Missouri Court of Appeals addresses neighbor’s standing in zoning board litigation

by Gary Taylor

Underwood v. St. Joseph (MO) Board of Zoning Adjustment; Sharon Kennedy (Appellant)
(Missouri Court of Appeals, January 17, 2012)

Underwood submitted construction plans to the city of St. Joseph to obtain a building permit for a detached garage measuring 1,328 square feet. The city approved the plan and issued a building permit. Approximately three months later, however, when the structure was 80% complete, the city received an anonymous complaint about the garage and issued a stop work order because the garage actually measured 1,427 square feet. In fact, the city zoning ordinance limits the size of a detached garage to “an area no greater than 30% of the rear yard area behind the principal structure” which, based on the size of Underwood’s yard, meant that the garage could be no larger than 1,035 square feet. The city advised Underwood to either obtain a demolition permit or seek an area variance from the city board of zoning adjustment (BZA). Underwood chose the variance route.

In response to Underwood’s variance request, the city mailed certified letters to adjacent landowners (including Kennedy) notifying them of the BZA hearing on the variance request. Prior to the hearing the city acknowledged that it erroneously issued the building permit for the 1,328-square-foot design and offered to pay 76% of Underwood’s cost to downsize the garage (the portion of excessive square footage attributable to the city’s error). Also prior to the 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.” and that it “may adversely affect property values in the neighborhood.” At the BZA hearing, however, no one appeared to testify in opposition to the variance request. Nonetheless, the BZA denied the variance. Underwood filed an appeal of the denial with the circuit court. Underwood was identified as “petitioner,” and the BZA and City 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, the 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. At the second hearing, the BZA adopted the circuit court’s findings and granted the variance. One week later, Kennedy filed a notice of appeal in the Missouri Court of Appeals challenging the circuit court’s judgment.

The Court of Appeals determined that Kennedy lacked standing to bring the appeal before the Court of Appeals because Missouri statute limits the right to appeal to “any party” aggrieved by a decision of a circuit court, and Kennedy was not a party to the proceedings before the circuit court.  Kennedy cited two reasons why the statute should not be followed; first, that the Missouri Administrative Procedures Act allows any person “aggrieved by a decision in a contested case” to appeal and that, as a result, she was not required to be a party to the circuit court litigation.  The court rejected this argument because the zoning enabling statutes contemplate a different process that makes this provision of the Administrative Procedures Act inapplicable. Second, Kennedy argued that when the city chose not to appeal the circuit court’s decision, standing transferred to those for whom the city was acting in a representative capacity; i.e., those like Kennedy who would be aggrieved by the decision. The court rejected this argument as well, stating that state law allows aggrieved persons to formally intervene in litigation when their interests are at stake.   Kennedy countered by pointing to Missouri caselaw that suggests that neighboring landowners do not have a right to intervene in circuit court proceedings stemming from BZA matters (because, in her interpretation, the BZA is adequately representing the interests of the neighbors).  The court rejected her interpretation of those cases, and pointed to other Missouri cases, including the dissent of a case where intervention was denied, that imply that a landowner may indeed be able to intervene in a BZA case at the circuit court level if the motion to intervene is timely.

The Court of Appeals dismissed Kennedy’s appeal for lack of standing.

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