State ex rel. Henze v. Wetzel
| Decision Date | 12 July 1988 |
| Docket Number | No. 53900,53900 |
| Citation | 754 S.W.2d 888 |
| Parties | STATE of Missouri ex rel. Walter E. HENZE and Mildred M. Henze, Appellants, v. Charles WETZEL, et al., Respondents, and Kelley Properties, Inc., Intervenor-Respondent. |
| Court | Missouri Court of Appeals |
David L. Campbell, John Joseph Campbell, St. Louis, for appellants.
David Michael Harris, Donald J. Stohr, James W. Erwin, St. Louis, for respondents.
This is an appeal by appellants-relators, Walter E. and his wife Mildred M. Henze, from a judgment of the circuit court of St. Louis County in favor of respondents, the members of the Board of Adjustment of the City of Des Peres, which affirmed an order of the Board granting certain variances to Kelley Properties, Inc. On appeal, Kelley Properties filed a motion to dismiss for the reason that the trial court lacked jurisdiction to determine the writ of certiorari because no notice was given by relators to Kelley Properties, Inc. either within thirty days after the decision of the board of adjustment or thereafter. The motion to dismiss the appeal was taken with the cause. We now grant Kelley's motion to dismiss the appeal. The dispositive issue is whether, in the procedural posture of the record, the circuit court had jurisdiction to enter its order.
To understand the procedural posture of this proceeding, a review of the facts is necessary. Kelley Properties, Inc. owns property consisting of approximately 1.1 acres in the City of Des Peres, located at the corner of Manchester and Tallie Roads. It fronts upon Manchester Road to the north, and is bordered on the west by Tallie Avenue and on the south by Manhattan Avenue. It has an irregular shape and narrows from west to east. The property lies within the C-1, commercial zoning district, which permits the use of land for offices and retail stores. The relators-appellants, Mr. and Mrs. Henze, own land located at 1012 Tallie Drive, near the property owned by Kelley. Kelley sought certain variances to construct a two story building for commercial purposes.
On June 13, 1985, Kelley appealed from the Planning and Zoning Commission to the Board of Adjustment. In its petition for appeal, Kelley sought six variances. One variance was to reduce the rear buffer zone requirement from 25 to 3 feet. Another sought a variance from the 40 foot parking set back requirement on Manhattan Avenue to 23 feet. The appeal stated that the
On July 18, 1985, the board held the first of two public hearings at which the requested variances were considered. At this public hearing, Mr. Henze expressed his opposition to the granting of the variances.
At the July meeting, the board voted informally to indicate its position or "general feeling" to grant four of the variances but rejected the request to reduce the rear buffer zone, and by a vote of 1-4 rejected the reduction in the parking set back. These were not formal denials, but mere indications of the position of the board. The board granted Kelley a continuance so that Kelley could return to the planning and zoning commission. Kelley met with the Planning and Zoning Commission and amended its requests. Under the new proposal, Kelley sought a set back of 33 feet in lieu of the 23 feet initially proposed, and requested a 13 foot rear buffer zone.
After the July 18, 1985 hearing, the subcommittee of the planning and zoning commission met with the vice president of Kelley and the director of public works and reported to the Commission that the "Kelley people" suggested a set back of 33 feet, a rear yard buffer from the required 25 feet to 13 and a reduction of parking spaces from 60 to 55.
On August 29, 1985, the board held its second hearing. The board again considered all six variances and was given the latest recommendations of planning and zoning, but it decided to consider the original requests as well. No amendment of the original petition for variances was made. Mr. Henze again spoke at the meeting and was opposed to the variances. Other people spoke in favor of the variances. At this meeting variances were unanimously granted reducing the parking set back from 40 feet to 23 feet. The motion was made by a member of the board, Mr. Tomasovic. A motion to reduce the buffer from 25 to 13 feet was also made by Mr. Tomasovic. The request to reduce the buffer zone from 25 feet to 13 feet initially received three votes in favor and two against. Since §§ 89.090, R.S.Mo. and 435.050(C) of the city code require the affirmative vote of four members, this request for a 13 foot buffer was therefore technically denied. But upon review of the tally sheet, the chairman realized he made a mistake by voting against, and, changed his vote to "aye." The Director of Public Works proceeded to announce the passage of the variances. The reduction of parking spaces from 65 was denied.
On September 27, 1985, relators filed their petition for review and certiorari in the circuit court of St. Louis County alleging that the variances were "illegal and unlawful," praying for a writ of certiorari and upon review, to reverse and set aside the granted variances. Kelley did not appeal from the determinations of the board. Kelley was not made a party to the petition for review, and was never given notice by relators that the action had been commenced, nor was Kelley forwarded a copy of the petition for review. Kelley was, however, informed by the city by letter dated November 27, 1985 that the action had been commenced. On December 12, 1985, and again on April 24, 1986, Kelley sought to intervene by motion. The motion was granted on May 15, 1986. The motion alleged that Kelley had expended over $1 million dollars since the variances were granted. On April 24, 1986, Kelley also filed a motion for summary judgment on the ground that the trial court lacked jurisdiction because the relators failed to give notice to it pursuant to § 536.110.2, R.S.Mo. An affidavit filed by Joseph J. Kelley, Jr., President, stated that Kelley had committed $2.3 million to develop the property and had spent over $1 million on the project. This motion was denied on July 28, 1985.
