County Zoning Statutes and Problematic Land Use Decisions
by Michael T. White1
The most common error made by appellate courts in land use matters is treating all government decisions alike and failing to distinguish between administrative and legislative acts. The county zoning enabling law has helped to create confusion in this regard, which can result in review of legislative decisions by certiorari and applying an administrative review standard of competent and substantial evidence, thus violating the separation of powers clause of the Missouri Constitution. Some courts have also failed to recognize the proper functions of boards of zoning adjustment and applied legislative review standards (e.g., fairly debatable test) to administrative acts. Simple legislation could designate the proper form of review and correct errors in the county zoning enabling law.
Introduction
If there is one thing we know about the law, it is that it ought to be consistent. Litigants in similar situations should obtain similar results. But where the courts do not comprehend the basic principles involved, they sometimes resort to "ad-hocery" that results in similar litigants being treated differently, a result which threatens the entire legal system and denigrates justice. Missouri appellate courts have occasionally gone astray in dealing with land use matters, as will be demonstrated in the decisions listed below. Part of the problem stems from the courts' lack of understanding of land use law and part from the confusing language in the county zoning enabling law (note that a majority of the decisions listed are county land use decisions).
II. Statutes Relating to Review of Decisions of County Government
While it would seem clear that certiorari will not lie to review a legislative act, the situation for counties in Missouri is confusing at best with respect to the appropriate method of judicial review for a refusal to rezone. The confusion begins with Missouri's statutes on the subject.
A. Board of Zoning Adjustment Statutes
Chapter 64, RSMo, sets forth separate zoning enabling acts for each class of county, including first class charter, and first class without a charter, each containing the same problematic language. For example, in referring to decisions of a board of zoning adjustment in first class counties, §64.120(3) provides that:
Any person ... aggrieved by any decision of the board of adjustment or of the county commission ... may present to the circuit court having jurisdiction in the county in which the property affected is located, a petition, duly verified, stating that such decision is illegal in whole or in part, specifying the grounds of the illegality and asking for relief therefrom. Upon the presentation of such petition the court may allow a writ of certiorari directed to the board for review of the data and records acted upon or it may appoint a referee to take additional evidence in the case. The court may reverse or affirm or may modify the decision brought up for review. (emphasis added)2
The entire section concerns itself with the powers of the board of zoning adjustment and appeals therefrom except for the words: "or of the county commission." Taken literally, they would mean that any decision of a county commission, including zoning, could be reviewed by a writ of certiorari. However, as will be shown, review of a zoning decision by writ of certiorari would violate the separation of powers clause of the Missouri Constitution, art. II, § 1.
B. General Judicial Review of County Commissions
Adding to the confusion, § 49.230 states in toto: "Appeals from the decisions, findings and orders of county commissions shall be conducted under the provisions of chapter 536 RSMo," the administrative review and procedures law. This provision could result in a review of a legislative zoning decision by petition for review in the nature of certiorari.
Section 536.100 provides for that review of a final decision in a contested case. Pursuant to §536.010 (Definitions), a contested case is defined as "a proceeding before an agency in which legal rights, duties or privileges of specific parties are required by law to be determined after hearing." "Agency" is defined as "any administrative officer or body existing under the constitution or by law and authorized by law or the constitution to make rules or to adjudicate contested cases." A legislative body such as a county commission acting to zone property is not an administrative body.3 Thus, even though a hearing is required, a rezoning proceeding would not amount to a "contested case." Therefore, §536.100 review is inapplicable. It is also clear that §536.150 is not applicable since it applies only to "any administrative officer or body."
C. Problematic Decisions
The main problem permeating the decisions that follow is the failure to distinguish those land use decisions of local government that are administrative in nature (such as the actions of a board of zoning adjustment) from those that are legislative (such as zoning). The contrast between these two types of decisions, in the case of the examples below, is very clear to anyone who studies the history of land use law in Missouri. The act of rezoning property has been declared to be a legislative act in this state from the earliest decisions on the subject.4 The decisions of a board of zoning adjustment have also been held, in equally clear focus, to be administrative.5 Other areas, such as plan amendments, are more ambiguous.6 It is easy to see how one not schooled in these matters, upon observing the title of a "board of zoning adjustment," could conclude that all of its decisions involve zoning. Thus, it is quite natural that one might lump all land use decisions together under the heading "zoning matters."
