Fleddermann v. Camden County, Mo. Bd., SD 29413.

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: Per Curiam
• Citation: 294 S.W.3d 121
• Parties: Steven R. FLEDDERMANN, Appellant, v. CAMDEN COUNTY, MISSOURI BOARD OF ADJUSTMENT, et al., Respondents.
• Docket Number: No. SD 29413.,SD 29413.
• Decision Date: 05 October 2009

294 S.W.3d 121 Steven R. FLEDDERMANN, Appellant,
v.
CAMDEN COUNTY, MISSOURI BOARD OF ADJUSTMENT, et al., Respondents. No. SD 29413. Missouri Court of Appeals, Southern District, Division One. October 5, 2009.

[294 S.W.3d 122]

Stephen R. Fleddermann, St. Charles, for Appellant.

Harvey M. Tettlebaum and R. Ryan Harding, Husch Blackwell Sanders LLP, Jefferson City, for Respondent.

Before BATES, P.J., BARNEY, J., and BURRELL, J.

PER CURIAM.

Steven R. Fleddermann ("Appellant") appeals from a judgment ("the Judgment") which granted Respondent Riva D'Lago's ("Developer") motion to dismiss Appellant's petition with prejudice. Appellant asserts three points of trial court error. We affirm the Judgment of the trial court.

The record reveals Developer sought to build a $205,000,000.00 resort, which would include a resort, conference center, and condominium development on eighteen acres of lakeside property in Camden County within the jurisdiction of Respondent Camden County Board of Adjustment ("the Board"). This piece of property is zoned as B-2 or "General Commercial," which has a one hundred and twenty foot height allowance on buildings erected in that zone. The Board had already granted Developer a "Conditional Use Permit" to build condominiums on this property, but it insisted the condominiums had to conform to the height restriction of a piece of property zoned R-3, which is fifty-five feet. Developer applied to the Board for a height variance for the condominium complex, because the condominium plans called for the structures to have a maximum height of eighty-nine feet, which was over the fifty-five foot limit set out by the Board. A public hearing was held on May 23, 2007, and at the conclusion of the meeting the Board granted Developer's request for a variance.

On June 22, 2007, Appellant filed his "Petition for Circuit Court Review of Board of Adjustment Decision to Authorize Variance." In his petition, Appellant asserted he "is an individual owning property in Camden County in the immediate proximity of . . ." Developer's proposed development and that he had standing to

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contest the variance because he was an aggrieved party. Appellant's petition maintained the Board's decision to grant the variance was "unlawful, without statutory authority and was arbitrary and capricious in that no competent evidence was submitted . . . to show [Developer] could not reasonably utilize the property in conformance with the [fifty-five] foot height restriction." He asserted Developer "provided no competent evidence of practical difficulty or unnecessary hardship in complying with the existing zoning ordinance" such that the Board "exceeded its statutor[y] authority by . . . electing to authorize the violation of the existing building height limitation by a factor of approximately [sixty] percent."

On August 6, 2007, the Board filed its "Motion to Dismiss" Appellant's petition for failure to state a claim upon which relief can be granted. Then on September 11, 2007, Developer filed his motion to intervene in the proceedings. On March 11, 2008, the trial court granted Developer's motion to intervene and set a hearing date on all pending motions.

On March 17, 2008, Developer filed his motion to dismiss Appellant's petition alleging Appellant's failure to prosecute his claim and move the case forward in a timely manner; failure to file under the proper statute in that Appellant's petition incorrectly cited to section 64.120 instead of section 64.660;¹ and alleging Appellant was not an aggrieved party and had no standing to pursue his claim in the manner set out in the petition.

On April 4, 2008, the trial court held a hearing on the pending motions. At that time, the trial court specifically granted Appellant leave to file an amended petition ("the First Amended Petition"); the First Amended Petition was filed by Appellant; the trial court deemed the pending motions to be re-filed in connection with the First Amended Petition; and the trial court gave the parties additional time to file other pleadings. On May 13, 2008, the record reveals the following docket entry: "Order[:] Court takes up matters submitted by briefs ordered 4/4/08. Motion to dismiss is sustained, with prejudice. The court finds that [Appellant] has no standing and is not an original party. Judgment for [the Board], et al. S.M."²

Thereafter, on June 12, 2008, Appellant filed his "Motion to Reconsider the [Trial] [C]ourt's Order Granting . . . Motion to Dismiss and, In the Alternative, [Appellant's] Motion to Amend Dismissal Order as a Dismissal Without Prejudice Granting [Appellant] Leave to File [Appellant's] Second Amended Petition." Appellant attached a copy of his proposed "Second Amended Petition for Circuit Court Review of [the] Board['s] . . . Decision to Authorize Variance" ("the Second Amended Petition"). Arguments on this motion were held on July 15, 2008. At that time Appellant submitted a photo in support of his pleadings, and the matter was taken under advisement by the trial court.³ On that same date a docket entry reflected the following determination: "no new issues [were] raised and [f]urther delay will cause continued damage to [Developer] and therefore motions are denied." The trial court then seasonably entered the Judgment on September 9, 2008, which

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stated it "dismissed [Appellant's] claim with prejudice on May 13, 2008," and it "remains dismissed with prejudice." The trial court also denied Appellant's motion for reconsideration and request for leave to file the Second Amended Petition. This appeal followed.

We review the grant of a motion to dismiss de novo. Vogt v. Emmons, 158 S.W.3d 243, 247 (Mo.App.2005). A motion to dismiss is solely a test of the adequacy of the petition. Hallquist v. Midden, 196 S.W.3d 601, 603 (Mo.App.2006). We accept as true all of the plaintiff's averments and view the allegations in the light most favorable to the plaintiff. Vogt, 158 S.W.3d at 247. "Where, as here, the trial court does not provide reasons for its dismissal of the petition, we presume the dismissal was based on at least one of the grounds stated in the motion to dismiss, and we will affirm if dismissal was appropriate on any grounds stated therein." Fenlon v. Union Elec. Co., 266 S.W.3d 852, 854 (Mo.App.2008).

We now turn...