State ex rel. J. S. Alberici, Inc. v. City of Fenton, 38666

• Court: Missouri Court of Appeals
• Writing for the Court: KELLY; The initial question to be resolved is whether the respondent here; WEIER
• Citation: State ex rel. J. S. Alberici, Inc. v. City of Fenton, 576 S.W.2d 574 (Mo. App. 1979)
• Decision Date: 16 January 1979
• Docket Number: No. 38666,38666
• Parties: STATE of Missouri ex rel. J. S. ALBERICI, INC., Petitioners-Respondents, v. CITY OF FENTON et al., Respondents-Appellants.

Page 574

576 S.W.2d 574

STATE of Missouri ex rel. J. S. ALBERICI, INC. Petitioners-Respondents, v. CITY OF FENTON et al., Respondents-Appellants.

No. 38666.

Missouri Court of Appeals, Eastern District.

Jan. 16, 1979.

David Evans, William R. Dorsey, Clayton, for respondents-appellants.

Wallach, Miller & McAvoy, Jerome Wallach, Fenton, for petitioners-respondents.

KELLY, Judge.

The appellants appeal from a judgment of the circuit court of St. Louis County ordering Harry Wilson, Director of Public Works of the City of Fenton, to issue a building permit to the respondent, J. S. Alberici, Inc. or the prospective purchaser of the property in question, Union Colliery Company, for the construction of a trash transfer station on a tract of land of approximately thirty-five acres located within the city limits. For reasons hereinafter stated, the judgment of the trial court is reversed and judgment entered in this court pursuant to the authority of Rule 84.14.

The appellants, the City of Fenton, Alvin Strode, Mayor, Florence Hyer, City Clerk Raymond Nothe, Chairman of the Planning and Zoning Commission, and Harold Wilson, Director of Public Works, were named as respondents in the mandamus action in a petition for writ of mandamus filed on the 6th day of July, 1976, and as party-defendants in an alternative petition for declaratory judgment filed on the 25th day of August, 1976, following the issuance of an alternative writ of mandamus on the 6th day of July, 1976. This litigation grew out of the refusal of the appellants to grant a permit for the construction of a trash transfer station in an area zoned "J" Light Industrial on property owned by the respondent, J. S. Alberici, Inc., on the grounds that the proposed construction would be in violation of Ordinance No. 51, Sec. 19, par. 22 of the City of Fenton prohibiting the use of a building or premises for ". . . garbage, offal or dead animals, reduction or dumping."

The appellants contended in the trial court, and so contend here on appeal, that the trial court lacked jurisdiction to proceed with the petition for writ of mandamus and the alternative petition for declaratory judgment for the reason the petitioners in the trial court had not exhausted their administrative remedies pursuant to Chapter 89 RSMo 1969 and Ordinance No. 87 of the City of Fenton. We agree.

The initial question to be resolved is whether the respondent here, J. S. Alberici, Inc., had the requisite standing to bring this action and was, in fact, a real party in interest. This question arises because the evidence is that the respondent entered into an agreement with the Union Colliery Company (hereinafter, the Colliery Company) a wholly owned subsidiary of the Union Electric Company, in September of 1975, whereby the Colliery Company was granted an option to purchase the tract of land in issue from the respondent for the purpose of constructing thereon the trash transfer station. The purchase, however, was contingent upon the Colliery Company obtaining the necessary permits and licenses for construction of the station and occupancy of the land for those purposes. According to the original contract this option to purchase had to be exercised by October 20, 1975, but several extensions of the time for performance were granted to the point where the final extension was until 30 days after finalization of the application for the issuance of a building permit.

In January of 1976 the Colliery submitted plans for the station to Mr. Wilson as the Director of Public Works for the City of Fenton, and he informed either the respondent or the Colliery orally that there was a zoning ordinance problem with the plans. This opinion was based upon a letter of the City Attorney expressing his opinion to the Mayor that the proposed use of the property by the Colliery Company would be in violation of Section 19(22) of the Fenton City Ordinance No. 51.

