Gunter v. City of St. James, 27072.

CourtCourt of Appeal of Missouri (US)
Citation189 S.W.3d 667
Docket NumberNo. 27072.,27072.
PartiesCharles E. GUNTER Jr. and Joy A. Gunter, Respondents, v. CITY OF ST. JAMES, Missouri, Charles Walls, Jimmie Wayne White, Margaret Roberts, Jesse Singleton, Stanley Johnson, Sam Auxier, Don Moore, and Rick Krawiecki, Appellants.
Decision Date27 April 2006

W.H. Thomas, Jr., Emily Woodward, Thomas, Birdsong & Mills, P.C., Rolla, for appellants.

J. Kent Robinson, Williams, Robinson, Rigler & Buschjost, P.C., Rolla, for respondents.

ROBERT S. BARNEY, Judge.

The litigation underlying this appeal involves an attempt by Charles E. Gunter and Joy A. Gunter ("Respondents") to acquire from the City of St. James, through its City Council, formal approval for the "re-subdivision" of their Lot 33 of Verkamp's Sixth Addition to the City of St. James ("Lot 33").1 The re-subdivision of Lot 33 reflects Respondents' attempt to build a home and fifty-foot-wide street ("Gunter Lane") traversing Lot 33 which would connect to an established public thoroughfare, Amanda Avenue, and which would also eventually connect to a ten-acre tract of land on the other side of Lot 33 that Respondents proposed to develop into a subdivision. To accomplish these goals, Respondents submitted over a period of some twelve months various proposals, as more fully set out below, to officials of the City, the City Planning and Zoning Commission ("the Commission"), the Board of Adjustment and the City Council.

After Respondents presented their final plat for the re-subdivision of Lot 33, along with plans, profiles and other specifications required by the St. James City Code ("City Code"), the Commission did not approve the final plat for the re-subdivision of Lot 33 nor was the final plat approved by the City Council. Respondents then brought their suit in seven counts against Appellants.2

Following a hearing on the matter, the trial court entered its judgment dated April 29, 2004, and sustained Respondents' motion for summary judgment: as to Count I of their petition by ordering the City and its City Council "in mandamus to approve [Respondents'] aforesaid subdivision plat . . .;" as to Count VII by "[ordering that the City] may not compel [Respondents] to re-subdivide Lot 33 . . . prior to the use of said land by [Respondents] as a road;" and as to Count V by awarding damages against Appellants for their violation of certain U.S. Constitutional rights, explained below. Appellants now raise three points of trial court error.3

In our analysis we are guided by the following legal precepts. "Rule 74.04 governs motions for summary judgment . . . " as well as motions for partial summary judgment. In re Estate of Clifton, 69 S.W.3d 500, 502 (Mo.App.2001); see also Kanton v. Luettecke Travel Serv., Inc., 901 S.W.2d 241, 243 (Mo.App.1995). "In reviewing a grant of partial summary judgment, we examine the entire record to determine whether there is any issue of material fact and whether the moving party was entitled to judgment as a matter of law." Moran v. Kessler, 41 S.W.3d 530, 532-33 (Mo.App.2001). "A motion for summary judgment will be granted if `there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.'" Letsinger v. Drury College, 68 S.W.3d 408, 410 (Mo. banc 2002) (quoting Rule 74.04(c)(3)).

"On appeal from a summary judgment, this Court reviews the record in the light most favorable to the party against whom the judgment was entered." Id.; see ITT Comm. Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). "This Court does not defer to the trial court's judgment granting summary judgment because review is de novo." Letsinger, 68 S.W.3d at 410 (emphasis added). Lastly, "[t]he propriety of summary judgment is purely an issue of law." Moran, 41 S.W.3d at 533.

The record reveals that on May 10, 1999, Respondents purchased "all of Lot 33 of Verkamp's Sixth Addition . . .," a lot located in a fifty-lot residential neighborhood in St. James, Missouri. Prior to purchasing Lot 33, Respondents inquired of City officials about building a home and a street on Lot 33 and submitted a preliminary plat proposal to the City Engineer. Respondents intended to acquire land near Lot 33 and build a new subdivision on that property which would be accessed by the street they proposed to build on Lot 33.4 The City Engineer sent Respondents a letter on March 31, 1999, informing them that "there will be no problem issuing a building permit for a house to be built on Lot 33 based on the information that is provided in your drawing of the proposed house and street." The letter also stated that the proposed "drawing indicates that [Respondents] would still meet the minimum setback requirements for a residential lot" and that there was "nothing in the city codes that would prevent [Respondents] from doing what [they] have in mind for that lot."

