State ex rel. Drury Displays, Inc. v. City of Shrewsbury
| Decision Date | 06 October 1998 |
| Docket Number | No. 73837,73837 |
| Citation | 985 S.W.2d 797 |
| Parties | STATE of Missouri, ex rel. DRURY DISPLAYS, INC., Respondent, v. CITY OF SHREWSBURY, a Municipal Corporation, Appellant. |
| Court | Missouri Court of Appeals |
Jerry J. Murphy, Daniel G. Tobben, St. Louis, for appellant.
Kevin L. King, Robert J. Koster, St. Louis, for respondent.
The City of Shrewsbury (City) appeals from a judgment and order granting summary judgment in favor of Drury Displays, Inc. (Drury). The City contends: (1) the trial court erred in applying the case of Outcom v. City of Lake St. Louis, 960 S.W.2d 1 (Mo.App. E.D.1996); (2) the trial court erred in failing to follow Section 71.288, RSMo 1997 Cum.Supp., because Drury had no vested right and did not qualify as an existing nonconforming use; and (3) the trial court erred ordering the City to grant Drury a billboard permit without the required special use permit hearing to determine issues other than spacing. We reverse and remand.
Drury is engaged in the outdoor advertising business. On June 16, 1994, Drury filed an application with the City seeking a special use permit for the erection of a billboard on property zoned for industrial use. The billboard would be located at a point within 660 feet of the right-of-way for Interstate Highway 44 and approximately 535 feet from the nearest billboard. Drury had previously obtained a permit for the proposed billboard from the State Highway and Transportation Commission, attesting conformity to the requirements of the Missouri Billboards Act, Sections 226.500-226.600, RSMo 1994. 1
The initial application to the City was rejected by the Planning and Zoning Commission because of various problems under the city's zoning ordinance. An amended application was submitted which was not approved by the Planning and Zoning Commission. Drury then requested a position on the agenda of the Board of Aldermen meeting to consider its application. The City then imposed a moratorium on further billboard advertising pending review of its legislative policy regarding billboards. Drury responded with an action in mandamus to compel the Board of Alderman to convene a legislative hearing, coupled with a petition for declaratory judgment to the effect that the Missouri Billboard Act preempted any more restrictive provisions of the city zoning ordinance.
On March 14, 1995, the City amended its zoning ordinance to reduce the required spacing between billboards on the same side of the highway from 2500 to 1500 feet. The City then denied Drury's application for a special use permit, stating only that the proposed location was less than 1500 feet from the nearest billboard. The amendment did not affect Drury's rights adversely because the proposed location violated both the old and new standards, assuming for the moment their validity and applicability.
Following the denial, Drury filed a second amended petition eliminating the claim for mandamus and asking for a declaration that the distance limitation in the ordinance could not be validly applied because of conflict with the 500 feet statutory standard set out in Section 226.540. Drury's proposal complied with that standard.
The case of Outcom Inc. v. The City of Lake St. Louis was pending at the time the amended petition was filed. Outcom presented the question of the authority of a municipality to impose spacing limits for certain billboards visible from interstate highways in excess of the 500-foot limit of Section 226.540. The parties here agreed to await the decision in Outcom before proceeding further.
In Outcom, this court held that the statute was preemptory and that ordinance provisions which prohibited billboard construction which the Missouri Billboard Act permitted were invalid, citing Stephenson's Restaurants v. Missouri State Highway and Transportation Commission, 666 S.W.2d 437 (Mo.App. W.D.1984), and National Advertising v. Missouri State Highway and Transportation Commission, 862 S.W.2d 953 (Mo.App. E.D.1993). Outcom, 960 S.W.2d at 3-4. The Outcom opinion contained a thorough analysis of the interplay of federal and state statutes with local ordinances. Finality of the decision was postponed, however, because the Supreme Court of Missouri granted an application to transfer and the case was argued there.
While the Outcom appeal was pending before the Supreme Court, the legislature enacted Section 71.288, RSMo 1997 Supp. (House Bill 831), providing in pertinent part as follows:
1. Any city that maintains the city engineer or other similar city official on the planning commission shall have the authority to place any restrictions upon the height, spacing and lighting of outdoor advertising structures placed within the view of any highway in the city. Such ordinance may be more restrictive than sections 226.500 to 226.600, RSMo.
Following the passage of this statutory provision, the Supreme Court retransferred the Outcom case to this court without opinion and without directions of any kind. This court immediately issued its mandate and put the opinion in line for publication. There was no request for reargument or reconsideration in the light of the new statute, and neither party apparently sought additional proceedings here. Outcom was remanded to the circuit court "to give the parties the opportunity to present evidence and for the court to determine the validity of any other provisions under the three part test of Section 226.540.7." Outcom, 960 S.W.2d at 5. We are not informed as to the ultimate disposition of Outcom, and inasmuch as the contending parties here are not the parties to that case, the disposition is not significant.
Both parties to the case at hand then moved for summary judgment. Drury, the plaintiff, argued that it was entitled to the permit it sought at the time of the hearing before the Board of Aldermen. Drury argued that the board, by specifying only the alleged spacing violation, was precluded from later reliance on other reasons for denial of the permit, and that any attempt to apply the newly enacted Section 71.288 to its application would violate Article I, Section 13 of the Missouri Constitution, which provides that "no ex post facto law, nor law impairing the obligation of contracts or retrospective in operation ... can be enacted." The City contended that the express purpose of Section 71.288 was to revest in municipalities the authority to regulate any future construction of billboards. The City claimed Drury's state permit conferred no vested right and that only the showing of a nonconforming use would excuse compliance with a valid zoning ordinance....
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