MO Appeals Court finds that a “property” owner failed to provide sufficient evidence for his parcel of land to be re-zoned for commercial use

This post was authored by Jennifer Autar, Jacob D. Fuchsberg Touro Law Center

Defendant-Respondent Ray Dickhaner, LLC (“Dickhaner”) owns a 1.6-acre parcel in the City of Arnold (“Arnold”) and formally requested in January 2021 that it be re-zoned for commercial use. The City of Arnold denied his request, and Dickhaner filed this action in circuit court seeking administrative review and declaratory judgment invalidating the current residential zoning. Not long after, Dickhaner filed a motion for summary judgment with the sole argument based on an affidavit by a land surveyor, Dan Govero (“Govero).

Mr. Govero opined in his affidavit, “the development of the property was economically unfeasible because the costs for development would exceed the value of the resulting residential parcels.” In addition, the parcel of land could only accommodate three residential lots with an estimated market value of $30,000 each. Govero further stated that the estimated costs to improve this potential development would be over $180,000 and concluded that for these reasons, the “economic viability of the property requires a commercial zoning classification.” Accordingly, Dickhaner requested summary judgment restating the cost analysis in Govero’s affidavit. However, due to Govero’s deposition testimony, Arnold denied the summary judgment facts since these cost numbers were “estimates.”

Arnold did not submit a competing cost analysis. However, they did provide an affidavit by an Arnold engineer along with other discovery documents and records showing that Dickhaner’s property is surrounded by residential properties and zoning and attesting to the fact that Dickhaner only purchased the parcel for $2,879.15. Arnold’s engineer further contends that Dickhaner’s development would not be in the best interests of the community’s health, safety, and welfare.

In addition, several neighboring residents objected to the re-zoning because it would negatively impact their view, safety, traffic flow, and the residential neighborhood’s character. Accordingly, on October 13, 2021, the circuit court entered an “Order of Partial Summary Judgment” directing Arnold to re-zone the property for commercial use within 60 days while the matter remained in the trial court jurisdiction to review the process. Arnold appealed this “partial” order, and Dickhaner moved to dismiss the appeal. On December 16, 2021, the court denied Dickhaner’s motion and concluded that the “partial” judgment provided the relief requested in his petition, making it a final judgment for purposes of appeal.

The Court of Appeals held that a “genuine dispute of material fact” existed regarding whether a personal determination to a landowner outweighs the public benefit of a zoning decision under the “fairly debatable standard.” Accordingly, zoning ordinances are reputed to be valid, and the requesting party bears the burden of proving the “unreasonableness” of the existing zoning. The court ultimately found that Dickhaner’s evidence did not meet this burden. Therefore, the “partial” judgment was reversed, and the matter was remanded to the circuit court for further proceedings.

City of Arnold v Dickhaner, LLC, 649 SW 3d 340 (Mo. App. 7/26/022)

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