On February 28, 1986, the writ of certiorari issued. On March 21, 1986, respondents filed their return. On May 15, 1986, Kelley was granted leave to intervene. On September 14, 1987, the cause was submitted on briefs, and on October 14, 1987, the court affirmed the decision of the board. The court found that these proceedings were governed by § 89.110, R.S.Mo.1986 and "not by the provisions of Section 536.110, RSMo," and this
On appeal, relators-appellants, Mr. and Mrs. Henze, contend that the trial court erred in affirming the actions and decisions of the Des Peres Board of Adjustment because (1) the variance reducing the buffer zone from 25 feet to 13 feet was not legally adopted since it did not receive the concurrence of at least four members of the board as required by § 89.090.2, R.S.Mo. and § 435.090.C of the Des Peres ordinances, (2) both variances--reducing the buffer zone from 25 feet to 13 feet and the parking set back from 40 feet to 23 feet--were not legally adopted since there was no finding by the board of "practical difficulties or unnecessary hardship" as required by § 89.090.1(3) R.S.Mo. and § 405.040.A.3 of the city code, and (3) the Board of Adjustment did not have jurisdiction to grant the variances since there was no appeal before it of the original variance requests since those requests had been abandoned and dismissed where no amendments to the original request for variances had been made.
On March 4, 1988, Kelley filed its motion to dismiss this appeal for lack of subject matter jurisdiction. In support of its motion, Kelley contends that the documents contained in the supplementary legal file moving the trial court to grant summary judgment in its favor because the relators failed to give any notice or notice within thirty days to Kelley, or to deliver a copy of the petition for review is a jurisdictional defect and hence the appeal should be dismissed.
In response to Kelley's motion to dismiss, relators state that the trial court overruled Kelley's motion for summary judgment and further that Kelley did not file any notice of appeal to this court from the August, 1985 decision of the board granting the variances.
Of significant import in this case is whether the relators' appeal should be dismissed because of lack of jurisdiction both in the trial court and in this court. We believe that Kelley's motion to dismiss is well taken in that the trial court did not have jurisdiction to review the proceedings of the Board of Adjustment inasmuch as relators never gave any notice, nor served or delivered any copy of the petition for review to "each party of record in the proceedings." Section 536.110.2, R.S.Mo.1986.
In determining whether Kelley's motion to dismiss this appeal should be granted, we must determine (1) whether Kelley, the applicant and awardee of the two variances is an indispensable party to the proceeding filed by relators, (2) whether § 536.110.2 is an essential supplement to § 89.110 so as to require a notice or delivery of the petition for review to Kelley by the relators, (3) whether the failure of the appellants to give any notice, or to deliver a copy of the petition for review to Kelley is a jurisdictional defect under §§ 89.110 and 536.110.2 R.S.Mo., and (4) whether the failure of relators to give notice of, or deliver a copy of the petition to Kelley within the statutory thirty-day-appeal period under §§ 89.110 and 536.110.2 is jurisdictional.
It is clear that Kelley is an indispensable party to the...
To continue reading
Request your trial
-
State ex rel. Sweet v. Village of Jemez Springs, Inc. City Council
...Bd. of Zoning Adjustments, 489 So.2d 329 (La.Ct.App.1986); Caron v. City of Auburn, 567 A.2d 66 (Me.1989); State ex rel. Henze v. Wetzel, 754 S.W.2d 888 (Mo.Ct.App.1988); Spanish Wells Property Owners Ass'n v. Board of Adjustment, 295 S.C. 67, 367 S.E.2d 160 (1988); Tellinghuisen v. King Co......
-
Deffenbaugh Industries, Inc. v. Potts, WD
...the lapse in the judicial review procedures of zoning decisions of a municipal agency under § 89.110. See e.g., State ex rel. Henze v. Wetzel, 754 S.W.2d 888, 893 (Mo.App.1988). Others also define the scope of judicial review of municipal zoning decisions as well as of county zoning decisio......
-
Dye v. Department of Mental Health
...cited to by the DMH are not on point. Henderson v. Lombardi, 77 S.W.3d 109, 112 (Mo.App. W.D.2002), and State ex rel. Henze v. Wetzel, 754 S.W.2d 888, 895-96 (Mo.App. E.D.1988), involved the issue of who must be provided with notice of a petition for review under § 536.110. In discussing th......
-
Sear v. Clayton County Zoning Bd. of Adjustment
...168 Colo. 128, 450 P.2d 73, 74 (1969); Lanaux v. City of New Orleans, 489 So.2d 329, 331 (La.Ct.App.1986); Missouri ex rel. Henze v. Wetzel, 754 S.W.2d 888, 892 (Mo.Ct.App.1988); Veradale Valley Citizens' Planning Comm. v. Board of County Comm'rs, 22 Wash.App. 229, 588 P.2d 750, 753 (1978);......