Agenda - Planning Commission - 04/05/2012

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February 25, 2012 I Volume 6 No, 4 Zoning Bulletin The BackgroundlFacts: Kelvin Underwood ( "Underwood ") sought to construct a detached garage on his property in the city of St. Joseph (the "City "). He submitted construction plans to the City for approval. The City approved the plans and Underwood obtained a building permit. When Underwood's garage construction was 80% complete, it was determined that: (1) it was nearly 100 square feet larger than permit- ted; and (2) the City had erred in approving the garage plans submitted by Underwood since, under the size limitations provided by ordinance, the garage should have been nearly 300 feet smaller than permitted. The City advised Underwood to either: obtain a demolition permit, with the City paying for 76% of the required downsizing in light of the City's permitting mistake; or seek an area variance with the City's Board of Zoning Adjustment ( "BZA ") . Underwood chose to seek the variance. Before the initial hearing on the variance request, abutting property owners, including Sharon Ken- nedy ( "Kennedy "), submitted comments related to the variance request. Kennedy expressed her opposition to the variance. She was concerned that the garage did not fit the character of the neighborhood due to its size and construction material. She indicated her belief that [t] his may adversely affect property values in the neighborhood." Underwood's variance request was denied by the BZA. Underwood appealed to the circuit court. The circuit court reversed the BZA's denial. It remanded the case to the BZA with orders that the BZA grant Underwood's variance request. The BZA did not appeal that decision. Instead, the BZA granted the variance request. One week - later, Kennedy filed a notice of appeal in the Missouri Court of Appeals. She sought to challenge the circuit court's decision re- versing the BZA's denial of Underwood's variance request. Underwood filed a motion to dismiss the appeal. He argued that the ap- peal must be dismissed because Kennedy did not have standing to appeal. DECISION: Motion to dismiss appeal granted. The Missouri Court of Appeals granted Underwood's motion to dis- miss Kennedy's appeal. In doing so, it held that because Kennedy was not a party to the cause below in the circuit court (i.e., Underwood's ap- peal from the BZA decision following the initial hearing), she did not have standing to seek an appeal therefrom. The court explained that standing is a precursor to the right to appeal. If a party does not having standing, the party's appeal must be dismissed. The court looked at Missouri statutory law, RSM 64.660.2, govern- ing decisions made by county boards of zoning adjustment. The court 8 © 2012 Thomson Reuters