In State ex rel. Swafford v. Randall,7 if the factual recitation is to be believed, the Jackson County Board of Zoning Adjustment zoned property. Instead of holding that the board of zoning adjustment had no authority to zone property, the court reviewed the matter by writ of certiorari, thus compounding the error, since zoning is legislative and may not be reviewed by certiorari on the record. To make matters worse, the court used a competent and substantial evidence test as applied to the record in the circuit court rather than the record before the board of zoning adjustment. Having gone this far, to be consistent the court should have at least restricted the review to the place where it properly belonged (if, indeed, review on the record were appropriate): the record before the board of zoning adjustment.8 Once the board of zoning adjustment acted, it is not surprising that the action was reviewed by a writ of certiorari. It is surprising that a board of zoning adjustment would be engaged in zoning property, which it has no authority to do under the zoning enabling law (not to mention that Chapter 64 entrusts this function only to county governing bodies).
In State ex rel. Christopher v. Matthews,9 the governing body of St. Louis County, which at the time was a county court, rezoned property. Relators challenged the zoning by writ of certiorari under § 64.120. Even though the court acknowledged that zoning is legislative, it proceeded to review the matter on the record.
In State ex rel. Horn v. Randall,10 the Missouri Court of Appeals for the Western District went astray in holding that a county court's order amending zoning (a legislative act) was not supported by competent and substantial evidence, an administrative review standard that was illegal under §§64.120, 64.140 and 536.140.
In Plaas v. Lehr,11 the same court described a county rezoning as having been done by a county court (the form of government precedent to a county commission or county legislature) sitting as a board of zoning adjustment, apparently not recognizing that a county court had authority under Chapter 64 to rezone property only in its legislative capacity – quite distinct from its role as a board of zoning adjustment.
Judicial review of a refusal to rezone property, a legislative act, was limited to determining whether the decision was authorized by law and supported by competent and substantial evidence upon the whole record, an administrative review standard, in State ex rel. Kolb v. County Court of St. Charles County.12 Oddly enough, the court acknowledged that zoning is a legislative function and held that upon review a court can only determine whether the county court exercised its power arbitrarily or unreasonably. It should be noted that the method of review was not challenged.
In State ex rel. Cass County v. Dandurand,13 one of the strangest cases on the subject, a special use permit was issued by a county planning commission. The court described this permit as having been issued pursuant to §64.510. But that sectionmerely recites that a county planning commission may be created in a second and third class county. Complaining neighbors appealed directly to the circuit court for a writ of certiorari pursuant to §64.660(2). In fact, §64.660(2) deals only with appeals from a board of adjustment (and, inexplicably, from a county commission). Since the plaintiffs in this case never appealed the issuance of the permit to the board of zoning adjustment, it would appear that § 64.660(2) is inapplicable. The court of appeals erroneously states: "Section 64.660.2 expressly provides the method for review of actions taken under §§64.510 to 64.690 and that method is exclusive."14 The only part of §64.660.2 that refers to §64.510 to §64.690 deals with variances, which had nothing to do with the case before the court.
In Herd v. St. Charles County Comm'n,14 the county commission approved an application to rezone property. Relators filed a petition for a writ of certiorari. The holding in the case dealt with whether the owner of the property was a necessary party and was joined at the appropriate time. Neither the attorneys nor the court apparently noticed that they were reviewing a legislative act by certiorari, a practice that this very same court (the Eastern District) shortly thereafter held tantamount to a violation of the separation of powers doctrine in Salameh v. County of Franklin.15 The only way to rationalize this anomalous result is to hold that zoning in counties is administrative, but that the same act performed within the city limits is legislative, which stretches logic to the breaking point. While this case might be cited as some evidence that a legislative act could be reviewed by certiorari or administrative review, the court did not reach the question.
In Carter v. Greene County,16 the plaintiff filed a declaratory judgment action after the county refused to rezone her property. The court of appeals, sua sponte, cited § 64.281.4 as authority for the erroneous proposition that the proper method of review was a petition for review under § 536.110 and dismissed the appeal on the grounds that the trial court had no jurisdiction to hear the case. Declaratory judgment is clearly the correct method to review the validity of existing zoning.
