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LLC v. City of Creve Coeur

Court of Appeals of Missouri, Eastern District, First Division

June 16, 2015

450 N. LINDBERGH LEGAL FUND, LLC, et al., Appellants,
v.
CITY OF CREVE COEUR, MISSOURI, et al., Respondents

Page 50

Appeal from the Circuit Court of St. Louis County. Honorable Steven H. Goldman.

Steven W. Koslovsky, St. Louis, MO, for appellants.

Carl J. Lumley, St. Louis, MO; Christopher B. Graville, Clayton, MO; Donald K. Anderson, Jr., St. Louis, MO, for respondents.

LAWRENCE E. MOONEY, PRESIDING JUDGE. CLIFFORD H. AHRENS, J., and LISA VAN AMBURG, J., concur.

OPINION

Page 51

LAWRENCE E. MOONEY, PRESIDING JUDGE.

The plaintiffs, 450 N. Lindbergh Legal Fund LLC and ten individuals, appeal the judgment entered by the Circuit Court of St. Louis County against them and in favor of the defendants, the City of Creve Coeur, Grove Assisted Living, LLC, and Wm. Biermann Company, LLC. The plaintiffs sought judicial review of the City's approval of Ordinance 5355, which authorized the issuance of a conditional-use permit for the construction and operation of an assisted-living facility in the plaintiffs' neighborhood.

The plaintiffs sought judicial review under sections 536.100 to 536.140 RSMo. (2000 & Supp. 2013), which govern review of contested cases.[1] Because the case does not qualify as a contested case, however, the trial court had no statutory authority under sections 536.100 to 536.140 to review the decision of the City as such.[2] Therefore, we reverse the judgment, and remand the case to the trial court with directions for the trial court to dismiss the petition for review for failure to state a claim upon which relief can be granted.

Factual and Procedural Background

The defendant Wm. Biermann Company is the owner under contract of a 1.98-acre tract located at 450 North Lindbergh Boulevard in the city of Creve Coeur. The tract is located on the east side of Lindbergh Boulevard, and is bordered by Beaver Drive on the north and Dielmann Farm Estates Dive on the east. The City's zoning-district classification assigned to the property is General Commercial, and assisted-living facilities for the elderly are a conditional use in a General Commercial district.

Defendant Biermann applied to the City for a conditional-use permit to allow the construction and operation of an assisted-living facility for the elderly on the subject property. The City's Planning and Zoning Commission held a public hearing on the record concerning the proposed conditional-use permit. At the beginning of the hearing, all those who wished to speak were sworn in. The consulting engineering firm for defendant Biermann presented a description of the project, and the representative from the engineering firm then took questions from the planning and zoning commissioners. Members of the public then had the opportunity to speak in a narrative fashion for three minutes each to voice their opinions of the project. Following the public comments, the City's director of community development spoke. Finally, the public and the commissioners had the opportunity to ask further questions. All those who spoke did so under oath and on the record. But no witnesses were examined, no witnesses were cross-examined, no objections to evidence were

Page 52

made, and formal rules of evidence were ...


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