Underwood v. St. Joseph Bd. of Zoning Adjustment

• Decision Date: 01 May 2012
• Docket Number: No. WD 73912.,WD 73912.
• Citation: 368 S.W.3d 204
• Parties: Kelvin UNDERWOOD, Respondent, v. ST. JOSEPH BOARD OF ZONING ADJUSTMENT and City of St. Joseph, Missouri, Respondents, Sharon Kennedy, Appellant.
• Court: Missouri Court of Appeals

368 S.W.3d 204

Kelvin UNDERWOOD, Respondent,

v. ST. JOSEPH BOARD OF ZONING ADJUSTMENT and City of St. Joseph, Missouri, Respondents,Sharon Kennedy, Appellant.

No. WD 73912.

Missouri Court of Appeals,

Western District.

March 6, 2012.

Motion for Rehearing and/or Transfer to

Supreme Court Denied May 1, 2012.

Application for Transfer

Denied July 3, 2012.

Edwin H. Smith and Sharon Kennedy, St. Joseph, MO, for Appellant.

George “Scott” Murray, St. Joseph, MO, for Respondent Underwood.

Lisa M. Robertson, St. Joseph, MO, for Respondents Board of Zoning Adjustment and City of St. Joseph, MO.

Before Division Three: KAREN KING MITCHELL, Presiding Judge, and JAMES M. SMART, JR., and GARY D. WITT, Judges.

KAREN KING MITCHELL, Presiding Judge.

Respondent, Kelvin Underwood, applied for a zoning variance in order to complete construction of a detached garage on his property in excess of the size restrictions currently in place by St. Joseph zoning ordinances. The Board of Zoning Adjustment (BZA) denied Underwood's request, and he sought judicial review in the circuit court, with the city of St. Joseph (City) and the BZA as named respondents. The circuit court reversed the BZA's decision and remanded with instructions that the BZA grant Underwood's requested variance. City and BZA chose not to appeal the circuit court's decision. Appellant, Sharon Kennedy, a nearby landowner, filed an appeal from the circuit court's decision to this court.¹ For the reasons discussed below, we dismiss this appeal on the ground that Kennedy has no standing to appeal from a lower court decision wherein she was not a party to the action.

Factual Background

Underwood submitted construction plans for a building permit for a detached garage, measuring 1,328 square feet, to City for approval. City subsequently approved the plan and design, and Underwood obtained a building permit for the detached garage.

Approximately three months later, when the structure was 80% complete, City received an anonymous complaint about the garage and issued a stop work order because the garage actually measured 1,427 square feet, rather than the 1,328 square feet authorized by the permit. St. Joseph City Ordinance section 31.050(e)(10)b.4 limits the size of a detached garage to “an area no greater than 30% of the rear yard area behind the principal structure.” Based on the size of Underwood's yard, the garage could be no larger than 1,035 square feet. ² City advised Underwood to either obtain a demolition permit or seek an area variance with the BZA. Underwood chose to seek an area variance.

In response to Underwood's variance request, City mailed certified letters to adjacent landowners (including Kennedy) and published notice of a public hearing on the variance request (“initial hearing”). Before the initial hearing, City acknowledged that it erroneously issued the building permit for the 1,328–square–foot design contrary to St. Joseph City Ordinance and offered to pay 76% of Underwood's cost to downsize the garage, as that was the portion of excessive square footage attributable to City's error. City maintained that Underwood was responsible for the additional 99 square feet that the structure actually exceeded the area allowed by the building permit. Also before the initial hearing, the BZA received written comments from three adjacent landowners regarding Underwood's requested variance. One of the comments was from Kennedy, expressing her opposition to the variance based upon her concern that “the garage does not fit the character of the neighborhood due to its size and construction material.” Kennedy indicated her belief that “[t]his may adversely affect property values in the neighborhood.”

At the initial hearing before the BZA, testimony was provided by Underwood and his wife, their contractor, and City staff. No one appeared to testify in opposition to the variance request. The variance was denied. Underwood thereafter filed petitions for judicial review, writ of certiorari, and declaratory judgment with the circuit court to review the BZA's decision. Underwood was identified as “petitioner,” and City and BZA were identified as “respondents.”

