Coleman Highlands, In re
| Decision Date | 11 April 1966 |
| Docket Number | No. 51526,No. 2,51526,2 |
| Parties | In re Condemnation COLEMAN HIGHLANDS, Kansas City, Missouri. Sheridan E. KINDLE et al., Respondents, v. KANSAS CITY, Missouri, a Municipal Corporation, Appellant |
| Court | Missouri Supreme Court |
Don M. Jackson, Kansas City, Jackson, Wade & Barker, Kansas City, of counsel, for respondents.
Herbert C. Hoffman, City Counselor, Benj. M. Powers, Sp. Counsel, Kansas City, for appellant.
This proceeding is one in condemnation under the provisions of the Kansas City Charter. The proceeding was instituted by the filing of the condemnation ordinance in the Circuit Court on February 12, 1965. Service was made by publication and by certified mail addressed to the various interested property owners; no point is raised regarding the service. The tract involved consists of substantially all of Coleman Highlands, an addition in Kansas City extending, generally speaking, from 31st Street to 35th Street, north and south, and from Summit Street (Southwest Trafficway) to Holly Street, east and west. Its dimensions are approximately 2600 feet by 1300 feet. There are apparently 311 lots in the addition, and several streets run wholly or partially through it; one of these is Karnes Boulevard which runs generally north and south through the easterly portion, it being the next street west of Summit. Since no evidence was heard, we take our information from a map filed concurrently with the ordinance and made a part of our transcript.
The ordinance recites, in substance, the following: that the use of all lots in Coleman Highlands was originally restricted (obviously about 1903) to 'detached residences' and suitable outbuildings, but that such provisions 'were to expire' by their terms on June 1, 1923; that the City extended those provisions 'by ordinance' for an additional twenty years, and again did so by ordinance passed on May 10, 1943, it being further recited that the latter ordinance operated in 'substantially the same manner as is provided in this ordinance'; that all buildings on the various streets in the addition were used exclusively for residential purposes and that 'the overwhelming sentiment and belief of the property owners immediately interested, and of all citizens who desire to make Kansas City a good place in which to live, and of the Council are that the enactment and enforcement of this ordinance will enhance and stabilize the value and utility of each and every piece of property within the district herein described and will maintain property values for the purpose of public taxation and will promote the health and welfare of the city, as well as add to the beautification of the city and of said Coleman Highlands Addition, * * *.' Following the foregoing, it was enacted that: for a period of twenty years from the effective date of the ordinance the lots, tracts and parcels of land in Coleman Highlands (except a group of 23 and a fraction lots at the northwest corner,--with no explanation for the exception) should be restricted in use as therein provided, namely, that 'no house or buildings, other than single detached residences, each for the use of one family only * * * shall be constructed or used * * *.' Other provisions were included concerning the land area for each building constructed, billboards, gasoline tanks and filling stations; these are not immediately material to our discussion. The ordinance further provided that since the owners might 'claim' that their properties had been taken or damaged for public use, all rights of the owners to use any of such property contrary to the provisions of the ordinance were thereby 'taken and condemned for public use'; it further provided that compensation should be assessed and paid in accordance with the Charter, by special assessment to be levied upon a benefit district with boundaries precisely the same as those of the tract under condemnation. It was further provided that the ordinance should be effective notwithstanding any provision of the Kansas City general zoning ordinance, and that it might be repealed within said period of twenty years only 'upon the petition of a majority of the owners' of property within the benefit district, both in number and in front footage.
On March 15, 1965, ten lot owners in the addition filed a petition for declaratory judgment seeking a declaration that the ordinance was unconstitutional and void, generally upon the theory that the taking was for private use and benefit, that it was ultra vires, and that it constituted a taking of their property rights without due process. For reasons to be developed, we shall not need to elaborate further on that petition.
Five motions to dismiss the condemnation proceedings were filed by property owners in the district, representing sundry pieces of property. These motions alleged generally: that the ordinance was violative of Article 1, §§ 26 and 28 of the Missouri Constitution, V.A.M.S., in that it directed the taking of private property and rights for private use, under the pretext of taking it for public use; that it was ultra vires, and contrary to the provisions of the charter; that it was enacted predominantly for the private benefit of those owners of property in the district who desired to maintain one-family occupancy; that the enforcement of the ordinance against properties fronting on the Southwest Trafficway would not serve any of the purposes recited; that any possible public benefit would be merely incidental; that the ordinance deprived the owners of property rights without due process, and that it was not authorized under the condemnation provisions of the Kansas City Charter.
The court consolidated the condemnation proceedings with the declaratory judgment suit and on April 22, 1965 (order re-entered in more specific form on May 11, 1965) sustained all of the motions to dismiss, and dismissed the consolidated causes with prejudice, without the hearing of any evidence. In due time the City appealed. The obvious question is whether such a condemnation proceeding was and is legally permissible. We shall refer to the condemnor as the City.
Kansas City is given the following general power of condemnation by Article 1, § 1(9) of its Charter: 'To exercise the right of eminent domain and to condemn property, real or personal, or any right, interest, easement, restriction or use therin, within or without the city or state for any public or municipal use or purpose.' As already stated, no evidence was heard, and no stipulation of facts was filed. In the...
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Labrayere v. Bohr Farms, LLC, SC 93816
...if it is reasonably likely to create some “public advantage” or “public benefit.” Dolan, 398 S.W.3d at 476 (citing In re Coleman Highlands, 401 S.W.2d 385, 388 (Mo.1966) ).There are two deficiencies in Appellants' argument that section 537.296.2 effectuates a private taking. First, the plai......
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City of Kansas City v. Kindle, 53731
...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......
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State v. Dolan
...deprive it of its public character.298 Mo. 569, 252 S.W. 404, 408 (banc 1923) (citation omitted). See also In re Coleman Highlands, 401 S.W.2d 385, 388 (Mo.1966) (“We do note that ... [this] Court adopted what it described as a liberal and flexible interpretation of ‘public use’ which, it s......
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Norfolk & W. Ry. Co. v. Greening, 54665
...did turn on the particular facts of each case. 'There is no fixed or stereotyped definition of the term 'public use. " In Re Coleman Highlands, Mo., 401 S.W.2d 385, 387. From the record before us, we conclude that the taking was reasonably necessary to facilitate the operation of plaintiff'......