Olson v. Christian County, 21383

• Decision Date: 26 August 1997
• Docket Number: No. 21383,21383
• Citation: 952 S.W.2d 736
• Parties: Curtis E. OLSON and Melveta L. Olson, Appellants, v. CHRISTIAN COUNTY, Missouri, acting through The Christian County Planning and Zoning Commission, Respondent.
• Court: Missouri Court of Appeals

Page 736

952 S.W.2d 736

Curtis E. OLSON and Melveta L. Olson, Appellants, v. CHRISTIAN COUNTY, Missouri, acting through The Christian County Planning and Zoning Commission, Respondent.

No. 21383.

Missouri Court of Appeals Southern District.

Aug. 26, 1997.

Rehearing Denied Sept. 11, 1997.

Curtis E. Olson, Melveta L. Olson, pro se.

Mark E. Orr, Ozark, for respondent.

Before GARRISON, P.J., and PREWITT and CROW, JJ.

PER CURIAM.

This is a zoning dispute.

Plaintiffs, Curtis E. Olson and Melveta L. Olson, filed a petition against Defendant, Christian County, Missouri, praying the trial court to declare that Defendant's "Unified Development Codes," which took effect February 1, 1993, did not apply to an "existing residential development" owned by Plaintiffs.

The gist of the dispute, as revealed by the record, is that prior to the effective date of the Codes, Plaintiffs owned a parcel of land on which they resided in a mobile home. After the effective date of the Codes, Plaintiffs placed a second mobile home on the parcel, contrary to the Codes. Plaintiffs' petition averred the Codes did not bar them from doing so because their "residential development was in existence prior to the enactment of the ... codes."

Following a non-jury trial, the trial court entered judgment declaring that because there was only one mobile home on Plaintiffs' land when the Codes took effect, Plaintiffs are not allowed to have a second one there without a permit.

Plaintiffs bring this appeal from that judgment.

Plaintiffs were represented by counsel in the trial court; however, they appear pro se in this appeal.

Plaintiffs' brief evinces an unfamiliarity with the rules of appellate procedure and a misconception of the role of an appellate court.

First, contrary to Rule 84.04(a)(1) and (b), ¹ the jurisdictional statement in Plaintiffs' brief sets forth a garrulous history of the dispute, accuses public officials of misconduct, recounts events as to which this court finds no evidence in the record, and refers to exhibits which are not shown by the record to have been received in evidence at trial.

An appellate court considers only the record made in the trial court. Hubbs v. Hubbs, 870 S.W.2d 901, 906 (Mo.App. S.D.1994). Evidence outside the trial court record is not considered on appeal. State ex rel. Division of Family Services v. Brown, 897 S.W.2d 154, 159 (Mo.App. S.D.1995). Documents or other exhibits never presented to or considered by the trial court may not be introduced into the record on appeal. Marc's Restaurant, Inc. v. CBS, Inc., 730 S.W.2d 582, 584 (Mo.App. E.D.1987).

A second place where Plaintiffs' brief manifests an unfamiliarity with the rules governing appeals is the statement of facts.

The primary purpose of the statement of facts in an appellant's brief is to afford an immediate, accurate, complete and unbiased understanding of the facts of the case. Walker v. Skaggs Community Hospital, 935 S.W.2d 370, 372 (Mo.App. S.D.1996).

The statement of facts in Plaintiffs' brief accuses public officials of misconduct and describes events as to which this court finds no evidence in the record. Additionally, the statement of facts includes complaints about lawyers who represented Plaintiffs in the past, and also sets forth legal argument. Finally, contrary to Rule 84.04(h), the statement of facts does not have a specific page reference to the legal file or the transcript where each fact can be verified.

The flaws in Plaintiffs' brief enumerated so far--there are others, identified later--justify dismissal of the appeal. Hansen v. Missouri Real Estate Appraisers Commission, 875 S.W.2d 620 (Mo.App. S.D.1994); Vodicka v. Upjohn Co., 869 S.W.2d 258 (Mo.App. S.D.1994). However, this court will not impose that sanction, but will instead endeavor to extract enough facts from the record to enable the court to comprehend (if possible) the contentions on which Plaintiffs rely in seeking reversal of the judgment.

This court gleans from the record that the dispute arose after Plaintiffs placed the second mobile home on their land. A letter to Plaintiffs from an official of the "Christian County Planning & Zoning Department" indicates the Department informed Plaintiffs that the second mobile home violated the Codes, and that in order to comply with the Codes, Plaintiffs had to obtain a "Conditional Use Permit."