Until State ex rel. Columbus Park Community Council v. Board of Zoning Adjustment of Kansas City,17 the "fairly debatable" test was restricted to deciding the validity of legislative acts. Unfortunately, the Western District Court of Appeals, in reviewing a decision of a board of zoning adjustment (an administrative decision as are all B2A decisions), stated, "If the decision is fairly debatable, a reviewing court cannot substitute its opinion." The court cited State ex rel. Tucker v. McDonald18 as authority for the proposition. State ex rel. Tucker cited City of Ladue v. Horn19 as authority for the proposition. However, Horn was not a case involving an appeal of a decision of a board of zoning adjustment. Rather, it was a direct action for injunction to abate a violation of the zoning ordinance that drew a counterclaim attacking the constitutionality of the ordinance. It was with respect to this counterclaim that the court cited the "fairly debatable" test. Thus, Tucker was in error, and Columbus Park Community Council compounded the error by following Tucker. Review of a legislative act, i.e. the actual zoning of property, is the proper place for the fairly debatable test. Review of an administrative, quasi-judicial decision of a board of zoning adjustment is confined under §89.110 to whether the decision is illegal, supported by competent and substantial evidence, is arbitrary or capricious, or an abuse of discretion.
In Platte Woods United Methodist Church v. City of Platte Woods,20 the court mistakenly held that the correct method of judicial review of a board of aldermen's ruling on a special use permit was under §89.110 by certiorari, stating:
Section 89.110 affords judicial review of zoning and planning decisions by municipal agencies. Section89.110. The proper redress for a person aggrieved by a zoning and planning decision is by petition for writ of certiorari under Section89.110, not by petition for review under Section536.110.
Thus, the court committed the common error of lumping all land use decisions under the heading of "zoning and planning" decisions, failing to recognize that some land use decisions are legislative and some are administrative. Actually, §89.110 applies only to judicial review of the decisions of boards of zoning adjustment. Contrary to the court's ruling, neither section is appropriate for review of the zoning of property.
In Earls v. Majestic Pointe, Ltd.,21 the court held that the correct method to challenge a rezoning in an unincorporated area of Taney County is by appeal to the board of zoning adjustment under §64.870. The parties debated whether §536.100 provided an alternative method of review. However, both methods of review are unconstitutional in that they purport to allow administrative review of a legislative act. The case holds that declaratory judgment will not lie to review what the court referred to as a "rezoning permit." The county had passed a regulation requiring an appeal of a rezoning to the board of zoning adjustment, a procedure not only odd but clearly unconstitutional. The court, without questioning the county's strange procedure, held it to be the exclusive method of review of the "permit."
In Heather Ridge Partnership, L.P. v. City of Creve Coeur,22 the city adopted an ordinance authorizing a redevelopment agreement for a specific parcel that called for the development of a public works facility adjacent to the Heather Ridge apartment complex. The approval of the public works facility was apparently done by special use permit, although it is difficult to tell from reading the opinion. Heather Ridge simply wrote a letter to the board of zoning adjustment complaining about the development. The board of zoning adjustment replied that it had no jurisdiction to review a decision of the city council. The local ordinance provided that any person aggrieved by a decision on a conditional use permit could petition the circuit court for relief from such decision. The plaintiffs filed a petition for certiorari and declaratory judgment. The appellate court wrote an opinion that appears to be a review of the action of the board of zoning adjustment. The court opined that since there was no document that could be said to be a decision of the city other than the letter in response to the plaintiff, it was impossible to determine whether the board of zoning adjustment – or the city, for that matter – committed any illegal act. Given the actions of the plaintiff, the court probably reached the right decision for the wrong reason. The court should have stated that no appeal was ever filed with the board of zoning adjustment. The correct method of review for a special use permit issued or denied by the city council, barring any local rule to the contrary, would be by a petition for review under Chapter 536, since the city is acting administratively.
