Tierney v. Planned Indus. Expansion Authority of Kansas City, s. 69317

• Decision Date: 15 December 1987
• Docket Number: 69528,Nos. 69317,s. 69317
• Citation: 742 S.W.2d 146
• Parties: James P. TIERNEY, et al., Appellants, v. The PLANNED INDUSTRIAL EXPANSION AUTHORITY OF KANSAS CITY, Missouri, et al., Respondents. STATE ex rel. James P. TIERNEY, et al., Relators, v. The Honorable H. Michael COBURN, Circuit Judge, et al., Respondents.
• Court: Missouri Supreme Court

Page 146

742 S.W.2d 146

James P. TIERNEY, et al., Appellants, v. The PLANNED INDUSTRIAL EXPANSION AUTHORITY OF KANSAS CITY, Missouri, et al., Respondents.

STATE ex rel. James P. TIERNEY, et al., Relators, v. The Honorable H. Michael COBURN, Circuit Judge, et al., Respondents.

Nos. 69317, 69528.

Supreme Court of Missouri En Banc.

Dec. 15, 1987.

Rehearing Denied Jan. 20, 1988.

James P. Tierney, Terry J. Satterlee, Alfred R. Hupp, Jr., Kansas City, for appellants.

Lowell L. Smithson, David A. Sosinski, John M. May, John F. Ingraham, Richard N. Ward, Robert J. Campbell, Kansas City, for respondents.

James C. Bowers, Jr., Donna L. Stanford, Kansas City, Irvin Dagen, Gregory R. Smith, Sarah Siegel, Jeanne Vatterott, St. Louis, Howard C. Wright, Jr., City Atty., Springfield, John Simon, Asst. Atty. Gen., Jefferson City, Max W. Foust, Steven D. Steinhilber, Kansas City, for amicus.

OPINION IN CONSOLIDATED ACTIONS

BLACKMAR, Judge.

The Dispute

The Tierneys, plaintiffs in 69317 and relators in 69528, are the owners of land at 1500 Baltimore in downtown Kansas City, containing a structurally sound and usable building. The Planned Industrial Expansion Authority of Kansas City, Missouri (PIEA) instituted condemnation proceedings in accordance with Chapter 100, RSMo. The owners filed suit against PIEA and others seeking a declaratory judgment that the condemnation proceedings were invalid and also damages on account of "condemnation blight." Following hearing, the trial judge overruled the owners' challenge to the condemnation proceedings. He had previously dismissed the three-count petition in the civil action, but allowed the owners to raise all their objections in the condemnation hearing. The owners then sought prohibition or mandamus in the Missouri Court of Appeals, Western District. That court issued a preliminary rule in prohibition which it made absolute after argument, concluding that PIEA had not complied with certain mandatory requirements of the statutes and therefore had no power to go forward with the condemnation proceedings. Another panel affirmed the judgment of dismissal of the declaratory judgment action, on the ground that the writ remedy was adequate. We granted transfer in both cases because of the important issues involved. We now quash the preliminary rule in prohibition and affirm the judgment of dismissal.

In 1967 Missouri adopted the Planned Industrial Expansion Act, Section 100.310, et seq., RSMo 1986. The act provides for the establishment of the Planned Industrial Expansion Authority of Kansas City, Missouri (PIEA) as a body corporate and politic, having the authority to acquire land in "blighted", "insanitary" or "undeveloped industrial" areas, 100.310(2), (11), (18), RSMo 1986, by eminent domain if necessary, and to dispose of the land to redevelopers, in accordance with redevelopment plans, with approval at various stages by it and by the City Council of Kansas City. We are commanded by Section 100.610 to construe the act "liberally to effectuate the purposes of the law."

On August 13, 1981, the City Council enacted an ordinance designating a tract bounded by both sides of Wyandotte and Central, between I-70 (15th Street) on the north and 17th Street on the south, as a "blighted, insanitary or undeveloped industrial area." This ordinance did not include the Tierney property.

On July 22, 1982 the council enacted another ordinance designating as blighted ¹ the area covered by the 1981 ordinance, together with a tract to the west not involved in these proceedings, and a tract to the east consisting of the west side of Baltimore Avenue between I-70 (15th Street) and 16th Street and containing the Tierney property. The entire tract covered by the 1982 ordinance contains 22.7 acres.

On September 28, 1982, the council enacted an ordinance approving a General Development Plan submitted by PIEA for the area covered by the 1982 ordinance. The plan had been previously considered and approved by the City Plan Commission. This ordinance recited the existence of a "general plan for the development of the community as a whole," and contained the finding that the PIEA plan was in conformity with the general plan.

