Synopsis: Two recent appellate opinions construing § 89.110, RSMo 1994, have resulted in unnecessary confusion regarding the proper review procedure from the grant or denial of a special use permit by a city council.

Two recent opinions of the Western District and Eastern District Court of Appeals have created unnecessary confusion as to the proper method of judicial review of the grant or denial of a special use permit by a municipality.¹ The purpose of this article is to demonstrate that these opinions incorrectly construe § 89.110, RSMo 1994, and reach a conclusion contrary to a number of earlier opinions.

In each of these cases the plaintiff had filed a petition for administrative review of a denial by a city council of a special use permit pursuant to § 536.100, RSMo 1994. Each opinion determined that the proper method for review was pursuant to § 89.110 and not § 536.100, but allowed the appeal to proceed, since the methods of review under these sections are virtually identical and these sections are treated as in pari materia. However, the day may come when a court will decide that enough warning has been given, and dismiss an action brought under § 536.100 rather than § 89.110. For this reason, these opinions should be re-examined.

Chapter 89 deals with zoning and planning for "all cities, towns and villages." Within that chapter, §§ 89.080 - 89.110 authorize the establishment of a board of adjustment (BZA) and set forth its powers and procedures. Section 89.100 in pertinent part provides:

"89.100. Board of adjustment -- appeals, procedure. -- Appeals to the board of adjustment may be taken by any person aggrieved, by any neighborhood organization as defined in Section 32.105 RSMo representing such person, or by any officer, department, board or bureau of the municipality affected by any decision of the administrative officer. . . .

Section 89.110 provides:

"89.110. Board of adjustment -- decisions subject to review -- procedure. -- Any person or persons jointly or severally aggrieved by any decision of the board of adjustment, any neighborhood organization as defined in Section 32.105 RSMo, representing such person or persons, or any officer, department, board or bureau of the municipality, may present to the circuit court of the county or city in which the property affected is located a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality. Such petition shall be presented to the court within thirty days after the filing of the decision in the office of the board. Upon the presentation of such petition the court may allow a writ of certiorari directed to the board of adjustment to review such decision of the board of adjustment and shall prescribe therein the time within which a return thereto must be made and served upon the relator's attorney, which shall not be less than ten days and may be extended by the court. The allowance of the writ shall not stay proceedings upon the decision appealed from, but the court may, on application, on notice to the board and on due cause shown, grant a restraining order. The board of adjustment shall not be required to return the original papers acted upon by it, but it shall be sufficient to return certified or sworn copies thereof or of such portions thereof as may be called for by such writ. The return shall concisely set forth such other facts as may be pertinent and material to show the grounds of the decision appealed from and shall be verified. If, upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take additional evidence or appoint a referee to take such evidence as it may direct and report the same to the court with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which a determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review. Costs shall not be allowed against the board unless it shall appear to the court that it acted with gross negligence, or in bad faith, or with malice in making the decision appealed from. All issues in any proceedings under sections 89.080 to 89.110 shall have preference over all civil actions and proceedings. (Emphasis supplied)

The portions of each section which are italicized were added by Senate Bill enacted by the 89th General Assembly in 1997, after each of the opinions reviewed in this article were handed down. As will be seen, the additional language clarifies the intent of the legislature, if it required clarification.

Section 89.100 presents no problem of construction. It authorizes appeals to the BZA by any person aggrieved, as well as by an appeal to the BZA by any officer, department, board or bureau of the municipality affected by any decision of an administrative officer.

Section 89.110 would also appear to present no problem of construction. It authorizes appeals from the BZA by any of the same parties who were authorized under § 89.100 to appeal to the BZA, i.e., persons aggrieved by the BZA decisions, and any officer, department, board or bureau of the municipality. The remainder of this section provides that the petition to the circuit court must be filed within 30 days of the decision of the BZA; that a writ of certiorari may be directed to the BZA to review the decision of the BZA; that the court may, on notice to the BZA, grant a restraining order; that the BZA is not required to file the original papers with the court, and that costs may be assessed against the BZA. It is thus quite clear that the appeals authorized by this section are only from a decision made by the BZA. Nevertheless, in two opinions the courts of appeals have concluded that "the judicial review of a zoning and planning decision by a municipal agency is provided by § 89.110 and so controls," Deffenbaugh Industries, Inc. v. Potts² and State of Mo. ex rel. Presbyterian Church of Washington, Mo. v. City of Washington, Mo.³

For the rationale we first look to Deffenbaugh, since Presbyterian Church simply follows that opinion.

The critical holding appears at 524:

What remained for the legitimate review of the circuit court was the administrative decision of the City Council to deny the application for a special use permit. Deffenbaugh invoked the procedures of §§536.100 to 536.140 for the judicial review of that agency decision in the contested case before the City Council. Those sections apply, however, "unless some other provision for judicial review is provided by statute." §§536.100. The judicial review of a zoning and planning decision by a municipal agency is provided by §89.110, and so controls. Cohen v. Ennis, 318 S.W.2d 310, 313 (Mo. banc 1958); Ackerman v. City of Creve Coeur, 553 S.W.2d at 492-493. The redress for a person aggrieved within that scheme is by a petition for writ of certiorari under §89.110, and not by a petition for review under §536.110.

