DMK Holdings, LLC v. City of Ballwin, ED110153

CourtCourt of Appeal of Missouri (US)
Writing for the CourtCristian M. Stevens, J.
PartiesDMK HOLDINGS, LLC, Appellant, v. CITY OF BALLWIN, Respondent.
Docket NumberED110153
Decision Date07 June 2022

DMK HOLDINGS, LLC, Appellant,
v.

CITY OF BALLWIN, Respondent.

No. ED110153

Court of Appeals of Missouri, Eastern District, Fifth Division

June 7, 2022


Appeal from the Circuit Court of St. Louis County Cause No. 20SL-AC17944 Honorable Virginia W. Lay

Cristian M. Stevens, J.

Introduction

Appellant DMK Holdings, LLC ("DMK") filed a two-count petition against the City of Ballwin ("Ballwin") on November 18, 2020, seeking damages for an inverse condemnation claim in Count I and a declaratory judgment in Count II. The Circuit Court of St. Louis County entered summary judgment for Ballwin on both counts.

On appeal, DMK raises two points: (1) the circuit court erred in granting summary judgment on Count I because the term "professional" used by Ballwin's inspector in his violation notice of DMK's fence does not have the same meaning as the "workmanlike" requirement in Ballwin's ordinance; and (2) the circuit court erred in granting summary judgment on Count II because DMK's solar panels did not require a permit. DMK argues the solar panels were not

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connected to the electrical system of the house and were not installed on a "roof" as contemplated in Ballwin's ordinances. We affirm the summary judgment of the circuit court.

Facts and Procedural Background

On March 23, 2020, a Ballwin building inspector conducted an occupancy inspection on DMK's property at 435 Great Hill Drive. The inspector found that a fence on the property needed to be power sprayed for mold and mildew, repaired to fix broken or rotting pickets, and replaced soon. DMK removed and replaced the fence. On June 11, 2020, the replacement fence failed reinspection. The inspector listed as reasons for the failed inspection "panels poorly secured and work must look professional."

Ballwin has adopted the International Residential Code ("IRC") and the International Property Maintenance Code ("IPMC") as part of its code of ordinances. IPMC 102.5, as adopted by Ballwin, states: "Workmanship. Repairs, maintenance, work, alterations or installations that are caused directly or indirectly by the enforcement of this code shall be executed and installed in a workmanlike manner and installed in accordance with the manufacturer's instructions." (Emphasis in original).

DMK owned a separate house at 401 Far Hill Drive, where it installed solar panels on the covering of the front porch of the structure. Viewed in the light most favorable to DMK, the covering on which the solar panels were installed consisted of plywood and shingles over the front porch. See Kroner Invs., LLC v. Dann, 583 S.W.3d 126, 128 (Mo. App. E.D. 2019) ("We review the record in the light most favorable to the party against whom judgment was sought."). On August 25, 2020, an inspector issued a violation notice to DMK for not having a permit to install the solar panels.

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IRC R105.1 requires a permit to "erect, install, enlarge, alter, repair, remove, convert or replace any electrical, gas, mechanical or plumbing system, the installation of which is regulated by this code." IRC R324.4 regulates "[r]ooftop-mounted photovoltaic panel systems installed on or above the roof covering" and refers to IRC R907. IRC R907 similarly regulates "[r]ooftop-mounted photovoltaic panels or modules" and refers back to IRC R324.

On November 18, 2020, DMK filed a petition against Ballwin for claims related to the inspectors' violation notifications. DMK brought an inverse condemnation claim in Count I.[1] It alleged, "There is no requirement anywhere that fences look 'professional' in order to have a permit issued." The petition also included a facial challenge to Ballwin's ordinance, pleading that the term "workmanlike" is unconstitutionally vague in violation of the Fourteenth Amendment to the United States Constitution and Article 1, Section 10 of the Missouri Constitution. In Count II, DMK sought a declaratory judgment that the solar panels at the Far Hill house did not require a permit because "this is a standalone system, [and] no such requirement exists." Similar to Count I, Count II also pleaded that the term "roof" in the ordinance is unconstitutionally vague.

On May 17, 2021, Ballwin moved for summary judgment on both counts pursuant to Rule 74.04(c)(1).[2] In support of its definitions of "workmanlike" and "roof," Ballwin attached the transcript of the deposition of Ballwin's building commissioner. Ballwin explained in its motion, and the building commissioner testified, that the building commissioner is responsible for interpreting Ballwin's code of ordinances. On October 26, 2021, the circuit court entered summary judgment for Ballwin on both counts. DMK appeals the summary judgment.

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Standard of Review

We review summary judgment de novo. Kroner, 583 S.W.3d at 128. A circuit court's order granting summary judgment will be affirmed on appeal if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. We review the record in the light most favorable to the non-moving party. Id.

