Section 6.36 Administrative Review

• Library: Local Government Deskbook (2017 Ed.)

D. (§6.36) Administrative Review

Section 536.110, RSMo 2016, of the Administrative Procedure and Review law applies to review of all administrative decisions by the local government that qualify as “contested cases” under § 536.110.2, i.e., when a public hearing is required. The distinction between legislative and administrative action is crucial because judicial review from an adverse administrative decision must be taken within 30 days of the order. Section 536.110. Typical administrative decisions are those that are delegated to a board or commission and that are based merely on a factual determination of whether the applicant meets statutory standards, e.g., conditional or special use permit decisions. State ex rel. Steak n Shake, Inc. v. City of Richmond Heights, 560 S.W.2d 373 (Mo. App. E.D. 1977).

But in Deffenbaugh Industries, Inc. v. Potts, 802 S.W.2d 520 (Mo. App. W.D. 1990), the court held that judicial review of a municipal agency’s planning and zoning decision is under § 89.110, now RSMo 2016, rather than under § 536.110, and this view was adopted by the Eastern District in State ex rel. Presbyterian Church of Washington, Missouri v. City of Washington, Missouri, 911 S.W.2d 697 (Mo. App. E.D. 1995). But a review of Chapter 89, RSMo, suggests that the mode of appeal it establishes relates strictly to appeals from board of adjustment decisions and not to other zoning matters. In the past, a number of cases have been appealed from grants or denials of conditional use and special use permits under § 536.110, and no issue has been made at the appellate level as to whether that was the proper mode of review. As a consequence, the practitioner appealing from a decision regarding a conditional or special use permit is well advised to file a two-count appeal, one under § 89.110 and the other under § 536.110.

An appeal from a county commission’s grant of a conditional use permit does not have to go to the board of adjustment before suit is filed in circuit court. Section 64.870.1, RSMo 2016, provides for appeal to the board of zoning adjustment from orders and decisions by an administrative official, and the county commission is not an administrative official. Life Med. Sys., Inc. v. Franklin Cnty. Comm’n, 810 S.W.2d 554 (Mo. App. E.D. 1991).

The test for standing in administrative review is the same as for declaratory judgment actions, discussed in §6.35 above. State ex rel. Crouse v. City of Savannah, 696 S.W.2d 346 (Mo. App. W.D. 1985). As with any...