Reiz v. Bd. Of Zoning Adjustment Of Kan. City
| Decision Date | 31 August 2010 |
| Docket Number | No. WD 70925.,WD 70925. |
| Citation | 316 S.W.3d 331 |
| Parties | Nathan REIZ, et al., Appellants,v.BOARD OF ZONING ADJUSTMENT OF KANSAS CITY, Missouri, et al., Respondents. |
| Court | Missouri Court of Appeals |
Gordon D. Gee, Kansas City, MO, for Appellants.
Galen P. Beaufort, City Attorney, M. Margaret Sheahan Moran, Senior Associate City Attorney, Kansas City, MO, for Respondents Board of Zoning Adjustment of Kansas City Missouri, and City of Kansas City, Missouri.
Before Division III: JAMES EDWARD WELSH, Presiding Judge, and MARK D. PFEIFFER and KAREN KING MITCHELL, Judges.
This is an appeal from the judgment of the Circuit Court of Jackson County, Missouri (“trial court”), affirming the determination by Respondent Board of Zoning Adjustment of Kansas City, Missouri (“BZA”), that a billboard erected on property belonging to Appellant Nathan Reiz (“Reiz”) and leased to Appellant Porlier Outdoor Advertising Co. (“Porlier”) was illegal, as it was within 150 feet of the curb line of property used as a public park. We affirm the judgment of the BZA.
On February 27, 2006, Porlier's predecessor in interest, Pinnacle Management Group, LLC (“Pinnacle”), filed an application with Respondent City of Kansas City, Missouri (“City”), for an outdoor advertising sign permit to erect a billboard on property owned by Reiz at 1001 Locust Street. The property was being used as a surface parking lot at the time, although a publicized proposal was underway to convert the lot and surrounding properties into a mixed-use development including residences and a new headquarters for an area construction company. The application for the billboard included plans that had been prepared by a registered land surveyor. The plans showed that the proposed billboard would be located exactly 150 feet from the right-of-way setback line on the property being used as Ilus W. Davis Park. On the same day the application was filed, a City representative inspected the site for the proposed billboard and issued a pre-permit inspection form which provided that “permission for the above described work is hereby granted.” On March 1, 2006, City issued a permit granting permission to install the billboard.
On May 23, 2006, Pinnacle commenced construction of the billboard. On May 25, 2006, with construction nearly completed, the City inspector who initially approved the billboard returned to the property and delivered a stop work order to Pinnacle that stated,
The next day, May 26, 2006, City sent a letter to Pinnacle's representative that read, in pertinent part:
On June 13, 2006, Pinnacle filed its application to the BZA appealing City's suspension of the permit for the billboard, and the BZA held a hearing on August 22, 2006. At the conclusion of the hearing, the BZA determined to uphold City's suspension of the permit. Written notice of the BZA's decision was sent to Pinnacle on August 30, 2006.
On September 21, 2006, Reiz and Porlier, as successor to Pinnacle (to all of whom this opinion will hereinafter collectively refer as “Porlier”), filed a petition for review, injunction, and writ of certiorari with the trial court. The petition was subsequently amended and the parties filed their briefs before the trial court.
On February 7, 2008, the property on which the billboard had been erected was condemned in the case captioned Tax Increment Financing Commission of Kansas City v. Ten Oak Center, Ltd., et al., Case No. 0716-CV30164, also in the Circuit Court of Jackson County. On April 10, 2008, a panel of three appointed Commissioners filed a report assessing damages to Porlier on the condemnation of the billboard at $110,000. Exceptions to the Commissioners' award were filed,1 and the award was paid into the court. The billboard and parking lot were then dismantled and removed by the new property owner.
On June 3, 2008, Porlier filed with the trial court additional suggestions in support of the petition to reverse the decision of the BZA, requesting the trial court to dismiss the action as moot. Porlier did not voluntarily dismiss its petition. On November 3, 2008, a hearing was held in the trial court wherein Porlier attempted to introduce additional evidence as to the merits of the petition. The court refused to admit the evidence. On February 9, 2009, the trial court entered an order affirming the decision of the BZA. This appeal follows.
When a party appeals a trial court's ruling on the propriety of an administrative decision, we review the decision of the Board, not of the trial court. State ex rel. Teefey v. Bd. of Zoning Adjustment, 24 S.W.3d 681, 684 (Mo. banc 2000). We review zoning board decisions to determine whether they are supported by competent and substantial evidence on the record as a whole, or whether they are arbitrary and capricious, unreasonable, unlawful, or in excess of the Board's jurisdiction. Id.
For its first point on appeal, Porlier claims that the trial court erred in refusing to dismiss Porlier's own petition for certiorari on the grounds that it had become moot. Specifically, Porlier contends that since the billboard had been dismantled and removed, there was no longer a justiciable controversy between Porlier and the BZA or the City, and therefore the action should have been dismissed by the trial court. Porlier contends that our review of the trial court on this matter is de novo. However, as stated above, this court does not review the decision of the trial court but, instead, reviews the decision of the BZA. Id. Therefore we would not in any case review the trial court's refusal to dismiss the matter but would, necessarily, review the decision of the BZA instead.
Moreover, we need not reach the issue of mootness before the trial court, because if the action had been moot before the trial court, it would necessarily also be moot here. Mootness is a threshold issue in any appellate proceeding, and so it may be considered by an appellate court sua sponte. Hihn v. Hihn, 235 S.W.3d 64, 67 (Mo.App. E.D.2007). A determination of mootness usually warrants dismissal by the appellate court outright, without having first passed on the propriety of the actions taken by the trial court. See State ex rel. Claudia Lee & Assocs., Inc. v. Bd. of Zoning Adjustment, 297 S.W.3d 107, 111-12 (Mo.App. W.D.2009). An action that would otherwise be moot may be considered by an appellate court, however, in several situations: (1) where the action becomes moot after it has been argued and submitted; (2) where the issue is one of general public interest and importance, which is capable of recurring and likely to evade appellate review id. at 111 n. 6; or (3) where the court or administrative decision being appealed could have significant collateral consequences for one or more of the parties to the appeal. Glover v. Michaud, 222 S.W.3d 347, 351 (Mo.App. S.D.2007). We may consider facts established outside the record-on-review in determining whether a matter is moot. Claudia Lee, 297 S.W.3d at 111.
City contends that the appeal is not necessarily moot because this court's determination could have consequences for the collateral condemnation action. An award of damages was assessed by the three-Commissioner panel and the award was paid into the court. However, both parties have since filed exceptions to the condemnation award and the case has been stayed pending this appeal. Once exceptions are filed, the amount of damages becomes an issue and the parties are entitled to a jury trial to determine the proper award of damages. One of the issues in the calculation of damages in the condemnation case is arguably the value of the lease interest in the billboard. Because City contends and the BZA found that the sign was illegal in that it violated a City ordinance by being within 150 feet of a public park, City argues that the lease (the purpose of which was construction of and maintenance of the sign) had no value and, therefore, that the $110,000 damage award was excessive. City thus argues that this court's ruling as to the legality of the billboard will have collateral consequences in the condemnation action, and therefore this action is not moot.
Porlier, on the other hand, contends that this court's ruling will have no collateral...
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Paradise v. Midwest Asphalt Coatings Inc
...15, 2010, so the relief cannot be granted and is moot. See Corken v. Workman, 231 Mo.App. 121, 98 S.W.2d 153, 155 (1936). Midwest was 316 S.W.3d 331 not entitled to attorney fees because it was not the prevailing party. Therefore, we affirm.HARDWICK and MARTIN, JJ., concur. --------Notes: 1......