Michael T. White¹

In handing down Gash v. Lafayette County, the Supreme Court of Missouri reversed decades of adherence to the rule that zoning of property is a legislative matter, the proper judicial review of which is by declaratory judgment, because review of a legislative decision by certiorari or other review on the record under a standard of competent and substantial evidence has long been held to constitute a violation of the Missouri Constitution's separation of powers clause. Gash will result in two methods of judicial review of zoning: one for cities and another for counties.

“Curiouser and curiouser!’ cried Alice (she was so much surprised, that for the moment she quite forgot how to speak good English).”²

Those who toil in the vineyard of Missouri land use law have complained for years about the interaction between the state legislature and Missouri courts, which complicates an already-bewildering subject to the point of total befuddlement. At the top of the list of arcane laws is county zoning. Most of the land use governed by zoning laws in Missouri occurs in the incorporated areas of municipalities (cities, towns, and villages), of which there are 1,228. A relatively minor amount of regulated land use occurs in the unincorporated areas of counties, of which there are 114, and of these, 84 have no zoning at all. Put another way, only 20 percent of the population of Missouri lives within unincorporated areas of counties which have adopted zoning.

For approximately 75 years, Missouri municipalities have managed to regulate land uses with a version of the compact and relatively simple Standard Zoning Enabling Act.³ Written by an advisory committee appointed by Herbert Hoover (who at the time was the Secretary of Commerce of the United States), this model has been adopted by virtually every state in the union. It has been adopted for Missouri cities in a statute composed of 17 sections (§§ 89.010-89.144, RSMo), consisting of approximately nine pages in the official publication of the Missouri Revised Statutes.

On the other hand, county zoning regulating the use of land in areas where only 20 percent of the population lives is composed of 83 sections, consisting of 36 pages in the same publication. There are four separate statutes dealing with county zoning: first class charter counties,⁴ non-charter first class counties,⁵ second and third class counties,⁶ and if these were not enough, the bewildering Alternative County Planning and Zoning Law.⁷ This last is available to “any county of the first class not having a charter form of government, or of any county of the second, third or fourth class…”⁸ (in other words, any county except first class charter counties, of which there are three: St. Louis, St. Charles and Jackson). The appalling structure of the county zoning statutes caused the Supreme Court, in footnote 6 of the Gash decision, to comment on their obtuseness. Obtuse or not, the Court felt compelled to follow them. Lafayette and Saline are the only two fourth class counties in Missouri and only Lafayette has zoning. Thus, 6,882 people live in the unincorporated areas of the only fourth class county with zoning, Lafayette, the county which provided the vehicle for Gash v. Lafayette County.⁹ Since 1988, no county can enter the fourth classification, so there will never be more than two.¹⁰

This year (2008) proved to be the year during which the quest for clarity in county zoning law took backward steps. The American Planning Association managed to obtain the approval of the Missouri House of Representatives for HB 1832, a bill which would have improved the situation. However, the bill died in the legislative graveyard of the Senate, even though it required a county-wide vote to adopt zoning regulations. The Senate substitute removed the substantive provisions of the bill and replaced them with the appointment of a joint committee to study the matter further. Not even this passed. This is not surprising, since only about 150 bills of the more than 2,000 introduced in 2008 were adopted. In the same year, the Supreme Court of Missouri handed down Gash.

I. The Law Prior to Gash

A. The Separation of Powers Clause of the Missouri Constitution Prohibits the Review of Legislative Decisions on the Record

Until 2007, virtually all Missouri courts eschewed review of legislative acts by certiorari on the record, holding that such second-guessing is a violation of the separation of powers clause¹¹ contained in the Missouri Constitution, article II, § 1. But a recent trend of decisions has developed, beginning with the Supreme Court of Missouri’s opinion in Centene Plaza Redevelopment Corporation v. Mint Properties,¹² in which appellate courts in Missouri have ignored the separation of powers clause by requiring competent and substantial evidence to justify legislative acts. The Centene decision was followed by Great Rivers Habitat Alliance v. City of St. Peters¹³ and, most recently, Gash.

