The Lamar Co. LLC v. The City Of Kan. City

Decision Date09 November 2010
Docket NumberNo. WD71545,WD71545
PartiesTHE LAMAR COMPANY, LLC, d/b/a LAMAR ADVERTISING OF KANSAS CITY, Appellant. v. THE CITY OF KANSAS CITY, MISSOURI,Respondent.
CourtMissouri Court of Appeals

Appeal from the Circuit Court of Jackson County, Missouri

The Honorable W. Brent Powell, Judge

Before Division I: James M. Smart, Jr., Presiding Judge, and

Mark D. Pfeiffer and Cynthia L. Martin, Judges

The Lamar Company, LLC ("Lamar") appeals the judgment of the Circuit Court of Jackson County ("trial court") granting the motion for summary judgment of the City of Kansas City ("City") relating to the validity of a municipal ordinance. In its sole point on appeal, Lamar argues that the trial court erred in concluding that the ordinance in question was a building code ordinance and not a zoning ordinance-subject to the special notice and hearing requirements before passing zoning ordinances. The appeal is dismissed as moot.

Factual and Procedural History

On September 6, 2007, City passed ordinance number 070887 ("Digital Sign Ordinance"), which stated, in part, that "No outdoor advertising sign may have any revolving, moving, flashing, blinking, or animated characteristics." The Digital Sign Ordinance was passed as an amendment to Section 80-350, City's zoning code. Amendments to this code require that changes go before the city plan commission. The city plan commission must then provide public notice of the proposed changes and hold public hearings on the proposed changes. It is undisputed that all notice and hearing requirements were properly followed by City in its passage of the Digital Sign Ordinance.

After the Digital Sign Ordinance passed, Lamar filed a petition for referendum on the Digital Sign Ordinance, which ultimately failed to obtain a sufficient number of signatures, but had the practical effect of delaying the effective date of the Digital Sign Ordinance until November 9, 2007. Notably, however, it is undisputed that the Digital Sign Ordinance did, in fact, become effective on November 9, 2007.

On September 27, 2007, City passed ordinance number 071017, as amended ("Pending Sign Legislation Ordinance"), amending Section 18-213 of City's building code. The Pending Sign Legislation Ordinance states as follows, in pertinent part:

BE IT ORDAINED BY THE COUNCIL OF KANSAS CITY:
Section 1. That Chapter 18, Code of Ordinances is hereby amended by adding a new section 18-213, to read as follows:
Section 18-213. Pending Sign Legislation.
During the consideration of an amendment to this Code that has been introduced before the City Council, and until such amendment is enacted (effective) or rejected according to law, the building official shall take no action on any application for a permit that would allow the erection or alteration of a sign that would be prohibited by the proposed amendment if enacted.
Notwithstanding the foregoing, the building official shall not delay the issuance of any permit for a period longer than six months from the date of permit application because of this section.

(Emphasis added.)

Based upon the Pending Sign Legislation Ordinance, the City held all pending sign permit applications for conversions of existing billboards to digital billboards in abeyance, including permit applications that had been submitted by Lamar on September 4, 2007.

Lamar challenged City's basis for refusing to process the pending permit applications on the grounds that City should have processed them based upon the ordinances in effect at the time the permit applications were presented.1 Lamar sought a declaratory judgment from the trial court declaring that the Pending Sign Legislation Ordinance was invalid and unenforceable. City moved for summary judgment on the declaratory judgment petition, and the trial court granted City's motion. Lamar timely appealed.

Standard of Review

Because the issue of whether summary judgment was proper is a question of law, our review of the grant of summary judgment is essentially de novo. ITT Commercial Fin. Corp. v. Mid.-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993).

Discussion

In its sole point on appeal, Lamar argues that the trial court erred in granting summary judgment because Lamar claims the Pending Sign Legislation Ordinance was a zoning, not building, ordinance that required compliance with the notice and hearing requirements of Missouri law and City's Code of Ordinances. Lamar argues that the City's failure to comply with zoning ordinance requirements prior to passing the Pending Sign Legislation Ordinance renders it legally invalid.

