State ex rel. Lee v. City of Grain Valley

• Decision Date: 15 September 2009
• Docket Number: No. WD 70059.,WD 70059.
• Citation: 293 S.W.3d 104
• Parties: STATE of Missouri ex rel. Richard F. LEE, et al., Appellants, v. CITY OF GRAIN VALLEY, Missouri, et al., Respondent.
• Court: Missouri Court of Appeals

293 S.W.3d 104

STATE of Missouri ex rel. Richard F. LEE, et al., Appellants, v.CITY OF GRAIN VALLEY, Missouri, et al., Respondent.

No. WD 70059.

Missouri Court of Appeals, Western District.

September 15, 2009.

James M. Roberst, Esq., Blue Springs, MO, for appellant.

James T. Cook, Esq., and Matthew W. Geary, Esq., Kansas City, MO, for respondent.

Before JAMES E. WELSH, P.J., and VICTOR C. HOWARD and ALOK AHUJA, JJ.

ALOK AHUJA, Judge.

Richard and Kendra Lee appeal the circuit court's judgment denying their Petition for Writ of Mandamus, which sought to compel the City of Grain Valley to issue them a building permit for construction on their property.We affirm.

Factual Background

The Lees live in an 800 square foot home in Grain Valley, Missouri.Sometime in 2007, they began to explore building a new residence on their property with officials of the City of Grain Valley.Specifically, the Lees desired to build a "modular home" of "15- or 1600 square feet," to replace their existing home.The Lees were informed by the City that their property was zoned commercial, and that building such a residence would therefore not be allowed.The Lees contend that they submitted "building permit papers" for their contemplated new home construction with the City on May 24, 2007, but that the City would not accept the application.The City disputes that this ever occurred.

The Lees then requested a zoning variance from the Grain Valley Board of Zoning Adjustment.After a hearing, the Board denied their request on June 13, 2007.

Grain Valley OrdinanceNumber 1906 took effect on June 25, 2007.Among other things, this ordinance zoned a swath of property, including the Lees', as "transitional."

On August 9, 2007, the Lees filed this lawsuit in the Jackson County Circuit Court, seeking, inter alia, a writ of mandamus against the City¹"requiring [the City] to issue a Building Permit of the City of Grain Valley allowing [the Lees] to build a new home on their land replacing the current dwellings."

The case was tried to the court.The Lees called only one witness, Richard Lee, who testified that he no longer desired to build a new residence on the property, but instead wished to add on to the pre-existing structure, with the intention of more than doubling the current square footage.

On July 29, 2008, the court issued its judgment denying the Lees' Petition for Writ of Mandamus, based on its conclusion that the Lees' property "was zoned commercial by Grain Valley in the early 1980s."The Lees now appeal.

Analysis

On appeal, the Lees assert two Points Relied On.In Point I, they argue that the circuit court erred in finding that their property was zoned commercial, thus precluding the City from granting the requested residential construction permit, because the court relied upon inadmissible parole evidence to establish the content of the relevant zoning ordinance.(Evidence at trial indicated that neither the City nor the Lees could locate the ordinance purportedly zoning the Lees' property as commercial.)In Point II, the Lees contend that the circuit court erred in denying mandamus relief because the City "admitted that [the Lees'] property was zoned residential due to [the City's] failure to answer the first and second amended requests for admissions ... and therefore [these requests] should have been deemed admitted per Supreme Court rule."

I.

"The remedy of a writ of mandamus is only appropriate where a party has a `clear duty to perform a certain act.'"Maxwell v. Daviess County,190 S.W.3d 606, 610(Mo.App. W.D.2006)(citation omitted)."[M]andamus only lies when there is an unequivocal showing that a public official failed to perform a ministerial duty imposed by law."Modern Day Veterans Chapter No. 251 v. City of Miller,128 S.W.3d 176, 178(Mo.App. S.D.2004)."The purpose of mandamus is to require the performance of a duty already defined by the law."Maxwell,190 S.W.3d at 610."Thus, mandamus enforces existing rights, but may not be used to establish new rights."Id."Whether a petitioner's right to mandamus is clearly established and presently existing is determined by examining the statute or ordinance under which petitioner claims the right."State ex inf. Riederer ex rel. Pershing Square Redevelopment Corp. v. Collins,799 S.W.2d 644, 649(Mo. App. W.D.1990)."Therefore, in order to prevail, [the Lees] must demonstrate that the [City] had a clear duty existing under the current law to" issue the permit in question.Maxwell,190 S.W.3d at 610.