Rather than following the provisions for appeal to the Board of Adjustment contained in Section 3 of Ordinance No. 87, on February 20, 1976, J. S. Alberici, Inc., and the Colliery Company filed a joint petition with the Planning and Zoning Commission of the City requesting a change of zoning to permit the building of the trash transfer station. The Planning and Zoning Commission held public hearings on the petition and recommended that the petition be denied. The Board of Aldermen of the City met on May 17, 1976, to consider the recommendation of the Planning and Zoning Commission, and upon motion duly passed, affirmed the action of the Planning and Zoning Commission denying the petition of J. S. Alberici, Inc. and the Colliery Company.

In June of 1976, the Colliery Company submitted additional plans for the construction of the station to Mr. Wilson, and on or about June 11, 1976, J. S. Alberici, Inc. and the Colliery Company filed a second petition to amend the applicable Ordinance, but at their request further action on this petition was delayed.

On June 28, 1976, a letter signed by J. S. Alberici, Inc. and the Colliery Company was sent to Mr. Wilson demanding that he issue a building permit for the construction of the station. Mr. Wilson responded to this letter by giving the representatives of J. S Alberici, Inc. and the Colliery Company a copy of some departmental correspondence dated June 28, 1975, from himself to the Mayor advising the Mayor that the project had been disapproved for zoning by his office because the property in question was in violation of Ordinance 51, Sec. 19, par. 22.

Thereafter, on July 6, 1976, the respondent filed its Petition for Writ of Mandamus and thereafter, on August 25, 1976, its Alternative Petition for a Declaratory Judgment. The Colliery Company was not a party to either of these petitions.

We conclude that the respondent is a proper party to this action. Bare legal title constitutes sufficient interest to bring an action at law. Holt v. Myers, 494 S.W.2d 430, 437(5) (Mo.App.1973), and the respondent is the owner of the property here in question.

The crucial question remaining for decision is whether the respondent's failure to appeal the denial of the building permit for the proposed trash transfer station to the Board of Adjustment of the City pursuant to § 89.100 RSMo.1969 and Ordinance No. 87 of the City requires reversal of the trial court's judgment. ¹

The exhaustion of administrative remedies is a jurisdictional requirement for a declaratory judgment action. Westside Enterprises, Inc. v. City of Dexter, 559 S.W.2d 638, 641(1) (Mo.App.1977); Ackerman v. City of Creve Coeur, 553 S.W.2d 490, 492 (Mo.App.1977). In each of these cases, zoning matters in which the parties seeking declaratory relief were the subject of the action, the question whether the parties' failure to follow the review procedure established under § 89.100 RSMo.1969, was a prerequisite to a declaration of their rights was before the appellate tribunal. In each instance it was held that § 89.100 RSMo.1969 provides a specific method of review which is exclusive and until that method has been exhausted the circuit court lacks jurisdiction to entertain a declaratory judgment action or to grant equitable relief in a case involving the efforts of the property owner to obtain relief from the provisions of a zoning ordinance. The only permissible exception to the exhaustion requirement in zoning matters appears to be where constitutional questions are raised. Bormann v. City of Richmond Heights, 213 S.W.2d 249, 253 (Mo.App.1948); Westside Enterprises v. City of Dexter, supra, l.c. 640. Respondent has not raised a constitutional question here.

Respondent contends that the holding in Ackerman, supra, is inapposite. This argument is without merit, and the cases respondent relies upon in support of this contention Rosedale-Skinker Improvement Association v. Board of Adjustment of City of St. Louis, 425 S.W.2d 929 (Mo. banc 1968) and Phillips v. Board of Adjustment of City of Bellefontaine Neighbors, 308 S.W.2d 765 (Mo.App.1958) are distinguishable on the issues involved therein. We are not here dealing with a variance, nor a situation where it is contended that the Board of Aldermen passed an ordinance which it had no authority to pass, as was the issue in those cases.

We conclude therefore that there was available to the respondent an adequate remedy by way of administrative appeal which it chose to ignore.

Respondent not only failed to exhaust its administrative remedies, it also failed to pursue the method of judicial review provided in Chapter 89 and Ordinance No. 87 of the City of Fenton by petition for certiorari. It chose, instead, to...