446 S.W.2d 807 (Mo. 1969), 53731, City of Kansas City v. Kindle

Docket Nº53731.
Citation446 S.W.2d 807
Party NameCITY OF KANSAS CITY, Missouri, a Municipal Corporation, Appellant, v. Sheridan E. KINDLE et al., Respondents.
Case DateNovember 10, 1969
CourtSupreme Court of Missouri

Page 807

446 S.W.2d 807 (Mo. 1969)

CITY OF KANSAS CITY, Missouri, a Municipal Corporation, Appellant,

v.

Sheridan E. KINDLE et al., Respondents.

No. 53731.

Supreme Court of Missouri.

November 10, 1969

Page 808

[Copyrighted Material Omitted]

Page 809

Herbert C. Hoffman, City Counselor, Richard W. Mason, Jr. and L. B. Saunders, Associate City Counselors, Kansas City, for appellant City.

James W. Benjamin, Cecil L. Caulkins, Rogers, Field & Gentry, Kansas City, for respondents.

J. Robertson Claggett, Kemp, Koontz, Clagett & Norquist, Kansas City, of counsel.

Achtenberg, Sandler & Balkin, Lloyd S. Hellman, Kansas City, for respondents.

HOUSER, Commissioner.

This is the second appeal in a condemnation proceeding. On the first appeal, In re Coleman Highlands, Mo.Sup., 401 S.W.2d 385, a judgment dismissing the proceedings in the pleading state, on motion of certain property owners, was reversed and the cause was remanded to afford the parties an opportunity to present evidence on the question whether the taking was for a public or a private use or purpose. Reference is made to the previous opinion for background information, a resume of the ordinance in question and a statement of the

Page 810

nature of the issue then and now before the court.

On remand extensive evidence was heard before a jury of six freeholders which returned a verdict awarding a total of $37,558.88 to a number of property owners and assessing benefits against the various lots in the benefit district. The court, however, set aside the verdict and ruled the ordinance unconstitutional as a taking of property for private purposes is violation of Article I, Section 28 of the Constitution of Missouri, 1945, V.A.M.S. The court also made an award of $952.50 to an attorney for services rendered in the case as amicus curiae. Condemnor, the City Kansas City, has appealed. A construction of the constitution is involved and more than $15,000 is in dispute.

The evidence developed on remand shows the following: Coleman Highlands, a subdivision of Kansas City, consists of 328 tracts held under 278 individual ownerships. The eastern boundary is Summit Street, now called Southwest Trafficway. Karnes Boulevard, 100 feet wide at most places, enters the subdivision at the northeast corner and curves to a southerly course one block west of the trafficway and proceeds to 35th Street on the south. West of Karnes Boulevard the addition is isolated, containing no through streets, with bluffs on the northern, western and southern extremities. Part of the subdivision was excepted from the operation of the ordinance. Due to the difference in elevation between the excepted properties and the rest of the subdivision the former, which are located 'many hundreds of feet' below the residential area, 'may just as well be five miles away.' The subdivision was variously described as a very hilly, woody, beautiful area of residential quality; the best, or one of the finest, residential districts north of 35th Street; close to the center of the downtown area; a desirable place in which to live today; containing a large number of families with children; one that for forty years has been a stabilized community with small turnover of property owners and which has not decreased in desirability as a residential area in the past 25 years. The 'houses, roofs, paint it is excellent, even better than most of Country Club.' Most of the houses are large, 2 1/2-story residences containing from 10 to 14 rooms. A real estate expert conducted a study of sales of 53 properties lying on the east side of Karnes Boulevard from 31st to 35th Streets, and on the west side of Karnes from 31st to 32nd Terrace. Two had been held for 45 years; 8 from 26-31 years; 12 from 17-25 years, 7 from 12-16 years and 25 from the present to 11 years. A study of 44 tracts lying on the west side of Southwest Trafficway between 31st and 35th Streets revealed that 5 had been held from 43-54 years; 2 from 32-42 years; 6 from 22-32 years; 14 from 12-22 years and 17 from the present to 11 years. This expert also testified that this had always been a fine residential area; that demand continues to be 'good and strong' for houses in this subdivision; that if a 'for sale' sign goes up, whether on the trafficway or interiorally, the property will sell at appreciated values 'if it is at all realistically priced.' He was of the opinion that imposition of a single-family occupancy restriction would not damage or decrease the value of residence properties in the subdivision but would stabilize the neighborhood and benefit the city at large; that the subdivision is unique and the values of properties have been kept up in spite of the fact that some properties have been converted to income use. Properties on the trafficway that continue to be used for single-family occupancy continue to be desirable for that purpose. Their owners are not complaining and the properties are not for sale. 'When they are for sale they turn quickly' and they 'bring more money every year.' Property values in the subdivision have appreciated. (Condemnees, on the other hand, testified that while some of the properties in the area have sold as single-family homes since 1961, some have been a 'drug on the market.') Various property owners valued their properties at from $14,000 to $40,000. The increased

