Posted by: Patricia Salkin | November 3, 2020

MO Appeals Court Finds Repair of Over 50% of Property Resulted in a Loss of Nonconforming Status

This post was authored by Matthew Loescher, Esq. 

In this case, the City of Pacific and the City of Pacific Board of Zoning Adjustment appealed the circuit court’s judgment granting the petition for writ of certiorari filed by Respondents – Martin C. Heck, Jr., and Victoria Heck d/ b/a Pacific Manufactured Manor – and reversing the Board’s decision that Respondents could not continue operating a manufactured home park on their property because Respondents could no longer consider this operation as a valid non-conforming use under the City’s zoning and floodplain ordinances.

 Respondents’ arguments asserted in their first, second, and third points on appeal related to the application of several ordinances of the City to Respondents’ use of their property as a manufactured home park. Respondents claimed that under the effective versions of the ordinances at issue, they still had a valid non-conforming use for their property and the manufactured homes on it. Conversely, the City and Board claimed that Respondents no longer had a legal, valid non-conforming use for their property because of the significant damage to the subject manufactured homes on Respondents’ property following a severe flood in 2015.

 After analyzing the plain language of §§ 400.270 and 420.240 of the City Code, the court found that the facts of this case did not result in the complete loss or invalidation of Respondents’ non-conforming use for their property as a manufactured home park. Specifically, both §§ 400.270 and 420.240 addressed situations in which a non-conforming use completely loses its validity – including abandonment. The court determined instead that this case fell under the purview of §§ 400.270.D.5 and 420.240.B, which each established that non-conforming structures – such as manufactured homes – that are damaged or destroyed, such that repair or reconstruction costs more than 50% of their fair market value, shall not be restored except in conformity with the provisions of Chapters 400 and 420.

 The City’s ten “substantial damage estimator” reports (“SDE reports”) and the testimony of Daniel Rahn, a civil engineer and the floodplain manager for the City, demonstrated that 9 of the 10 manufactured homes at issue were so damaged following the 2015 flood that repair/reconstruction would have cost more than 50% of the homes’ fair market values. However, the City failed to present any evidence to the Board that the manufactured home residing at 311 Second, South Street, Pacific, Missouri was damaged to this extent. In fact, the SDE report for the manufactured home at that address estimated the repair/reconstruction percentage for that home was at only 37.1%. As such, the Board’s decision was supported by competent and substantial evidence in regards to its conclusion that Respondents did not have a legal, valid non-conforming use for their entire property that included all of the manufactured homes and its denial of Respondents’ appeal of the City’s denial of/refusal to grant occupancy permits for 9 of the 10 individual manufactured homes.

Conversely, the Board’s denial of Respondents’ appeal of the City’s denial of/refusal to grant the occupancy permit for the manufactured home at 311 Second, South Street, Pacific, Missouri on the basis that it was so damaged by the 2015 flood that §§ 400.270.D.5 and 420.240.B applied was unsupported by competent and substantial evidence. Accordingly, Respondents were prohibited from restoring the manufactured homes at issue here absent a variance granted by the City, with the exception of the manufactured home at 311 Second, South Street, Pacific, Missouri.

 Heck v City of Pacific, 2020 WL 6481433 (MO App. 11/3/2020)


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