and the City Council. In addition, the proposed use has been reviewed by the City Police Chief, the Missouri Department of Transportation, the St. Louis Metropolitan Sewer District, St. Louis County, and Metro West Fire Protection District. All of the professional reviewing persons and entities have found the project, as extensively conditioned by the City Council, to be reasonable and appropriate within the scope of their respective jurisdictions and expertise.
On September 19, 2012, DeBold filed an appeal with the City concerning the approval of the CUP. DeBold did not raise any procedural deficiency or irregularity with respect to the
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City's decision to grant the CUP. On October 3, 2012, DeBold's appeal was considered by the City and was denied by a vote of the City Council.
DeBold sought judicial review of the City Council's decision. A hearing was held before the trial court on January 30, 2013. The trial court entered its Order and Judgment on February 26, 2013, in which it found that the decision to grant the CUP was supported by competent and substantial evidence upon the record, thereby affirming the City Council's decision. This appeal follows. Additional facts are provided as needed in the discussion section below.
On review of a grant or denial of a conditional use permit by a municipal agency, we consider the ruling of the municipal agency, not that of the circuit court. Platte Woods United Methodist Church v. City of Platte Woods, 935 S.W.2d 735, 738 (Mo. App. W.D. 1996). The standard of review is whether the agency's action is supported by competent and substantial evidence upon the record. Platte Woods United Methodist Church, 935 S.W.2d at 738; State ex rel. Karsch v. Camden County, 302 S.W.3d 754, 756 (Mo. App. S.D. 2010). In determining whether the administrative action is supported by substantial and competent evidence upon the whole record, we may consider only the record that was before the administrative body. Platte Woods United Methodist Church, 935 S.W.2d at 738.
In addition, the appropriate method of reviewing a city council's administrative decision to grant or deny a special use permit was resolved in Deffenbaugh Industries, Inc. v. Potts, 802 S.W.2d 520 (Mo. App. W.D. 1990). State ex rel. Presbyterian Church of Washington, Missouri v. City of Washington, Missouri, 911 S.W.2d. 697, 701 (Mo. App. E.D. 1995). "The judicial review of a zoning and planning decision by a municipal agency is provided by Section 89.110, and so controls." Presbyterian Church of Washington, Missouri, 911 S.W.2d. at 701 (quoting
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Deffenbaugh Industries, Inc, 802 S.W.2d at 524). The trial court does not hear the case de novo, but rather reviews the city council's decision to determine whether it is supported by substantial and competent evidence on the record as a whole. Id.; Chaminade College v. City of Creve Coeur, 956 S.W.2d 440, 442 (Mo. App. E.D. 1997).
Points I, II, V, VI, VIII, IX, and X address the issue of the proper standard of review in reviewing the City's actions and, therefore, for ease of analysis and reading, will be considered together.
In Point I, DeBold argues the trial court applied the "incorrect, deferential standard of review" and failed to make the required factual findings and legal conclusions. We disagree.
Here, the trial court applied the appropriate standard of review and reviewed the certified record, finding that "competent and substantial evidence" supported the City's decision. Platte Woods United Methodist Church, 935 S.W.2d at 738. The trial court reviewed the certified record "extensively" and considered many hundreds of pages of documents. The trial court then issued an extensive and thorough "Order and Judgment" containing detailed findings and conclusions about every issue in the case, including each of the seventeen factors that govern the granting of a CUP. The trial court made detailed factual findings concerning the City's acceptance of the application and also about the contents of the application itself. The trial court then, as a conclusion of law, found both that the City's actions implied that the CUP application complied with the ordinance and that "there is no clear and convincing, or any, evidence that the application for a conditional use permit was deficient in any way." The trial court applied the
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correct standard in reviewing the City Council's decision to approve the CUP and issued findings and conclusions in support of its decision. Point I is denied.
In Point II, DeBold argues the trial court erred in denying his motion for judgment and in finding that the City acted legally in granting the CUP. We disagree.
Here, the competent and substantial evidence in the record indicates that, pursuant to the requirements of City Code Section 400.150(B)(1), each and every property owner signed the conditional use permit application via an "Owner/Applicant/Agent Affidavit" Form.
As under Point I, the scope of review on this issue is limited to determination of "whether the Board's action is supported by competent and substantial evidence upon the whole record...." Karsch, 302 S.W.3d at 756. The evidence is reviewed "in the light most favorable to the council's decision and we may not substitute our judgment for that of the council's." Presbyterian Church, 911 S.W.2d at 701; Village Lutheran Church v. City of Ladue, 935 S.W.2d 720, 722 (Mo. App. E.D. 1996). The City is entitled to the benefit of all reasonable inferences from the evidence and "[i]f the evidence would support either of two different, opposed findings, this Court is bound by the determination of the administrative agency." Karsch, 302 S.W.3d at 756.
City Code Section 400.150(B)(1), entitled Application Requirements, provides in pertinent part that, "[i]f an authorized agent or the leaseholder of the use is requesting the conditional use permit, the property owner must also sign the conditional use permit application." Section 400.150(B)(1). DeBold contends that one property owner, the Clarkchester Apartments Association (CAA), did not sign an authorization for the CUP application. However, the certified record reveals the following: (1) there are eight members of
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the CAA who own specific Clarkchester apartment buildings; (2) all eight of those members, the unanimous entirety of...
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