B. Zoning is Legislative

For many years, Missouri has characterized zoning as a legislative act, even when applied to specific parcels of land.¹⁴ One could argue whether single parcel zoning is, in fact, legislative, but Missouri courts have so held, and Gash reaffirms that characterization.¹⁵ Some types of zoning require that a plan be approved as part of the zoning process. At least one Missouri case has held that even such a plan amendment is legislative in character, despite the fact that the zoning of the property is not amended.¹⁶

C. The Correct Method of Review of Legislative Acts Is Declaratory Judgment

Missouri’s declaratory judgment act, § 527.020, provides in relevant part: “Any person . . . whose rights . . . are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the . . . ordinance . . . and obtain a declaration of rights, status or other legal relations thereunder.” The Missouri Zoning Enabling Act for cities, §§ 89.010‑89.490, does not set forth the method of judicial review for zoning or rezoning “decisions,” but declaratory judgment has long been accepted by Missouri courts as the appropriate method of review of legislative acts.¹⁷ With respect to cities, courts in Missouri do not review zoning decisions because, until Gash, it was thought that this would amount to direct judicial review of a legislative act, violating the separation of powers doctrine. In distinguishing the legality of existing zoning from the legality of a decision whether to rezone, Judge Carl R. Gaertner, writing for the Eastern District Court of Appeals in Salameh v. County of Franklin, stated:

The court erred in construing plaintiff’s petition for declaratory judgment as an appeal from the June 1, 1987 order of the County Commission which denied plaintiff’s application for rezoning. Rather, the petition, after alleging the exhaustion of available administrative remedies through the application for rezoning, seeks a declaration that the existing zoning order of November 18, 1986, as applied to their property, is arbitrary, unreasonable, and an unconstitutional deprivation of their property rights.

***

The application for rezoning their property is a necessary exhaustion of administrative remedies prerequisite to their standing to attack the existing zoning ordinance. . . . The refusal to rezone plaintiffs’ property serves to activate judicial review of the preexisting zoning. . . .

***

Therefore, since plaintiff’s action is not an appeal from the denial of their rezoning application, it is not governed by § 49.230.¹⁸

D. Certiorari Consists of Review on the Record Under a Standard of Competent and Substantial Evidence. Therefore, Review of Zoning Decisions By Means of Certiorari or Other Means of Review on the Record Before the Legislative Body Violates the Separation of Powers Clause

Judicial review by means of certiorari or administrative review subjects the decision reviewed to an examination of the record under a standard of whether it is “supported by competent and substantial evidence.”¹⁹ Quasi-judicial “decisions” rendered by administrative bodies and “laws” passed by legislative bodies differ a great deal. Imagine for a moment Missouri courts reviewing statutes under the same standard. For example, the Missouri Legislature has set a minimum age of 21 for the purchase of alcoholic beverages. If a court allowed a challenge to this act by means of certiorari under a standard of competent and substantial evidence, it would require the legislature to produce competent and substantial evidence for its “decision.” Invariably, the weighing of this evidence will involve the issue of whether it is wise or expedient to use the age of 21 as a condition for purchasing alcohol. In doing so, the court would engage in second-guessing the wisdom of the rule, a function that is clearly “legislative.” As the Supreme Court itself has said, the ordinances of local governments are entitled to the same deference as legislative enactments of the state. “The propriety, expediency and necessity of a legislative act are purely for the determination of the legislative authority, and are not for determination by the courts. That applies to a municipal ordinance authorized by statute.”²⁰

II. Current Statutes Relating to Review of Decisions of County Government

While it would seem clear that certiorari will not lie to review a legislative act, there is a great deal of confusion with respect to the appropriate method of judicial review of a county’s decision to zone or rezone property. The confusion begins with Missouri’s statutes on the subject.

A. Board of Zoning Adjustment

Statutes

Chapter 64, RSMo (2006), sets forth separate zoning enabling acts for each class of county, all containing the same problematic language. For example, in referring to decisions of a board of zoning adjustment in first class counties, § 64.120.3 provides that, “Any person . . . aggrieved by any decision of the board of adjustment or of the county commission . . . may present to the circuit court having jurisdiction” a petition for a writ of certiorari [emphasis supplied]. The entire section concerns itself with the powers of the board of zoning adjustment and appeals therefrom except for the italicized words “or of the county commission.” Taken literally, they would mean that any decision of a county commission, including a decision whether to zone or rezone property, could be reviewed by a writ of certiorari. The Gash Court took them literally.

B. General Judicial Review of County Commissions

Adding to the confusion, § 49.230 states in toto: “Appeals from the decisions, findings and orders of county commissions shall be conducted under the provisions of Chapter 536, RSMo.”²¹ This provision could also result in review of a legislative zoning decision by petition for review in the nature of certiorari pursuant to § 536.