However, neither Cohen or Ackerman supports that proposition. Each case dealt with an appeal from a BZA decision, rather than a decision of a city council, city planning commission or other board or bureau given responsibility to issue special use permits. In Cohen the plaintiffs filed a petition for administrative review pursuant to § 536.100 more than 30 days after the date of the BZA decision. While § 89.110 requires that the petition for review must be filed "within thirty days after the filing of the decision in the office of the board," § 536.110 requires filing of the petition "within thirty days after the mailing or delivery of the notice of the agency's final decision." Plaintiffs contended that they were never notified of the BZA decision, and that their petition under § 536.110 was therefore timely filed, even though more than 30 days after the decision. The Supreme Court noted that § 536.100 allows judicial review to any person who has exhausted all administrative remedies and who is aggrieved by a final decision in a contested case "unless some other provision for judicial review is provided by statute." Thus, the Court at 313 concluded that § 89.110 was a specific provision for judicial review and "by virtue of the express provisions of § 536.100, is determinative of the method of review of the decision here in question . . .", which was a decision of a BZA. (Emphasis supplied) Nothing in the opinion suggests that the Court intended any broader application of § 89.110 than to appeals from the BZA.

In Ackerman, the zoning ordinance of the City of Creve Coeur provided that an appeal from a decision of the planning and zoning commission was to the BZA, and from the BZA to the circuit court pursuant to § 89.110. Plaintiffs, however, challenged a decision of the planning and zoning commission, not by an appeal to the BZA, but by filing a petition for declaratory judgment in the circuit court, apparently pursuant to § 536.050, which provides that courts may render declaratory judgments "respecting the validity of rules." The court of appeals found that the action was not directed against a rule, and thus § 536.050 was not applicable. Since plaintiffs had failed to file an appeal to the BZA as provided in the zoning ordinance, the petition was dismissed. As in Cohen, nothing in the opinion suggests that the Court intended any broader application of § 89.110 than to appeals from the BZA.

In Deffenbaugh, the court reviewed a number of decisions which had construed § 89.110 and § 536.100 to be in pari materia, and noted at 525: "The trend to coalesce the provisions of §§536.100 to 536.140 with the special statutes for judicial review of zoning decisions of a city or county agency culminates in opinions that are indifferent to any distinction and simply approve review under the procedures of Chapter 536."

For proof of that statement, the court cited Lorenz v. City of Florissant, Mo.,⁴ implying that, in approving a review of a city council decision under § 536.100, Lorenz was "indifferent to any distinction." Lorenz involved a city council's denial of a permit for the installation of vinyl siding in an historical district, following which the unsuccessful applicants filed a petition for administrative review pursuant to § 536.100. In determining whether that review was appropriate under the circumstances, the court stated at 224:

We note that Chapter 89 RSMo, entitled, "Zoning and Planning," provides for judicial review in zoning cases involving decisions from the boards of zoning adjustment of cities, towns and villages. See: §89.110 RSMo. It would appear that §89.110 RSMo is the "other provision for judicial review" contemplated in §536.100 RSMo. See: Cohen v. Ennis, 318 S.W.2d 310, 312 (Mo. banc 1958). Zoning cases ought to be filed pursuant to their special statutes. See, e.g., §64.120.3 RSMo (1986)(appeals from first class charter counties' boards of zoning adjustment); §64.281.4 RSMo (1986)(appeals from non-character first class counties' boards of zoning adjustment); §64.660.2 RSMo (1986) (appeals from second and third class counties' boards of zoning adjustment); §64.870.2 RSMo (1986)(appeals from all other counties' boards of zoning adjustment); §89.110 RSMo (1986)(appeals from all cities', towns', and villages' boards of zoning adjustment).

Many zoning type cases have been reviewed pursuant to Chapter 536 RSMo. These cases involve the administrative review of decisions regarding special use permits, conditional use permits, or building permits. See, e.g., McLain v. Board of Adjustment of the City of St. Louis, 508 S.W.2d 301 (Mo.App. 1974); Standard Oil Division of Amoco Oil Co. v. City of Florissant, 607 S.W.2d 854 (Mo.App. 1980); Alpha Portland Cement Co. v. Missouri Department of Natural Resources, 608 S.W.2d 451 (Mo.App. 1980); City of Eureka v. Litz, 658 S.W.2d 519 (Mo.App. 1983); State ex rel Crouse v. City of Savannah, 696 S.W.2d 346 (Mo.App. 1985). Since this case arises from the denial of a permit for exterior modifications, we review pursuant to Chapter §536 RSMo.

Lorenz thus interpreted § 89.110 as a specific statute for judicial review limited to decisions of a BZA (as earlier decided by the Supreme Court in Cohen) and concluded that § 536.100 was available to plaintiffs because there was no other special statute providing for another method of review from a decision of a city council. Lorenz not only fails to support Deffenbaugh, but is clearly in conflict with the holding in question.

