Heuer v. City of Cape Girardeau

Decision Date03 July 2012
Docket NumberNo. ED 96721.,ED 96721.
Citation370 S.W.3d 903
PartiesJohn A. HEUER, individually and as Personal Representative of the Estate of Ivan Heuer, Deceased, Appellant, v. CITY OF CAPE GIRARDEAU, Respondent.
CourtMissouri Court of Appeals


Application for Transfer Denied

Aug. 14, 2012.

Tom K. O'Loughlin, Cape Girardeau, MO, for appellant.

Mary Eftink Boner, Jackson, MO, for respondent.

GARY M. GAERTNER, JR., Presiding Judge.


Appellant John Heuer 1 (Heuer) appeals the judgment of the trial court denying Heuer's petition for removal of a fence erected in an alley at the rear of his property. Heuer argues the placement of the fence failed to comply with city ordinances and resulted in a violation of Heuer's constitutional rights. We reverse and remand.


In 1999, Heuer acquired two lots of property fronting on Frederick Street just north of Highway 74 in the City of Cape Girardeau, Missouri (City). Heuer acquired a third adjoining lot in 2011, just before the trial in this matter. All of Heuer's lots were zoned as residential property. Immediately to the west, along the rear side of Heuer's lots, is an alley that runs in a north-south direction, parallel to Frederick Street. On the other side of the alley, along Sprigg Street, sits a parcel of property, which is zoned as commercial property, owned by JJP Investments, LLC (JJP).

In 2005, JJP undertook a development project to build a Rhodes 101 Convenience Store. As part of that project in 2006, JJP requested permission to pave the alley between JJP's and Heuer's properties. The City allowed JJP to pave the alley, but required JJP to sign a license and indemnity agreement, making JJP responsible for any liability the City might incur for damages resulting from the paving of the alley. Additionally, the City reserved the right to require JJP to remove any improvements made to the alley upon 30 days' notice. JJP notified Heuer of the paving of the alley, and Heuer did not object to the project.

JJP also received notice from the City that the following ordinance (“buffer ordinance”) required JJP to erect a fence at the rear of its property:

At such time as a lot which is zoned commercial or industrial is developed adjacent to a lot which is zoned residential, a permanent screening ... at least six (6) feet in height shall be installed by the developer of the commercial or industrial zoned lot. The screen shall be installed on the lot line between the commercial or industrial lot and the residential lot.

Section 30–42(e), Cape Girardeau Code of Ordinances (2006). JJP requested to build the fence on the east side of the alley, closer to Heuer's lots. The City Council then adopted a resolution authorizing the City to enter into a license and indemnity agreement with JJP to build the fence in that location, noting that the reason for JJP's request to place the fence on the east side of the alley was that “th[e west] section of the alley will be paved to use as part of the drive thru.” The license and indemnity agreement again reserved to the City the right to require JJP to remove the fence upon 30 days' notice. The fence has four gated openings, one at the rear of each of the four residential lots along the fence. As a result of the project, the grade of the alley changed, and there was a “lip” constructed on the east side of the alley. 2 Heuer was not aware the fence would be built, and he learned of its existence only after the project was finished.

Heuer filed suit against JJP and the City for removal of the fence. The following photographs of the fence and the changed alley were admitted as exhibits at trial:

Image 1 (5.03" X 4.05") Available for Offline Print

Image 2 (3.84" X 4.91") Available for Offline Print Heuer argued that the fence removed Heuer's previously unfettered access to the alley from his lots. Heuer's evidence included that the gates did not function properly, they were at times strapped closed with heavy plastic straps, and at least once during a snowfall, snow had been plowed from JJP's property and piled up against the gates such that they could not be opened. Heuer also presented evidence that a truck could not travel from the alley through any of the gates in the fence without trespassing on JJP's property. Heuer's suit contained six counts, including trespass, adverse possession, unconstitutional taking, inverse condemnation, violation of the right to intrastate travel, and equal protection.