Section 536.100 (2006) provides for review on the record of a final decision in a contested case. Pursuant to § 536.010(4), a “[c]ontested case” is defined as “a proceeding before an agency in which legal rights, duties or privileges of specific parties are required by law to be determined after hearing.” “Agency” is defined in § 536.010(2) as “any administrative officer or body existing under the constitution or by law and authorized by law or the constitution to make rules or to adjudicate contested cases, except those in the legislative or judicial branches” (emphasis added). If zoning real property is a legislative act, as the courts of Missouri have long held, a county commission acting to zone property is not an administrative body under § 536.010, RSMo, and even though a hearing is required, a zoning proceeding would not amount to a “contested case.” However, following the literal language of these statutes, as the Gash Court did, leads to the curious conclusion that zoning is a legislative act when imposed by a city and an administrative act when imposed by a county.

III. Problematic Decisions

The main problem permeating Missouri land use jurisprudence is the occasional failure to distinguish those land use decisions of local governments that are administrative in nature (such as the actions of a board of zoning adjustment) from those that are legislative (such as adoption of a comprehensive plan or zoning). As shown, the act of rezoning property has been declared to be a legislative act in Missouri from the earliest decisions on the subject. The decisions of boards of zoning adjustment have also been held in equally clear focus to be administrative.²² It has been described as having “administrative discretion [which] is limited to the narrow compass of the statute.”²³ Upon observing the title “Board of Zoning Adjustment,” one might conclude without further study that all of its decisions deal with the zoning or rezoning of property, when in fact, none of them do. The main function of the board is to correct errors of administrative officials and, if necessary, to grant variances in the case of hardship or practical difficulties.²⁴ There has also been a disturbing tendency on the part of Missouri courts to lump all land use decisions together under the heading “zoning.”²⁵

IV. The Gash Decision

The Gashes, owners of 20 acres of land in the unincorporated area of fourth class Lafayette County, sought to rezone their property from “agricultural” to “general business.” On February 7, 2002, at a public hearing on the rezoning request, the Gashes were outed for having built two residential buildings, four outbuildings and a stable on their property without obtaining building permits for the five non-residential structures. The zoning commission thus tabled the zoning request and proceeded to investigate the violation. The zoning administrator found violations of setback and building size requirements. The Gashes appealed these findings to the Board of Zoning Adjustment (“BZA”) which affirmed, in part, the administrator’s findings. The Gashes then filed a petition for a writ of certiorari challenging the decision of the BZA. By statute, a writ of certiorari is the exclusive method of challenging the decision of a BZA under either municipal or county zoning law.²⁶ While the action for certiorari was pending, the zoning commission denied the rezoning request. In response, the Gashes filed an action in circuit court seeking a declaratory judgment that the zoning classification of their property was arbitrary, unreasonable and void.

The Supreme Court of Missouri determined that § 64.870.2, applied. That section provides in relevant part:

Any owners, lessees or tenants of buildings, structures or land jointly or severally aggrieved by any decision of the board of adjustment or of the county commission, respectively, under the provisions of sections 64.845 to 64.880, or board, commission or other public official, may present to the circuit court of the county in which the property affected is located, a petition, duly verified, stating that the decision is illegal in whole or in part, specifying the grounds of the illegality and asking for relief therefrom. Upon the presentation of the petition the court shall allow a writ of certiorari directed to the board of adjustment or the county commission, respectively, of the action taken and data and records acted upon, and may appoint a referee to take additional evidence in the case .…[emphasis supplied]

The Court reasoned that the word “any” in the above statute means just what it says, and thus all decisions of the county commission – be they administrative, judicial or legislative – must be reviewed by means of certiorari. It follows, the Court reasoned, that declaratory judgment would not lie since its use is limited to those situations where there is no other method of review available.²⁷

If the Court had ignored the violation of the separation of powers clause, it would be one thing. But the Court specifically abrogated Salameh v. County of Franklin, one of the few cases that had correctly analyzed the separation of powers issue.²⁸ In so holding, the Court also implicitly overruled a number of other cases which have held that zoning, being a purely legislative act, cannot be reviewed by certiorari.²⁹

The Gash Court admitted that § 64.870.2, RSMo, expands the traditional concept of certiorari review in two ways: first by allowing the circuit court to take additional evidence and not be confined to the record; second, by modifying the decision rather than simply reversing or affirming. As a result, the Court came to the conclusion that “the court may amend a county commission’s zoning and rezoning ordinances”³⁰ [emphasis in the original]. Previously, Missouri courts could only strike down the zoning of a parcel of land. Although the rule was occasionally ignored in practice, it was a generally acknowledged principle that a court could not decide which specific zoning category would be appropriate, as that would constitute rezoning the property in question, thus usurping legislative powers.³¹ The doctrine of refusing to order specific zoning was reaffirmed in Lenette Realty & Investment Company v. City of Chesterfield,³² wherein the court upheld the trial court’s order to place a reasonable zoning category on the property but refused to order the landowner’s plan be adopted.

