State Ex Rel. McNary v. Hais

BLACKMAR, Judge,

dissenting.

I am unable to concur in the per curiam opinion.

The sole question in this case is which statutory time limit governs the taking of an appeal from the action of a County Council in granting a conditional use permit. When the legislature has fixed a definite time for appeal the time limit must be complied with and those who do not take the required steps in time forfeit the right to challenge the action which aggrieves them. Lucitt v. Toohey’s Estate, 338 Mo. 343, 89 S.W.2d 662, 664 (1935); In re In Interest of T_ G_, 455 S.W.2d 3, 9 (Mo.App.1970). Our courts recognize that, when construing statutes, consideration must be given to statutes involving similar or related subject matter which may shed light upon the meaning of the statutes being construed. State ex rel. Spink v. Kemp, 365 Mo. 368, 283 S.W.2d 502 (1955). Basic rules of statutory construction, furthermore, dictate that a specific statute will prevail over a general one. Tuffli v. Board of Education of Wentzville, 603 S.W.2d 77, 78 (Mo.App.1980).

The appellant in the present controversy must decide at his peril whether § 49.230, RSMo 1978 which provides a review procedure for “quasi-judicial” decisions of a county court prevails over the appeal procedures appearing within § 536.110, RSMo 1978. Insofar as the per curiam holds that St. Louis County Council is properly treated as a county court in granting a conditional use permit, I agree.1 But I cannot agree with the per curiam to the extent that it holds that § 49.230 is necessarily the controlling statute for purposes of appeal.

The per curiam cites § 64.281.3, RSMo 1978 for the proposition that a conditional use permit would have been issued by a county court in a county which has not adopted a charter. This proves too much. If Chapter 64, dealing with zoning, applies, *498then we are confronted with the provisions of § 64.281.4, RSMo 1978, reading as follows:

Any person aggrieved by any decision of the county board of zoning adjustment, or of the county court, or of any officer, department, board of bureau of the county, may present to the circuit court having jurisdiction in the county in which the property affected is located, a petition in the manner and form provided by section 536.110, RSMo.

The statute just quoted reflects into § 536.110.2 To the extent that two statutes providing for administrative review conflict, the special statute will prevail over the more general one, particularly when the specific statute is the more recent. Tuffli v. Board of Education, supra, at 78.

My conclusion is consistent with Judge Nugent’s opinion in Ford v. Boone County, 654 S.W.2d 169 (Mo.App.1983) (transfer to the Supreme Court denied Aug. 16, 1983). In Ford, plaintiffs appealed from an order of the circuit court dismissing their petition challenging a zoning order by the county court. The plaintiffs had filed their petition twenty days after the county court’s rezoning order, and the circuit court held that their petition was barred by § 49.230, RSMo 1978. On appeal, plaintiffs asserted that § 64.870.2, RSMo 1978 specifically provided for relief for parties aggrieved by zoning decisions of a county court.

The Court of Appeals in holding that the thirty-day period for appeal provided in § 536.110 applied, stated that:

Obviously, § 64.870.2 does not provide a specific time period in which review may be sought. Nevertheless, in State ex rel. Day v. County Court of Platte County, 442 S.W.2d 178 (Mo.App.1969), this court ruled at 182 that because § 64.660 (the section providing nearly identical review procedures for zoning decisions in class two and class three counties) provides no time limit for filing a petition, “it is not a complete provision for review,” and must be read in conjunction with the Administrative Procedure Act (Chapter 536), specifically § 536.110, providing for the filing of a petition within thirty days of notice of an agency’s final decision....

Id. at 171. Neither party in the present controversy brought the provisions of § 64.281.4 to this Court’s attention, but we must nevertheless bring all applicable law to bear on the question whether the parties seeking to appeal have lost their right to do so.3

The right of appeal should be clearly specified. The courts should not set procedural traps for the unwary. Brinkerhoff-Faris Trust & Savings Company v. Hill, 281 U.S. 673, 50 S.Ct. 451, 74 L.Ed. 1107 (1930), reversing 323 Mo. 180, 19 S.W.2d 746 (1929). See also the opinion in Alpha Portland Cement Co. v. Missouri Department of Natural Resources, 608 S.W.2d 451, 453-54 (Mo.App.1980) which amply illustrates the confusion of the lower courts in determining the applicable time limit. Perhaps a prudent lawyer, confronted with confusing or conflicting provisions, should comply with the shortest timé period that arguably applies, but this is not a complete answer. The lawyer who finds a provision that is ostensibly sufficient should be able to rely on it. The legislature has provided such a provision in § 536.110, as reinforced by § 64.281.4, which is necessarily meant to have some meaning. Application of *499§ 64.281.4 seems to me to be the most appropriate conclusion. In any event its applicability seems fairly arguable, and a party relying on it should not be defaulted.

I would quash the provisional rule and would allow the appeal to proceed on the merits.

SUPPLEMENTAL DISSENTING OPINION ON MOTION FOR REHEARING

In Suggestions in Opposition to the respondent’s Motion for Rehearing it is suggested that § 64.281.4 is “extraneous” in that it is contained in a portion of the statutes which apply only to counties of the first class without a charter form of government. This argument has superficial appeal but overlooks the proposition enunciated in many cases that related statutes may be looked to as an aid in statutory construction. State ex rel. Rhodes v. Crouch, 621 S.W.2d 47 (Mo. banc 1981); State ex rel. Spink v. Kemp, 365 Mo. 368, 283 S.W.2d 502 (1955). We now have the anomalous situation in which a decision which was not made by a county court is subject to review under a statutory provision relating to county courts, whereas appeals from zoning orders made by county courts are reviewable under § 536.110.

I also believe that the Court acted in an inconsistent manner in denying transfer of Ford v. Boone County, 654 S.W.2d 169 (Mo.App.1983) in August of 1983, while then granting the provisional rule in this case in October of 1983 and then reaching the result as set out in the per curiam.

. Historically, county courts were vested only with the authority to grant permits in cases involving existing non-conforming uses, that is, conforming uses in existence at the time a county’s zoning ordinances and regulations were enacted. See State ex rel. The Town of Olivette v. American Telephone and Telegraph Co., 280 S.W.2d 134, 137 (Mo.App.1955) and State ex rel. Field v. Randall, 308 S.W.2d 637, 640 (Mo.1958); which both hold that county courts have no authority to grant special use permits or privileges.

In 1959, however, the legislature amended Chapter 64, RSMo, to grant county courts the express authority to issue special use permits. Section 64.281.3, RSMo 1978 (L.1959 S.B. 309 § 14).

. Section 64.281.4, RSMo 1978 was added to Chapter 64 in 1959, at the same time that our legislature granted authority to county courts to issue special permits and uses. See L.1959 S.B. 309 § 14.

. The Court of Appeals in Ford, acknowledged that "the determination of facts in regard to the rezoning of a particular tract is arguably quasi-judicial.” Id. at 170 n. 2. Because of the Court’s holding as to the applicability of § 49.-230 to zoning matters, however, the Court did not decide this point.

In the present controversy, the per curiam opinion directs a substantial portion of its discussion to whether or not the County Council’s action was of a "quasi-judicial” nature. Conceding that the County Council’s action was of a quasi-judicial nature, the significant question then becomes whether § 49.230 or § 536.110 controls the time of appeal from that action.