State ex rel. Forget v. Franklin County Planning & Zoning Commission

809 S.W.2d 430, 1991 Mo. App. LEXIS 663, 1991 WL 76049
CourtMissouri Court of Appeals
DecidedMay 14, 1991
DocketNo. 58857
StatusPublished
Cited by6 cases

This text of 809 S.W.2d 430 (State ex rel. Forget v. Franklin County Planning & Zoning Commission) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Forget v. Franklin County Planning & Zoning Commission, 809 S.W.2d 430, 1991 Mo. App. LEXIS 663, 1991 WL 76049 (Mo. Ct. App. 1991).

Opinion

GARY M. GAERTNER, Presiding Judge.

Appellants, residents of Forest Hills Estates Subdivision in Franklin County, appeal the July 18, 1990, order of the Circuit Court of Franklin County dismissing their petition for a writ of mandamus to compel respondent, the Franklin County Planning and Zoning Commission, to withdraw their approval of the final plat of “Forest Hills Estates Plat 4” and to compel respondent, the Franklin County Recorder of Deeds, to void the recordation of that same plat. We find that the trial court did not have jurisdiction in the matter and correctly dismissed the petition.

Forest Hills Estates is a subdivision located off Missouri Route 47 in Franklin County, Missouri. As originally platted, the subdivision was to contain fifty-seven (57) lots. The subdivision contains two entrances, one at each end of the subdivision. Both entrances access Missouri Route 47. According to appellants’ petition, these entrances are a maximum width of twenty-two (22) feet.

In 1988, Forest Hills Associates, a Missouri general partnership, acquired real estate adjoining the southern boundary of Forest Hills Estates. It also acquired an easement of ingress and egress over the streets of the subdivision.

The acquired land was surveyed and platted as a 17-lot residential subdivision known as “Forest Hills Estates Plat 4 (plat 4).” The plat was submitted to the Franklin County Planning and Zoning Commission (Commission) and, on July 18, 1989, the Commission gave final approval of the plat. Plat 4 was recorded the next day with the Franklin County Recorder of Deeds.

On August 4, 1989, appellants appealed the Commission’s approval of plat 4 to the Board of Zoning Adjustments (Board of Adjustments). The Board of Adjustments refused to hear appellants’ appeal and directed the appellants to file an appeal with the County Commission. The County Commission, likewise, refused to hear the appeal.

On August 22, 1989, the appellants filed their petition in mandamus in the Circuit Court of Franklin County alleging jurisdiction pursuant to RSMo § 64.895.2 (1986). The petition alleged that the entrance [432]*432width of 22 feet was not in compliance with regulations contained in the subdivision zoning ordinance, which required a minimum pavement width of 34 feet. The petition asked that the Franklin County Recorder of Deeds be ordered to strike plat 4 from the county records and that the Franklin County Zoning Commission’s approval of plat 4 be withdrawn.

The trial court issued a preliminary order of mandamus on August 22, 1989. On September 18,1989, Forest Hills Associates filed a motion to intervene and filed a motion to dismiss the appellants’ petition due to lack of subject matter jurisdiction and its failure to state a claim upon which relief could be granted. The respondents filed their motions to dismiss that same day; an amended motion to dismiss was filed by the respondents on April 4, 1990.

Due to allegations contained in the inter-venor’s motion to dismiss to the effect that appellants should have appealed the Commission’s approval of plat 4 to the Board of Adjustments, appellants filed a motion on June 11,1990, for leave to add the Board of Adjustments as a necessary and indispensable party. In the motion, appellants alleged that, since they had appealed to the Board of Adjustments and since the Board of Adjustments refused to hear their appeal, the Board of Adjustments had to be joined to the petition so that the court could order it to hear the appeal.

On July 18, 1990, the circuit court denied appellants’ motion for leave to join a necessary and indispensable party, granted the respondents’ motion to dismiss, and quashed the preliminary order of mandamus. This appeal followed.

The circuit court below did not state the grounds upon which it based its decision to dismiss appellants’ petition. We note that we may, therefore, affirm the decision of the trial court if there is any meritorious ground upon which the trial court could have based its decision. Spearman v. University City Public School District, 617 S.W.2d 68, 72 (Mo. banc 1981).

In their petition, appellants allege their cause of action was pursuant to RSMo § 64.895 (1986). On appeal, appellants also allege that a cause of action could have been brought pursuant to RSMo § 536.150 (1986). We disagree.

It has long been the rule that a party aggrieved by an administrative zoning decision who requests an appeal or review of the Board’s action must exhaust its administrative remedies before it can resort to an action at law or equity. See Hemreich v. Quinn, 350 Mo. 770, 168 S.W.2d 1054, 1058 (1943). The appellants have failed to do so here.

The Franklin County Planning and Zoning Commission was created by the Franklin County Commission pursuant to RSMo § 64.800 et seq. (1986). The regulations invoked below by the appellants were passed pursuant to RSMo § 64.825 (1986). As plat 4 related to a subdivision of land under the regulations passed pursuant to RSMo § 64.825 (1986), the plat could not be recorded with the county recorder’s office absent its approval by the County Planning and Zoning Commission. RSMo § 64.830 (1986). Once plat 4 was approved by the Planning and Zoning Commission, appellants had three months to appeal to the County Board of Zoning Adjustments. RSMo § 64.870.1 (1986). There is no debating that the appellants complied with the requirements thus far.

The Board of Zoning Adjustments, however, refused to hear the appeal filed by the appellants. Pursuant to RSMo § 64.870.1 (1986), the Board of Zoning Adjustments erred in refusing to hear the appeal. Appellants then should have filed a petition for a writ of certiorari with the circuit court stating the illegality of the board’s action and asking for relief therefrom. RSMo § 64.870.2 (1986). The appellants did not do this.

Rather than file a petition for a writ of certiorari, the appellants filed a petition for a writ of mandamus in the circuit court seeking injunctive relief against the Planning and Zoning Commission and the County Recorder’s office. The appellants did not seek to include the County Board of Zoning Adjustments as a party until almost a year after the decision of the Commis[433]*433sion; well outside the three month limitation imposed by RSMo § 64.870.1.

Appellants contend that jurisdiction for their cause of action comes from RSMo § 64.895.2 (1986). We disagree.

RSMo § 64.895 (1986) provides:

64.895. Violations constitute misdemeanors — enforcement of zoning regulations
1.

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Bluebook (online)
809 S.W.2d 430, 1991 Mo. App. LEXIS 663, 1991 WL 76049, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-forget-v-franklin-county-planning-zoning-commission-moctapp-1991.