State ex rel. Schaefer v. Cleveland, 61543

• Decision Date: 29 December 1992
• Docket Number: No. 61543,61543
• Citation: State ex rel. Schaefer v. Cleveland, 847 S.W.2d 867 (Mo. App. 1992)
• Parties: STATE of Missouri, ex rel. John SCHAEFER, Plaintiff-Appellant, v. Edward C. CLEVELAND, et al., Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 867

847 S.W.2d 867

STATE of Missouri, ex rel. John SCHAEFER, Plaintiff-Appellant, v. Edward C. CLEVELAND, et al., Defendants-Respondents.

No. 61543.

Missouri Court of Appeals,

Eastern District,

Division Three.

Dec. 29, 1992.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

Jan. 28, 1993.

Application to Transfer Denied March 23, 1993.

Robert J. Koster, Elizabeth D. Odell, King, Koster & Murphy, St. Louis, for plaintiff-appellant.

John M. Hessel, John D. Husmann, Lewis, Rice & Fingersh, St. Louis, for defendants-respondents.

SMITH, Judge.

Relator appeals from the action of the trial court in dismissing his petition for a writ of mandamus. We reverse and remand.

Because relator's petition was dismissed for failure to state a cause of action we must consider as true all well pleaded facts. Davis v. Carmichael, 755 S.W.2d 679, l.c. 680 (Mo.App.1988). Relator alleged that he owns a parcel of real estate in the City of Kirkwood. The Subdivision ordinance of Kirkwood requires approval of a subdivision plat prior to development or sale of property. The approval process involves (1) initial approval by the Kirkwood Planning and Zoning Commission of a preliminary plat, (2) Commission approval of the final plat and (3) approval by the City Council of the final plat. Relator submitted a preliminary plat to the Commission which was denied approval. Relator thereafter submitted a final plat to the Commission which again denied approval. The final plat was then forwarded to the City Council which denied approval. Relator alleged that it was the duty of the Commission and the Council to examine the plats with respect to minimum zoning standards and requirements of the City and to approve the preliminary and final plats if they meet or exceed the standards and requirements. He further alleged that the preliminary and final plats met such standards and requirements of the Subdivision ordinance, and the actions of the Commission and the Council were the arbitrary, capricious, unreasonable and unlawful refusal to carry out a ministerial act under the Subdivision ordinance and therefore an act beyond the powers of the two bodies.

No alternative writ was issued. Instead, the respondents who were the members of the Commission filed a motion to dismiss on the basis that the final determination concerning a plat is vested in the Council and the decisions of the Commission are merely advisory and of no legal effect. Respondents who were the members of the Council filed an answer to the petition. Subsequently, all respondents filed a motion to dismiss on the basis that "the grant or denial of a resubdivision is not a ministerial act as a matter of law, and, thus, there is no claim for mandamus." We requested that the parties address the issue of our jurisdiction and they have done so.

The usual procedure in a mandamus case is for the petition to be filed, the court to determine whether an alternative writ should issue, denial of the alternative writ or issuance of same, and answer to the alternative writ if issued. It is not the petition for the writ but the alternative writ in mandamus which corresponds to the petition in an ordinary civil action. It is the alternative writ, and not the petition, therefore, to which a respondent makes his return. State ex rel. Brandon v. Hickey, 462 S.W.2d 159 (Mo.App.1970) [4, 5]. An order refusing an alternative writ of mandamus is not a final judgment or order and is not appealable. Id. The remedy for a refusal to issue a mandamus is by a direct application to the higher court which has original jurisdiction in such matters. Id.

Where, however, the respondent appears without service of an alternative writ, and makes his return, the petition stands as and for the alternative writ itself for the purposes of the case and the return. State ex rel. Meyer v. Cobb, 467 S.W.2d 854 (Mo.1971) . Where the court below dismisses the petition following answer or motion directed to the merits of the controversy and in so doing determines a question of fact or law the order is final and appealable. State ex rel. Stoecker v. Director of Revenue, 734 S.W.2d 263 (Mo.App.1987) . Here respondents answered the petition for alternative writ and filed motions to dismiss directed to the sufficiency of the allegations to state a cause of action. The trial court ruled on the sufficiency of the allegations, an issue of law. The order granting the motion to dismiss is final and appealable. We have jurisdiction.