The conclusion that a court may amend a county commission’s zoning and rezoning ordinances is an astonishing and far-reaching conclusion. Since all classes of counties have the same “any decision…of the county commission” language in their zoning enabling statutes, no longer will there be the same level of deference to county legislative decisions to zone or rezone property.³³ Now they must be justified by competent and substantial evidence.

The Gash Court felt compelled to bow to the wisdom of the state legislature, stating, “This Court must be guided by what [our] legislature said….”³⁴ This begs the question of why the Court felt compelled to follow the state legislature into the Serbian bog of Missouri’s county zoning statutes, and yet felt no compunction to afford the same deference to county legislative bodies by adhering to the traditional method of review of a legislative act by declaratory judgment. As a result, a separate method of review for county zoning decisions and municipal zoning decisions now exists.

The Court concluded that its decision would promote efficiency within the judicial system, stating the following rationale for that conclusion: “If the nature of the action determined the remedy available, courts would be asked to characterize every type of land-use planning and zoning decision as either legislative or quasi-judicial. Such categorization has engendered much debate in other jurisdictions.”³⁵ Even if the Court’s conclusion about efficiency were correct, it is “efficient” for only the 20 percent of Missouri citizens who live in the unincorporated areas of counties with zoning – a ratio which continues to decline as cities annex more territory. More to the point, such categorization has engendered much debate, and it has done so in Missouri for the last 75 years, generating a fairly stable body of jurisprudence on the subject. For example, as has been demonstrated, zoning and rezoning decisions are legislative,³⁶ as are LCRA (Land Clearance for Redevelopment Authority of the City of St. Louis) plan amendments,³⁷ zoning plan amendments,³⁸ planned unit development plan approvals,³⁹ preliminary site plans,⁴⁰ redevelopment plans,⁴¹ regional planning,⁴² and vacations of streets.⁴³ Decisions of boards of zoning adjustment (which do not have one iota of legislative power) are quasi-judicial.⁴⁴ The enforcement of zoning ordinances is administrative,⁴⁵ as are special use permits,⁴⁶ building permits (even when issued by a city council),⁴⁷ occupancy permits,⁴⁸ and zoning variances.⁴⁹

V. Conclusion

Courts should construe the words “county commission” in the various statutes involving boards of zoning adjustment to be applicable in only those instances where the commission sits as a board of zoning adjustment or acts in some other non-legislative capacity. This construction is supported by the statement in these statutes that the court may allow a writ directed to the “board” and the fact that the above subsections are all parts of sections the titles of which clearly indicate the county commission is sitting as a board of zoning adjustment, regardless of whether the counties are first class charter,⁵⁰ first class non-charter,⁵¹ or second and third class counties and counties operating under alternative county planning and zoning.⁵² Further, the language is virtually identical to § 89.110, RSMo, which provides for review of decisions of city boards of zoning adjustment.

Section 49.230 states in toto: “Appeals from the decisions, findings and orders of county commissions shall be conducted under the provisions of chapter 536 RSMo” (the Administrative Procedures and Review Act). This section should be read to apply only to appeals from administrative decisions of the county commission, returning to the correct construction enunciated by Judge Maus in Bowman v. Greene County Commission:

By its terms, the section [49.230, RSMo] is applicable to all decisions, orders and findings of the county commission. Nonetheless, to observe the separation of powers of government it is logical to confine the scope of that section to administrative decisions coming within the scope of Chapter 536. This result is implied in the language of the amended section.⁵³

It would be helpful if the legislature would focus on the problem of county zoning law and codify these matters to remove all doubt. What is really needed is a total reform of the state’s zoning statutes into one zoning law combining the best language of Chapters 64 and 89 of the Revised Statutes of Missouri, covering both cities and counties. In those counties where a majority of the voters continue to oppose the regulation of land use, planning and zoning can continue to be adopted by local option. (Applications for building permits for prisons, factory farms, “adult” dance clubs and landfills in their counties may change their minds.)

