Duffner v. City of St. Peters

Decision Date12 January 2016
Docket NumberED 102898
Citation482 S.W.3d 811
Parties Carl and Janice Duffner, Appellants, v. City of St. Peters, Respondent.
CourtMissouri Court of Appeals

David E. Roland, 14779 Audrain Road 815, Mexico, MO 65265, for Appellants.

V. Scott Williams, Jared D. Howell, 200 North Third Street, St. Charles, MO 63301, for Respondent.

Gary M. Gaertner, Jr., Judge

Introduction and Summary

Carl and Janice Duffner (Appellants) appeal the dismissal of their petition against the City of St. Peters (City). The City had sought to enforce an ordinance requiring Appellants to maintain turf grass on at least 50 percent of their residential yard areas. Appellants initially requested a variance from the City's Board of Adjustment (Board), and after the Board granted only a partial variance, Appellants filed the present action. Section 89.1101 provides that parties aggrieved by a board of adjustment decision are to seek review by requesting a writ of certiorari in the circuit court, but none of the four counts in Appellants' petition requested a writ of certiorari under Section 89.110. The trial court dismissed the petition, finding it lacked jurisdiction in that Appellants failed to exhaust their administrative remedies.

However, as this Court has previously held, certiorari procedure under Section 89.110 does not encompass review of claims that an underlying ordinance is invalid. To the extent the counts of Appellants' petition raised challenges to the validity of the ordinance, a trial court did have general plenary jurisdiction over those claims. This Court has held that a trial court may only exercise either (1) its general plenary jurisdiction to resolve issues regarding the validity of ordinances, or (2) its "limited statutory jurisdiction" under Section 89.110 to review a decision of a board of adjustment by a writ of certiorari. However, in light of the Missouri Supreme Court's decision in J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009), Section 89.110 does not limit the plenary jurisdiction granted to circuit courts by the Missouri Constitution, but rather limits a court's authority to grant a particular remedy in a particular case. Id. at 254. Because Section 89.110 is not a limit to the court's jurisdiction under Webb, this calls into question our prior cases holding that a circuit court may act only under its general plenary jurisdiction or under the statute in a single proceeding. However, the petition here did not include both types of claims.

Counts I, III, and IV of Appellants' four-count petition claimed the ordinance at issue was invalid, and thus the trial court erred in concluding it did not have jurisdiction to rule on these counts. Further, Count II attacked the decision of the Board, and Section 89.110 provides the exclusive remedy for judicial review of that claim. Because Count II did not request a writ of certiorari under Section 89.110 regarding the claimed error of the Board, the trial court properly dismissed it.

Because the trial court did have jurisdiction over Appellants' claims in Counts I, III, and IV, we also review the other grounds asserted in the City's motion to dismiss; namely, that the petition failed to state a claim upon which relief could be granted. In reviewing Count I, a substantive due process claim under 42 U.S.C. § 1983, we find that it failed to adequately allege conduct on the part of the City that was "truly irrational." However, Counts III and IV sufficiently pled their respective causes of action for a taking and that the City exceeded its statutory power in enacting the ordinance at issue. Thus, we affirm the trial court's dismissal of Counts I and II, and we reverse the trial court's dismissal of Counts III and IV.


Appellants reside in the City of St. Peters. In May of 2014, Appellants received a notice from the City stating that their property was not in compliance with Section 405.390(A)(4) of the City's code (the Ordinance), which includes the following requirement: "A minimum of fifty percent (50%) of all yard areas shall be comprised of turf grass." At that time, Appellants did not have any turf grass in any of their yard areas.

Appellants applied to the City's Board of Adjustment for a variance, requesting that they be exempt from the Ordinance's turf grass requirement. The Board held a hearing, after which it did grant a variance. However, rather than exempting Appellants entirely from the turf grass requirement, the Board reduced the requirement to five percent. The Board also stated that the five percent of turf grass must all be planted in Appellants' front or side yards.

Appellants subsequently filed a petition in the trial court against the City seeking declaratory and injunctive relief. Appellants alleged that their reasons for removing turf grass entirely from their property were to stabilize a hill in their back yard, to deter erosion from water draining into their yard from City property, and to minimize Janice Duffner's allergic reactions from exposure to grass pollen.

