Gash v. Lafayette County, No. WD 65589 (Mo. App. 2/6/2007), WD 65589
| Decision Date | 06 February 2007 |
| Docket Number | No. WD 65589,No. WD 65605,WD 65589,WD 65605 |
| Parties | Maurice Gash and Nancy Gash, Appellants-Respondent, v. Lafayette County and Lafayette County Commission, Respondents-Appellants. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Clay County, Hon. Larry D. Harman, Judge.
J. Armin Rust, for Appellant.
Terrence M. Messonnier, for Respondent.
Before Breckenridge and Smart, JJ.
Maurice and Nancy Gash (Trustees), as trustees for "The Maurice Gash and Nancy Gash Revocable Trusts," appeal the judgment of the Circuit Court of Clay County, dismissing Counts II, III, and IV of their initial, four-count petition against Lafayette County and the Lafayette County Commission (collectively referred to herein as the "County"), arising out of the County's denial of the Trustees' request to rezone trust property from "Agricultural" (A) to "General Business" (B-2). In Counts II and III, the Trustees sought damages for alleged violations of their substantive due process and equal protection rights under the Missouri Constitution, respectively, in connection with their attempt to rezone the trust property. In Count IV, they sought damages for inverse condemnation, alleging that the zoning of the trust property in question as A constituted a compensable taking in that it deprived them of the best economic use of the trust property.
The County cross-appeals the judgment of the trial court for the Trustees on Count I of their initial petition and on Count I of the County's counterclaims. In Count I of their petition, denominated "Declaratory Judgment," the Trustees sought a declaratory judgment declaring that the zoning of the trust property as A was "arbitrary, capricious, unreasonable, unconstitutional, invalid and void" and an injunction, ordering, in effect, the County to rezone the trust property as B-2. As to Count I of the County's counterclaims against the Trustees, it sought payment of $1200 for unpaid building permit fees for four buildings that had already been constructed on the trust property and an injunction enjoining the Trustees from constructing any new buildings without first obtaining the required building permits.
The Trustees raise what they designate as five points on appeal. In Points I-III, they claim that the trial court erred in dismissing Count IV of their initial petition for damages for inverse condemnation, on the grounds that: (1) Count IV failed to allege facts demonstrating a requisite proof element of an inverse condemnation claim based on a zoning classification, that the Trustees' claim of a taking by the County in zoning the trust property in question as A, depriving them of the ability to derive the economic use they sought from their investment in the property, was ripe for review in that Count IV failed to allege facts demonstrating that the County had made a "final determination" of what uses would be permitted for the trust property other than the uses permitted by the B-2 classification, which were denied by the County; and (2) even if Count IV alleged facts demonstrating that such a determination had been made, it failed to allege facts demonstrating that the trust property was rendered "economically idle" in being zoned A, in that the County's zoning regulations for such classification expressly permitted the Trustees to build two residences on the property, because they alleged facts in their petition demonstrating that a "final determination" had been made by the County concerning the zoning classification of the property to support a claim of inverse condemnation and facts demonstrating that they were prevented from realizing their "distinct investment backed expectations" as to the property. In Point IV, they claim that the trial court erred in dismissing Counts II and III of their initial petition, seeking damages for alleged violations by the County of their substantive due process and equal protection rights, under the Missouri Constitution, in connection with their attempts to have the trust property in question rezoned from A to B-2, "on the ground of sovereign immunity because there is no immunity for ministerial acts of public officials in that the [C]ounty in offering to resolve the zoning violations for a payment of $10,000 in lieu of a fine violated the [Trustees'] right[s] to due process and equal protection." In Point V, they claim: "The Appellate Court should dismiss Lafayette County's Appeal of the injunction [enjoining the County `from enforcing its zoning ordinance against [the trust] property until such time as such property is classified to a use or set of uses that is not arbitrary and unreasonable and capricious in accordance with the above findings which specify that the best use is commercial B-2'], because it is moot in that there is no longer a justiciable controversy since Lafayette County has rezoned [the trust] property to a commercial zoning of B2." Point V is obviously not a claim of trial error, but, in effect, a motion to dismiss the County's cross-appeal. And, given our discussion, infra, as to Points I-III of the Trustees' appeal, in which we hold that the trial court lacked jurisdiction, in the first instance, to review the County's decision denying the Trustees' request to rezone the trust property in question from A to B-2, the Trustees' motion to dismiss is necessarily overruled and will not be discussed, infra.
