Williams v. City of Kirkwood, 36883

• Decision Date: 06 April 1976
• Docket Number: No. 36883,36883
• Citation: 537 S.W.2d 571
• Parties: Keith P. WILLIAMS and Phebe Williams, as husband and wife, Plaintiffs-Appellants, v. CITY OF KIRKWOOD, Missouri, et al., Defendants-Respondents. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 571

537 S.W.2d 571

Keith P. WILLIAMS and Phebe Williams, as husband and wife, Plaintiffs-Appellants, v. CITY OF KIRKWOOD, Missouri, et al., Defendants-Respondents.

No. 36883.

Missouri Court of Appeals, St. Louis District, Division One.

April 6, 1976.

Motion for Rehearing or for Transfer to Supreme Court Denied

May 17, 1976.

Application to Transfer Denied July 12, 1976.

Millsap, Weil, Eyerman & Schenberg, Clayton, for plaintiffs-appellants.

Kappel, Neill, Staed & Wolff, Robert E. Staed, St. Louis, for defendants-respondents.

Ziercher, Hocker, Tzinberg, Human & Michenfelder, Albert A. Michenfelder, Jr., Edward F. Fehlig, Clayton, for defendants-respondents Kirkwood Knights of Columbus and Kirkwood Columbus Realty Co.

DOWD, Judge.

This is an appeal from a judgment of the St. Louis County Circuit Court in which respondents' motions to dismiss appellants' amended petition with prejudice were sustained. The substance of respondents' motions was that the Circuit Court lost jurisdiction over the subject matter since appellants failed to bring an appropriate petition for administrative review within 30 days after receipt of written notice of an administrative decision. Appellants were complaining about a decision of the City of Kirkwood in granting a special use permit to respondent Kirkwood Knights of Columbus for a private recreational development.

The facts are undisputed. Appellants Keith and Phebe Williams filed suit on June 20, 1974, seeking injunctive relief against the City of Kirkwood, the mayor, the members of the city council, the Kirkwood Knights of Columbus, and the Kirkwood Columbus Realty Company, alleging that application had been made for a special use permit for the use and benefit of respondent Knights of Columbus. The land in question adjoined the Williams' property, and the proposed use was to be a private recreational development, which is permitted in all zoning districts. City of Kirkwood Ordinance No. 5085, Article IX, Sec. 1, Special Use Exceptions, Requirements, and Procedure (A)(12). The court issued a temporary restraining order. On the return date of the order to show cause, the parties agreed to the dissolution of the restraining order since the ordinance in dispute had not yet been enacted. After a public hearing, the city council on June 13, 1974 voted to grant respondent Realty Company's request for a special use permit. On July 11, 1974, the respondent city councilmen enacted an ordinance to this effect. Ordinance #5736 granted a special use permit to the Realty Company for the use and benefit of the Kirkwood Knights of Columbus for a private recreational development. On July 17, 1974, the attorney for the City of Kirkwood sent a letter to appellants' attorney notifying him of the passage of this ordinance.

On October 5, 1974, appellants filed their first amended petition alleging that they had no adequate remedy at lwa and requesting injunctive relief against the enforcement of Ordinance #5736, and against the use of said property as a private recreational development. All respondents moved to dismiss on the grounds that the petition was not timely filed pursuant to the requirements of the Administrative Procedure and Review Act. The specific requirement breached was that which requires filing a petition to review a final decision 'within thirty days after the mailing or delivery of the notice of the agency's final decision.' Rule 100.04(a), V.A.M.R. 1969. Respondents claim that the Circuit Court lost subject matter jurisdiction after the said 30 days had elapsed without a petition for review having been filed. The motions of respondents were sustained on January 29, 1975.

Appellants' appeal from the dismissal of their first amended petition is based on a three-pronged attack: 1) that the granting of the special use permit was a legislative act of the city council and not an administrative act subject to the provisions of Rule 100, V.A.M.R.; 2) assuming arguendo that the action of the city council was administrative, appellants 'substantially' complied with Rule 100; and 3) even if appellants did not substantially comply with said rule, respondents 'waived' their rights to plead the 30-day statutory limit as an infirmity in appellants' position.

In arguing that the city council acted legislatively when granting the special use permit, appellants see as crucial the fact that the special use permit was granted through an ordinance. Appellants cite Kirkwood's Zoning Ordinance, Article XVI-A, which provides that amendments to the zoning ordinance be enacted by ordinance. Appellants argue that this indicates that whenever an ordinance pertaining to zoning is issued it amends the general zoning ordinance. Thus, appellants reason, an amending ordinance is a legislative enactment and not subject to the review procedures for administrative actions. This is not the case. 'A special permit is granted pursuant to the literal language of the zoning regulations. It does not, in any sense, effect an amendment of the zoning ordinance.' 3 R ANDERSON, AMERICAN LAW OF ZONING § 15.04 (1968). In a recent case involving the affirmance of a grant of a special use permit it was stated: 'No amendment to an existing zoning ordinance is involved here . . . the action taken by the Board . . . was merely the exercise of an administrative discretion expressly granted to it by the enabling act and the zoning ordinance.' City of Lake Lotawana v. Lehr, 529 S.W.2d 445, 449(2) (Mo.App.1975).

An ordinance can be legislative or administrative in nature. Carson v. Oxenhandler, 334 S.W.2d 394 (Mo.App.1960); State ex rel. Ludlow v. Guffey, 306 S.W.2d 552, 556--57(1--3) (Mo. banc 1957). There is no basis for appellants' assertion that this principle is limited to cases involving the availability of referendum provisions to particular acts of government. The fact that this special use permit was granted by ordinance is not controlling. 'The form of a municipal procedure will be disregarded and the substance of its act, as administrative or legislative, will be considered . . .' 5 E. McQUILLIN, THE LAW OF MUNICIPAL CORPORATIONS § 16.55, at 214 (3d ed. 1969). Within this treatise, zoning is given as an example of a case in which '(m)uncipal legislative bodies may reserve to themselves . . . the power to grant or deny licenses or permits . . . The action . . . in such circumstances ordinarily is regarded as administrative, rather than legislative in character.' McQUILLIN, supra, at § 25.217.

The power to be exercised is legislative in its nature if it prescribes a new policy or plan; whereas, it is administrative in its nature if it merely pursues a plan already adopted by the legislative body itself . . .' Anderson v. Smith, 377 S.W.2d 554, 558(2) (Mo.App.1964), quoting McQUILLIN, supra, at § 16.55. Since Article IX, Sec. 1, of Kirkwood's zoning ordinance, entitled 'Special Use Exceptions, Requirements, and Procedures,' makes specific provision for special use permits, the issuance of a special use permit is in pursuance of an already adopted plan, and thus administrative. A legislative body of a city acts administratively in granting special use permits. State ex rel. Manchester Improvement Company v. City of Winchester, 400 S.W.2d 47, 48(1) (Mo.1966). The same is true regarding the grant of conditional use permits. State ex rel. St. Louis County v. Jones, 498...