415 S.W.2d 737 (Mo. 1967), 51620, Strandberg v. Kansas City

Docket Nº51620.
Citation415 S.W.2d 737
Party NameJohn J. STRANDBERG, Jasper Liebstadter, Richard L. Hempel, Charles Eugene Cayot, Jack Cunningham, Raymond H. Starr and Thomas M. Johnson, Respondents, v. KANSAS CITY, Missouri, a Municipal Corporation, J. C. Nichols Company, a Corporation, Helendoris Murphy, Individually and as Trustee Under the Will of E. D. Fear, Deceased, Flora Anne Fear, Bonnie
Case DateMay 31, 1967
CourtSupreme Court of Missouri

Page 737

415 S.W.2d 737 (Mo. 1967)

John J. STRANDBERG, Jasper Liebstadter, Richard L. Hempel,

Charles Eugene Cayot, Jack Cunningham, Raymond H.

Starr and Thomas M. Johnson, Respondents,

v.

KANSAS CITY, Missouri, a Municipal Corporation, J. C.

Nichols Company, a Corporation, Helendoris Murphy,

Individually and as Trustee Under the Will of E. D. Fear,

Deceased, Flora Anne Fear, Bonnie Ann Murphy, Walter L.

Murphy, III, Patt Mortgage Company, a Corporation, and

Dorothy Walthall, Appellants.

No. 51620.

Supreme Court of Missouri, En Banc.

May 31, 1967

Page 738

Rehearing Denied June 21, 1967.

Page 739

Charles F. Lamkin, Jr., James H. Hentzen, Kansas City, Kuraner, Oberlander, Lamkin & Dingman, Kansas City, of counsel, for respondents.

Herbert C. Hoffman, Guy W. Rice, Kansas City, for Kansas City.

Gage, hodges, Park & Kreamer, B. Douglas Varner, kansas City, for Helendoris Murphy, Flora Anne Fear, Bonnie Ann Murphy, and Walter L. Murphy, III.

Rogers, Field & Gentry, Reed O. Gentry, Kansas City, for J. C. Nichols Co.

STORCKMAN, Chief Justice.

This action seeks to declare invalid a Kansas City ordinance rezoning a six and one-half-acre tract of land from singlefamily and duplex-dwelling purposes to multistory apartment and hotel uses. The seven plaintiffs own homes outside, but nearby, the rezoned area. The defendants in addition to the city of Kansas City are the owner of the rezoned area and the prospective purchaser and developer of the area. The trial before the court without a jury resulted in a judgment declaring the ordinance void and permanently enjoining the defendants from enforcing the ordinance and from making use of the land pursuant to the ordinance. The defendants have appealed.

Two principal issues are presented on appeal. One is whether the ordinance is contrary to § 89.040, RSMo 1959, V.A.M.S., as amended Laws 1959, H.B. 493, § 1, and in violation of Art. I, § 2, Constitution of Missouri 1945, V.A.M.S., relating to general welfare and equality under the law. The other contention is that the ordinance did not receive a vote of three-fourths of the City Council as required by § 89.060, RSMo 1959, because the vote of the mayor was required for its passage and he was disqualified from voting because of a 'conflict of interest'. The transcript on appeal consists of 2,009 pages; a total of 199 exhibits were offered and all but eight were admitted in evidence. There was considerable duplication, however, and the evidence on essential issues takes a rather narrow range.

The Country Club Plaza is a high-grade shopping center and commercial complex in Kansas City of irregular shape, bounded on the south by Ward Parkway or Brush Creek, on the east by Baltimore, on the north in part by 45th Street, and on the west in part by Jefferson. Its central area is occupied by commercial, professional, retail, and general office facilities. Since World War II many luxury-type apartment buildings, office buildings, business and department stores, and parking facilities have been erected in and around the Plaza. The greater portion of the land and buildings in the Plaza proper is owned by J. C. Nichols Company, one of the defendants herein. The Nichols Company also owns considerable property in the periphery of Country Club Plaza and elsewhere in Kansas City. The Company is the pioneer developer in this area.

