Adams v. City of Manchester

• Citation: 242 S.W.3d 418
• Decision Date: 23 October 2007
• Docket Number: No. ED 89154.,ED 89154.
• Parties: Jeff ADAMS, Mark Wright and C.T. Sharp, Appellants, v. CITY OF MANCHESTER, Respondent.
• Court: Court of Appeal of Missouri (US)

242 S.W.3d 418

Jeff ADAMS, Mark Wright and C.T. Sharp, Appellants, v. CITY OF MANCHESTER, Respondent.

No. ED 89154.

Missouri Court of Appeals, Eastern District, Division Four.

October 23, 2007.

Motion for Rehearing and/or Transfer to Supreme Court Denied December 11, 2007.

Nelson L. Mitten, Frederick J. Berger, Michael P. Wolf, St. Louis, MO, for Appellant.

Patrick R. Gunn, St. Louis, MO, for Respondent.

OPINION

GEORGE W. DRAPER III, Judge.

Jeff Adams, Mark Wright, and C.T. Sharp (hereinafter and collectively, "Citizens") appeal the trial court's judgment granting summary judgment in favor of the City of Manchester, Missouri (hereinafter, "the City"), Brian Oliver, Larry Miles, Mike Clement, Debbie Mizerany, Alan Wenzel, James Labit, Tom Brown, and Charles Steffens (hereinafter and collectively, "Defendants"). Citizens raise four points on appeal claiming the trial court erred in granting summary judgment in that genuine issues of material fact existed as to whether: (1) the City Clerk or the trial court were empowered to substitute the execution of one bill as an ordinance over another nunc pro tunc; (2) Defendants' amendment of the City's Comprehensive Plan was arbitrary and unreasonable; (3) the trial court abused its discretion in failing to grant Citizens a continuance to permit further discovery pursuant to Rule 74.04(f); and (4) Defendants complied with. Section 99.810 RSMo (2000)¹ requirements when they adopted the ordinance enabling the development of the Manchester Highlands Project. We affirm.

The City is a city of the fourth class organized under the statutes of the State of Missouri. Citizens are all City residents who live in proximity to the area at issue in this lawsuit, but not directly within the area designated for the Manchester Highlands Project. Defendants are or were members of the City's Planning and Zoning Commission (hereinafter, "P & Z Commission").

On September 17, 2001, the City's Board of Aldermen (hereinafter, "the Board") held a public hearing to consider an amendment to the City's zoning ordinances relating to the composition of the P & Z Commission. The P & Z Commission was then comprised of nine members, which included the mayor, a member selected by the Board, a City official, and six citizens. Under the original proposed amendment, identified as Bill No. 01-1349 (hereinafter, "the Original Bill"), the P & Z Commission would be composed of the mayor, eight citizens, and a member of the Board, serving as an ex-officio, nonvoting member. The Board did not vote on the Original Bill at this meeting.

The Board held another meeting on October 1, 2001. At this meeting, the Board amended the Original Bill and changed the proposed composition of the P & Z Commission. The amended bill (hereinafter, "the Substitute Bill") reduced the number of citizens from eight to six, and included the mayor and a Board member, serving as an ex-officio, nonvoting member. The Board unanimously approved the Substitute Bill, but it was not signed by, the mayor at this time. The City's records reflect the mayor signed the Original Bill instead. However, the P & Z Commission altered the composition of its membership in October 2001, in accordance with the changes outlined in the. Substitute Bill.

In 2005, the City initiated a redevelopment process and requested proposals for the northeast quadrant of the Manchester Road and Highway 141 intersection (hereinafter, "the Manchester Highlands Project"). In response to this request, Pace Properties, Inc. (hereinafter, "Pace") submitted its proposal which encompassed a fifty-five acre tract of land with a retail component in excess of 400,000 spare feet. This plan would extend commercial uses beyond the currently existing commercial uses on the north side of Manchester Road, necessitating an amendment to the City's Comprehensive Plan.

Prior to voting on this issue, the P & Z Commission held public hearings and gathered substantial information and materials about the propriety of amending the City's Comprehensive Plan. Subsequently, this plan was discussed at the P & Z Commission meeting on July 25, 2005. In conjunction with this meeting, there was a public hearing to discuss amending the City's Comprehensive Plan to accommodate the

Manchester Highlands Project. The P & Z Commission voted and approved Resolution No. 05-01, the amendment to the City's Comprehensive Plan, with four votes in favor, none opposed, one abstention, and two members excused from voting.