We turn to the merits. A writ of mandamus is appropriate only where it compels ministerial actions; it may not be utilized to compel the performance of a discretionary duty. Bunker Resource Recycling and Reclamation, Inc. v. Mehan, 782 S.W.2d 381 (Mo. banc 1990) [17, 18]; State ex rel. Kessler v. Shay, 820 S.W.2d 311 (Mo.App.1991) [4-6]. The issue then before us is whether under relator's allegations respondents failed to perform a ministerial act in refusing to approve the plat. We, of course, make no determination of the truth of the facts alleged. As previously indicated we are bound by the facts alleged in relator's petition. The key allegation is that the plats which he submitted met or exceeded the applicable requirements of the City ordinance for subdividing land. The City's motion was premised upon the conclusion that even if the plat met all the regulations of the City's ordinances the Commission and the Council still had a discretionary authority to refuse to approve the plats. ¹

The lot in question is to be subdivided to produce a normal lot and a "flag lot". "Flag lots" are defined in the subdivision ordinance as a residential lot with two discernible portions, one a building site portion not fronting on or abutting a street and the second portion abutting on the street and providing access to the building site portion. The ordinance further provides specific restrictions on the size of the building site portion which requires it to be larger than the required lot area of the zoning district in which it is located. The ordinance also prescribes the size of the access portion. There seems to be no question at this point that the plats of the relator met the specified restrictions of the subdivision ordinance and the zoning restrictions. The parties also seem to be in agreement that the Commission and the Council refused to approve the plats because they were "out of character" with the neighborhood. Respondents assert in their brief here that the plats did not comply with the Master Plan of the City. No Master Plan was made a part of the record. There seems to be some agreement that less than two years earlier than the rejection of relator's plats the Council approved a flag lot subdivision in the same block.

Respondents contend that § 445.030 RSMo 1986 grants to them an unlimited discretion to deny approval of plats. Specifically the pertinent part of that section upon which respondents rely states:

Provided, however, that if such map or plat be of land situated within the corporate limits of any incorporated city, town or village, it shall not be placed of record until it shall have been submitted to and approved by the common council of such city, town or village, by ordinance, duly passed and approved by the mayor, and such approval endorsed upon such map or plat under the hand of the clerk and the seal of such city, town, or village; nor until all taxes against the same shall have been paid; and before approving such plat, the common council may, in its discretion, require such changes or alterations thereon as may be found necessary to make such map or plat conform to any zoning or street development plan which may have been adopted or appear desirable, and to the requirements of the duly enacted ordinances of such city, town or village, appertaining to the laying out and platting of subdivisions of land within their corporate limits.

Section 445.030 RSMo 1986. (Emphasis supplied to indicate amendment of 1943.)

It is also necessary to consider the provisions of § 89.410.1 RSMo 1986, enacted in 1963, twenty years after the amendment to § 445.030 above emphasized. That section provides:

1. The planning commission shall recommend and the council may by ordinance adopt regulations governing the subdivision of land within its jurisdiction. The regulations, in addition to the requirements provided by law for the approval of plats, may provide requirements for the coordinated development of the municipality; for the coordination of streets within subdivisions with other existing or planned streets or with other features of the city plan or official map of the municipality; for adequate open spaces for traffic, recreation, light and air; and for a distribution of population and traffic.

Section 89.410.1 RSMo 1986.

In City of Bellefontaine Neighbors v. J.J. Kelley Realty and Building Company, 460 S.W.2d 298 (Mo.App.1970) [6, 7] we addressed the relationship between the two statutes. We stated there:

The specificity of the 1963 act may be considered to restrict the broad grant of power given by § 445.030 and to establish the procedures for carrying out the regulation of subdivisions authorized by § 445.030. Where the legislature has authorized a municipality to exercise a power and prescribed the manner of its exercise, the right to exercise the power in any other manner is necessarily denied. Not until the 1963 enactment of § 89.410 RSMo 1959, did the legislature purport to limit the manner of the exercise of the power granted in § 445.030.

Id. (citations omitted).

Section 89.410 requires that regulation of subdivision be accomplished in municipalities by ordinance. The Subdivision ordinance of the City, enacted in 1973, was within the authority of § 89.410 and was presumably intended to comply with the authority contained in that statute. Nowhere in that ordinance does there exist an authority to base approval or denial of a plat on its compatibility with the character...