Failure to sue the proper party proves fatal to rezoning challenge

Rita Aust, et al. v. Platte County, PC Homes L.L.C., Kelly Jo Yulich Trust, Arlene Kagan and Wendy Winer
Missouri Court of Appeals, December 29, 2015

Real Estate developer PC Homes entered into a purchase agreement with three landowners to buy their property with the purpose of developing it into a single-family community in Platte County, MO. Platte County Planning and Zoning Commission twice denied the application to rezone the property from “agricultural” and “rural estates” to “single family high density” and “planned residential.” The Platte County Commission approved the rezoning to “planned residential.”

Aust and 41 other Platte County property owners (Appellants) filed a petition in the Circuit Court of Platte County for a writ of certiorari and declaratory judgment that the Commission’s decision was illegal, unreasonable and arbitrary. They wanted the rezoning to be denied or rescinded. Platte County was the only defendant on the petition. Platte County filed to dismiss the petition on multiple grounds.

The circuit court dismissed the petition, which was followed by an appeal.

The Appellants argued that the circuit court erred in dismissing their complaints because: (1) the provided proper notice to all parties; (2) their failure to file the record of the administrative proceedings within the statutorily-required time frame was not fatal to their claim; (3) declaratory relief was available to them; and (4) they sufficiently pled a claim for injunctive relief.

In addressing the first two points on appeal, the court referenced Section 64.660. Even though Platte County is a non-charter first class county, its planning and zoning program operates under statutes of second and third class counties. Section 64.660 provides in part, that any land owners disturbed by a county commission decision may present a petition in circuit court within 30 days after the decision. The statute also provides that after the petition is presented the court should allow a writ of certiorari. The court is allowed to reverse, affirm or modify the decision brought up for review (64.660.2).

The Appellants filed the petition against the County, not the County Board of Commission. This led to the Appellants being unable to file the record within 30 days of filing their petition. The Appellants sought to include the individual Commissioners within their official capacities, they did not ask to join the Commission as a body. Because the Appellants failed to seek a writ of certiorari against the proper party under Section 64.660 and did not turn in the record within 30 days the first two points were denied.

Regarding the third point, Section 64.660 provides for judicial review of the Commission’s zoning decisions through a petition for writ of certiorari. A declaratory judgment is not available to the Appellants because the option of the legal remedy precludes declaratory relief. Point three was denied.

Regarding point four, parties are not allowed to obtain equitable relief, such as an injunction, “unless the facts pleaded in the petition show they lack an adequate remedy at law”. The Appellants did not plead any facts showing that they lacked an adequate remedy at law. Point Four was denied and the circuit court’s judgment was affirmed.

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