The rezoned area consisting of approximately six and one-half acres lies in the southwest quadrant of the intersection of Ward Parkway and Wornall Road. It is adjacent to Ward Parkway on the north and to Wornall Road on its east side. Prior

Page 740

to the change complained of, the area was zoned in two categories; the greater part was R--2a for duplexes or dwellings for not more than two families, and a few lots were R--1b for single dwellings. In the rezoned area there are thirteen duplexes on Wornall Road and Ward Parkway and two single dwellings on 49th Street Terrace. Some of the duplexes were formerly singlefamily dwellings which have been converted to duplexes for two-family occupancy. The entire rezoned area is under the single ownership of the defendant Helendoris Murphy as trustee under the will of E. D. Fear, deceased. Mr. Fear was the father of Mrs. Murphy. West of the rezoned area, there is an R--2a district. North of the rezoned area across Ward Parkway is the Country Club Plaza zoned C--3. East of it across Wornall Road there is R--4, R--5 and R--6 zoning. The R--1b district, which is south of the rezoned area and the adjoining R--2a districts, extends south to 71st Street and is bounded on the west by State Line Road and on the east by Wornall Road. It is described in evidence as a beautiful residential area, characterized by winding roads taking advantage of natural contours of the land, by small parks and statuary, by expensive landscaping, shrubbery and flowers around the homes; it has many expensive residences surrounded by well-kept grounds. Plaintiffs' homes are located at the northern edge of this residential district near the rezoned area. Four of them are on lots on the north side of 49th Street Terrace adjacent to the rezoned area.

Under date of January 30, 1962, the defendant Helendoris Murphy, trustee, entered into a contract for the sale of the six and one-half-acre tract to the defendant J. C. Nichols Company for the sum of $885,000. By this contract and supplemental agreements, the sale was conditioned on the area being rezoned to District R--6 and the successful outcome of any litigation attacking the rezoning ordinance. The Nichols Company proposes to erect on this six and one-half-acre tract a hotel and three or four multi-storied apartment buildings. According to the alternate site plans in evidence, the hotel would be the farthest away from plaintiffs' homes and closest to the intersection of Ward Parkway and Wornall Road. It would have convention and meeting rooms for which there is a demand in the Plaza area, as well as restaurants and other facilities. The apartments would be located south and west of the hotel and would probably be twenty-stories high as permitted in an R--6 district. The hotel and apartment buildings would supply between 900 and 1000 units for living quarters.

The Nichols Company acting on behalf of Mrs. Murphy applied to the City Plan Commission for approval of the project. In due course, the director of Traffic of Kansas City reported to the Board of Park Commissioners that although the project would generate traffic there was no sound basis for rejecting the project or reducing its magnitude for that reason, and the provision for an additional traffic lane on both Wornall Road and Ward Parkway would minimize greatly the possibility of increased congestion. The Board of Park Commissioners through its secretary thereafter notified the City Plan Commission that with certain immaterial provisos it had no objection to the rezoning. Initially, the professional staff of the City Plan Commission made an adverse report, and the Commission held a public hearing. Thereafter, under date of September 26, 1963, the City Plan Commission notified Mr. Ilus W. Davis, the mayor of Kansas City, and the members of the City Council that the Commission at its meeting on August 19, 1963, approved the proposed zoning amendment by a vote of five to one, with two members abstaining. The report of the City Plan Commission further states:

'The majority of the Commission believe that the reasonable potential for this area is exactly the same as that of all other land which has developed around the Plaza area, for multi-story apartment buildings.

Page 741

'Zoning districts basically reflect conditions of existing land use. Hence the area surrounding the Plaza which have developed for multi-story apartments are zoned for such use. The small remaining portion which retains its low density residential character is likewise zoned as a low density residential district.'

The rezoning ordinance, No. 29216, was passed by the City Council on October 25, 1963, and purports to be effective ten days thereafter. A favorable vote of threefourths of all members of the City Council was necessary for the adoption of the ordinance because a protest against passage of the proposed ordinance was filed pursuant to § 89.060 by the owners of a sufficient area of the land adjoining the district proposed to be changed. The City Council of Kansas City consists of twelve members and the mayor. Therefore, ten votes were required for passage of the ordinance. The vote, including the ballot of Mayor Davis, was ten ayes and three noes. The plaintiffs contend that Mayor Davis was disqualified from voting because of a 'conflict of interest'.

Mrs. Murphy, as trustee, was represented in this transaction by Mr. Roy K. Dietrich a member of the law partnership of Dietrich, Tyler, Davis, Burrell and Dicus, of which Mr. Ilus W. Davis was also a member. Mr. Davis was inaugurated as mayor on April 10, 1963. The land purchase contract, among other things, provided that no application for rezoning should be filed until such application and the steps preliminary to such filing are approved by Mr. Dietrich, that he should be...