Most recently, in State ex rel. Freeway Media, L.L.C. v. City of Kansas City,23 the Western District ruled that a plaintiff could not resort to mandamus or declaratory judgment when the remedy of an appeal by certiorari from a ruling of the board of zoning adjustment per §64.870.2 was available. The only problem is that §64.870.2 deals with appeals from a county board of zoning adjustment. But the court reached the correct result even if for the wrong reason, since Chapter 89 (dealing with cities) provides for review of decisions of boards of zoning adjustment by certiorari. The case does illustrate how easily courts can become entangled in the confusing array of county and city zoning statutes.
D. Separation of Powers
Imagine that one challenged an act of the Missouri legislature by certiorari. Imagine the reviewing court inquiring into what evidence the legislature had before it, and you begin to see what the above cases have done. To the extent county zoning statutes allow review of legislative decisions of the county commissioners by certiorari, they violate the Missouri constitutional provision on separation of powers.24 Other courts have hinted that, if confronted with the direct question, they will enforce the doctrine of separation of powers:
We recognize, as did the court in Bowman v. Greene County Commission, 732 S.W.2d at 225, that application of the procedure and scope of review set forth in chapter 536, the Administrative Procedure and Review Act, to legislative decisions and orders raises the spectre of possible constitutional infringement upon the doctrine of separation of powers of government. As in Bowman, we do not reach the issue under the facts of this case.25
Not even the original decision to zone is reviewable by certiorari.
26
E. Declaratory Judgment as the Correct Method of Review of Legislative Zoning Decisions
Missouri's declaratory judgment law provides in relevant part: "Any person ... whose rights ... are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the ... ordinance ... and obtain a declaration of rights, status or other legal relations thereunder."27 The Missouri zoning enabling law for cities does not set forth the method of judicial review for zoning, but declaratory judgment has clearly been accepted by Missouri courts as appropriate.27 Courts in Missouri say they do not review the decision to rezone or to refuse to rezone, since this would amount to direct judicial review of a legislative act in violation of the separation of powers doctrine. This is somewhat fictitious, since courts examine the existing zoning of property, which is examining a legislative act that is simply older. In distinguishing a declaratory judgment action to determine the legality of existing zoning from an appeal of an adverse zoning decision, the court in Salameh stated:
The court erred in construing plaintiffs' petition for declaratory judgment as an appeal from the June1, 1987 order of the County Commission which denied plaintiff's application for rezoning. Rather, the petition, after alleging the exhaustion of available administrative remedies through the application for rezoning, seeks a declaration that the existing zoning order of November 18, 1986, as applied to their property, is arbitrary, unreasonable, and an unconstitu-tional deprivation of their property rights. . . . The application for rezoning of their property is a necessary exhaustion of administrative remedies prerequisite to their standing to attack the existing zoning ordinance. . . . The refusal to rezone plaintiffs' property serves to activate judicial review of the preexisting zoning. . . . Therefore, since plaintiffs' action is not an appeal from the denial of their rezoning application, it is not governed by Section 49.230.
(Note: Whether an application to rezone is a "necessary exhaustion" is open to question. See, White, Missouri Land Use Law, Chapter 9).
F. Solutions
County zoning and review statutes should be construed to apply certiorari or other review on the record only to administrative decisions. Otherwise, the statutes should be amended.
1. Judicial Construction
County Zoning Statutes
Courts should construe the words "county commission" in the various statutes dealing with boards of zoning adjustment to be applicable only where the commission sits as a board of zoning adjustment or acts in some other non-legislative capacity. This is supported by the statement in §64.120(3), for example, that the court may allow a writ directed to the "board" and the fact that the above subsection is part of a section entitled "County board of zoning adjustment—members—organization—powers and duties—appeal from." Further, the language is virtually identical to §89.110 providing for review of decisions of city boards of zoning adjustment.
General Review Statutes
In Bowman v. Greene County Comm'n,29 the court stated as follows:
By its terms, the section [49.230 R.S.Mo.] is applicable to all decisions, orders and findings of the county commission. Nonetheless, to observe the separation of powers of government it is logical to confine the scope of that section to administrative decisions coming within the scope of chapter 536. This result is implied in the language of the amended section.
Thus, §49.230 should be read to apply only to appeals from
administrative decisions of the county commission.