On October 8, 1993, Plaintiffs submitted an application to the Christian County Planning and Zoning Commission for a "Division III Permit." The application showed the "Existing Land Use" as "single family residential"; it showed the "Proposed Land Use" as "2nd dwelling on property."

The Planning and Zoning Commission considered the application at a meeting November 1, 1993. The minutes of that meeting state, inter alia:

"It was decided that the main issue to be determined was whether or not the Olson's [sic] move of a second trailer onto their property should be grandfathered in or a Conditional Use permit be considered. Mr. & Mrs. Olson presented Electric bills showing that they had been paying for 2 meters since 1991. Although the second trailer had not been moved in, they had planned, from the time that they moved their trailer onto this property, to move a second trailer in for their daughter. After P & Z Commissioners directed questions to the Olson's [sic] and a couple of people voiced their objections, Ken Huff made the motion that we consider the use grandfathered in. Al Berry seconded the motion and it carried unanimously. Curtis and Melveta Olson's [sic] intent of moving a second trailer onto their property was grandfathered in and allowed."

The next pertinent event was a meeting of the Christian County Board of Adjustment on March 1, 1994. The minutes of the meeting state, in pertinent part:

" ... Chairperson Robert Neal asked Christopher Coulter[ ²] to review the appeal made by Gary Brown and give a summation of the Planning and Zoning Commission's meeting on November 1, 1993 when the decision to grandfather a second mobile home on the Olson's [sic] property was made.

Gary Brown spoke first for the opposition since he filed the appeal.... He talked about how the original hearing at the Planning and Zoning Commission meeting was for a conditional Use Permit and not a grandfathering, how this decision of allowing this site to be grandfathered may effect [sic] other properties and how it may effect [sic] planning and zoning in Christian County.

Mrs. Olson spoke for the defense.... She started her arguments by stating that Mr. Brown had no right to appeal her case since he was a criminal and that he abuses his dogs and his family. Since the Planning and Zoning Commission made a decision, he did not have the right to appeal.... She said that she bought the land she now owns, the two (2) acres, because her realtor told her she would be able to have two homes on the site. Since this was an existing development she should be grandfathered.

She continued by saying the Planning and Zoning Office pressured her into applying for a conditional use permit and the office had sent her threatening letters. She then stated she did not need a conditional use permit since there was no hardship. She wanted the mobile home on the property so her daughter could live close to her and her husband and play with their grandchildren....

A question was asked by the Board of Adjustment of when the second mobile home was placed on the property. She answered after February 1, 1993.

Dean Saxton asked the question why she wanted the site grandfathered. Mrs. Olson stated there was no hardship and there is no conditional use permit needed.

Jim Johnston asked Mrs. Olson if they added the second mobile home without a permit, Mrs. Olson replied Yes....

Terry Bohmont asked what transpired at the Planning and Zoning meeting and how this became switched around. Staff answered accordingly.

....

After discussion has died down, Jim Johnston remarked about RSMo. 64.600.2[sic] and explained how he saw the situation and mentioned how no hardship was present. Mr. Johnston made a motion to change the wording of the ballot. He stated what should be struck from the ballot. This motion was seconded by Dean Saxton. The motion carried.

....

The ballot was then read and the Board of Adjustment voted. The vote was four (4) YES, zero (0) NO, and one (1) ABSTAIN. The Planning and Zoning Commission's decision was overturned."

The next pertinent event was another meeting of the Board of Adjustment on May 3, 1994. The minutes of that meeting state, in pertinent part:

"First on the agenda was the appeal by Curtis and Melveeta [sic] Olson. Before this case was started, Chairman Robert Neal ask the Olson's [sic] if they would like to table the issue until another time so they may retain legal representation. Melveta Olson denied this request. At this time, Mr. Olson gave a short speech about how they are grandfathered as an existing development and cited page 10, paragraph 7 of the Unified Development Codes for Christian County. [ ³]

There was brief discussion about if there is sufficient new evidence to rehear the case. The Board felt that there was not any new evidence to rehear the case. dean [sic] Saxton made the motion not the [sic] rehear the issue and made it clear to the applicants that if they wish to ask for a grandfathering they will need to go the Planning and Zoning Commission. Jim Johnston seconded the motion. The motion carried."

After that meeting, Plaintiffs filed another application with the Planning and Zoning Commission. A handwritten notation on the application shows Plaintiffs were "applying for Grand Fathering."

The next pertinent event was a meeting of the Planning and Zoning Commission on June 6, 1994. The minutes of that meeting state, in pertinent part:

" ... Chairman Scott opened the permit hearing for Curtis and Melveta Olson to grandfather a second mobile home on their property.... Chris Coulter, P & Z Administrator presented...