Bonds v. City of Webster Groves

• Decision Date: 17 September 1968
• Docket Number: No. 33172,33172
• Citation: 432 S.W.2d 777
• Parties: Melvin BONDS and Thyra Bonds, a/k/a Thyra Bonds, His Wife, Plaintiffs-Appellants, v. CITY OF WEBSTER GROVES, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 777

432 S.W.2d 777

Melvin BONDS and Thyra Bonds, a/k/a Thyra Bonds, His Wife Plaintiffs-Appellants, v. CITY OF WEBSTER GROVES, Defendant-Respondent.

No. 33172.

St. Louis Court of Appeals, Missouri.

Sept. 17, 1968.

Motion for Rehearing or to Transfer to Supreme Court Denied

Oct. 23, 1968.

Application to Transfer Denied Dec. 9, 1968.

Librach & Heller, Robert L. Brown, St. Louis, for plaintiffs-appellants.

Daniel, Raskas, Ruthmeyer & Schneider, H. Jackson Daniel, Bernard A. Ruthmeyer, St. Louis, for defendant-respondent.

ANDERSON, Presiding Judge.

This is an action brought by Melvin Bonds and Thyra Bonds against the City of Webster Groves, and Webster Groves Industrial Corporation. The case was tried on an amended petition which was in two counts. Count I was for a declaratory judgment seeking a ruling that a Zoning Ordinance of said City was invalid, and for an injunction against Webster Groves Industrial Corporation from preparing the land in the zoned area for use other than residential. Court II was directed against the City, and sought damages on account of alleged depreciation of the market value of their property as a result of the acts of said defendant. The case was tried before the Honorable Franklin Ferriss. The Court, at the close of plaintiffs' case dismissed the action against said defendant Webster Groves Industrial Corporation, and after the close of the whole case found against plaintiffs and in favor of defendant City of Webster Groves on Count I and Count II of plaintiffs' petition; judgment was entered accordingly. From said judgment, plaintiffs appealed to the Supreme Court. Thereafter, respondent filed its motion in the Supreme Court to transfer the case to this Court for lack of jurisdiction. This motion was sustained and the cause was transferred, and is properly here for final disposition.

The petition alleged that defendant, City of Webster Groves, was a municipal corporation organized and existing under and by virtue of the Laws of the State of Missouri; that plaintiffs were the owners of real estate located in said City; that said property was zoned as residential, and was located within a tract of land triangular in shape which tract of land was bounded by Kirkham Avenue on the West, by Atlanta on the North, Lafayette Avenue on the East and by the South line of Bennie Gordon's Subdivision on the South; that on October 6, 1964, the City, by Ordinance No. 6348, rezoned said triangular tract of land except for plaintiffs' property, being Lot 13 of Bennie Gordon's Subdivision and by said Ordinance vacated Marvin Court, the street upon which plaintiffs' property faces, East Avenue, Cannaday Avenue and Tuxedo Boulevard between Kirkham and Lafayette Avenues; that said rezoning Bill was passed in violation of Section 11.3 of the City Charter in that said City failed to give at least seven days notice prior to the first hearing of the proposed amendment, modification or revision, stating the time and place of the hearing, to the last known place of abode of the owners of all property lying within 185 feet of the property under consideration; and that plaintiffs' property was contiguous with the tract of land rezoned by Ordinance No. 6348.

It was further alleged that said Ordinance violated plaintiffs' constitutional rights under the Fourteenth Amendment to the Constitution of the United States, as well as Article I, Section 10 of the Missouri Constitution, in that it deprives plaintiffs of due process of law; that said Ordinance is unconstitutional and void on the general ground that it does not bear a substantial relationship to the public health, safety, morals an general welfare, and is out of harmony and in conflict with the comprehensive zoning ordinance of the defendant municipality, in that it zoned said irregular tract of land around plaintiffs' property, that it is illegal, arbitrary, unreasonable and discriminatory, that it violates plaintiffs' property rights and lowers the value of plaintiffs' property, thus depriving plaintiffs of property without due process of law.

It was further alleged that Webster Groves Industrial Corporation was beginning to develop the land and baring it of its natural growth, thereby subjecting plaintiffs' property to loss of market value, as well as damage from surface water runoff, and that there will be further damage in the future to the market value of plaintiffs' property. As to the City of Webster Groves, there was a prayer for a judgment declaring said Ordinance to be invalid.