The judgment in a mandamus action "will be affirmed unless the trial court commits an abuse of discretion so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration."Modern Day Veterans,128 S.W.3d at 177-78."We will affirm if the trial court reached the right result in the case, even though the court might have ruled on a basis different from the basis we apply in affirming."Gregg v. City of Kansas City,272 S.W.3d 353, 362(Mo.App. W.D.2008)(citingKehrs Mill Trails Assocs. v. Kingspointe Homeowner's Ass'n,251 S.W.3d 391, 396(Mo. App. E.D.2008));see alsoKubley v. Brooks,141 S.W.3d 21, 27 n. 5(Mo. banc 2004).

II.

Both of the Lees' Points Relied On ignore a central, undisputed fact: that their land was zoned transitional by the time the Lees filed their Petition for Writ of Mandamus.It is not clear what rights the Lees had to construct and/or add on to a residential building under this transitional zoning classification, because the issue was not litigated below, nor on appeal; instead, the Lees expressly based their petition, and their arguments here, on the assumption that the property was zoned "R-1," or residential.

Although the Lees do not argue their right to a building permit under the transitional zoning to which their property was subject at the time of suit, it is that zoning classification which controls here.The fact that the Lees may have filed a building permit application under a prior zoning ordinance does not give them vested rights under that prior regulatory regime.Missouri law recognizes that "[a] new or modified ordinance may not be applied as to require the cessation of an established prior nonconforming use" of property.Storage Masters—Chesterfield, L.L.C. v. City of Chesterfield,27 S.W.3d 862, 865(Mo.App. E.D.2000).The Lees do not allege that the City's enactment of its transitional zoning ordinance interfered with their current non-conforming use of their property, however."A non-conforming use is a use of land which lawfully existed prior to the enactment of a zoning ordinance...."In re Coleman Highlands,777 S.W.2d 621, 624(Mo.App. W.D.1989);see alsoOdegard Outdoor Adver., LLC v. Bd. of Zoning Adj.,6 S.W.3d 148, 150 & n. 1(Mo. banc 1999)."The use is maintained after the effective date of the ordinance, even though it is not compliant with the new restrictions."St. Charles County v. St. Charles Sign & Elec., Inc.,237 S.W.3d 272, 277(Mo.App. E.D.2007)."The prior use of the property establishes a vested property right, and the new ordinance may not be applied to require the owner to cease that use."Id."To establish a nonconforming use, one must have at least made a substantial step, and a `mere preliminary work which is not of a substantial nature does not constitute a nonconforming use.'"Storage Masters,27 S.W.3d at 866(citation omitted).

"The theory behind the nonconforming use doctrine is that applying new zoning restrictions to established uses of land would constitute a taking of private property without just compensation or due process."Id.;see alsoState ex rel. Drury Displays, Inc. v. City of Shrewsbury,985 S.W.2d 797, 799(Mo.App. E.D.1998)."The test for establishing a prior nonconforming use is strict," with the burden of proof on the landowner.Storage Masters,27 S.W.3d at 865-66.

Even if the trial court had found that the Lees made an effective permit application before Grain Valley's new ordinance was enacted (which is itself far from clear), the filing of that application alone would not establish that the Lees had a vested right to the continued application of the prior zoning ordinance to their property.In Outcom, Inc. v. City of Lake St. Louis,996 S.W.2d 571(Mo.App. E.D.1999), the Eastern District addressed "how far must landowners go towards establishing a[new] use of land before they acquire a vested right in the continued use of the land which is protected from a zoning ordinance prohibiting such a use."Id. at 575.After reviewing relevant case law, the court concluded:

Whether the use is considered to "exist" depends on how far work on the conversion has progressed.A landowner's mere intention or plan to use land for a particular purpose, receipt of a permit, or purchase or lease of land in reliance on existing zoning laws does not give rise to a vested right.If the work completed towards converting the land is substantial in nature as opposed to merely preliminary, the landowner has a nonconforming use and has a vested right to continue in the nonconforming use.

Id.(citation omitted; emphasis added);see alsoStorage Masters,27 S.W.3d at 866;Drury Displays,985 S.W.2d at 800;McDowell v. Lafayette County Comm'n,802 S.W.2d 162, 164(Mo.App. W.D.1990)("It has been held that purchase, planning and even securing a permit do not establish a lawful nonconforming use.").

In this case, the only showing the Lees can even plausibly make is that they submitted an application to the City for a residential building permit, and then sought a variance.But as outlined above, submission of a permit application under a prior zoning ordinance is insufficient to establish a vested right to the continued application of the prior ordinance—indeed, even the City's issuance of a permit...