On December 8, 1982, PIEA accepted a contract proposal by K-A Company for the redevelopment of the area. The owners contend that this proposal substantially changed the development plan as approved by the City Council the previous September, to such an extent that it invalidated the prior approval.

On November 21, 1985, PIEA adopted a resolution authorizing the commencement of condemnation proceedings. On November 27, 1985, it filed a petition for condemnation of the area covered by the 1982 ordinance. The declaratory judgment action was filed a few minutes later. The court held a hearing on the condemnation petition and, after substantial deliberation, entered an order on July 22, 1986 sustaining the petition in condemnation and appointing commissioners. The relators filed a prompt petition in the court of appeals seeking mandamus or prohibition. Timely notice of appeal in the civil action had previously been filed.

Challenges to Eminent Domain Proceeding

In State ex rel. Washington University Medical Center Redevelopment Corporation v. Gaertner, 626 S.W.2d 373 (Mo. banc 1982) we held that a landowner could not file a counterclaim in a condemnation action. This ruling poses a problem as to how an interested person may challenge the legality of an attempted condemnation in the appellate courts. If the trial court upholds the condemnation then the condemnor may take possession on paying the damages assessed by the commissioners and the property may be irreversibly altered before the case can be heard by the appellate courts.

There are cases in which the lawfulness of the condemnation has been determined in a prohibition proceeding. ² To succeed the relator must show that the condemnation proceedings are unauthorized by law. If so, the trial court lacks subject matter jurisdiction. When the disputes are essentially factual the claim of lack of jurisdiction is extremely difficult to sustain because the trial judge has the authority to resolve fact issues in the hearing on the condemnation petition. Issuance of a preliminary rule in prohibition, furthermore, is solely within the discretion of the appellate court.

It is also possible to file a civil action against the condemning agency seeking injunctive or declaratory relief. ³ This may provide a factual record, but unless the plaintiff owner is successful in the trial court there is no assurance that the condemnor will not take possession and alter the property before the appeal can be pursued. Matters of interim relief, in the form of temporary injunction, stay, or expediting of the appeal, require the exercise of judicial discretion.

There is no sure way to assure the owners a full dress appeal, in advance of the taking. If the trial court decides against them they may often have to be content with the "just compensation" the law requires. In this case, however, there is a factual record which we may resort to in determining the legal issues in both proceedings. We conclude that the condemnation is not illegal for the reasons assigned.

The Finding of Blight

The owners argue that their property was not shown to be "blighted", "insanitary", or "undeveloped", and that it could not be properly included in the area covered by the ordinance, by reason of Mo. Const. Art. I, Sec. 28, prohibiting the taking of private property for private use.

They do not challenge the basic concepts underlying urban redevelopment, as recognized by State ex rel. Dalton v. Land Clearance Authority, 364 Mo. 974, 270 S.W.2d 44 (1954) and confirmed by numerous later decisions. ⁴ If the proper findings are made by the legislative authority, land may be acquired for redevelopment or industrial expansion and sold to other private interests, even though the owners are not willing to sell. Naboth may not always retain his vineyard, but must sometimes be content with just compensation. Ahab need not resort to major force, but may simply file a petition and pay the award. I Kings 21. Redevelopment of "blighted, substandard or insanitary" areas is a public purpose. Mo. Const., Art. I, Sec. 21. Whether a particular area is blighted, furthermore, is a matter for the legislative body to resolve. ⁵ Its authority controls unless its decision is shown to be so arbitrary and unreasonable as to amount to an abuse of the legislative process. Allright Missouri, Inc. v. Civic Plaza Redevelopment Corporation, 538 S.W.2d 320 (Mo. banc 1976).

The owners do not challenge these basic principles. They assert rather that the legislative findings in the case before us are so arbitrary and unreasonable that they cannot supply the jurisdictional base for eminent domain. Their property was not included in the 1981 ordinance, declaring a smaller tract to be blighted, but was included in a 1982 ordinance which added only unblighted property along the east side of Broadway and the west side of Baltimore. They argue that the addition of this unblighted property, without the required finding that the addition is necessary to attract redevelopers, contravenes the constitution and the statutes.

They do not challenge the proposition, established in State ex rel. Atkinson v. Planned Industrial Expansion Authority of St. Louis, 517 S.W.2d 36 (Mo. banc 1975) and confirmed in other cases such as Allright Missouri, Inc. v. Civic Plaza Redevelopment Corporation, supra, that a blighted area may include parcels which are not themselves blighted if these parcels are necessary to provide a tract of sufficient size or accessibility to attract redevelopers. They say that the principle may be invoked by the addition of property only if there is an explicit finding of necessity, citing Prudential Building and Loan Association v. Urban Renewal and Community Development Agency of Louisville, 464...