After a bench trial, the trial court found that the changes made to the alley by paving and constructing the fence were earned out in order to comply with the City's ordinances and storm water drainage requirements, and that the placement of the fence on the east side of the alley was correct under the City's ordinances. The trial court found that the fence provided no benefit to public health or safety. Additionally, the trial court found that the changes to the alley had generated neither an economic benefit to JJP nor an economic detriment to Heuer. The trial court acknowledged Heuer had diminished accessto the back portion of his lots due to the erection of the fence. However, the trial court concluded there had been no constitutional violation and found in favor of JJP and the City on all counts. This appeal follows.

Standard of Review

Our review of a court-tried case is governed by the principles set forth by the Missouri Supreme Court in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We will affirm the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. We conclude a judgment is “against the weight of the evidence” only with caution and a firm belief that the judgment is wrong. Id.


Heuer raises two points on appeal. First, he argues that the trial court misapplied the City's buffer ordinance, resulting in violations of his constitutional rights. Second, Heuer argues that, should he prevail on appeal, he is entitled to his reasonable attorney's fees under 42 U.S.C. § 1988 (2006).3

Point I

Heuer appeals the trial court's ruling on only one of the six counts of his petition; namely, his claim of inverse condemnation.4 Underlying this claim is Heuer's argument that the City's ordinances were misapplied in this case, so we begin there. The trial court found that the fence was properly placed on the east side of the alley in order to comply with the City's ordinances. We disagree.

We interpret ordinances by their plain language, in view of the whole ordinance. See State ex rel. Sunshine Enterprises of Missouri, Inc. v. Bd. of Adjustment of City of St. Ann, 64 S.W.3d 310, 312 (Mo. banc 2002) (interpret ordinance based on review of whole ordinance); City of Bridgeton v. Titlemax of Mo., Inc., 292 S.W.3d 530, 536 (Mo.App. E.D.2009) (interpret plain language of ordinance). [Z]oning ordinances, being in derogation of common law property rights, are to be strictly construed in favor of the property owner against the zoning authority.” Rice v. Bd. of Adjustment of Village of Bel–Ridge, 804 S.W.2d 821, 823 (Mo.App. E.D.1991) (citations omitted).

The City's buffer ordinance applies when commercial property is developed “adjacent” to residential property. The trial court consulted Black's Law Dictionary and The New Oxford American Dictionary 5 to arrive at the conclusion that in this case, though JJP's and Heuer's properties are separated by an alley, they are still “adjacent” to one another. However, while dictionary definitions are instructive, the word “adjacent,” when applied to land, must be defined in context of the facts, circumstances, and particular subject matter at issue. City of St. Ann v. Spanos, 490 S.W.2d 653, 656 (Mo.App.1973); Nomath Hotel Co. v. Kansas City Gas. Co., 204 Mo.App. 214, 223 S.W. 975, 983 (1920).

Here, the buffer ordinance, after requiring a fence, states, [t]he screen shall be installed on the lot line between the commercial or industrial lot and the residential lot.” Section 30–42(e) (emphasis added). The plain language of this particular ordinance, when viewed as a whole, contemplates one lot line between the commercial lot and the residential lot for placement of the fence. This fact necessarily informs our interpretation, and it follows that the word “adjacent,” in this ordinance, refers to properties sharing a common lot line. To interpret it otherwise, as applying to properties separated by an alley or street, would on the one hand require a party to erect a buffer fence, but on the other, make it impossible for that party to place the fence “on the lot line between the [two properties] such that it complies with the plain language of the ordinance. This is an illogical result, and we decline to apply such interpretation here, even though it may be plausible when viewing only the dictionary definitions.6See Peruque, LLC v. Shipman, 352 S.W.3d 370, 374 (Mo.App. E.D.2011) (courts look beyond plain language when language would lead to illogical result). Rather, we find that because there is no common lot line between these two properties, the buffer ordinance by its plain language did not apply. Thus, both the City and the trial court erroneously applied it here.

Next, the use of the alley is fundamental to a determination of property rights in the alley, and thereby to the determination of Heuer's claim for inverse condemnation. The trial court found that the alley was the property of the City. While Heuer does not dispute this finding on appeal, we find the trial court's conclusion on this issue was erroneous, leading to a misapplication of the law on Heuer's claims. Therefore, in the context of the above discussion of the City's ordinance and the particular circumstances of this case, we next review the trial court's analysis of the property rights present in the alley.

The trial court...

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