Section 6.18 Construction Permitting

• Library: Construction Law 2016 Supp

3. (§6.18) Construction Permitting

It is, without question, within the power of the legislature, and of a municipality under its delegated general police powers, to enact building regulations that require persons proposing to engage in construction within the municipality to apply to some board, commission, or public official for permission to do so. E. Mo. Laborers’ Dist. Council v. City of St. Louis, 5 S.W.3d 600 (Mo. App. E.D. 1999). This board, commission, or public official, however, must not have arbitrary power to grant or deny applications for permits or be able to withhold permission for some reason that would impair the applicant’s constitutional rights. See State ex rel. Great Lakes Pipe Line Co. v. Hendrickson, 393 S.W.2d 481 (Mo. 1965) (finding refusal of village clerk to issue building permit arbitrary and unreasonable). The conditions for issuance of permits must be reasonable; the official or agency in charge of permit issuance cannot have an unlimited discretion as to the granting, refusing, or revocation of permits; and there must be some uniform set of standards or other rules that must be followed. But it must be remembered that an unequivocal right to receive a building permit does not exist. State ex rel. Casey’s Gen. Stores, Inc. v. City of Louisiana, 734 S.W.2d 890 (Mo. App. E.D. 1987) (holding that fact that no valid ordinance existed in the city did not in and of itself mean that city could never refuse to issue building permit). Also, the issuance of a building permit does not give the owner a vested right in the work permitted, and if a permit has been illegally issued, it may be revoked, even if construction has begun. Fleming v. Moore Bros. Realty Co., 251 S.W.2d 8 (Mo. 1952); Kingshighway Presbyterian Church v. Sun Realty Co., 24 S.W.2d 108 (Mo. 1930); Geneva Inv. Co. v. City of St. Louis, Mo., 87 F.2d 83 (8^th Cir. 1937); Outcom, Inc. v. City of Lake St. Louis, 996 S.W.2d 571 (Mo. App. E.D. 1999); State ex rel. Rabenau v. Beckemeier, 436 S.W.2d 52 (Mo. App. E.D. 1968) (upholding revocation of permit issued after building setback lines were illegally changed by property owner, even though house was partially constructed).

If a change in building regulations occurs while a permit application is pending, but before it is issued, the new regulations will govern as long as the permit application has not been unreasonably refused or delayed or held up by the official arbitrarily failing to take some ministerial action to issue the permit before the building regulation change goes into effect.

If a permit is issued and the owner fails to comply with the terms or conditions set forth in the permit or fails to proceed with the permitted work in accordance with the approved plans, the proper authorities may revoke the permit. But it has been generally held that a municipal building permit may not be revoked arbitrarily by municipal authorities, especially when, on the faith of it, the owner has reasonably relied and incurred material expense. Dobbins v. Los Angeles, 195 U.S. 223 (1904); Krekeler v. St. Louis County Bd. of Zoning Adjustment, 422 S.W.2d 265 (Mo. 1967). At such point, the owner may be deemed to have a vested property right. Even if a vested right does not exist, however, an owner may be allowed to proceed with permitted work, even after a change in building regulations or zoning ordinances renders that work nonconforming or otherwise illegal, if the owner can show that revocation of the permit would constitute an unnecessary...