Mootness

Before we reach this issue, however, we must address the threshold question of whether the issue presented is moot. Claudia Lee & Assocs., Inc. v. Bd. of Zoning Adjustment, 297 S.W.3d 107, 111 (Mo. App. W.D. 2009). "„[M]ootness implicates the justiciability of a case.'" Adams v. City of Manchester, 242 S.W.3d 418, 428 (Mo. App. E.D. 2007) (quoting State ex rel. Reed v. Reardon, 41 S.W.3d 470, 473 (Mo. banc 2001)). "It is well-settled that Missouri courts do not determine moot cases." In re Estate of Washington, 277 S.W.3d 777, 780 (Mo. App. E.D. 2009). "Because mootness implicates the justiciability of a case, an appellate court may dismiss a case for mootness sua sponte" Armstrong v. Elmore, 990 S.W.2d 62, 64 (Mo. App. W.D. 1999). A case becomes moot when the issue presented seeks a decision by a court "upon some matter which, if the judgment was rendered, would not have any practical effect upon any then existing controversy." Precision Invs., L.L.C. v. Cornerstone Propane, L.P., 220 S.W.3d 301, 304 (Mo. banc 2007).2 Mootness is also implicated "when circumstances change so as to alter the position of the parties or subject matter so that the controversy ceases and a decision can grant no relief." State ex rel. Monsanto Co. v. Pub. Serv. Comm 'n, 716 S.W.2d 791, 793 (Mo. banc 1986).

The question of mootness arises in this case because, by its very terms, the ordinance challenged-the Pending Sign Legislation Ordinance-is not presently applicable to the issue of whether or not Lamar's permits should be issued.3 To the contrary, as of November 9, 2007, the "enacted" and "effective" (and applicable) ordinance is the Digital Sign Ordinance, and it is undisputed that Lamar is not entitled to its applied-for building permits under the terms of the Digital Sign Ordinance. As is discussed infra, it is well-settled in Missouri law that submission of an application for permit under a prior zoning ordinance-indeed, even the issuance of a permit under a prior zoning ordinance-is not enough to establish a vested right to the continued application of the prior zoning ordinance. Thus, if Lamar had not established a vested right to the proposed nonconforming use prior to the effective date of the Digital Sign Ordinance, Lamar was subject to the zoning restrictions of the Digital Sign Ordinance, and from a practical standpoint, the validity or invalidity of the Pending Sign Legislation Ordinance "would not have any practical effect upon any... existing controversy."

Vested Right to Building Permits in Missouri

Missouri examined the issue of whether a municipality may withhold the granting of a permit in State ex rel. Oliver Cadillac Co. v. Christopher. 298 S.W. 720 (Mo. banc 1927). In Oliver, a Cadillac dealership sued the City of Saint Louis for refusing to issue a building permit two days before a new zoning ordinance prohibiting commercial buildings took effect. Id. at 721. In finding that the property owner was not harmed by the city's refusal to issue the permit, the Missouri Supreme Court held:

The fact that respondent filed its application for a permit before the ordinance went into effect is no reason why it should not be held applicable to respondent from and after it became operative. Respondent held its property subject at all times to every valid exercise of the police power. The filing of its applicationgave it no vested right. Had the permit been granted on the date it was applied for, it would have conferred upon respondent no additional property right; it would merely have rendered respondent immune from prosecution for violation of the city's building code.

Id. at 726 (emphasis added) (citation omitted). Subsequent to Oliver, the Missouri Supreme Court clarified its holding by finding that (1) "the mere granting of a permit to construct a building confers no vested right"; (2) new zoning regulations do not automatically revoke or cancel permits but only do so if the new regulation is specifically retroactive; (3) however, a municipality may revoke or cancel permits if there is no vested right in the permit. Fleming v. Moore Bros. Realty Co, 251 S.W.2d 8, 14-17 (Mo. 1952).

Finally, in Claudia Lee, an outdoor sign company appealed the decision of the City's Board of Zoning Adjustment ("zoning board") denying it a permit to construct a billboard based on the current ordinance. 297 S.W.3d at 109. Claudia Lee's argument on appeal was that the zoning board misinterpreted the term "premises" in the zoning ordinance. Id. at 110. After the zoning board's decision, but prior to the appeal, a new zoning ordinance was enacted which prohibited the billboard even under Claudia Lee's definition of "premises." Id. In finding that this change rendered Claudia Lee's appeal moot, we noted that "the new ordinance applied because the mere filing of the application gave the applicant no vested right under the old ordinance'" Id. at 112 (emphasis added). Furthermore, "[e]ven the issuance of a permit does not confer vested rights on a landowner." Id. It is clear from the above cases and those which follow them that applying for or receiving a permit does not confer a vested right, and without such a vested right, a properly enacted zoning ordinance-even one adopted after a permit has been granted-controls the use of land unless the property owner has first established a valid nonconforming use. Consequently, we...

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