The Lamar Company, LLC (“Lamar”) appeals the judgment of the Circuit Court of Jackson County (“trial court”) granting the motion for summary judgment of the City of Kansas City (“City”) relating to the validity of a municipal ordinance. In its sole point on appeal, Lamar argues that the trial court erred in concluding that the ordinance in questiоn was a building code ordinance and not a zoning ordinance— subject to the special notice and hearing requirements before passing zoning ordinances. The appeal is dismissed as moot.
Factual and Procedural History
On September 6, 2007, City passed ordinance number 070887 (“Digital Sign Ordinance”), which stated, in part, that “No outdoor advertising sign may have any revolving, moving, flashing, blinking, or animated characteristics.” The Digital Sign Ordinance was passed as an amendment to Section 80-350, City’s zoning code. Amendments to this code require that changes go before the city plan commission. The city plan commission must then provide public notice of the proposеd changes and hold public hearings on the proposed changes. It is undisputed that all notice and hearing requirements were properly followed by City in its passage of the Digital Sign Ordinance.
After the Digital Sign Ordinance passed, Lamar filed a petition for referendum on the Digital Sign Ordinance, which ultimately failed to оbtain a sufficient number of signatures, but had the practical effect of delaying the effective date of the Digital Sign Ordinance until November 9, 2007. Notably, however, it is undisputed that the Digital Sign Ordinance did, in fact, become effective on November 9, 2007.
On September 27, 2007, City passed ordinance number 071017, as amended (“Pending Sign Legislatiоn Ordinance”), amending Section 18-213 of City’s building code. The Pending Sign Legislation Ordinance states as follows, in pertinent part:
BE IT ORDAINED BY THE COUNCIL OF KANSAS CITY:
Section 1. That Chapter 18, Code of Ordinances is hereby amended by adding a new section 18-218, to read as follows:
Section 18-213. Pending Sign Legislation.
During the consideration of an amendment to this Code that has been introduced beforе the City Council, and until such amendment is enacted (effective) or rejected according to law, the building official shall take no action on any application for a permit that would allow the erection or alteration of a sign that would be prohibited by the proposed amendment if enaсted. Notwithstanding the foregoing, the building official shall not delay the issuance of any permit for a period longer than six months from the date of permit application because of this section.
(Emphasis added.)
Based upon the Pending Sign Legislation Ordinance, the City held all pending sign permit applications for conversions оf existing billboards to digital billboards in abeyance, including permit applications that had been submitted by Lamar on September 4, 2007.
Lamar challenged City’s basis for refusing to process the pending permit applications on the grounds that City should have processed them based upon the ordinances in effect аt the time the permit applications were presented. 1 Lamar sought a declaratory judgment from the trial court declaring that the Pending Sign Legislation Ordinance was invalid and unenforeea-ble. City moved for summary judgment on the declaratory judgment petition, and the trial court granted City’s motion. Lamar timely appealed.
Standard of Review
Because the issue of whether summary judgment was proper is a question of law, our review of the grant of summary judgment is essentially
de novo. ITT Commercial Fin. Corp. v. Mid.-Am. Marine Supply Corp.,
Discussion
In its sole point on appeal, Lamar argues that the trial court erred in granting summary judgment because Lamar claims thе Pending Sign Legislation Ordinance was a zoning, not building, ordinance that required compliance with the notice and hearing requirements of Missouri law and City’s Code of Ordinances. Lamar argues that the City’s failure to comply with zoning ordinance requirements prior to passing the Pending Sign Legislation Ordinance renders it legally invalid.
Mootness
Before we reach this issue, however, we must address the threshold question of whether the issue presented is moot.
Claudia Lee &
Assocs.,
Inc. v. Bd. of Zoning Adjustment,
The question of mootness arises in this case because, by its very terms, the ordinance challengеd — the Pending Sign Legislation Ordinance — is not presently applicable to the issue of whether or not Lamar’s permits should be issued. 3 To the contrary, as of November 9, 2007, the “enacted” and “effective” (and applicable) ordinance is the Digital Sign Ordinance, and it is undisputed that Lamar is not entitled to its applied-fоr building permits under the terms of the Digital Sign Ordinance. As is discussed infra, it is well-settled in Missouri law that submission of an application for permit under a prior zoning ordinance — indeed, even the issuance of a permit under a prior zoning ordinance — is not enough to establish a vested right to the continued application of the prior zoning оrdinance. Thus, if Lamar had not established a vested right to the proposed nonconforming use prior to the effective date of the Digital Sign Ordinance, Lamar was subject to the zoning restrictions of the Digital Sign Ordinance, and from a practical standpoint, the validity or invalidity of the Pending Sign Legislation Ordinance “would not have any practical effect upon any ... existing controversy.”
Vested Right to Building Permits in Missouri
Missouri examined the issue of whether a municipality may withhold the granting of a permit in
State ex rel. Oliver Cadillac Co. v. Christopher,
The fact that respondent filed its application for a permit before the ordinancewent into effect is no reason why it should not be held applicable to respondent from and after it became operative. Respondent held its property subject at all times to every valid exercise of the police power. The filing of its application gave it no vested right. Had the permit been granted on the date it was applied for, it would have conferred upon respondent no additional property right; it would merely have rendered respondent immune from prosecution for violation of the city’s building code.
