Full Opinion (html_with_citations)

             SUPREME COURT OF MISSOURI
                                         en banc
BG OLIVE & GRAESER, LLC, and                      )      Opinion issued December 20, 2022
FORSYTH INVESTMENTS, LLC,                         )
                                                  )
                            Respondents,          )
                                                  )
v.                                                )      No. SC99619
                                                  )
CITY OF CREVE COEUR, MISSOURI,                    )
                                                  )
                            Appellant.            )

       APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY
               The Honorable Nancy Watkins McLaughlin, Judge

       The City of Creve Coeur, Missouri (hereinafter, “the City”), appeals from a

judgment and an order in mandamus, requiring the City to issue a conditional use permit

(hereinafter, “CUP”). The City asserts the circuit court improperly overrode the City’s

discretion to issue a CUP and failed to apply proper standards when reviewing its

decision. The circuit court’s judgment is reversed, and its order in mandamus is

quashed. 1




1
 This Court has jurisdiction pursuant to article V, section 10 of the Missouri Constitution
because it granted transfer after opinion by the Missouri Court of Appeals, Eastern District.
                            Factual and Procedural Background

         BG Olive & Graeser, LLC and Forsyth Investments, LLC (hereinafter, and

collectively, “Property Owners”) own adjacent parcels of property in the City. Property

Owners entered into a contingent agreement to sell their property to QuikTrip. This sale

was contingent upon the City issuing a CUP, which would allow QuikTrip to construct a

new convenience store and service station.

         QuikTrip applied for a CUP from the City. Section 405.1070 2 of the City’s Code

of Ordinances governs CUPs. QuikTrip’s application stated it sought to develop a new

gas station and convenience store. QuikTrip noted the location was in a well-travelled

area and would serve those driving in this area. The City’s staff notified QuikTrip its

application was incomplete and provided a list of items it needed to supplement.

QuikTrip worked with the City’s staff, ensuring its application was compliant and

conformed to the City’s criteria. The City’s Director of Community Development

recommended the City issue the CUP to QuikTrip.

         The bill seeking approval of QuikTrip’s CUP was introduced before the City

Council (hereinafter, “the “Council”). After the presentation in support of the CUP and

hearing from residents who opposed the CUP, the Council unanimously denied

QuikTrip’s application.

         Property Owners filed an application for judicial review. Pursuant to

section 536.150, 3 the circuit court conducted a trial de novo. After the trial, the circuit


2
    All references to section 405.1070 refer to the City’s Code of Ordinances.
3
    All statutory references are to RSMo 2016.
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court entered its judgment and an order in mandamus, finding the City’s ordinances

required the City to issue the CUP. The circuit court found, because there was evidence

supporting the six standards in the City’s zoning code, section 405.1070(E), the City’s

refusal to issue the CUP was unlawful, unreasonable, arbitrary, capricious, and

constituted an abuse of discretion.

       The City appeals, arguing the circuit court failed to apply the proper standard for

reviewing a noncontested case. The City asserts the circuit court properly created the

factual record at the trial de novo but then substituted its discretion determination for that

of the City’s. Additionally, the City avers the circuit court erred in issuing the writ of

mandamus because the circuit court exceeded its authority and went beyond the scope of

relief in that the City’s ordinances preserve its discretionary authority in issuing a CUP.

The City also believes the circuit court’s judgment is against the weight of the evidence

because QuikTrip is not a neighborhood business.

                                      Standard of Review

       This Court reviews a circuit court’s grant of relief, pursuant to section 536.150,

from an agency decision consistent with any other court-tried case. State ex rel. Swoboda

v. Mo. Comm’n on Hum. Rights,
651 S.W.3d 800
, 803-04 (Mo. banc 2022). “An

appellate court must sustain the decree or judgment of the [circuit] court unless there is

no substantial evidence to support it, unless it is against the weight of the evidence,

unless it erroneously declares the law, or unless it erroneously applies the law.” Furlong

Cos. v. City of Kan. City,
189 S.W.3d 157, 168
 (Mo. banc 2006). “Questions of law,



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including matters of statutory interpretation, are reviewed de novo.” Swoboda, 651

S.W.3d at 804.

                              Noncontested Case Review

      Whether an administrative proceeding was contested or noncontested is a matter

of law. Lampley v. Mo. Comm’n on Hum. Rights,
570 S.W.3d 16, 20
 (Mo. banc 2019).

“Contested cases provide the parties with an opportunity for a formal hearing with the

presentation of evidence, including sworn testimony of witnesses and cross-examination

of witnesses, and require written findings of fact and conclusions of law.” Furlong,
189 S.W.3d at 165
. In contrast, noncontested cases “do not require formal proceedings or

hearings before the administrative body[,]” and there is no agency record to review.
Id.

Here, there was not a formal hearing before the Council when it considered QuikTrip’s

application for a CUP. Accordingly, this is a noncontested case.

      Appellate review of a noncontested case is governed by section 536.150.

Section 536.150.1 states:

      When any administrative officer or body existing under the constitution or
      by statute or by municipal charter or ordinance shall have rendered a decision
      which is not subject to administrative review, determining the legal rights,
      duties or privileges of any person, including the denial or revocation of a
      license, and there is no other provision for judicial inquiry into or review of
      such decision, such decision may be reviewed by suit for injunction,
      certiorari, mandamus, prohibition or other appropriate action, and in any such
      review proceeding the court may determine the facts relevant to the question
      whether such person at the time of such decision was subject to such legal
      duty, or had such right, or was entitled to such privilege, and may hear such
      evidence on such question as may be properly adduced, and the court may
      determine whether such decision, in view of the facts as they appear to the
      court, is unconstitutional, unlawful, unreasonable, arbitrary, or capricious or
      involves an abuse of discretion; and the court shall render judgment
      accordingly, and may order the administrative officer or body to take such

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       further action as it may be proper to require; but the court shall not substitute
       its discretion for discretion legally vested in such administrative officer or
       body, and in cases where the granting or withholding of a privilege is
       committed by law to the sole discretion of such administrative officer or
       body, such discretion lawfully exercised shall not be disturbed.