Page 811

traffice caused by the construction of the trafficway in 1949, and its subsequent use (a 24-hour traffic count in March, 1965 showed 17,000 northbound and 17,300 southbound cars daily; parking is no longer permitted on the trafficway), and the increased traffic on Karnes Boulevard (heavy traffic during the morning and evening rush periods, augmented by southbound traffic making right-hand turns through the subdivision along Karnes Boulevard in order to proceed east on 31st Street), have rendered the properties fronting on the trafficway, and to a lesser degree those fronting on Karnes Boulevard, less suitable or unsuitable for single-family residence uses. Some of these residences along the trafficway and Karnes Boulevard have been converted into apartment houses, for the production of income. Condemnees testified that eight of the properties on the trafficway and on Karnes Boulevard were used for apartments; four as duplexes, one as a nursing home, one as a 3-family residence, two as development properties and one was under construction as a combination residence and architectural engineer's studio. There was evidence that some of the properties along these streets have been producing income and have been used as multi-family buildings since 1918 or 1919. Some of these uses were in existence when the 1943 ordinance was passed. There was evidence that no attempt was ever made to enforce that ordinance and that the city made no effort to eliminate these uses until after the passage of the ordinance now challenged, which was passed on December 6, 1963. There was evidence that in an area of this kind the conversion of homes into apartments and rooming houses damages the area and in time will ruin it.

Twenty-one property owners testified to or filed claims for damages. Thirteen owners had acquired their properties since 1960. Fourteen of the properties were income-producing. Three were unimproved. One had apartments which had been discontinued. One was occupied by an employee as part of her salary. Various property owners testified to the cost of remodeling and reconverting these from multiple-family to single-family use. Their estimates ran from $700 to $10,000. City employees conducted a survey which showed on the trafficway 12 units without apartments; 6 units containing 1 to 5 apartments; 1 unit in which roomers were kept; and on Karnes Boulevard 16 units without apartments; 3 units with 1 to 7 apartments; 1 duplex and 1 unit where roomers were kept. Four additional units with apartments and 1 additional duplex on Karnes Boulevard were testified to. There was evidence that the highest and best use of the properties fronting on the trafficway are for commercial purposes and that the value of this property is $500 a front foot for commercial purposes. There was evidence that the value of the properties located on the trafficway and on Karnes Boulevard would be materially greater for multi-family occupancy than for single-family use. For example, a property bought in 1957 for $19,500, used as several apartments, to which improvements of $2,250 have been added, might bring $22,500 today, but that the owner would be 'lucky' to get $12,000 or $13,000 for it if it had to be sold as a single-family home. An owner of a 60-foot vacant lot on the trafficway testified that it was worth $500 to $600 a front foot ($30,000 to $36,000) if zoned for commercial purposes, but is worth only $1,500 for...