On April 4, 2011, the circuit court entered a judgment reversing the BZA's denial of the variance and remanding the case with orders that the variance request be granted. At a second BZA hearing held May 3, 2011, one day before the circuit court judgment became final, City recommended that the BZA adopt the circuit court's findings of fact and conclusions of law. Kennedy appeared at this second hearing and argued against granting the variance request based upon her previously stated reasons, and the additional reasons that she believed “the [circuit] court was without authority to issue [its] order,” and that “the judge may not substitute his judgment for that of the zoning board.” At the second hearing, the BZA adopted the circuit court's findings, and one week later, Kennedy filed a notice of appeal in this court challenging the circuit court's judgment.³

Analysis

Before we can consider the merits of this appeal, we must first address the issue of standing. Standing is a precursor to the right to appeal. State ex rel. Parsons v. Bd. of Police Comm'rs of Kansas City, 245 S.W.3d 851, 854 (Mo.App. W.D.2007). If a party does not have standing, we must dismiss the appeal. Id. Underwood filed a motion to dismiss this appeal on the ground that Kennedy lacks standing, as she was not a party to the decision below. We agree with Underwood and dismiss this appeal.

Article V, section 18 of the Missouri Constitution provides that all final judgments of any administrative body “shall be subject to direct review by the courts as provided by law” and “[u]nless otherwise provided by law, administrative decisions ... subject to review under this section ... shall be reviewed in such manner and by such court as the supreme court by rule shall direct....”

Section 89.110,⁴ governing decisions made by city boards of zoning adjustment,indicates that any person aggrieved by a board's decision may seek relief from that decision in the circuit court where the property is located. The statute then addresses at some length the procedure for challenging a decision of a board of zoning adjustment in the circuit court. Id. The statute also directs the potential outcomes at the circuit court level. Id. (“The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review.”). The statute contains no provision regarding appellate review following the circuit court's entry of judgment. Therefore, Supreme Court rules apply. Rule 100.02 provides for judicial review of administrative decisions in the appellate courts. The rule specifically refers to parties: “The petition for review or notice of appeal shall specify the party seeking review, the decision sought to be reviewed, and a concise statement of the grounds on which jurisdiction is invoked.” Rule 100.02(c) (emphasis added). Additionally, section 512.020, governing appeals generally, provides that “[a]ny party to a suit aggrieved by any judgment of any trial court in any civil cause from which an appeal is not prohibited by the constitution, nor clearly limited in special statutory proceedings, may take his or her appeal to a court having appellate jurisdiction ....” (emphasis added).

Here, Kennedy was not a party to the cause below in the circuit court (Underwood's appeal from the BZA decision following the initial hearing). Thus, she has no standing to seek an appeal therefrom. F.W. Disposal South, LLC v. St. Louis Cnty. Council, 266 S.W.3d 334, 338 (Mo.App. E.D.2008) (“Only a party has standing to attempt to set aside or appeal from a judgment.”).

Kennedy sets forth two reasons why she has standing despite her non-party status before the court below. First, she argues that section 536.100 of the Missouri Administrative Procedures Act expressly confers standing upon her as a “person ... aggrieved by a final decision in a contested case.” And second, she argues that even if the plain language of section 536.100 does not confer standing upon her, City's and BZA's standing should be deemed to have transferred to her for purposes of appeal because: (1) she had no right to intervene in the circuit court proceeding prior to judgment in that City and BZA represented her interests, and (2) that City and BZA acted in an allegedly arbitrary and capricious manner in choosing not to pursue the appeal, and therefore she would have had the right to intervene post-judgment, but she was effectively denied the opportunity to intervene at that time because she did not learn of the decision not to appeal until 24 hours before the circuit court's decision became final. We find both arguments unavailing.

A. Section 536.100 does not confer standing to non-parties on appeal in the appellate courts.

Section 536.100 provides, in pertinent part, that:

Any person who has exhausted all administrative remedies provided by law and who is aggrieved by a final decision in a contested case, whether such decision is affirmative or negative in form, shall be entitled to judicial review thereof, as provided in sections 536.100 to 536.140, unless some other provision for judicial review is provided by statute....

§ 536.100.

Kennedy argues that section 536.100's reference to “judicial review” contemplates review in the appellate courts, and since the statute refers to “any person,” she was not required to be a named party below in order to appeal the circuit court's judgment. We disagree.

First, Rule 100.01 directly refutes Kennedy's claim insofar as it provides that “[t]he provisions of sections 536.100 through 536.150, RSMo, shall govern procedure in circuit courts for judicial review of actions of administrative agencies ...” (emphasis added). Rule 100.02, on the other hand, addresses judicial review of administrative decisions in the appellate courts, and, as noted above, it refers only to...