Thereafter, Respondents began the process of acquiring Lot 33; had the lot surveyed and staked per their proposal; and began to clear and prepare the land for construction. During the week of the aforementioned activities, the City performed a visual inspection of the property on at least two occasions and made no comments to Respondents about any problems relating to their project.

Respondents were issued a building permit by the City on May 10, 1999, and Respondents then began clearing a portion of the land upon which the street was to be constructed. However, Respondents were notified four days later by the City Engineer that a home being constructed on neighboring Lot 34 was built too close to the proposed roadway site on Lot 33, in violation of the setback requirements of the City Code, and that these issues would need to be dealt with by the Commission.

The Commission met on May 20, 1999, and at its hearing comments were heard from Respondents and members of the public. The Commission recommended to the City Council "not to accept the proposal for dedicating Gunter Lane to the city as a proposed street," and on September 7, 1999, the City Council "unanimously agreed to uphold [the Commission's earlier] recommendation to not accept [Respondents']. . . proposal . . . to re-subdivide [L]ot 33. . . ."

Respondents then submitted to the Commission on October 22, 1999, a revised subdivision plat for the subdivision of Lot 33 which also included a new plat for the creation of an additional subdivision on the ten acres Respondents had acquired near Lot 33 ("the Gunter Subdivision"), as well as a "Petition for Annexation" for the Gunter Subdivision. The Commission met on November 17, 1999, to consider Respondents' proposals. The Commission recited in its minutes that Respondents'

request is in three parts as follows: # 1 Acceptance of the re-subdivision of [L]ot 33 of Verkamp's 6th addition to include a portion of that lot being dedicated to the City for a proposed street. # 2 a request to annex 10 acres adjoining Verkamp's 6th and 7th additions and # 3 to accept a preliminary plan for a proposed subdivision on the ten acres.

The Commission accepted all three of Respondents' requests, but made its findings contingent on the grant of the necessary variances by the Board of Adjustments. Respondents submitted to the Board of adjustments a request for variances relating to their request to subdivide Lot 33. On January 4, 2000, the Board of Adjustments granted. Respondents the requested variances on Lot 33. Soon thereafter, Respondents submitted their final plat for the subdivision of Lot 33 with accompanying documents to the Commission.

At the Commission hearing on March 23, 2000, the City Engineer stated that having reviewed the plats submitted, they were "in compliance with the requirements of the Planning and Zoning section of the St. James Code of Ordinances." However, following a tie vote by the Commission, the Commission's "recommendation to the [City Council] was that the [City Council] not accept the request from [Respondents] because a better route into the proposed Gunter Subdivision is needed." (Emphasis added). Thereafter, on April 3, 2000, the final plat for the subdivision of Lot 33 was submitted to the City Council, but was not approved. No written reason was given for the disapproval.

Turning now to Appellants' first point of trial court error, it reads as follows:

The trial court erred in sustaining [Respondents']. . . motion for summary judgment because (A) resubdivision of Lot 33 is required by the City Code in that [Respondents'] proposal for a street on Lot 33 meets the definition of sub-division under the code and (B) opening a public or private street through Lot 33 would violate the [C]ity's R-1 zoning regulations restricting use of the land in that R-1 uses do not include streets.

We observe preliminarily that the "[t]he interpretation of an ordinance is a question of law for this Court." State ex rel. Sunshine Enters. of Missouri, Inc. v. Bd. of Adj. of City of St. Ann, 64 S.W.3d 310, 312 (Mo. banc 2002). "This Court gives effect to the intent of the enacting legislative body, based on a review of the whole ordinance." Id.

We determine that the trial court erred as a matter of law in sustaining that part of Respondents' motion for summary judgment, pursuant to their Count VII, on the basis that Respondents may use their property for street purposes without the requirement that they first obtain approval from the City for a re-subdivision plat. This is because section 25-45 of the City Code provides, in pertinent part, that the term "subdivision" means "the improvement of one or more parcels of land for residential . . . structures . . . involving the division or allocation of land for the opening. . . of any street." (Emphasis added). Additionally, as Appellants note, "street" is also defined in section 25-45 of the City Code as, "[a]ll property dedicated or intended for public or...

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