As mentioned, Deffenbaugh was followed by the Eastern District in Presbyterian Church, at 700: "The appropriate method of reviewing a city council's administrative decision to grant or deny a special use permit was resolved in Deffenbaugh Industries, Inc. . . . 'The judicial review of a zoning and planning decision by a municipal agency is provided by §89.110, and so controls.'"

However, as in Deffenbaugh, while plaintiff had filed a petition for administrative review under § 536.100, the court concluded that the filing was not a fatal miscue, stating in footnote 7: "Thus the circuit court had before it all of the information used by the city council to make its decision -- the express purpose of a writ of certiorari under the planning and zoning statute. See § 89.110. Therefore, we find the circuit court had jurisdiction."

Presbyterian Church does not discuss why § 89.110 controls, other than in footnote 6, which quotes a portion of § 89.110, italicizing the phrase "or any officer, department, board or bureau of the muncipality." It appears that Presbyterian Church also misreads § 89.110 to mean that not only is a decision of the BZA appealable under this section, but, in addition, any decision of "any officer, department, board or bureau of the municipality" is also reviewable.

Missouri Land Use Law and Practice⁵ has this to say about Deffenbaugh:

"Perhaps the court in Deffenbaugh read the words 'or any officer, department, board or bureau of the municipality' as referring to the entity that made the decision in order to expand the review by certiorari beyond review of the acts of a board of adjustment. But those words clearly refer to a party who is aggrieved and who may take an appeal rather than who made the decision below. Any doubt in that regard is erased by reviewing §89.100 which provides that appeals to the board of adjustment may be taken 'by any person aggrieved or by an officer, department, board or bureau of the municipality affected by any decision of the administrative officer' and by the fact that the writ prescribed in §89.110 is directed 'to the board of adjustment'."

To expand on the above statement, there are seven separate specific references in § 89.110 to the BZA as the entity appealed from, indicating that the paragraph was intended to deal only with appeals from the decision of the BZA.

As noted earlier, the legislature in 1997 added the proviso in § 89.110 that, in addition to the person aggrieved by the decision of the Board of Adjustment, a "neighborhood organization as defined in Section 32.105, RSMo," can appeal on behalf of the aggrieved person. That proviso was inserted in § 89.110 in such a manner as to leave no doubt that the intended meaning as as argued herein. To illustrate, compare the previous portion of § 89.110 with the amended portion:

Prior verson:

89.110. Board of adjustment--decisions subject to review--procedure.--Any person or persons jointly or severally aggrieved by any decision of the board of adjustment, or any officer, department, board or bureau of the municipality, may present to the circuit court of the county or city in which the property affected is located a petition . . .

Amended version:

89.110. Board of adjustment--decisions subject to review--procedure.--Any person or persons jointly or severally aggrieved by any decision of the board of adjustment, any neighborhood organization as defined in section 32.105, RSMo, representing such person or persons or any officer, department, board or bureau of the municipality, may present to the circuit court of the county or city in which the property affected is located a petition . . .

The courts in Deffenbaugh and Presbyterian Church construed the prior version to mean that appeals could be taken not only from a decision of the BZA, but also from a decision of "any officer, department, board or bureau of the municipality."

The 1997 amendment destroys any possibility of such a construction, since it would mean that appeals could be taken from a decision of a "neighborhood organization," as well as from any department, board or bureau of the municipality.

Because of Deffenbaugh and Presbyterian Church, a number of practitioners, when confronted with the need to appeal a decision of a city council denying a special use permit, have opted out of caution to file a two-count petition, one for administrative review per §§ 536.100, and the other for a writ of certiorari per § 89.110, in order to avoid the risk of having chosen the wrong procedure.⁶

A reading of § 89.110 admits of but one conclusion: that it was intended by the legislature to apply solely to appeals from a BZA. Neither Deffenbaugh or Presbyterian Church offer any explanation of how either court was able to conclude that § 89.110 also applied to appeals from other municipal agencies such as city council, city planning commission, etc.

It would appear appropriate then, that at the first opportune moment Deffenbaugh and Presbyterian Church should be re-examined insofar as they hold that all planning and zoning decisions by a municipality must be reviewed per § 89.110, rather than § 536.100.

Endnotes

1 A special use permit, sometimes referred to as a conditional use permit, is a permit for a specific land use. The grant or denial of the permit is an administrative act. See State ex rel. Ludlow v. Guffey, 306 S.W.2d, 552, 556 (Mo. banc 1957).

2 802 S.W.2d 520, 524 (Mo. App. W.D. 1990).

3 911 S.W.2d 697, 700 (Mo. App. E.D. 1995).

4 747 S.W.2d 222, 224 (Mo. App. E.D. 1988).

5 Michael T. White Vol. 2, §11.39.

6 See Village Lutheran Church v. City of Ladue, 935 S.W.2d 720, 721 (Mo. App. E.D. 1996).

Mr. Michenfelder is chair of Ziercher & Hocker, P.C., in Clayton. He earned his L.L.B. from St. Louis University in 1950 and has practiced extensively in the land use law field. He is a member of the Bar Association of Metropolitan St. Louis and the St. Louis County Bar Association.

1998, Albert A. Michenfelder, Jr.