Gray v. White

• Decision Date: 07 December 1999
• Citation: 26 S.W.3d 806
• Parties: (Mo.App. E.D. 1999) . William Gray, Respondent, v. Tim White, Appellant. Case Number: ED74508 Missouri Court of Appeals Eastern District Handdown Date:
• Court: Missouri Court of Appeals

26 S.W.3d 806 (Mo.App. E.D. 1999)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

William Gray, Respondent, v. Tim White, Appellant.

Case Number: ED74508

Missouri Court of Appeals Eastern District

Handdown Date: 12/07/99

Appeal From: Circuit Court of Jefferson County, Hon. Timothy J. Patterson

Counsel for Appellant: Party Acting Pro Se

Counsel for Respondent: Kurt D. Breeze and Suzan Ponder-Bates

Opinion Summary: Tim White appeals from judgment in favor of the City of Festus in the city's suit against him for injunctive relief, in which the city alleged that he was operating his auto sales business in a manner that violated applicable local zoning ordinances by failing to erect a sight-proof fence at the property and lacked proper business licensure.

REVERSED AND REMANDED.

Division Three holds: The injunction and order that White erect a sight-proof fence are dissolved. (1) Although White's points relied on are deficient, the court is able to ascertain the issues and arguments. (2) Although White's counsel could not locate two of his exhibits when he attempted to put them in evidence, there is no indication the court or court reporter caused their disappearance. (3) As to zoning ordinances: (a) White still has a continuing use permit. He has a vested right to continue to operate his business as long as he conforms to the original conditions of the CUP, despite changes in the neighborhood around him. The "living ordinance" theory is wrong because it conflicts with law concerning the nature and duration of a CUP, and the trial court's interpretation of the city ordinance would be confiscatory, resulting in a taking without compensation. (b) No substantial evidence supported the finding that White's business had changed from auto sales and service to junk yard. Thus, the city's "changed use" theory is unsupported. (4) As to city or state business licensure: (a) The city had no lawful basis for requiring White to erect a sight-proof fence and, therefore, no basis for declining to renew his license. (b) The city cannot arbitrarily cause White to lose the state's dealer license by refusing to certify criteria he met, then complain that he doesn't have such a license. (5) The court erred in dismissing his counterclaim for lost business. He was not barred by failure to exhaust administrative remedies from bringing such a counterclaim.

Opinion Author: Richard B. Teitelman, Presiding Judge

Opinion Vote: REVERSED AND REMANDED. Mooney, J., concurs. Ahrens, J., dissents in separate dissenting opinion.

Opinion:

Louis Timothy White ("Appellant") appeals from a judgment entered in favor of the City of Festus ("the City") in the City's suit against him for injunctive relief. The City's action alleged that Appellant's operation of an auto sales and service business on the property located at 1601 Horine Road, without erecting a sight-proof fence at the property, constituted a violation of applicable zoning ordinances. It further alleged that Appellant continued to operate the business without proper city or state licensure. The trial court granted injunctive relief. On appeal, Appellant contends that his business has always fully complied with the buffer zone and other requirements of the Conditional Use Permit he was originally granted by the City; that building a sight-proof fence would directly conflict with applicable state law requirements governing automobile display lots and thus make it impossible for him to lawfully use the location as an auto dealer; and finally that the City's refusal to renew his city business license was unlawful and that it caused the loss of his state dealer's license. We reverse and remand.

Factual and Procedural Background

In 1979, Appellant applied for and obtained a re-zoning¹ and then a Conditional Use Permit from the City for his property located at 1601 Horine Road, for the purposes generally of the sale and servicing of antique and classic autos. The property consisted of approximately seven-and-a-half acres in what at that time was a predominantly rural area; the south side of the lot bordered a road. On the opposite side of that road, across from Appellant's property, was land which, although consisting of a large and mostly unimproved hayfield, was zoned R-1 residential. The Conditional Use Permit stated:

The Board of Adjustment of City of Festus, upon proper application and due consideration, finding no adverse effect upon adjacent property, after consideration of the adjacent uses and structure does hereby expressly authorize and permit the owners, their grantees, assignees, purchasers, and successors in interest in the following motor vehicle sales and services at 1601.

