McDowell v. Lafayette County Com'n
| Decision Date | 27 March 1990 |
| Docket Number | No. WD,WD |
| Citation | 802 S.W.2d 162 |
| Parties | Jerry McDOWELL and Marie McDowell, d/b/a McDowell Trash Service, Appellants, v. LAFAYETTE COUNTY COMMISSION, Lafayette County Planning and Zoning, Respondents, and Henry Fiegenbaum, et al., Respondents/Intervenors. 42052. |
| Court | Missouri Court of Appeals |
Sherwin L. Epstein and Mark R. Warnick of Law Offices of Sherwin L. Epstein & Associates, Kansas City, for appellants.
J. Armin Rust, Asst. Prosecuting Atty., Lexington, for respondents.
James G. Trimble, Parkville, W.R. Schelp, Lexington, for respondents/intervenors.
Before GAITAN, P.J., and CLARK and MANFORD, JJ.
This is a direct appeal from a judgment denying a claim for nonconforming use in the operation of a landfill. The judgment is affirmed.
What began as and what should have remained a simple proceeding to determine a single question of law ballooned into an extended proceeding.
This case, originated by appellants, sought a declaratory judgment to determine a single question of law, to wit, do appellants have a legal or lawful nonconforming use to operate a landfill in Lafayette County, Missouri? The surrounding landowners sought to intervene and to secure an injunction to prohibit the landfill operation. Before the case (which was tried to the court) was heard, the trial court permitted adjoining landowners to intervene.
The pertinent facts relative to the single question are as follows:
Appellants own and operate a trash disposal service. They hired consultants and engineering experts to investigate the possibility of locating a landfill in Lafayette County. These investigations determined that Lafayette County was not zoned. The local county authorities were contacted and assurances were given of no zoning, and these same authorities were apprised of appellant's plans. Appellants purchased a tract of land under a contract dated February 27, 1984. The deed to the property was executed on June 30, 1984.
Also, in 1984, efforts were made to place on the public ballot the question of whether Lafayette County should be zoned. That proposal was approved by the voters in November, 1984. Just prior to voter approval, appellants applied for the operation permit from the Department of Natural Resources.
During the period from November, 1984 until January 1, 1986, zoning regulations or ordinances were drafted. They were approved by local authorities with an effective date of January 1, 1986. 1
Appellants expended in excess of $200,000 for land acquisition, planning, leasing of equipment, test borings, and fees to the Department of Natural Resources. Appellants also applied for an operation permit, which was not issued until June 26, 1987. That date as observed infra is decisive in this case. There was also evidence that prior to January 1, 1986, appellants dumped nine loads of building materials on the location. Appellants stated they had dumped various materials on the location in the attempt to establish a nonconforming use prior to the effective date of the zoning regulations. They also admitted that such dumping was without a permit from the Department of Natural Resources.
The evidence suggests there was, in a sense, a "contest" between appellants and various citizens of Lafayette County as to whether the landfill would be allowed to develop and continue. Various other efforts were undertaken to resolve the matter and when they failed, this action commenced.
After a hearing on the issue, the trial court, in summary, declared that appellants had established a nonconforming use but for the lack of a permit from the Department of Natural Resources. The trial court reasoned and concluded that absence of the permit rendered appellants' actions unlawful and hence, appellants failed to establish a lawful nonconforming use. The trial court then enjoined appellants from further operation. This appeal followed. The foregoing is an overview of the facts, and any other facts deemed necessary to the disposition of this matter will be set forth infra.
Under their point (1), appellants assert the trial court erred in denying them a lawful nonconforming use because of their extended efforts relative to a search for nonzoned property, their use of experts in planning and development, their announced intentions, their "ceremonial dumping", and their expenditures in excess of $200,000, all of which established in appellants a vested right in a lawful nonconforming use effective prior to the date of January 1, 1986, which in turn was the effective date of the zoning ordinances.
It should be noted that none of the parties did anything covertly. Appellants' actions were well known to everyone, and there is nothing to even suggest any wrongdoing by any of the parties.
While appellants urge this court to recognize and adopt the so-called "vested rights doctrine" relative to a lawful nonconforming use, this court is not totally without guidance in the matter. What appellants really urge is the adoption of a vested rights doctrine to continue in the use of their land premised upon the purchase, planning cost and intended use by them.
It is not necessary to cite the countless authorities which have declared that zoning is in contravention of one's use of the land and is restrictive as to continued or prior use of the land. These same authorities, throughout our country, have created numerous variations regarding the solving of conflict between a prior use of land and the restrictions or limitations imposed by zoning.
Admittedly, the equities would appear to lie with appellants; however, our state has long established the rule that "a vested right to a nonconforming use cannot exist unless the nonconforming use is first established." It has been held that purchase, planning and even securing a permit do not establish a lawful nonconforming use. Pearce v. Lorson, 393 S.W.2d 851, 854 (Mo.App.1965).
Thus, all of appellants' well-intended and professional efforts toward bringing the landfill into full operation do not, under our law, qualify as a lawful nonconforming use permitting avoidance of the restrictions imposed by the zoning ordinances. This court does not adopt appellants' suggestion of merger of a vested right developed from purchase, planning and intent into the concept of a lawful nonconforming use.
There is no evidence on this record that prior to January 1, 1986, appellants operated a landfill which by its operation would have qualified as a "lawful nonconforming use." The purchase, the cost of planning, the securing of equipment, the test boring and the continued open intent to operate the landfill, even in combination, did not establish a lawful nonconforming use in appellants.
Appellants' point (1) is ruled against them.
Under their point (2), appellants assert that the judgment of the trial court was not supported by substantial evidence and was against the weight of the evidence.
Review by this Court is governed by Rule 73.01 and the interpretation of that rule by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). This Court, contrary to appellants' contention, finds the evidence does support the judgment, the judgment was not against the weight of the evidence, and the judgment neither erroneously declared nor applied the law.
It is neither the failure of the evidence nor any error in the declaration or application of the law that is involved in this case, but rather, appellants' argument is premised upon the "merger concept" of purchase, planning, development, and intent into a lawful nonconforming use which this Court refuses to adopt.
Appellant's point (2) is ruled against them.
Under their point (3), appellants contend the trial court...
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