                                         Mandamus

       Mandamus is a discretionary writ, and there is no right to have the writ issued.

State ex rel. Vacation Mgmt. Sols., LLC v. Moriarty,
610 S.W.3d 700
, 701 (Mo. banc

2020); Curtis v. Mo. Democratic Party,
548 S.W.3d 909, 914
 (Mo. banc 2018). “For a

court to issue a writ of mandamus, there must be an existing, clear, unconditional, legal

right in relator, and a corresponding present, imperative, unconditional duty upon the part

of respondent, and a default by respondent therein.” State ex rel. Healea v. Tucker,
545 S.W.3d 348, 353
 (Mo. banc 2018) (internal emphasis and quotations omitted). “The

purpose of the extraordinary writ of mandamus is to compel the performance of a

ministerial duty that one charged with the duty has refused to perform.” Furlong,
189 S.W.3d at 165
. Mandamus should not be used to control or direct the exercise of

discretionary powers. State ex rel. Universal Credit Acceptance, Inc. v. Reno,
601 S.W.3d 546
, 548 (Mo. banc 2020).

                                          Analysis

       The dispositive issue in this case is whether the circuit court conducted a proper

review of the Council’s decision to not issue a CUP. Section 536.150 allows the circuit

court to conduct a trial de novo to develop its own record and determine facts. The

circuit court then is tasked with determining whether the agency decision, “in view of the

facts as they appear to the court, is unconstitutional, unlawful, unreasonable, arbitrary, or

                                              5
capricious or involves an abuse of discretion[.]”
Id.
 However, the circuit court is

prohibited from “substitut[ing] its discretion for discretion legally vested in such

administrative officer or body[.]”
Id.

       The City’s zoning code codifies its standards and procedures to procure a CUP.

Section 405.1070. Section 405.1070(A)(1) authorizes the City to determine the

appropriateness of a CUP in areas where the proposed use is not authorized as a matter of

law. In every determination as to whether to grant a CUP, “the City reserves full

authority to deny any request for a conditional use[.]” Section 405.1070(A)(2) (emphasis

added). The Council “shall not approve” a CUP unless it finds the evidence and

application clearly:

       1. Complies with all other applicable provisions of this Chapter[.]

       2. Will contribute to and promote the community welfare and convenience
       at the specific location.

       3. Will not cause substantial injury to the value of the neighboring property.

       4. Meets the applicable provisions of the City’s Comprehensive Plan[.]

       5. Will provide, if applicable, erosion control and on-site stormwater
       detention in accordance with the standards contained in this Chapter.

       6. Will be compatible with the surrounding area and thus will not impose an
       excessive burden or have a substantial negative impact on surrounding or
       adjacent users or on community facilities or services.

Section 405.1070(E).

       In this case, the circuit court properly heard evidence in the trial de novo. Some of

this evidence included facts, which it determined would meet section 405.1070(E)’s

factors supporting issuing the CUP. The circuit court also heard evidence there was

                                              6
opposition to the CUP from the City’s residents. The circuit court found that, because

there was evidence presented supporting a finding each of section 405.1070(E)’s six

factors were met, the City’s refusal to issue the CUP was unlawful, unreasonable,

arbitrary, capricious, and constituted an abuse of discretion The circuit court cited 450 N.

Lindbergh Legal Fund, LLC v. City of Creve Coeur, Missouri,
477 S.W.3d 49, 54
 (Mo.

App. E.D. 2015), which considered the same City ordinance, in support of its decision.

       Yet, 450 N. Lindbergh Legal Fund directed a CUP would issue only if the City’s

code criteria were met; there was no limitation that a CUP must issue as a matter of law

when there was some evidence supporting only a single subsection of the City’s code.
Id. at 54
. Hence, the circuit court’s analysis—which omitted relevant language from 450 N.

Lindbergh Legal Fund and considered the isolated factors listed in section 405.1070(E)—

failed to look at section 405.1070 in its entirety to determine whether the City’s decision

was unlawful, unreasonable, arbitrary, capricious, or constituted an abuse of discretion.

       The circuit court should have examined the entirety of the City’s code and then

determined whether, based upon evidence presented, the City’s decision refusing to issue

the CUP was unlawful, unreasonable, arbitrary, capricious, or constituted an abuse of

discretion. See section 536.150.1. The circuit court should have reviewed the City’s

determination based upon the evidence rather than making its own independent decision

regarding issuance of the CUP. In reaching its decision to issue the CUP, the circuit

court had to ignore part of the same City ordinance it relied upon. Section

405.1070(A)(2) states, “the City reserves full authority to deny any request for a

conditional use[.]” (Emphasis added). Even if there were evidence supporting the six

                                             7
factors in section 405.1070(E), the City still retained the discretion to deny the CUP

pursuant to section 405.1070(A)(2). Accordingly, the circuit court erroneously applied

the law and improperly overrode the City’s discretion in violation of section 536.150.1.

                                       Conclusion

       The circuit court’s judgment is reversed, and its writ of mandamus is quashed.



                                          _______________________________
                                          GEORGE W. DRAPER III, Judge


All concur.




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