Gash v. Lafayette County

• Decision Date: 19 February 2008
• Docket Number: No. SC 88437.,SC 88437.
• Citation: 245 S.W.3d 229
• Parties: Maurice GASH and Nancy Gash, Appellants-Respondents, v. LAFAYETTE COUNTY and Lafayette County Commission, Respondents-Appellants.
• Court: Missouri Supreme Court

245 S.W.3d 229

Maurice GASH and Nancy Gash, Appellants-Respondents, v.LAFAYETTE COUNTY and Lafayette County Commission, Respondents-Appellants.

No. SC 88437.

Supreme Court of Missouri, En Banc.

February 19, 2008.

Mr. J. Armin Rust, Richmond, for Appellants-Respondents.

Terrence Messonnier, Office of the Prosecuting Attorney, Lexington, for Respondents-Appellants.

WILLIAM RAY PRICE, JR., Judge.

Maurice and Nancy Gash, on behalf of the Maurice L. Gash and Nancy L. Gash Revocable Trust, seek a declaratory judgment that Lafayette County's zoning classification of their property is arbitrary, unreasonable, and void.In its counterclaim, Lafayette County seeks unpaid building permit fees and associated late fees.The circuit court entered judgment in favor of the Gashes on both their claim and the county's counterclaim.

Review of a county's zoning and rezoning decisions must be pursued via a writ of certiorari as specified in section 64.870.2.¹The circuit court did not have jurisdiction to render declaratory judgment in this case.Additionally, the remedies provided by section 64.690 for building without a permit include a misdemeanor charge and an action for injunctive relief.Section 64.865² does not authorize a county to seek recovery of building permit fees when the county did not issue a permit and did not incur the associated expense.

Accordingly, the circuit court's judgment granting declaratory relief is vacated.In all other respects, the circuit court's judgment is affirmed.

I.FACTUAL AND PROCEDURAL HISTORY

On July 31, 2001, Maurice and Nancy Gash, on behalf of the Maurice L. Gash and Nancy L. Gash Revocable Trust, purchased approximately 20 acres of land in Lafayette County, Missouri, a fourth class county.At that time, the tract was zoned "agricultural."The Gashes desired to develop their property and filed a request with the Lafayette County Planning and Zoning Commission to rezone their property "general business."While the zoning commission considered their petition, the Gashes constructed two residential buildings four outbuildings, and a stable on their property.The Gashes did not obtain building permits for the five non-residential structures.

On February 7, 2002, the zoning commission held a public hearing on the Gashes' rezoning request.At that hearing, an attendee asserted that one of the buildings on the Gashes' property did not meet the county's set-back requirements.The zoning commission tabled the Gashes' request and asked the county's zoning administrator to investigate the alleged violation.The administrator found violations of both the set-back and building-size requirements.The Gashes appealed the administrator's findings to the Lafayette County Board of Zoning Adjustment, which accepted, in part, and reversed, in part, these findings.The Gashes petitioned the circuit court to issue a writ of certiorari directed at the board of adjustment in order to review its decision.³

While review of the board of adjustment's findings was pending before the circuit court, the Gashes requested a final decision by the zoning commission on their petition for rezoning.On June 12, 2003, the zoning commission denied the Gashes' request to rezone their property.Four months later, the Gashes filed the present action in circuit court.Their amended petition requests a declaratory judgment that the county's zoning classification of their property is arbitrary, unreasonable, and void.⁴In response, the county filed a counterclaim in which it seeks building permit fees for the four outbuildings constructed without permits as well as resulting late fees.⁵On February 23, 2005, the circuit court entered judgment for the Gashes on both their amended petition and the counterclaim.

II.ANALYSIS

A.Standard of Review

The circuit court's judgment granting declaratory relief raises a question of subject-matter jurisdiction."In all appeals, this Court is required to examine its jurisdiction sua sponte."In re Marriage of Werths,33 S.W.3d 541, 542(Mo. banc 2000).This question centers on the construction of section 64.870.2."[W]hen, as here, . . . the resolution of the issue turns solely on the interpretation of pertinent statutes, `a question as to the subject-matter jurisdiction of a court is purely a question of law, which is reviewed de novo.'"George Weis Co. v. Stratum Design-Build, Inc.,227 S.W.3d 486, 489(Mo. banc 2007)(quoting Mo. Soybean Ass'n v. Mo. Clean Water Comm'n,102 S.W.3d 10, 22(Mo. banc 2003)).Similarly, Lafayette County's authority to commence an action for unpaid building permit fees and associated late fees is a question of statutory interpretation, which is reviewed de novo.Crockett v. Polen,225 S.W.3d 419, 420(Mo. banc 2007).