2. Legislative Clarification
In light of the foregoing, Chapter64 and §49.230 are in violation of Mo. Const. art. II, §1 if construed to allow review of zoning by certiorari or petition for review under Chapter 536. As noted in Bowman and Salameh and the other authorities cited above, these sections should be limited to judicial review of administrative or quasi-judicial decisions of county commissions, such as the granting of a conditional use permit.
It would be helpful if the legislature would focus on the problem and codify these matters to remove all doubt. Thus § 49.230 should be amended to apply only to appeals from administrative decisions of the county commission. This can be accomplished by inserting the word "administrative" into § 49.230 before the word "decisions." Further, the words "or of the county commission" should be deleted from county board of zoning adjustment statutes. What is really needed is a total reform of the state's zoning statutes into one zoning law covering both cities and counties, combining the best of Chapters64 and 89 of the revised statutes.
Footnotes
1 Michael T. White practices in the field of land use law with the firm of White, Goss, Bowers, March, Schulte & Weisenfels. Admitted to The Missouri Bar, 1966, Missouri and U.S. District Court, Western District of Missouri; 1969, U.S. Court of Military Appeals; U.S. Supreme Court. Education: University of Missouri at Kansas City (B.A., with distinction, 1962; J.D., with honors, 1966). Co-winner, Ellison Moot Court Competition, 1964. Member, Bench and Robe Society. Recipient: Outstanding Service and Achievement, University of Missouri-Kansas City Law Review, 1965; Outstanding Career Achievements, Phi Alpha Delta International Law Fraternity, University of Missouri at Kansas City, 1975. Author, "Missouri Land Use Law," 2 vols., Butterworth 1993. Author, "Missouri Economic Development Law," UMKC School of Law 1999. Member, Jackson County Legislature, 1973-1975. Jackson County Executive, 1975-1979. Past president, Missouri Association of Counties. Past chair, Little Blue Valley Sewer District. Member, policy committee, National Association of Counties. Past board member, Mid-America Regional Council of Governments. Member: The Missouri Bar; Urban Land Institute; Legal Action Network for Development Strategies; National Association of Home Builders. Practice areas: land use law; public law/zoning; economic development. Email: mtwhite@whitegoss.com.
2 Section 64.120(3), RSMo 2000. Section 64.660 deals with county boards of zoning adjustment in second and third class counties. Section 64.870.2 deals with first, second and third class counties operating under alternative planning and zoning.
3 Life Medical Sys., Inc., v. Franklin County Comm'n, 810 S.W.2d 554, 557 (Mo. App. E.D. 1991).
4 State ex rel. Oliver Cadillac Co. v. Christopher, 298 S.W.2d 720, 726 (Mo. banc 1927). The court in Ford v. Boone County, 654 S.W.2d 169 (Mo. App. W.D. 1983) at n. 2 stated that "the determination of facts in regard to the rezoning of a particular tract is arguably quasi-judicial." The court in Ford based this argument on the decision in State ex rel. State Highway Comm'n v. Weinstein, 322 S.W.2d 778, 783-84 (Mo. banc 1959). In Weinstein, the Supreme Court of Missouri stated that although the highway commission's authority to locate, design, construct and maintain all state highways is legislative in nature, when the commission determines where to locate a particular pipeline, it is not deciding general policy but determining adjudicative facts concerning a particular party, and is making a "quasi judicial" decision. If the application of the zoning power to a particular tract is administrative or quasi-judicial, review by means of certiorari and conducted under the standards prescribed in Chapter 536 would not be unconstitutional. However, Ford is the only case to hint that zoning is other than legislative. It is at odds with the en banc pronouncement of the Supreme Court in Strandberg v. Kansas City, 415 S.W.2d 737, 742 (Mo. banc 1967), and of questionable authority.