Discussion

As an initial matter, stringent procedural requirements govern the raising and preservation of constitutional issues. If not raised at the first opportunity in the circuit court, a constitutional claim is waived and cannot be raised on appeal. K.M.M. v. K.E.W., 539 S.W.3d 722, 733-34 (Mo. App. E.D. 2017). DMK's petition, though sparse, may favorably be read to raise both facial and as-applied constitutional challenges to the ordinances. See Bennett v. St. Louis Cty., 542 S.W.3d 392, 397 (Mo. App. E.D. 2017) ("A successful as-applied challenge bars a law's enforcement against a particular plaintiff, whereas a successful facial challenge results in complete invalidation of a law"). On appeal, DMK eschews any facial challenge, and instead challenges the ordinances only as applied in this case. We therefore consider only DMK's as-applied challenges on appeal. See State ex rel. Dalton v. Missouri Comm'n on Human Rights, 618 S.W.3d 640, 651 (Mo. App. W.D. 2020) (stating issues not raised on appeal are considered waived).

DMK raises two points on appeal. In its first point, DMK argues the terms "workmanlike," as used in IPMC 102.5, and "professional," as used by the inspector, do not have the same meaning. Therefore, according to DMK, the fence could not fail inspection for not looking "professional." DMK argues in its second point that installation of the solar panels did not require a permit because the panels were not connected to the electrical system of the house, and the covering on which the solar panels were installed is not a "roof" for purposes of Ballwin's ordinances.

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Municipal ordinances are interpreted using the same rules governing statutory interpretation. City of St. Peters v. Roeder, 466 S.W.3d 538, 543 (Mo. banc 2015); New Life Evangelistic Ctr. v. City of St. Louis, 564 S.W.3d 665, 685 (Mo. App. E.D. 2018). The primary rule of statutory interpretation is to give effect to legislative intent as reflected in the plain language of the statute. Kehlenbrink v. Dir. of Revenue, 577 S.W.3d 798, 800 (Mo. banc 2019); State ex rel. Young v. Wood, 254 S.W.3d 871, 872 (Mo. banc 2008). Words contained in an ordinance should be given their plain and ordinary meaning. HHC Med. Grp., P.C. v. City of Creve Coeur Bd. of Adjustment, 99 S.W.3d 68, 71 (Mo. App. E.D. 2003).

Point I

DMK's position is that the definitions of "workmanlike" in the ordinance and "professional" in the violation notice are unresolved issues of material fact that could not be decided on summary judgment.[3] DMK insists, "The facts were Ballwin did not know why the fence was not 'professional.' The homeowner did not know why the fence was not 'professional.' No one knew why the fence was not 'professional.'"

DMK's position fundamentally is incorrect. The interpretation of an ordinance is not a question of fact; it is a question of law, which we review de novo. See City of Aurora v. Spectra Commc'ns Grp., LLC, 592 S.W.3d 764, 784 (Mo. banc 2019); City of St. Peters, 466 S.W.3d at 543; HHC, 99 S.W.3d at 71. A question of law is a matter for the independent judgment of the reviewing court. State ex rel. Teefey v. Bd. of Zoning Adjustment of Kansas City, 24 S.W.3d 681, 684 (Mo. Banc 2000); HHC, 99 S.W.3d at 70.

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We therefore exercise our independent judgment to interpret IPMC 102.5 as adopted by Ballwin.

The ordinance does not define "workmanlike." Absent a definition in the ordinance, courts refer to the plain and ordinary meaning of the ordinance's language. See City of Aurora, 592 S.W.3d at 784. The language is clear and unambiguous if its terms are plain and clear to a person of ordinary intelligence. Kehlenbrink, 577 S.W.3d at 800 (citing Wolff Shoe Co. v. Dir. of Revenue, 425 S.W.3d 118, 122 (Mo. banc 2014)). To determine the plain and ordinary meaning of the ordinance's language, we turn to the dictionary definition of "workmanlike." See HHC, 99 S.W.3d at 71 ("When a term is not defined, we refer to the dictionary to find the meaning that the legislature intended."); see also Fisher v. Waste Mgmt. of Missouri, 58 S.W.3d 523, 526 (Mo. banc 2001).

Ballwin directs us to Lexico.com, a website developed in part by the Oxford Dictionary, which identifies "workmanlike" and "professional" as synonyms. See Synonyms of Workmanlike, Lexico (Oxford), https://lexico.com/synonyms/workmanlike. Similarly, a perusal of the most up-to-date version of Webster's Dictionary identifies "workmanlike" as an antonym of "unprofessional," "unskillful," and "artless," and a synonym of "skillful" and "artful." Workmanlike, Merriam-Webster Dictionary (last updated Mar. 21, 2022), https://www.merriam-webster.com/dictionary/workmanlike#synonyms.

We nonetheless turn...

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