Drury Displays, Inc. v. City of Richmond Heights

• Decision Date: 26 March 1996
• Docket Number: No. 69003,69003
• Citation: Drury Displays, Inc. v. City of Richmond Heights, 922 S.W.2d 793 (Mo. App. 1996)
• Parties: DRURY DISPLAYS, INC., and Gordon F. Webb, Appellants, v. CITY OF RICHMOND HEIGHTS, Brainerd W. Latourette, and David Reary, Respondents.
• Court: Missouri Court of Appeals

Page 793

922 S.W.2d 793

DRURY DISPLAYS, INC., and Gordon F. Webb, Appellants, v. CITY OF RICHMOND HEIGHTS, Brainerd W. Latourette, and David Reary, Respondents.

No. 69003.

Missouri Court of Appeals,

Eastern District,

Division Three.

March 26, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied April 30, 1996.

John S. Meyer, Jr., Jay L. Kanzler, Jr., Bryan Cave L.L.P., St. Louis, for appellants.

Kenneth J. Heinz, Curtis, Oetting, Heinz, Garrett & Soule, P.C., Clayton, for respondents.

GARY M. GAERTNER, Judge.

Appellants, Drury Displays, Inc., and Gordon Webb, appeal the judgment of the Circuit Court of the County of St. Louis dismissing their petition against the City of Richmond Heights, Brainerd LaTourette (the mayor of Richmond Heights), and David Reary (the city's building commissioner) (collectively "the city"), for failure to exhaust administrative remedies. We affirm.

Webb owns a home at 1155 Francis Place, located in the City of Richmond Heights. The structure sits on a lot fifty feet wide by 150 feet deep. After purchasing the property in 1981, he converted the house into offices which are currently occupied by several different tenants. The buildings on the 1100 and 1200 blocks of Francis Place are predominantly single family homes, although much of the area surrounding Webb's property and the other homes is commercialized. ¹

In May of 1991, the city zoned the area east of Brentwood Boulevard, including Webb's property, a Planned Development District ("PDD"), further subclassified for future planned commercial growth. This was in accordance with the city's plan for the coordinated development of the Brentwood Boulevard Corridor, of which the Galleria shopping mall was a part. Under the PDD, all existing uses were deemed non-conforming but allowed to continue in their current use. However, for any expansion or further development of any of the non-conforming uses, the property owners would have to comply with the regulations enacted to further the area's comprehensive development.

In the late summer and early fall of 1994, Webb began negotiating with Drury Displays, Inc. ("Drury"), about the company's use of Webb's property for an outdoor advertising structure. The parties thought the property's location adjacent to Highway 170 ideal for such a venture, and a lease was signed on September 19, 1994. The lease allowed Drury to erect a structure supporting two sign faces, each face to be fourteen feet high by forty-eight feet wide, and standing between seventy-seven and seventy-eight feet high, on the yard of Webb's property.

After entering this lease, Drury requested a letter from the city stating the property's zoning classification in order to obtain the requisite state billboard permit. ² The city sent a current zoning map showing the area and the current zoning classifications. Drury and Webb took issue with the city's response, contending it and its agents did not cooperate nor comply with the request. The city argues it provided them with the information needed but merely not in the exact format in which it was requested. The dispute resulted in Webb and Drury filing suit against the city, which they allege was necessary to make the city comply with their zoning request. Webb and Drury took the deposition of one of the city clerks, who stated the property was zoned "planned development commercial." On the basis of this testimony and a state permit application, on which a Drury representative represented the property was "zoned commercial," the Missouri State Highway and Transportation Commission issued the permit on November 18, 1994. Webb and Drury then compiled the necessary documents and, on November 23, applied to the city for a building permit.

While the application was pending, the city was in the process of amending Ordinance 4362, its ordinance regulating signs. Ordinance 4362 generally banned any "on-premises sign" which advertised an article not manufactured or sold or a service not rendered on the premises, and "off-premises signs" in all zoning classifications. Recent litigation in the St. Louis area had given the city cause to believe the ordinance violated the state's Billboard Act. ³ The amended ordinance, Ordinance 4566, would allow off-premises signs in areas zoned C-1 and C-2, the city's commercial zoning classifications, but would still prohibit such signs in areas zoned PDD's. Ordinance 4566 was to go into effect on December 4, 1994. On December 1, Webb and Drury sought and were granted a temporary restraining order preventing the city from applying the amended ordinance against them.

In a letter dated December 7, David Reary, the city's building commissioner and the officer in charge of issuing building permits, denied Webb and Drury's permit request on a number of grounds. These grounds included the applicants' failure to submit a development plan in accordance with the PDD ordinances, failure to demonstrate the materials forming the structure and sign faces were non-combustible and corrosion-resistive in accordance with the building code (Ordinance 4201), failure to demonstrate the minimum distance required between the rooftop and the bottom of the sign in accordance with the building code, failure to comply with various provisions of Ordinance 4238 regulating structure height and minimum front yard requirements, and failure to furnish an electrical permit necessary because the sign structure was to be lighted. Reary did not rely on Ordinance 4362, nor did he apply Ordinance 4566.

Anthony Mariani, the real estate manager for Drury Displays, responded to some of these concerns, also by letter. However, problems concerning the lack of a development plan, the height of the structure and the front yard requirements, and the missing electrical permit were not addressed at all, and his response with respect to the material for the sign faces needed further clarification. Despite being notified of these defects, neither Webb nor Drury responded further.

Instead, they filed an amended petition with the circuit court. The petition alleged in part:

14. On November 23, 1994, [Drury] filed an application for a Building Permit with the City for the construction of an outdoor advertising sign on the Property.... [Drury] was told by the City that the Building Commissioner would be on vacation until December 5, 1994, and that no action could be taken ... until his return. In the interim, the City attempted to enact Ordinance [4566] ... which ordinance was to become effective December 4, 1994. The effect of Ordinance [4566] would have been to prohibit an outdoor advertising sign on the Property.

* * * * * *

16. The application for a Building Permit submitted by [Drury] meets all valid, enforceable criteria and/or [Drury has] demonstrated why [it is] entitled to the immediate issuance of a permit by the City authorizing the erection of the outdoor advertising sign.

17. The City and the Building Commissioner's refusal to process and approve [Drury's] application constituted, and continues to constitute, an unlawful de facto ban on all outdoor advertising signs within the City in direct violation of the decision in National Advertising.

18. The actions of the City, the Mayor and the Building Commissioner, in refusing to accept, process or approve the application for the erection of an outdoor advertising sign on the property, were, and...