In its cross-appeal, the County raises thirteen points. In Point I, it challenges the trial court's dismissal of Count I of its counterclaims seeking payment from the Trustees of "$ 1200.00 for back due permit fees" for four buildings that were constructed on the trust property without the Trustees first obtaining the permits required under the County's zoning regulations. The County claims in this point that the trial court erred in basing its judgment for the Trustees on Count I of the County's counterclaims on the application of the farm-building exemption of section 64.890.21 because, as a matter of law, the exemption did not apply. Alternatively, it claims that the trial court erred in basing its judgment on the exemption because it was an affirmative defense, which was not pled by the Trustees, such that they could not rely on it in defending against Count I of the County's counterclaims. In its remaining points, Points II-XIII, the County challenges the trial court's judgment for the Trustees on Count I of the Trustees' amended petition, declaring that the County's zoning of the trust property in question as A was "arbitrary, capricious and unreasonable and is void as applied to [the trust] land" and enjoining the County "from enforcing its zoning ordinance against [the trust] property until such time as such property is classified to a use or set of uses that is not arbitrary and unreasonable and capricious in accordance with the above findings which specify that the best use is commercial B-2."
As to Points I-III of the Trustees' appeal of the trial court's judgment dismissing Count IV of the Trustees' initial petition for damages for inverse condemnation, we dismiss. As to Point IV of the Trustees' appeal of the trial court's judgment dismissing Counts II and III of the Trustees' initial petition for damages for alleged violations by the County of their substantive due process and equal protection rights, under the Missouri Constitution, we dismiss. As to Point I of the County's cross-appeal of the trial court's judgment for the Trustees on Count I of the County's counterclaims for payment of "$1200 back due building permits," we reverse and remand. As to Points II-XIII of the County's cross-appeal of the trial court's judgment for the Trustees on Count I of the Trustees' amended petition, seeking judicial review of the County's denial of the Trustees' request to rezone the trust property in question from A to B-2, we dismiss.
On November 21, 2001, the Trustees filed an "Application for Rezoning" with the Lafayette County Planning and Zoning Commission (PZC), requesting that approximately twenty acres of land, located in Odessa and held by them as trustees for The Maurice L. Gash and Nancy L. Gash Revocable Trusts, be rezoned from A to B-2. They sought the rezoning in order "to build [a] convenience store, to operate a stable, to operate public storage buildings, [and] to operate [a] garage to service new weight scales." There were two residential buildings, four outbuildings, and a stable already constructed on the property at the time of the rezoning request. The Trustees had obtained building permits for construction of the two residential buildings, but had not obtained permits for the five other structures.
The PZC conducted a public hearing on February 7, 2002, to address the Trustees' application for rezoning. During the hearing, Phillip Varner, an attendee at the meeting, raised a concern that one of the buildings existing on the trust property was in violation of a setback requirement of the A zoning regulations. The PZC concluded their discussion of the Trustees' rezoning request by asking Lisa Eaton, the County Zoning Administrator, "to check into the [violation] situation." A second hearing was held by the PZC on the Trustees' application on February 14, 2002, at which Eaton reported back to the PZC that her investigation disclosed that the west house located on the trust property was in violation of the rear setback requirement of the County zoning regulations. Tom Davis, a member of the PZC, reported that he was concerned that the second home on the property might be in violation of the requirement that it be half the size as the main residence. As such, the PZC decided to "table" the Trustees' rezoning application to "begin violation procedures."
At a meeting of the PZC on June 12, 2003, the PZC decided "to bring [the Trustees'] rezoning request back to the table." After further review of the matter, the PZC found that the...
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