State ex rel. Karsch v. Camden County

• Decision Date: 27 January 2010
• Docket Number: No. SD 29668.,SD 29668.
• Parties: STATE of Missouri, ex rel. KARSCH, et al., Appellants, v. CAMDEN COUNTY, Missouri, Board of Adjustment, Respondent.
• Court: Missouri Court of Appeals

302 S.W.3d 754

STATE of Missouri, ex rel. KARSCH, et al., Appellants, v. CAMDEN COUNTY, Missouri, Board of Adjustment, Respondent.

No. SD 29668.

Missouri Court of Appeals, Southern District, Division One.

January 27, 2010.

John W. Roe and Mark H. Epstein, Kansas City, for Appellant.

Harvey M. Tettlebaum, R. Ryan Harding and John M. Roodhouse, Husch Blackwell Sanders, LLP, Jefferson City, for Respondent.

ROBERT S. BARNEY, Judge.

Appellant John Karsch ("Mr. Karsch") and BA Sales, Inc. (collectively "Applicant") petitioned for writ of certiorari to challenge a decision by the Camden County Board of Adjustment ("the Board") which denied Applicant's request for a conditional use permit ("CUP") on its property located in Camden County, Missouri. In its Findings and Judgment, the trial court upheld the decision of the Board. On appeal, Applicant essentially maintains in its sole point relied on that the Board erred in denying its application for a CUP to permit it to use its property for a "less intense use than it [was] currently zoned for because there was no competent and substantial evidence to support the Board's denial" and the alleged evidence in opposition was "against the weight of the evidence in support of the application consisting of expert testimony and exhibits."

"An appellate court reviews the findings and conclusions of the [Board] and not the judgment of the trial court." State ex rel. Teefey v. Bd. of Zoning Adjustment, 24 S.W.3d 681, 684 (Mo. banc 2000); see Animal Shelter League of the Ozarks, Inc. v. Christian Cty. Bd. of Adjustment, 995 S.W.2d 533, 537 (Mo.App.1999). "[N]either `this Court nor the [trial] [c]ourt may try the matter de novo or substitute our judgment for that of the administrative tribunal.'" Wolfner v. Bd. of Adjustment, 672 S.W.2d 147, 150 (Mo.App.1984) (quoting Stockwell v. Bd. of Zoning Adjustment, 434 S.W.2d 785, 789 (Mo.App. 1968)). We do not reweigh the evidence. Versatile Mgmt. Group v. Finke, 252 S.W.3d 227, 233 (Mo.App.2008). This court will not "disturb [the Board's] decision unless it is clearly contrary to the weight of the evidence." Medusa Aggregates Co. v. City of Columbia, 882 S.W.2d 223, 224 (Mo.App.1994). "The scope of review is limited to determination of `whether the Board's action is supported by competent and substantial evidence[¹] upon the whole record or whether it is arbitrary, capricious, unreasonable, unlawful, or in excess of its jurisdiction.'" Teefey, 24 S.W.3d at 684 (quoting Hutchens v. St. Louis Cty., 848 S.W.2d 616, 617 (Mo. App.1993)); see also Moto, Inc. v. Bd. of Adjustment, 88 S.W.3d 96, 99 (Mo.App. 2002). "In determining whether substantial evidence existed to support the [Board's] decision, an appellate court must view the evidence and reasonable inferences therefrom in a light most favorable to the decision." Teefey, 24 S.W.3d at 684. If the evidence would support either of two different, opposed findings, this Court is bound by the determination of the administrative agency. Versatile, 252 S.W.3d at 233. "A question of law is a matter for the independent judgment of the reviewing court." Teefey, 24 S.W.3d at 684.

"Conditional or special use permits allow a land use authorized by a local legislative body and deemed conducive to the general welfare of the community, but which may be incompatible with the basic uses in the particular location in relation to surrounding properties, unless certain conditions are met." State ex rel. Columbia Tower, Inc. v. Boone Cty., 829 S.W.2d 534, 538 (Mo.App.1992); see also Ode v. Bd. of Zoning Adjustment, 796 S.W.2d 81, 83 (Mo.App.1990).

Sections 404 and 408 of the Camden County Unified Land-Use Code ("the Code") govern applications for CUPs in Camden County, Missouri. Section 408 sets out:

2. The [CUP] is intended to provide a public hearing review process for land uses that are conditionally allowed in a particular zoning district, but which potentially have certain aspects that indicate that thorough review is appropriate. . . .