B.Principles of Statutory Construction

"The primary rule of statutory interpretation is to give effect to legislative intent as reflected in the plain language of the statute."State ex rel. Burns v. Whittington,219 S.W.3d 224, 225(Mo. banc 2007).In order to discern the intent of the General Assembly, the Court looks to statutory definitions or, if none are provided, the text's "plain and ordinary meaning," which may be derived from a dictionary.Id.Thus, "[t]he construction of statutes is not to be hyper-technical, but instead is to be reasonable and logical and to give meaning to the statutes."Donaldson v. Crawford,230 S.W.3d 340, 342(Mo. banc 2007).The Court is also mindful that a particular statutory phrase cannot be read in isolation.Burns,219 S.W.3d at 225.Instead, "[t]he provisions of a legislative act are . . . construed together and read in harmony with the entire act."Mo. Dep't of Soc. Servs., Div. of Aging v. Brookside Nursing Ctr., Inc.,50 S.W.3d 273, 276(Mo. banc 2001).

C.The Gashes' Claim for Declaratory Judgment

In sections 64.845 through 64.880, the General Assembly prescribed procedures for zoning in fourth class counties.⁶Section 64.870.2 provides for judicial review of such zoning decisions.That section states, in pertinent part:

Any owners, lessees or tenants of buildings, structures or land jointly or severally aggrieved by any decision of the board of adjustment or of the county commission, respectively, under the provisions of sections 64.845 to 64.880, or board, commission, or other public official, may present to the circuit court of the county in which the property affected is located, a petition. . . .Upon the presentation of the petition the court shall allow a writ of certiorari directed to the board of adjustment or the county commission, respectively, of the action taken . . . .(emphasis added)

The determinative word is the adjective "any," which modifies the noun "decision."The word "any" is defined as: "one, no matter what one: every;""all;" and "great, unmeasured, or unlimited in amount, quantity, number, time, or extent."WEBSTER'S NEW INTERNATIONAL DICTIONARY 97 (3d ed.1993).Thus, all decisions of the county commission made pursuant to sections 64.845 through 64.880, including the adoption of zoning ordinances and amendments thereto, must be challenged via a writ of certiorari.

The General Assembly's decision to provide review of actions such as those complained of here via a writ of certiorari precludes the use of declaratory judgment.As the Court recently stated in Lane v. Lensmeyer,158 S.W.3d 218, 223(Mo. banc 2005):

An action for declaratory judgment is inappropriate when the issue can be raised by some other means. . . .Count I of Taxpayers' amended petition for a declaratory judgment failed to state a claim upon which relief could be granted, and the trial court lacked jurisdiction to enter judgment thereon.

Because a legal remedy exists in the instant case, the circuit court lacked jurisdiction to issue a declaratory judgment for the Gashes.⁷

The Court recognizes that decisions from other jurisdictions differ.Courts from those jurisdictions find that declaratory judgment, rather than certiorari, is the appropriate procedure for reviewing acts such as zoning and rezoning.See, e.g., Honn v. City of Coon Rapids,313 N.W.2d 409, 414(Minn.1981).They ground their analyses in the different purposes of the two procedures.Declaratory judgment serves to evaluate the validity of legislative enactments.Seesection 527.020, see also26 C.J.S.Declaratory Judgmentsection 53(2001).A writ of certiorari, comparatively, is a common law writ that "generally only lies to review the proceedings of bodies and officers of a judicial or quasi-judicial character."14 C.J.S.Certiorarisection 8(2006);see alsoState ex rel. Nixon v. Jaynes,61 S.W.3d 243, 245(Mo. banc 2001);State ex rel. Manion v. Dawson,284 Mo. 490, 225 S.W. 97, 99-100(1920).Given this difference, those courts conclude that "[t]he nature of the act" determines the appropriate method of review.14 C.J.S.Certiorarisection 8.Because zoning and rezoning are legislative in nature,⁸they hold that declaratory judgment is proper in cases such as the one at bar.

However, those jurisdictions are not governed by section 64.870.2."This Court must be guided by what [our]legislature said. . . ."Metro Auto Auction v. Dir. of Revenue,707 S.W.2d 397, 401(Mo. banc 1986).If the General Assembly wished to create one remedy for a county commission's legislative actions and another for its quasi-judicial actions, it could have easily done so.⁹Instead, the General Assembly said that "any decision . . . of the county commission" is subject to review via a petition for writ of certiorari.Although courts do not typically employ the writ to review legislative decisions, the General Assembly may "enlarge the scope of the remedy of certiorari and the grounds on which it will lie."14 C.J.S.Certiorarisection 4;see alsoState ex rel. Sw. Bell Tel. v. Brown,795 S.W.2d 385, 388(Mo. banc 1990).¹⁰

The plain and ordinary meaning of the statute also promotes efficiency within the judicial system.If the nature of...