Specifically, a buffer zone² is required on the south side which borders on R-1 District. The Board also authorizes outdoor serving (sic) and storage of vehicles customary to motor vehicles sales and services. All other requirements in the zoning ordinance applicable to this B-3 zone shall be met. Permit issued this 20th day of June, 1979. [Signed by] James T. Lovelace, Chairman of the Zoning Board of Adjustment.

In reliance upon having been granted the Conditional Use Permit ("CUP"), Appellant constructed a building on the property, at a cost of over $30,000. The building was placed toward the back of the lot, in accordance with the City's specifications, leaving the area in front of the building as a storage and display area for the automobiles. After its construction, Appellant, in that same year, applied for an occupancy permit and City Business License for operation of his business. Following inspection by the City Code Enforcement Official, he was granted both. Later that year, he obtained a state auto dealer's license. The business, "Tim White's Auto Sales," was established for the purpose of buying, selling, servicing and restoring primarily antique and classic automobiles.

The nature of the business consisted primarily of the buying and selling of mostly "project-status" (also known as "pre-restoration") antique and classic cars, along with restoration work done by Appellant for a fee on cars that customers would purchase. Although Appellant would occasionally purchase antique/classic vehicles in good or even pristine condition, his usual method of operation was to purchase such vehicles that were generally dilapidated and in gross need of repair to be brought into a restored and operable condition.

Appellant's business continued uninterrupted for many years without problems. During all of these years, the City annually renewed his City Business License. Although sales volume began to wane somewhat in the early Nineties, Appellant's best years in terms of volume of sales occurred in the mid-Eighties, when he sold upwards of 200 cars per year. Two other changes occurred around that time. First, a new subdivision, with many new residences, developed in the R-1 residential district to the south of Appellant's business. Second, during all of 1993 and most of 1994 Appellant was required to devote a great deal of his time to caring for his fiance, who had developed a very grave illness from which she eventually died, and consequently during this period Appellant was unable to devote as much time to the business as he had in the past.

Appellant's first indication of problems with the City relative to his business was a letter he received from City Administrator Richard Turley in September of 1993, notifying him that the City had gotten complaints from neighbors about seeing "junk" vehicles stored on his business property and informing him that the original CUP required a "buffer zone on the south side . . . to shield any objectionable material or activity from adjoining property owners." The letter requested a response; it is not clear from the record what, if any, response Appellant made to it.

Appellant continued to operate his business until the City denied his request for a City License in mid-1994. It is undisputed, from answers to requests for admissions given by the City, that the City had annually renewed Appellant's City Business License every year from 1979 until 1994; that during those years Appellant was licensed to carry on a business at that location "similar to" the same business and activities he was conducting there at the time of trial; that the City has no record of failure on Appellant's part to comply with the City's ordinances regarding his property at 1601 Horine Road prior to 1994; and that the City for the first time in 1994 required a sight-proof barrier at that location. The City has further acknowledged, in its own motion for summary judgment, that the original buffer zone requirement of the CUP did not require a sight-proof barrier.

The City, after making demands upon him for a sight-proof barrier on the south side of his lot, refused to renew Appellant's City Business License. The City indicated it had received complaints from residents in the new subdivision across the road on the south side, who objected to the vehicles as being junk in their unrestored stage. There were also complaints regarding some vegetation overgrowth, which Appellant subsequently cleaned up, that had accumulated while Appellant was away from the business. City Building Commissioner Bill Gray (who also serves as the City's Zoning Commissioner) inspected the property following these complaints, made a determination that the lack of a sight-proof fence at the property now constituted a violation of the CUP's original "buffer zone" requirement, and testified at trial that that was the reason the City had refused to renew Appellant's annual City Business License. Near the end of 1994, after the City police chief refused to certify Appellant's application for renewal of his state auto dealer's license, Appellant also then lost his state licensure as well.

Following the City's denial of his 1994 Business License, Appellant continued to...