Burns v. City of Des Peres, 75-1466

• Decision Date: 14 April 1976
• Docket Number: No. 75-1466,75-1466
• Citation: 534 F.2d 103
• Parties: 1 Fed. R. Evid. Serv. 231 Stephen T. BURNS et al., Appellants, v. CITY OF DES PERES et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 103

534 F.2d 103

1 Fed. R. Evid. Serv. 231

Stephen T. BURNS et al., Appellants, v. CITY OF DES PERES et al., Appellees.

No. 75-1466.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 8, 1976.

Decided April 14, 1976.

Marvin S. Wood, St. Louis, Mo., for appellants; Ellsworth Cundiff, St. Charles, Mo., filed brief.

Sullivan & Evans, P. C., St. Louis, Mo., for appellees; James L. Sullivan and Stephen W. Woodard, St. Louis, Mo., and Robert C. Jones, Clayton, Mo., filed brief.

Harold A. Tzinberg, Clayton, Mo., filed brief of amicus curiae, St. Louis County Municipal League.

Before GIBSON, Chief Judge, BRIGHT, Circuit Judge, and VAN PELT, Senior District Judge. ^*

GIBSON, Chief Judge.

Plaintiff, Stephen T. Burns, ¹ appeals from the District Court's ² granting of a motion for judgment notwithstanding the verdict in favor of three individual defendants Steve Tapper, Edward Smith and Scott Styles. The remaining 21 defendants were either dismissed prior to trial or were exculpated by a jury verdict in their favor.

The defendant City of Des Peres is a small community of approximately 5,000 persons which is within the suburban reaches of St. Louis, Missouri. As an expanding community in the early 1950's, Des Peres annexed a rather large portion of land to the north of the city. Burns' property, comprised of 4.11 acres, is contained in this annexed portion.

In order to promote a more orderly and structured development of the property within its borders, Des Peres promulgated zoning ordinances as permitted by Missouri law. Mo.Rev.Stat. § 89.020 (1969). There are four ordinances which are relevant to our inquiry in this case.

Ordinance # 23 was enacted on January 9, 1949, and established, inter alia, two residential zoning classifications:

"A" Single Family Dwelling requiring lots of at least 43,560 square feet (one acre) with an average width of 150 feet; ³ and

"B" Single Family Dwelling requiring lots of at least 15,000 square feet with an average width of 100 feet or more.

All of the newly annexed property in Des Peres was zoned "A" classification pursuant to Ordinance # 23.

Ordinance # 206 was adopted on December 28, 1959, as an amendment to Ordinance # 23. In general, Ordinance # 206 created additional residential and commercial zoning classifications. The one-acre lot size for "A" residential zones was retained but the minimum lot for "B" districts was increased from 15,000 to 17,500 square feet. Ordinance # 206 also made comprehensive provisions for nonconforming uses.

Ordinance # 209 was promulgated on May 9, 1960, and established an "AA" Single Family Dwelling classification. The ordinance required "AA" districts to maintain lots averaging 37,000 square feet with no single lot being less than 30,000 square feet. The frontage of all subdivision lots in this district was to average 150 feet per lot. The "AA" lot sizes were a reasonable accommodation between the large "A" district lots and the smaller "B" district lots.

Ordinance # 244 was adopted on September 11, 1961, and created the "Density Development Procedure". This procedure was intended to alleviate the problems arising from the development of certain areas where substantial topographical alterations would be required in order to develop the property in strict conformance with existing zoning ordinances. The city officials concluded that the removal of top soil, trees and other natural objects would tend to destroy many of the aesthetic aspects of the community. This ordinance provided that, in lieu of requiring such destruction, the developer could merely reduce his lot sizes to mitigate unnecessary destruction of natural objects and preserve the rustic atmosphere of the area to the extent possible. The ordinance, while not allowing an increase in the number of lots in a particular zoning classification, permitted a developer to reduce the lot size to the next lowest zoning classification.

The Burns' property, which is the subject of this litigation, is comprised of three adjoining tracts of land located in the "A" district zoning classification. Two of the tracts are approximately 75 feet by 670 feet; the third tract is 120 feet by 670 feet. On March 1, 1967, Burns initiated proceedings to obtain administrative relief from the "A" district classification. On that date, he submitted a plat to the Des Peres Planning and Zoning Commission (Commission) for approval. The plat proposed a 10-lot subdivision with a minimum lot size of 15,000 square feet. The Commission rejected the plat on the basis that it failed to comply with Ordinance # 206. The apparent reason is that the lot sizes proposed on the plat were substantially smaller than the 43,560 square feet lots required in "A" districts.

