Agenda - Planning Commission - 06/01/1999

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/ 2.2_ Page 8- April 10, 1999 ZoB. Junkyard -- Did special use permit allow storage of wrecked autos? Citation: Toghiyany v. City of Berkeley, Court of Appeals of Missouri, Eastern Dist., Div. 2, No. ED74300 (2999) Toghiyany agreed to buy property in an industrial district in the city of Berkeley, Mo. The contract was conditioned on his getting a special use permit to build an autobody shop. Toghiyany applied for a permit to use the property for a "body shop and storage as needed." The city planning commission approved his request and recommended that the city council issue the permit. The city council agreed and issued Toghiyany a permit allowing him to operate an autobody shop. The permit didn't mention vehicle storage. The city building inspector later determined Toghiyany violated his special use permit by storing wrecked automobiles on the property. The public works director found Toghiyany was violating his permit. He ordered Toghiyany to stop storing the vehicles or he would revoke Toghiyany's permit. The director told Toghiyany he could appeal to'.the city council and then to court. At a second hearing, the director found Toghiyany had not obeyed the pre- vious cease and desist order. The director orally ordered Toghiyany to shut down his business. .. Toghiyany asked the director for a "stay order," allowing him time to ap- peal to the city council, but the director denied his request. Toghiyany iued the city, seeking to prevent the director from revoking his special use permit. The court ordered the city to temporarily refrain from revoking the permit. Toghiyany then appealed the director's decision to the city council. The city asked the court to dismiss Toghiyany's lawsuit, arguing he failed to exhaust his administrative remedies because he sued the city before appeal- ing the director's decision to the city council. The court denied the city's request. The court also found Toghiyany's spe- cial use permit allowed him to store automobiles. The city appealed. DECISION: Reversed and returned to the trial court. The trial court should have dismissed Toghiyany's lawsuit. He couldn't sue the city before he appealed the director's decision to the city council. Before appealing the public works director's cease and desist order to court, Toghiyany had to first appeal to the city council. The director informed Toghiyany of the appropriate appeals process. Although the director violated the city zoning ordinance by refusing to stay his cease and desist order while Toghiyany appealed to the city council, Toghiyany could have included the director's misdeed in his appeal to the city council. see also: Strozewski v. City of Springfield, 875 S. W. 2d 905 (1994). see also: Hoover Inc. v. Metropolitan Board of Zoning Appeals, 924 S.W. 2d 900 (1996).