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  • 666 S.W.2d 1 (Mo.App. W.D. 1983), WD 34,211, City of Independence v. Richards
    • United States
    • Missouri Court of Appeals of Missouri
    • November 29, 1983
    ...paid, and the public need for the use, rather than the public good, is the desideratum to justify action. City of Kansas City v. Kindle, 446 S.W.2d 807, 813 (Mo.1969). The preservation of natural scenic beauty of highways has been established as an independent basis for the exercise of the ......
  • 377 N.E.2d 1019 (Ill. 1978), 49861, Fiorito v. Jones
    • United States
    • Illinois Supreme Court of Illinois
    • March 23, 1978
    ...1447, 1452-53; In re Mortimer (1976), 44 Ill.App.3d 249, 251-52, 3 Ill.Dec. 92, 358 N.E.2d 92; City of Kansas City v. Kindle (Mo.1969), 446 S.W.2d 807, 818-19. Here, the attorneys for amici curiae represented private clients who had an interest in the outcome of the proceeding, and in such ......
  • 972 S.W.2d 407 (Mo.App. W.D. 1998), WD 54099, City of Kansas City v. Hon
    • United States
    • Missouri Court of Appeals of Missouri
    • April 21, 1998
    ...on the condemnation to determine whether the purpose of the condemnation is a public one. See City of Kansas City, Missouri v. Kindle, 446 S.W.2d 807, 814 (Mo.1969). We believe the fact that the legislature has determined that airport uses are public uses is, however, one piece of factual e......
  • 332 N.W.2d 71 (N.D. 1983), 10267, Minch v. City of Fargo
    • United States
    • North Dakota Supreme Court of North Dakota
    • March 30, 1983
    ...such as junkyard and billboard control along highways, pursuant to Chapters 24-16 and 24-17, NDCC. See City of Kansas City v. Kindle, 446 S.W.2d 807 (Mo.1969). The scope of the pleadings, prayer for relief, and demand for jury trial can all complicate the adoption of judicial guidelines. Co......
  • Request a trial to view additional results
11 cases
  • 666 S.W.2d 1 (Mo.App. W.D. 1983), WD 34,211, City of Independence v. Richards
    • United States
    • Missouri Court of Appeals of Missouri
    • November 29, 1983
    ...paid, and the public need for the use, rather than the public good, is the desideratum to justify action. City of Kansas City v. Kindle, 446 S.W.2d 807, 813 (Mo.1969). The preservation of natural scenic beauty of highways has been established as an independent basis for the exercise of the ......
  • 377 N.E.2d 1019 (Ill. 1978), 49861, Fiorito v. Jones
    • United States
    • Illinois Supreme Court of Illinois
    • March 23, 1978
    ...1447, 1452-53; In re Mortimer (1976), 44 Ill.App.3d 249, 251-52, 3 Ill.Dec. 92, 358 N.E.2d 92; City of Kansas City v. Kindle (Mo.1969), 446 S.W.2d 807, 818-19. Here, the attorneys for amici curiae represented private clients who had an interest in the outcome of the proceeding, and in such ......
  • 972 S.W.2d 407 (Mo.App. W.D. 1998), WD 54099, City of Kansas City v. Hon
    • United States
    • Missouri Court of Appeals of Missouri
    • April 21, 1998
    ...on the condemnation to determine whether the purpose of the condemnation is a public one. See City of Kansas City, Missouri v. Kindle, 446 S.W.2d 807, 814 (Mo.1969). We believe the fact that the legislature has determined that airport uses are public uses is, however, one piece of factual e......
  • 332 N.W.2d 71 (N.D. 1983), 10267, Minch v. City of Fargo
    • United States
    • North Dakota Supreme Court of North Dakota
    • March 30, 1983
    ...such as junkyard and billboard control along highways, pursuant to Chapters 24-16 and 24-17, NDCC. See City of Kansas City v. Kindle, 446 S.W.2d 807 (Mo.1969). The scope of the pleadings, prayer for relief, and demand for jury trial can all complicate the adoption of judicial guidelines. Co......
  • Request a trial to view additional results
1 books & journal articles
  • Amicus Curiae
    • United States
    • West's Encyclopedia of American Law A–Ba
    • January 1, 2005
    ...entitled to have the fee for his admittedly valuable and competent professional services taxed as costs" (Kansas City v. Kindle, 446 S.W. 2d 807 [Mo. 1969]). The amicus curiae walks a fine line between providing added information and advancing the cause of one of the parties. For insta......