One can hope that, given the opportunity, the Supreme Court will abrogate the decision in Gash and return to a dutiful respect for the separation of powers. In the alternative, if the Court believes that the legislature has the power to dictate the method of judicial review of a legislative act as being anything other than the constitutional standard of reasonableness in a de novo declaratory judgment action, it should declare, as has Missouri’s neighboring state of Kansas, that single-parcel zoning is no longer legislative.

Footnotes

1 Michael T. White is president of White Goss Bowers March Schulte & Weisenfels. Admitted to bar, 1966, Missouri and U.S. District Court, Western District of Missouri; 1969, U.S. Court of Military Appeals. Author, “Missouri Land Use Law,” 2 vols., and “Missouri Economic Development Law” both published by UMKC School of Law, 1999. University of Missouri at Kansas City (B.A., with distinction, 1962; J.D., with honors, 1966).

2 Lewis Carroll, Alice’s Adventures in Wonderland 13 (Random House 1946) (1865).

3 A Standard Zoning Enabling Act 1 (Advisory Comm. on Zoning, Dep’t of 1926) available at http://myapa.planning.org/growingsmart/pdf/SZEnablingAct1926.pdf (last visited October 22, 2008).

4 Sections 64.010 et seq., RSMo. 2006.

5 Sections 64.211 et seq., RSMo. 2006.

6 Sections 64.510 et seq, RSMo. 2006.

7 Sections 64.800 et seq, RSMo. 2006.

8 Section 64.800.1, RSMo. 2006.

9 245 S.W.3d 229 (Mo. banc 2008).

10 H.B. 943, 76th Gen. Assem., Reg. Sess. (1988) and H.B. 950 & 948, 92d Gen. Assem., 2d Reg. Sess. (2004) that amended § 48.020, RSMo.

11 Salameh v. County of Franklin, 767 S.W.2d 66, 68 (Mo. App. E.D. 1989); Loomstein v. St. Louis County, 609 S.W.2d 443 (Mo. App. E.D. 1980); State ex rel. Croy v. City of Raytown, 289 S.W.2d 153, 156 (Mo. App. W.D. 1956); Allen v. Coffel, 488 S.W.2d 671 (Mo. App. W.D. 1972); Gambino v. Carpenter, 851 S.W.2d 96, 97 (Mo. App. W.D. 1993); Michael T. White, The Law of Refusal to Rezone in Missouri—The Need For a Practical Injunctive Remedy, 58 UMKC L. Rev. 65 (1989); State ex rel. Helujon v. Jefferson County, 964 S.W.2d 531, 537 (Mo. App. E.D. 1998).

12 225 S.W.3d 431 (Mo. banc 2007).

13 246 S.W.3d 556 (Mo.App. W.D. 2008).

14 Huttig v. City of Richmond Heights, 372 S.W.2d 833, 839 (Mo. 1963). In Re Kansas City Ordinance No. 39946. v. Liebi, 252 S.W. 404, 407 (Mo. banc 1923) (upholding Kansas City’s ordinance restricting use along boulevards to residential and establishing building lines); State ex rel. Oliver Cadillac Co. v. Christopher, 298 S.W. 720, 726 (Mo. banc 1927) (upholding St. Louis zoning ordinance).

15 245 S.W.3d at 233, n. 8.

16 McCarty v. City of Kansas City, 671 S.W.2d 790, 795 (Mo. App. W.D. 1984). The court in Heidrich v. City of Lee’s Summit, 26 S.W.3d 179 (Mo. App. W.D. 2000), followed McCarty’s reasoning that the city council’s reservation of the power to approve amendments to plans is indicative of a legislative function. Id. at 184.

17 Huttig, 372 S.W.2d at 843; Salameh, 767 S.W.2d at 68; Home Bldg. Co. v. City of Kansas City, 666 S.W.2d 816, 821 (Mo. App. W.D. 1984); Treme v. St. Louis County, 609 S.W.2d 706, 710 (Mo. App. E.D. 1980); Helujon, 964 S.W.2d at 537.

18 767 S.W.2d at 67-68.