Count II of the petition alleged that a direct and probable consequence of the acts of the defendant, City of Webster Groves, plaintiffs had suffered a loss in value of their property in the sum of $25,000.00 for which sum they prayed judgment.

Defendant, City of Webster Groves, in its answer to Count I of the petition, admitted all allegations of the petition directed at it, except the allegation that the ordinance in question violated Section 11.3 of the City, and of the allegation that plaintiffs were deprived of their constitutional right of due process of law under the State and Federal Constitution as set forth in the petition, which allegations were specifically denied. As an affirmative defense, it was alleged in said answer that plaintiffs waived the notice requirements of the City Charter by their attendance at all hearings concerning the adoption of said Ordinance, and was estopped from attacking the validity of said Ordinance by attending in person or by attorney all said hearings and presenting their views as to said Ordinance. It was further alleged that plaintiffs were not damaged by any failure if any to give notice as provided in the Charter for the reason that plaintiffs had actual notice of all proceedings with reference to the adoption of the Ordinance, and thus had an opportunity to be heard and were in fact heard on the question of the adoption of said Ordinance.

In its answer to Count II, defendant City, after incorporating by reference the allegations in its answer to Count I, denied generally each and every allegation in said second Count.

Plaintiffs are husband and wife. They are owners of Lot 13 of Bennie Gordon's Subdivision. The property faces on Marvin Court, and is the only house completed in said subdivision. As originally planned, Marvin Court was to run from Kirkham Avenue through the subdivision eastwardly to Lafayette Avenue, a north and south street. The street though dedicated was never extended westwardly from Lafayette Avenue beyond plaintiffs' property for the reason that the subdivision development was abandoned. Plaintiffs' house was the only house built in the subdivision. Their house is located within a triangular shaped area, bounded by Kirkham on the West, Atlanta on the North, Lafayette on the East and on the South by the South line of Bennie Gordon's Subdivision. It is located in the right angle corner of the southeast boundary of said area. Marvin Court runs in front of plaintiffs' house to Lafayette where it ends. It is the only street over which plaintiffs have access to their property. Mrs. Bonds, in her testimony, referred to Marvin Court as a driveway, which was put in by the City at plaintiffs' expense. She also stated she understood that the City vacated Marvin Court and that half of it reverted to plaintiffs as adjacent property owners. There is some indication in the record that Marvin Court was thereafter 20 feet wide.

Plaintiffs purchased their property in January 1957. The purchase price was $16,500.00. The triangular shaped area in which plaintiffs' house is located contains 13 acres. At the time plaintiffs purchased their property there were 15 or 17 other houses in the area which were occupied. According to plaintiffs' witness, Ted Horowitz, a real estate dealer and expert appraiser, these houses were in a delapitated and run down condition. Many of them lacked indoor plumbing facilities. Defendant's witness, Tom McReynolds, an appraiser and member of the American Institute of Real Estate Appraisers was a witness for the defendant. He testified that the other houses and yards in the area were small and poorly kept, and that the area was blighted; that some people would regard the area as a slum. Milton Brand who was the director of the Land Clearance Redevelopment Authority of Webster Groves gave like testimony. He stated, 'In short you might say it was a group of homes, single family homes, that had no material direction in the building of them. It was sort of a hodge-podge of building efforts--adding on, sometimes subtracting, and in cases where the exterior wasn't in such good condition they would put stucco on them, which would hide a lot of defects of the house itself * * * we declared it a blighted area, which it was.' The witness also testified: 'Q. You have rehabilitated a large number of homes in this project area? A. Oh, yes, a great many. Q. But on this 13-acre tract were you able to rehabilitate any home? A. No * * * Each had to come down, and any homes we thought we could move, we made an attempt to move them, and this is why I can qualify the statement of the stucco. We found what was inside; the houses fell apart, they were built in sections, and we couldn't move them; we tried to. Q. The yards were overgrowth of shrubbery and bushes? A. Yes * * * they were not well maintained.'

It is not clear from the evidence just when this area was cleared by the Land Clearance Authority, but it was during the early nineteen sixties, and prior to the enactment of Ordinance No. 6348 on October 6, 1964. Prior to the latter date, the triangular area including plaintiffs' property was zoned residential. The matter of rezoning was first submitted to the City Plan Commission. Said Commission held a public hearing with reference to this on May 11, 1964. The results reached at that meeting are set forth in a letter written by the secretary of the Commission addressed to the Mayor and ...