Burns submitted a new plat to the Commission on April 18, 1967. This revised plat established an 8-lot subdivision with a minimum lot size of 17,500 square feet. The Commission refused to hold a public hearing on the question of whether the plat should be approved and informed Burns that a petition for change in zoning would have to be filed. Thereafter, Burns petitioned the Commission to change his zoning classification from "A" district to "B" district. This petition was approved by the Commission on June 7, 1967, after a public hearing.

The Commission's favorable recommendation was forwarded to the Des Peres Board of Aldermen which had previously received a petition for rezoning Burns' property to "B" district. After a public hearing the Board of Aldermen unanimously denied Burns' rezoning request on August 14, 1967. Defendants Tapper, Smith and Styles voted to deny the request. It is the denial of this request by the Board of Aldermen which has spawned the instant litigation.

After the Board of Aldermen rejected his rezoning request, Burns persisted in his efforts to seek relief from "A" district restrictions. He requested the Des Peres Board of Adjustment to approve a resubdivision of the property into eight lots. The Board of Adjustment ruled that the matter was beyond its jurisdiction and refused to act on Burns' request. Burns then petitioned for a writ of certiorari against the Board of Adjustment in the circuit court of St. Louis County, Missouri, to force the Board to rule on his request. The court concluded that the Board of Adjustment had no jurisdiction to entertain a request for resubdivision and dismissed Burns' petition.

On June 12, 1969, Burns filed another petition in the circuit court of St. Louis County seeking a declaratory judgment that Ordinance # 206 is invalid as applied to the Burns' property. Burns named members of the Board of Aldermen and other city officials, some of whom are defendants in the present suit, as defendants in the state court action. That case is still pending in the state courts.

In October, 1973, the present action was instituted by Burns against the City of Des Peres and 23 individual defendants who were elected or appointed officials of the city. This action is basically premised upon 42 U.S.C. § 1983 (1970) and the Fourteenth Amendment. ⁴ Burns contends that he was denied due process and equal protection of the law because of defendants' failure to rezone his property. He seeks a recovery of $1,135,000 in compensatory and punitive damages. The City of Des Peres and five individual defendants were dismissed pursuant to pretrial motions for summary judgment and the case proceeded to trial with 18 individual defendants. The jury returned a verdict against defendants Tapper, Smith and Styles for $6,000. The District Court granted defendants' motion for judgment notwithstanding the verdict, finding no evidentiary basis for the verdict. Burns' first assignment of error on this appeal is that the District Court improperly granted this motion.

At the outset, it is necessary to carefully circumscribe the scope of our inquiry in regard to this allegedly erroneous ruling on defendants' motion. We are concerned only with the activities of defendants Tapper, Smith and Styles during the course of their membership on the Des Peres Board of Aldermen. Tapper served as Alderman from April, 1967, to April, 1971; Smith served from June, 1967, to April, 1970; Styles served from April, 1964, to April, 1968. The activities of the other individual defendants and any official action by the Board of Aldermen subsequent to the tenure of these defendants are relevant only to the extent that they may reflect on the purpose or motivation for these three defendants' actions during their aldermanic tenure.

The scope of judicial review is also limited by the nature of this case. When an individual contends that a municipal commission has unconstitutionally applied a zoning ordinance to his property, courts are not entitled to review the evidence and reverse the commission merely because a contrary result may be permissible. Courts are not to assume the role of a "super zoning board". Steel Hill Development, Inc. v. Town of Sanbornton, 469 F.2d 956, 960 (1st Cir. 1972); see Village of Belle Terre v. Boraas, 416 U.S. 1, 13, 94 S.Ct. 1536, 1543, 39 L.Ed.2d 797, 806-07 (1974) (Marshall, J., dissenting). A decision not to rezone a particular tract is vested in the discretion of the proper municipal zoning authorities and their legislative decisions are not to be subjected to court scrutiny to determine whether their refusal was expedient or provident. See Geneva Investment Co. v. City of St. Louis, 87 F.2d 83 (8th Cir.), cert. denied, 301 U.S. 692, 57 S.Ct. 795, 81 L.Ed. 1348 (1937); Strandberg v. Kansas City, 415 S.W.2d 737, 746 (Mo.1967). Our function in this type of case is to ascertain whether there has been a transgression upon the property owner's constitutional rights. McMahon v. City of Dubuque, 255 F.2d 154, 160 (8th Cir.), cert. denied, 358 U.S. 833, 79 S.Ct. 53, 3 L.Ed.2d 70 (1958). In order to support his constitutional claims the plaintiff is required to prove that the defendants' actions were clearly...