In connection with the Manchester Highlands Project, Pace sought tax increment financing (hereinafter, "TIF") to be part of the project's financing. In response, the City retained Peckham, Guyton, Albers & Viets, Inc., (hereinafter "PGAV"), an urban planning consulting firm, to create a redevelopment plan for the project. The City's TIF Commission, in turn, undertook a cost-benefit analysis to determine whether the project was feasible financially. PGAV prepared and submitted its Initial Redevelopment Plan to the City's TIF Commission and included a cost-benefit analysis.

On November 21, 2005, the Board met and adopted three separate ordinances, Ordinance No. 05-1626, 05-1627, and 05-1628 (hereinafter, "the 2005 Ordinances"). These ordinances approved the Initial Redevelopment Plan and allowed the use of TIF, which permitted the Manchester Highlands Project to move forward.

Citizens filed their original petition against Defendants seeking declaratory judgment on two counts on December 6, 2005. Count I alleged the P & Z Commission's vote to amend the City's Comprehensive Plan was null and void due to its violation of Section 89.340. Count II alleged the P & Z Commission failed to "make careful and comprehensive surveys and studies of the existing conditions and probable growth of the municipality" in violation of Section 89.350. Defendants filed a motion for partial summary judgment as to Count I, which the trial court granted, dismissing the count with prejudice. Defendants then filed a motion to dismiss Count II, which was granted however, the trial court permitted Citizens to amend their petition with respect to Count II, which they did on July 24, 2006.

Citizens' first amended petition contained two counts. Count I appeared to set forth the same allegations as in the original petition with respect to the P & Z Commission's violation of Section 89.340. Count II elaborated upon their claim in the original petition that the P & Z Commission violated Section 89.350. Defendants again moved for summary judgment with respect to Count II and argued allegations in Count I were dismissed with prejudice as a result of the trial court's prior judgment.

While Defendants' second motion for partial summary judgment was pending, Citizens filed a second amended petition on September 21, 2006. This petition contained three counts, with Counts I and II essentially reiterating the claims of their prior petitions. Count III challenged the sufficiency of PGAV's cost-benefit analysis which Defendants relied upon when voting to approve the Initial Redevelopment Plan. Defendants filed a third motion for partial summary judgment with respect to Count III of the second amended petition. After extensive filings, the trial court granted all of Defendants' motions for summary judgment on November 18, 2006. Citizens now appeal. More facts will be adduced as needed in connection with our analysis of Citizens' points on appeal.

It is well-settled that when considering an appeal from a grant of summary judgment, we review the record in the light most favorable to the nonmovant. ITT Commercial Fin. v. Mid-America Marine, 854 S.W.2d 371, 376 (Mo. banc 1993). Our review is essentially de novo. Id. at 376. The criteria on appeal for testing the propriety of summary judgment are no different from those employed by the trial court to determine the propriety of sustaining the motion initially. Id. The burden of proof on a summary judgment movant is to establish a legal right to judgment flowing from facts about which there is no genuine dispute. Id. at 378.

A "defending" party may establish a right to summary judgment by showing: (1) facts that negate any one of the claimant's elements; (2) the nonmovant has not been able to produce, or will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any of the claimant's elements; or (3) there is no genuine dispute as to the existence of facts necessary to support the movant's properly pleaded affirmative defense. Id. at 381.

The nonmovant must show by affidavits, depositions, answers to interrogatories, or admissions on file, that one or more of the material facts shown by the movant to be without any genuine dispute is, in fact, genuinely disputed. Id. A "genuine issue" exists where the record contains competent materials that establish a plausible, but contradictory, version of the movant's essential facts. Id. at 382.

In their first point on appeal, Citizens claim the trial court erred in granting summary judgment in Defendants' favor on Count I of their original petition. Count I alleged the proposed amendment to the City's Comprehensive Plan failed because it was not passed by a majority vote of the full membership, of the. P & Z Commission. Citizens focus on the differing compositions of the P & Z Commission as proposed in the Original Bill and the Substitute Bill. Citizens allege there are genuine issues of material fact as to whether the City Clerk or the trial court had authority to substitute the Substitute Bill for the Original Bill nunc pro tune, in the City's records.

Section 79.130 mandates "[n]o ordinance shall be passed except by bill, and no bill shall become an ordinance unless on its final passage a majority of the members elected to the board of aldermen shall vote for it. . . ." It is undisputed the Board duly voted on and approved the Substitute Bill unanimously. After final passage by the Board, Section...