Appellants' petition asserted the Ordinance's turf grass requirement was invalid and raised four counts: that the turf grass requirement violates Appellants' substantive due process right to control their own private property (Count I); that the variance granted by the Board violates equal protection in that no other property owners had to situate their turf grass completely in front or side yards (Count II); that the Ordinance's restrictions constitute an unconstitutional taking of private property (Count III); and that the Ordinance constitutes an exercise of power that exceeds the City's statutory zoning power (Count IV). Appellants requested that the trial court declare the turf grass requirement unconstitutional and enjoin the City from enforcing it, and alternatively Appellants requested just compensation for the taking of their private property.

The City moved to dismiss Appellants' petition, arguing that it failed to state a claim upon which relief could be granted, and that the trial court lacked subject matter jurisdiction because Appellants failed to exhaust their administrative remedies. The trial court found that Appellants failed to raise their constitutional claims before the Board or in any subsequent administrative appeal under Section 89.110. The trial court held Appellants were required to do so in order to exhaust their administrative remedies, and thus the trial court concluded it did not have subject matter jurisdiction over Appellants' petition. The trial court granted the City's motion and dismissed Appellants' petition in its entirety. This appeal follows.

Standard of Review

Our review of a trial court's dismissal of a petition is de novo . McCarthy v. Peterson, 121 S.W.3d 240, 243 (Mo.App.E.D.2003). We accept the factual allegations in the petition as true and view them in the light most favorable to the plaintiff. Id. We "construe the petition liberally [and] give the pleadings their broadest intendment," in order to determine whether the pleaded facts, "if established, demonstrate a right of recovery against the defendant which the law recognizes, or of a cause that might be adopted in the case." Plengemeier v. Thermadyne Indus., Inc., 409 S.W.3d 395, 400 (Mo.App.E.D.2013). We also review the grounds raised in the defendant's motion to dismiss, and if the dismissal cannot be sustained on any of the grounds alleged in the motion, we must reverse. In re Estate of Austin, 389 S.W.3d 168, 171 (Mo. banc 2013).


Appellants raise seven points on appeal, all arguing that the trial court erred in dismissing their petition. We examine each of the four counts of Appellants' petition to determine whether they sufficiently state a cause of action, as well as the City's motion to dismiss to determine whether any basis the City raised may sustain the trial court's dismissal. However, we begin by examining the trial court's basis for dismissal in general here.

Subject Matter Jurisdiction

The trial court found that all claims of Appellants' petition constituted a collateral attack on the Board's order and concluded that it lacked subject matter jurisdiction. The trial court reasoned that Appellants failed to raise their constitutional claims at the earliest opportunity—in front of the Board—and failed to exhaust their administrative remedies under Section 89.110. The trial court erred in these findings and conclusions.

The trial court noted the general rule that a person may not collaterally attack a decision of the Board by filing suit in the circuit court, but rather his or her exclusive remedy is under Section 89.110, citing Bush v. City of Cottleville, 411 S.W.3d 860, 865 n.5 (Mo.App.E.D.2013). Indeed, Section 89.110 provides the remedy for any person aggrieved by a decision of the board of adjustment, which is a petition for a writ of certiorari in the circuit court.2 Additionally, where "there is an adequate statutory remedy the procedure prescribed is exclusive." Normandy Sch. Dist. v. City of Pasadena Hills, 70 S.W.3d 488, 492 (Mo.App.E.D.2002).

However, this Court in Bush also noted the distinction between an attack on the decision of a board of adjustment and an attack on the validity of an ordinance. 411 S.W.3d at 865 n. 5 (citing St. John's Evangelical Lutheran Church v. City of Ellisville, 122 S.W.3d 635, 640 (Mo, App.E.D.2003) ). A board of adjustment functions in an administrative or quasi-judicial capacity, and its decisions are reviewed pursuant to statutory mandate. See Section 89.110; Rosedale–Skinker Improvement Ass'n v. Bd. of Adjustment of St. Louis, 425 S.W.2d 929, 938 (Mo. banc 1968) (board of adjustment has no legislative powers, but acts in administrative or quasi-judicial capacity). In contrast, enactment of a zoning ordinance is a legislative function. "A challenge to the validity of an ordinance is a challenge of an exercise of a legislative function, and certiorari does not lie to review the exercise of...

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