3. Subject to Subsection 4, the Planning Commission shall issue the requested permit with appropriate conditions unless it concludes, based on the information submitted at the hearing that:

a. The requested permit is not within its jurisdiction to decide upon, or

b. The application is incomplete, or

c. If the development is completed as proposed it will not comply with one or more requirements of the [Code] that the Planning Commission is unwilling to vary.

4. Even if the Planning Commission feels that the application complies with all other provisions of this regulation, it may still deny the permit if it concludes, based upon the information submitted at the hearing, that . . . the development, more probably than not:

a. Will materially endanger the public health or safety, or

b. Will substantially injure the value of adjoining or abutting property, or

c. Will not be in harmony with the area in which it is to be located, or

d. Will not be in general conformity with the Master Plan or any other plan adopted by the County Commission.

5. The burden of presenting a complete application to the Planning Commission shall be upon the applicant. . . .

6. The burden of presenting evidence and of persuading the Planning Commission that the development, if completed as proposed, will comply with the requirements of this regulation shall fully and completely fall upon the applicant or his representatives.

Section 64.660² and section 310 of the Code both set out the duties and powers of the Board in its determination of appeals brought before it. Section 310 of the Code states:

1. The Board . . . shall have the following powers and it shall be its duty:

a. To hear and decide appeals where it is alleged there is error of law in any order, requirement, decision, or determination made by an administrative official in the enforcement of this Code.

b. To hear and decide all matters referred to it or which it is required to determine under these Regulations, including, without limitation . . . (iii) appeals from decisions of the Planning Commission regarding [CUPs]. . . .

The record reveals that Applicant is the owner of two parcels of land located in Camden County. The parcel of property at issue here ("the Property") consists of 7.61 acres bordering the Lake of the Ozarks on three sides and is zoned as "B-2 (General Commercial)."³ The improvements on the Property consist of a marina and several commercial boat docks. The other parcel owned by Applicant consists of 3.22 acres which is adjacent to the Property, zoned as R-1, and has no stated improvements.⁴ Initially, Applicant desired to build condominiums on both parcels and in January of 2007, it filed applications with the Camden County Planning and Zoning Commission ("the PZC") for CUPs to build a condominium complex on the properties and to rezone the 3.22 acre parcel from R-1 to R-3, which is referred to as "High Density Residential." In its application, Applicant requested approval to build 180 units on the combined properties.

Hearings were held by the PZC on January 17, 2007, and on February 21, 2007. Prior to the vote of the PZC, Applicant agreed to reduce the number of potential condominium units from 180 to 165. At the latter proceeding, the PZC voted 6-3 to deny the project on the properties. Applicant ultimately appealed the decision relating to the properties to the Board per section 310 of the Code.

The Board held a public hearing on March 28, 2007. At the hearing, Applicant's representative, Mark Epstein ("Mr. Epstein"), related that Applicant desired to reduce the number of potential condominium units from 165 to 129 and declared that Applicant would also agree to keep the 3.22 acre parcel as undeveloped green space. He also proposed making various public improvements to the area in which the Property was located such as repairing roadways and adding an additional water tower to serve the Property as well as 285 people in the surrounding residential area. Mr. Epstein argued that the use of the property as R-3 high density residential is actually a decrease "in the density of the zoning from what is already characterized as a B-2 general commercial district. . . ." He maintained there would not be much increased traffic flow in the area based on the nature of condominium units and the fact that they are vacant a great deal of the time. He related Applicant could utilize this property by building a nightclub, a restaurant, a bar, or a trailer park under the current zoning of the Property and that a condominium complex was certainly better than these alternatives as far as having a negative impact on the area. Mr. Epstein also related there would not be a significant increase in boat or dock traffic, and that he did not yet know how many boat slips would be approved for use with the condominium complex.

Matt Marschke ("Mr. Marschke"), an engineer with Midwest Engineering, testified that the total land coverage proposed by Applicant was only half of what it could be under the current B-2 zoning; that the project contained more green space than other projects in the area; and that his feasibility study revealed the best use of the Property would be for condominium development.⁵ He further testified the granting of a CUP on the Property would not affect the roadway safety of the surrounding area because the roads in that area are "superior" and "much less congested . . ." than most roads in the lake area and he related that he had reviewed records from the Missouri State Highway Patrol which reported but one traffic accident in the area in the last five years. He also related that Applicant planned to improve the access road "to even a better standard than it is now." As for water safety, he related there would be no more docks built under the CUP than could be built under the current B-2 zoning and he observed that the Missouri Water Patrol had recently rejected Applicant's request for a no wake zone in the...