19 Mo. Const. art. V, § 18.

20 In Re Kansas City Ordinance No. 39946 v. Liebi, 252 S.W. 404, 407 (Mo. banc 1923).

21 Chapter 536 RSMo. 2006, entitled, “Administrative Procedures and Review.”

22 State ex rel. Nigro v. Kansas City, 27 S.W.2d 1030, 1032 (Mo. banc 1930).

23 Adams v. Bd. of Zoning Adjustment of Kansas City, 241 S.W.2d 35, 38 (Mo. App. W.D. 1951); Croy, 289 S.W.2d at 156.

24 Matthew v. Smith, 707 S.W.2d 411, 413, 421 (Mo. banc 1986). See § 89.090, RSMo. 2006, and the virtually identical sections for each classification of county.

25 The cases which have gone astray in this area are catalogued in Michael T. White, County Zoning Statutes and Problematic Land Use Decisions, 59 J. Mo. Bar 2, 66 (2003).

26 Section 89.110, RSMo. 2006 [cities]; § 64.120, RSMo. 2006 [first class charter], § 64.281, RSMo. 2006 [first class non-charter], § 64.660, RSMo. 2006 [second and third class], § 64.870, RSMo. 2006 [alternative county planning and zoning].

27 Gash, 245 S.W.3d at 233.

28 Gash, 245 S.W.3d at 233, n. 7.

29 Croy, 289 S.W.2d at 156; State ex rel. Manion v. Dawson, 225 S.W. 97 (Mo. banc 1920); State ex rel. Adams v. Crain, 201 S.W.2d 426, 429 (Mo. App. S.D. 1947).

30 245 S.W.3d at 234, n. 10.

31 Huttig, 372 S.W.2d at 842.

32 35 S.W.3d 399, 408 (Mo.App. E.D. 2000).

33 Section 64.120, RSMo. 2006 [first class charter], § 64.281, RSMo. 2006 [first class non-charter], § 64.660, RSMo. 2006 [second and third class], § 64.870, RSMo. 2006 [alternative county planning and zoning].

34 245 S.W.3d at 233, citing Metro Auto Auction v. Dir. of Revenue, 707 S.W.2d 397, 401 (Mo. banc 1986).

35 245 S.W.3d at 234 (emphasis added). The Court confused a method of review (e.g., certiorari or declaratory judgment) with a remedy (e.g., injunction or damages).

36 Croy, 289 S.W.2d at 156.

37 State ex rel. United States Steel v. Koehr, 811 S.W.2d 385, 391 (Mo. banc 1991).

38 Id.; McCarty v. City of Kansas City, 671 S.W.2d 790, 795 (Mo. App. W.D. 1984); Heidrich, 26 S.W.3d 179.

39 Helujon, 964 S.W.2d at 537.

40 Id.

41 Anbar Assocs. v. Westside Redevelopment Corp., 397 S.W.2d 635, 655 (Mo. banc 1963).

42 Lake Country Estates, Inc. v. Tahoe Reg’l Planning Agency, 440 U.S. 391 (1979).

43 Reynolds v. City of Independence, 693 S.W.2d 129, 132 (Mo. App. W.D. 1985).

44 Nigro, 27 S.W.2d at 1032.

45 State ex rel. McNary v. Hais, 670 S.W.2d 494, 496 (Mo. banc 1984).

46 Williams v. City of Kirkwood, 537 S.W.2d 571, 574 (Mo. App. E.D. 1976).

47 State ex rel. Ludlow v. Guffey, 306 S.W.2d 552, 556 (Mo. banc 1957); Wolfner v. Bd. of Zoning Adjustment of Frontenac, 672 S.W.2d 147, 151 (Mo. App. E.D. 1984); Normandy Sch. Dist. v. City of Pasadena Hills, 70 S.W.3d 488, 492 (Mo. App. E.D. 2002).

48 McDonald v. City of Brentwood, 66 S.W.3d 46, 49 (Mo. App. E.D. 2001).

49 Matthew, 707 S.W.2d at 413, 421.

50 Section 64.120, RSMo. 2006, entitled, “County board of zoning adjustment—members—organization—powers and duties—appeal from (first class cournties).”

51 Section 64.281, RSMo. 2006, entitled, “Members of county commission as board of zoning adjustment….”

52 Section 64.660, RSMo. 2006, entitled, “County board of zoning adjustment—members—organization—appeals to, procedure—powers of board (second and third class counties)” and § 64.870, RSMo. 2006, entitled, “County board of zoning adjustment—members—organization—appeals to – procedure—powers of board.”

53 732 S.W.2d 223, 225 (Mo. App. S.D. 1987)