L.C. Development Company v. Lincoln County

• Decision Date: 05 July 2000
• Citation: 26 S.W.3d 336
• Parties: (Mo.App. E.D. 2000) . L.C. Development Company, Inc., Plaintiff/Appellant, v. Lincoln County, Defendant/Respondent Case Number: ED77468 Missouri Court of Appeals Eastern District Handdown Date: 0
• Court: Missouri Court of Appeals

26 S.W.3d 336 (Mo.App. E.D. 2000)

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

L.C. Development Company, Inc., Plaintiff/Appellant, v. Lincoln County, Defendant/Respondent

Case Number: ED77468

Missouri Court of Appeals Eastern District

Handdown Date: 07/05/2000

Appeal From: Circuit Court of Lincoln County, Hon. Fred Rush

Counsel for Appellant: John Fox Arnold

Counsel for Respondent: T. Bennett Burkemper, Jr.

Opinion Summary: L.C. Development Company, Inc., appeals dismissal of its petition for declaratory judgment attacking a county regulation that prohibits building a sanitary landfill within one-quarter mile of an occupied residence.

DISMISSED IN PART; REVERSED AND REMANDED IN PART.

Northern Division holds: The denial of a motion for summary judgment is not a final judgment and is not reviewable. Therefore, this Court dismisses the portion of Development Company's appeal concerning the denial of its motion for summary judgment. Because the trial court considered facts and information outside the face of the pleadings in ruling on Lincoln County's motion to dismiss, this Court reverses the trial court's dismissal of the action. For future proceedings, this Court holds that section 260.215.2 permits a county to regulate the location of solid waste facilities.

Opinion Author: Clifford H. Ahrens, Judge

Opinion Vote: DISMISSED IN PART AND REVERSED AND REMANDED IN PART. Russell, C.J., and Mooney, J., concurs.

Opinion:

L.C. Development Company, Inc. ("Development Company") appeals an order of the Circuit Court of Lincoln County granting Lincoln County's motion to dismiss its petition for declaratory judgment. Development Company brought a declaratory judgment action attacking a regulation passed by the Lincoln County Commission ("Commission") prohibiting the building of a sanitary landfill within one-quarter mile of an occupied residence. The Development Company contends the trial court erred in denying its motion for summary judgment. The Development Company also argues the trial court erred in granting Lincoln County's motion to dismiss because it raised issues outside the pleadings, each count of its petition contained facts entitling it to relief, and the petition was ripe for review. We dismiss in part and reverse and remand in part.

Lincoln County is a third-class county of the state of Missouri and is governed by the Commission. On November 4, 1986, pursuant to section 64.530 RSMo (1994), the voters of Lincoln County approved county planning and zoning. On December 11, 1989, the Commission adopted an order entitled "Solid Waste Disposal and Waste Processing Facility Regulations for Lincoln County, Missouri." This order provided rules, regulations, standards and licensing for the location, storage, collection, transportation, processing and disposal of solid wastes. The order explained no solid waste or special waste landfill established after the date of the regulation shall be located within one-fourth of a mile of any occupied residential dwelling without the written consent of the owner of the property. The regulation also required the Commission to license all solid waste disposal areas within the county. On November 6, 1990, and again on April 2, 1996 and April 6, 1999, the voters of Lincoln County rejected county zoning and planning. The December 11, 1989 order of the Commission remained in effect even after zoning and planning were rejected.

The Development Company is the owner of options on 350 acres of land in Lincoln County and intends to build a Class III Solid Waste Sanitary Landfill on the parcel. In 1995, the Development Company applied to the Missouri Department of Natural Resources ("DNR") for a permit to conduct test drilling on the site and submitted a proposed workplan for activities on the site. On February 8, 1996, the DNR conditionally approved the site for exploration.

On June 28, 1996, the Development Company received a letter from the Commission which stated, in part,

[w]e enclose a copy of the Lincoln County Solid Waste Processing and Storage Ordinance which came into effect November 12, 1989. Although you or no one for you has filed any application before the County Commission for a permit to locate a sanitary landfill in Lincoln County, after your exploratory drilling is completed you will be required to request a permit from the County. We send the ordinance to you so that you can (sic) know that we intend to grant permits under it only if the terms are met.

The regulation was amended later that year to read "[n]o solid waste or special waste landfill facility established after the effective date of this regulation shall be located within one-fourth mile of any occupied residential dwelling." The Development Company argues if this quarter mile provision is enforced, its waste facility will be reduced to a 66-acre tract of land. It contends that such a project is not economically feasible. It also argues it will be required to expend $500,000 to complete the drilling and engineering design phase before any application for an engineering permit can be submitted to the DNR for approval.

Pursuant to Missouri's Declaratory Judgment Act, sections 527.010 et seq. RSMo (1994), the Development Company filed a petition against Lincoln County, alleging the regulation is an unauthorized zoning regulation, is invalid under Chapter 260 of the Missouri Statutes, is inconsistent with other state law, violates its substantive due process rights, and results in an unconstitutional taking. The Development Company also raised the issues of violation of substantive due process and unconstitutional taking under 42 U.S.C. section 1983. The Development Company filed a motion for summary judgment, and Lincoln County filed a motion to dismiss. The trial court denied the Development Company's motion for summary judgment and granted Lincoln County's motion to dismiss. This appeal follows.

In its first five points relied on, the Development Company argues the trial court erred in denying their motion for summary judgment. The denial of a motion for summary judgment is not a final judgment and is not reviewable, even when the appeal is taken from the final judgment in the case. Reis v. Peabody Coal Co., 935 S.W.2d 625, 632 (Mo. App. 1996). Therefore, we dismiss the Development Company's first five points on appeal.

In its final four points relied on, the Development Company argues the trial court erred in granting Lincoln County's motion to dismiss. We must sua sponte determine our jurisdiction because the trial court dismissed the petition without specifying whether it was with prejudice. Shores v. Express Lending Services, Inc., 998 S.W.2d 122, 125 (Mo. App. 1999). Under Rule 67.03, an involuntary dismissal is without prejudice unless the court specifies otherwise in its order for dismissal. Id. However, a party can appeal from a dismissal without prejudice if the dismissal has the practical effect of terminating the action. Id. In the present case, the dismissal has the practical effect of terminating the litigation. As a result, jurisdiction lies in this court.

The Development Company's sixth point relied on, arguing the trial court erred in granting the motion to dismiss because it raised issues outside the pleadings, is dispositive. In its motion to dismiss, Lincoln County alleged the Development Company failed to state a claim upon which relief could be granted. Parties are permitted to bring such a motion under Rule 55.27(a)(6). However, on a motion asserting failure of the pleading to state a claim upon which relief can be granted, if information outside the pleadings is presented to and not excluded by the court, a motion to dismiss is to be treated as one for summary judgment, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 74.04. Rule 55.27(a); City of Chesterfield v. Deshelter Homes, Inc., 938 S.W.2d 671, 673 (Mo. App. 1997). Moreover, the court must first give notice to the parties that it is going to treat the motion to dismiss as one for summary judgment. Baker v. Biancavilla, 961 S.W.2d 123, 125 (Mo. App. 1998).

In ruling on a motion to dismiss, ...