5 State ex rel Nigro v. Kansas City, 27 S.W.2d 1030, 1032 (Mo. banc 1930).
6 State ex rel. U. S. Steel v. Koehr, 811 S.W.2d 385, 391 (Mo. banc 1991).
7 State ex rel. Swafford v. Randall, 236 S.W.2d 354 (Mo. App. W.D. 1950).
8 Cunningham v. Board of Aldermen of Overland, 691 S.W.2d 464 (Mo. App. E.D. 1985).
9 State ex rel. Christopher v. Matthews, 240 S.W.2d 943 (Mo. 1951).
10 State ex rel. Horn v. Randall, 275 S.W.2d 758 (Mo. App. W.D. 1955).
11 Plaas v. Lehr, 538 S.W.2d 919 (Mo. App. W.D. 1976).
12 State ex rel. Kolb v. County Court of St. Charles County, 683 S.W.2d 318 (Mo. App. E.D. 1984).
13 State ex rel. Cass County v. Dandurand, 759 S.W.2d 603 (Mo. App. W.D. 1988).
14 Id. At 604, fn. 2.
15 Herd v. St. Charles County Comm'n, 764 S.W.2d 505 (Mo. App. E.D. 1989).
16 Salameh v. County of Franklin, 767 S.W.2d 66, 68 (Mo. App. E.D. 1989).
17 Carter v. Greene County, 765 S.W.2d 665 (Mo. App. S.D. 1989).
18 State ex rel. Columbus Park Community Council v. Board of Zoning Adjustment of Kansas City, 864 S.W.2d 437, 440 (Mo. App. W.D. 1993).
19 State ex rel. Tucker v. McDonald, 793 S.W.2d 616, 617 (Mo. App. E.D. 1990).
20 City of Ladue v. Horn, 720 S.W.2d 745 (Mo. App. E.D. 1986).
21 Platte Woods United Methodist Church v. City of Platte Woods, 935 S.W.2d 735, 737 (Mo. App. W.D. 1996).
22 Earls v. Majestic Pointe, Ltd., 949 S.W.2d 239 (Mo. App. S.D. 1997).
23 Heather Ridge Partnership, L.P. v. City of Creve Coeur, 997 S.W.2d 46 (Mo. App. E.D. 1999).
24 State ex rel. Freeway Media, L.L.C. v. City of Kansas City, 14 S.W.3d 169 (Mo. App. W.D. 2000).
25 Mo. Const. art II, § 1. Salameh, at 68. ("Review by certiorari is limited to decisions, that is, judicial acts of agencies, not the exercise of legislative power."); Loomstein v. St. Louis County, 609 S.W.2d 443 (Mo. App. E.D. 1980); State ex rel. Croy v. City of Raytown, 289 S.W.2d 153, 156 (Mo. App. W.D. 1956); Allen v. Coffel, 488 S.W.2d 671 (Mo. App. W. D. 1972); Gambino v. Carpenter, 851 S.W.2d 96, 97 (Mo. App. W.D. 1993), Michael T. White, The Law of Refusal to Rezone in Missouri—The Need for a Practical Injunctive Remedy, 58 UMKC L. Rev. 65 (1989); State ex rel. Helujon v. Jefferson County, 964 S.W.2d 531, 537 (Mo. App. E.D. 1998) ("A certiorari proceeding is not an appropriate method for testing the validity of a legislative act such as a zoning or rezoning ordinance").
26 Salameh at 68 n. 1 (emphasis in original).
27 Croy at 156.
28 Section 527.020, RSMo 2000.
29 Sections 89.010-89.490, RSMo 2000. Huttig v. City of Richmond Heights, 372 S.W.2d 833 (Mo. 1963); Salameh; Home Bldg. Co. v. City of Kansas City, 666 S.W.2d 816 (Mo. App. W.D. 1984); Treme v. St. Louis County, 609 S.W.2d 706, 710 (Mo. App. E.D. 1980); Helujon at 537. The cases of Salameh; Loomstein; Treme; Herman Glick Realty Co. v. St. Louis County, 545 S.W.2d 320 (Mo. App. E.D. 1976); and Desloge v. County of St. Louis, 431 S.W.2d 126 (Mo. 1968) all reviewed zoning decisions by means of declaratory judgment reasoning that zoning is a legislative act.
30 Salameh at 67-68. The court's reasoning begs the question: If zoning is legislative, how can an application to rezone be exhaustive of administrative remedies?
31 Bowman v. Greene County Comm'n, 732 S.W.2d 223, 225 (Mo. App. S.D. 1987).
JOURNAL OF THE MISSOURI BAR
Volume 59 - No. 2 - March-April 2003