Id.
at 726 (emphasis added) (citation omitted). Subsequent to
Oliver,
the Missouri Supreme Court clarified its holding by finding that (1) “the mere granting of a permit to construct a building confers no
vested
right”; (2) new zoning regulations do not automatically revoke or cancel permits but only do so if the new regulation is specifically retroactive; (3) however, a municipality may revoke or cancel permits if there is no
vested
right in the permit.
Fleming v. Moore Bros. Realty Co.,
Finally, in
Claudia Lee,
an outdoor sign company appealed the decision of the City’s Board of Zoning Adjustment (“zoning board”) denying it a permit to construct a billboard based on the current ordinance.
In Missouri, a valid nonconforming use is a use of property “'which lawfully existed prior to the enaсtment of a zoning ordinance and is a vested property right.’”
Id.
(quoting
Storage Masters-Chesterfield, L.L.C. v. City of Chesterfield,
It is clear from these cases that to qualify for the nonconforming use exception, the use must be substantially established prior to the enactment of the law
It is without question that Missouri law requires
reliance
upon the law existing at the time that the nonconforming use was initiated, including initiation by application for permit.
Claudia Lee,
“A number of cases sustain the express or implied revocation of a building permit where, subsequent to its issuance, the city passes a valid ordinance which has the effect of prohibiting the erection of a building such as the one in question, and, under some decisions, this is true even though the grantee of the permit has entered into contracts, bought material, or incurred other expenses. * * The rule prevails particularly where a permit is obtained, not in good faith, but in anticipation of the enactment of a zoning law, or an amendment thereto, or where the holder of the permit has done nothing of a substantial character toward the construction of the building before the enactment of the zoning ordinance or amendment.”
Fleming,
Similarly, in
Veal v. Leimkuehler,
the court upheld the decision оf a zoning board finding that a property owner had not established a prior nonconforming use.
good faith was brought into question by the revelation that he anticipated some change in the zoning regulations and during the 30-day interval before the ordinancе became effective had personal knowledge that a new zoning ordinance was going into effect. It was during that interval that he claims to have begun the making of the alterations.
Id. at 496-97 (emphasis added).
Lamar Has No Vested Right in the Sign Permits
In the present case, when Lamar applied for its sign permits on September 4, 2007, Lamar knew the Digital Sign Ordinance was scheduled for final reading and adoption two days later. In fact, the Digital Sign Ordinance was adopted on September 6, 2007. It follows under the authority of
Oliver
and
Claudia Lee
that Lamar cannot claim entitlement to some
Because Lamar had not acquired a vested right in the sign permits at the time the Digital Sign Ordinance was passed and became effective, the issue of whether the Pending Sign Legislation Ordinance is valid or not has no practical effect upon the controversy with the City after November 9, 2007, the date the Digital Sign Ordinance took effect and became the applicable zoning ordinance with regard to Lamar’s request for sign permits.
Conclusion
Lamar’s appeal is moot and hereby ordered dismissed.
JAMES M. SMART, JR., Presiding Judge, and CYNTHIA L. MARTIN, Judge, concur.
Notes
. At the trial court, Lamar and CBS Outdoor, Inc. ("CBS"), a company also involved in outdoor signs, alleged that City altered or failed to follow the permit process to prevent the approval of these permits. The trial court ruled, however, that the proper avenue for challenging the permitting process is an appeal to the Board of Zoning Adjustment of Kansas City. The trial court's judgment con-eluded that "Plaintiffs have failed to exhaust the administrative remedies available to them and Defendant is granted summary judgment on this issue." Lamar does not appeal this finding (CBS appealed neither ruling), and consequently, our review is limited to the issue appealed by Lamar — the validity (or invalidity) оf the Pending Sign Legislation Ordinance.
. There are three exceptions to the mootness doctrine under which appellate courts may undertake a consideration of the merits of a moot appeal: (1) the case becomes moot after submission and argument; (2) where the decision of the lower court could have significant collateral consequences for a party to the appeal; or (3) the issue raised is one of general public interest and importance, recurring in nature, and that will likely otherwise evade appellate review.
Reiz v. Bd. of Zoning Adjustment of Kansas City,
. As the text of the Pending Sign Legislation Ordinance dictates, said ordinance only applies “until such amendment [to City’s Code of Ordinances] is enacted (effective).”
. On transfer to the Supreme Court,
Veal v. City of St. Louis, 365
Mo. 836,
. Even though the referendum initiative delayed the technical effective date of the Digital Sign Ordinance, the Digital Sign Ordinance had nonetheless been passed. Thus, it is highly unlikely that Lamar could have made a case that, in "good faith” or "reasonable” reliance on its pеrmits (had they been issued on September 4, 2007), Lamar acquired a vested property right (i.e. valid nonconforming use) by virtue of expenditures to improve or modify their signs, as Lamar knew the newly enacted Digital Sign Ordinance had passed and the only reason it was not yet effective was because of Lamar's referendum initiative.