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33 practice notes
  • 202 N.W.2d 892 (Minn. 1972), 43541, Denney v. City of Duluth
    • United States
    • Minnesota Supreme Court of Minnesota
    • November 24, 1972
    ...Council, 159 Conn. 212, 268 A.2d 395 (1970); Lund v. City of Tumwater, 2 Wash.App. 750, 472 P.2d 550 (1970); Strandberg v. Kansas City, 415 S.W.2d 737 (Mo.1967); Smith v. Township of Livingston, 106 N.J.Super. 444, 256 A.2d 85, affirmed, 54 N.J. 525, 257 A.2d 698 (1969); Donnelly v. City of......
  • 488 S.W.2d 671 (Mo.App. 1972), 25734, Allen v. Coffel
    • United States
    • Missouri Court of Appeals of Missouri
    • December 4, 1972
    ...Sections 89.020--89.060, V.A.M.S. The exercise of that power, then, is a legislative function. Standberg v. Kansas City, Mo. banc, 415 S.W.2d 737, 742(3). The statutory procedure prescribed by Section 89.110, V.A.M.S., and invoked by plaintiffs in their first petition, is for review by cert......
  • 732 S.W.2d 223 (Mo.App. S.D. 1987), 14954, Bowman v. Greene County Com'n
    • United States
    • Missouri Court of Appeals of Missouri
    • June 9, 1987
    ...cities including the enactment of ordinances amending the comprehensive plan is a legislative function." Strandberg v. Kansas City, 415 S.W.2d 737, 742 (Mo. banc 1967). "Zoning, rezoning, and refusals to rezone are legislative acts." Erigan Co., Inc. v. Town of Grantwood Vill......
  • 609 S.W.2d 706 (Mo.App. E.D. 1980), 40523, Treme v. St. Louis County
    • United States
    • Missouri Court of Appeals of Missouri
    • October 14, 1980
    ...is not controlling in determining whether the rezoning is so arbitrary and unreasonable as to be invalid. Strandberg v. Kansas City, 415 S.W.2d 737, 743 (Mo. banc 1967) (7, 8). The evidence of adverse impact upon the public roads was also conflicting. That supportive of the Council's action......
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32 cases
  • 202 N.W.2d 892 (Minn. 1972), 43541, Denney v. City of Duluth
    • United States
    • Minnesota Supreme Court of Minnesota
    • November 24, 1972
    ...Council, 159 Conn. 212, 268 A.2d 395 (1970); Lund v. City of Tumwater, 2 Wash.App. 750, 472 P.2d 550 (1970); Strandberg v. Kansas City, 415 S.W.2d 737 (Mo.1967); Smith v. Township of Livingston, 106 N.J.Super. 444, 256 A.2d 85, affirmed, 54 N.J. 525, 257 A.2d 698 (1969); Donnelly v. City of......
  • 488 S.W.2d 671 (Mo.App. 1972), 25734, Allen v. Coffel
    • United States
    • Missouri Court of Appeals of Missouri
    • December 4, 1972
    ...Sections 89.020--89.060, V.A.M.S. The exercise of that power, then, is a legislative function. Standberg v. Kansas City, Mo. banc, 415 S.W.2d 737, 742(3). The statutory procedure prescribed by Section 89.110, V.A.M.S., and invoked by plaintiffs in their first petition, is for review by cert......
  • 732 S.W.2d 223 (Mo.App. S.D. 1987), 14954, Bowman v. Greene County Com'n
    • United States
    • Missouri Court of Appeals of Missouri
    • June 9, 1987
    ...cities including the enactment of ordinances amending the comprehensive plan is a legislative function." Strandberg v. Kansas City, 415 S.W.2d 737, 742 (Mo. banc 1967). "Zoning, rezoning, and refusals to rezone are legislative acts." Erigan Co., Inc. v. Town of Grantwood Vill......
  • 609 S.W.2d 706 (Mo.App. E.D. 1980), 40523, Treme v. St. Louis County
    • United States
    • Missouri Court of Appeals of Missouri
    • October 14, 1980
    ...is not controlling in determining whether the rezoning is so arbitrary and unreasonable as to be invalid. Strandberg v. Kansas City, 415 S.W.2d 737, 743 (Mo. banc 1967) (7, 8). The evidence of adverse impact upon the public roads was also conflicting. That supportive of the Council's action......
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1 books & journal articles
  • A Sign to Many No More: Supreme Court of Missouri Casts Away Church's Sign Variance.
    • United States
    • Missouri Law Review Vol. 83 Nbr. 4, September 2018
    • September 22, 2018
    ...of two-thirds of all the members of the legislative body of such municipality." (emphasis added)). (70.) Strandberg v. Kan. City, 415 S.W.2d 737, 747 (Mo. 1967). Spot zoning, "an amendment to the municipal zoning law reclassifying one or more lots or parcels of land for a use out ......