Congregation Temple Israel v. City of Creve Coeur, 46597

• Decision Date: 12 January 1959
• Docket Number: No. 46597,No. 1,46597,1
• Citation: 320 S.W.2d 451
• Parties: CONGREGATION TEMPLE ISRAEL, a Corporation, Plaintiff-Respondent, v. CITY OF CREVE COEUR, a Municipal Corporation, James P. Wilson, Mayor of City of Creve Coeur, Missouri, Francis A. Casserly, John McVicker, Edward Wirt and Leo Reuther, Members of Board of Aldermen, City of Creve Coeur, Missouri, and Milton Johnson, City Clerk, City of Creve Coeur, Missouri, Defendants-Appellants
• Court: Missouri Supreme Court

Page 451

320 S.W.2d 451

CONGREGATION TEMPLE ISRAEL, a Corporation, Plaintiff-Respondent, v. CITY OF CREVE COEUR, a Municipal Corporation, James P Wilson, Mayor of City of Creve Coeur, Missouri, Francis A Casserly, John McVicker, Edward Wirt and Leo Reuther Members of Board of Aldermen, City of Creve Coeur, Missouri and Milton Johnson, City Clerk, City of Creve Coeur, Missouri, Defendants-Appellants.

No. 46597.

Supreme Court of Missouri, Division No. 1.

Jan. 12, 1959.

Motion for Rehearing or to Transfer to Court en Banc Denied

Feb. 9, 1959.

William H. Wyne, Jr., Clayton, and Roberts P. Elam, St. Louis, for appellants.

Lewis, Rice, Tucker, Allen & Chubb, James A. Singer, J. L. Pierson, Jerome W. Sandweiss, Samuel H. Liberman, St. Louis, for respondent.

Leo Pfeffer, New York City, Echeal T. Feinstein, Irl B. Baris, St. Louis, Benjamin W. Mintz, of counsel, for the American Jewish Congress, St. Louis Council, and the St. Louis Rabbinical Association.

John Raeburn Green and Lewis C. Green, St. Louis, for Metropolitan Church Federation of Greater St. Louis, amicus curiae.

Bernard J. Huger, Walter H. Pollmann, St. Louis, for Joseph E. Ritter, Archbishop of St. Louis.

HYDE, Presiding Judge.

Declaratory judgment action seeking a declaration that certain ordinances of the City of Creve Coeur were void (under which plaintiff was refused a permit to build a temple on its property); and asking that defendants be enjoined from enforcing these ordinances against plaintiff and from interfering with plaintiff in the use of its property for constructing a building to use for religious worship, Sunday School and other church purposes. The court entered a decree for plaintiff granting the relief sought and defendants have appealed.

Creve Coeur is one of the many cities of St. Louis County. In 1951, the City enacted a comprehensive zoning ordinance (No. 17) dividing the City into six use districts; A, B, C and D were single family dwelling districts, with lot sizes of one acre in A, 20,000 feet in B, 15,000 feet in C, and 7,500 feet in D; E was a multiple dwelling district and F was a commercial district. This original ordinance did not prohibit churches from being built in any district and as to the A district, among other matters, provided in Article IV:

'Section 2. Use Regulations: Except as otherwise provided, business and industry are specifically prohibited, and a building or premises shall be used only for the following purposes:

'1. Single Family Dwellings.

'2. Churches, but only when off-street parking space is provided upon the lot or within one hundred (100) feet thereof, which space is adequate to accommodate one (1) car for every eight (8) persons for which seating is provided in the main auditorium of the Church and exclusive of the seating capacity of Sunday School and other special rooms.'

Article IV, Section 2, also permitted in the A district public and private schools, golf courses, private clubs, public parks and playgrounds, hospitals and institutions with certain provisions for size of site and parking space. On April 28, 1954, plaintiff made a contract to purchase from its owner a 23.66 acre tract, located in the A district of Creve Coeur. On June 1, 1954, the deed conveying this land to plaintiff was executed and recorded; and at that time no change in the zoning ordinance had been made. However, on May 12, 1954, a petition was presented at a meeting of the Board of Aldermen requesting amendment of the zoning ordinance. Thereafter, at a special zoning commission meeting, a public hearing was asked for on the petition requesting amendment; and publication of notice of a public hearing, to be held June 2, 1954, was made. A public hearing was held on that date, and amending ordinances were prepared. On June 23 another public hearing was held on proposed amending ordinances 104 and 105, and after this hearing these ordinances were adopted by the Board on that same date.

Ordinance 104 repealed all authorization for churches in any district in the City. Authorization for schools, public or private, golf courses, private clubs, public parks and playgrounds, and hospitals and institutions, was also repealed. Ordinance 105 provided that on written application for any of these uses the application should be forwarded to the City Zoning and Planning Commission 'whose duty it shall be to promptly investigate, consider and make written report thereon to the Board of Aldermen.' This ordinance futher provided that a public hearing was required to be held; and that 'after report by the City Zoning and Planning Commission, and after such public hearing, and subject to such protective restriction as it may deem necessary to protect the character of the surrounding property, the public health and the public welfare, the Board of Aldermen may issue a special permit authorizing the location, erection, reconstruction or structural alteration of any of the following land uses or structures in any district from which they are prohibited by this Ordinance; provided, however, in case of a protest against the granting of said application duly signed and acknowledged by the owners of ten (10) per cent or more of the area of the property located within an area determined by lines drawn parallel to and 1000 feet distant from the boundaries of the property sought to be devoted to such use, such permit shall not be issued except by the favorable vote of three-fourths of all the members of the Board of Aldermen.' While this ordinance provides some standards for establishing protective restrictions when a permit is granted, it does not provide any standards for granting a permit as did the ordinance considered in State ex rel. Ludlow v. Guffey, Mo.Sup., 306 S.W.2d 552, cited by defendants.

Plaintiff's land is at the intersection of Ladue Road and Spoede Road, in the southeastern part of the City, near Lindbergh Boulevard, which in this section is on the boundary line between the cities of Creve Coeur and Ladue. On the east side of Lindbergh in Ladue are the Country Day School and the Mary Institute. Chaminade College is on the west side of Lindbergh south of Ladue Road in the southeast corner of Creve Coeur; and there is a church north of the College. The area adjoining plaintiff's land is correctly described by defendants, as follows: Ladue Road, which runs east and west, has a right-of-way 60 feet wide, and is paved with concrete 20 feet wide, while Spoede Road, which runs north and south, has a two-lane blacktop pavement. On Ladue Road, immediately east of plaintiff's tract, is located the Ranken-Jordan Home, a small institution for crippled children which existed there prior to the incorporation of the City, and is a nonconforming use under the comprehensive zoning ordinance. A portion of plaintiff's tract extends behind the Ranken-Jordan Home, and is bounded on the east by the Krey estate, consisting of a large home on a large tract of grounds, and by Country Fair Acres, a recent subdivision of one-half acre lots. Plaintiff's tract is bounded on the north by a subdivision known as Chilton Acres. To the west of plaintiff's tract, across Spoede Road and on the northwest corner of the intersection of that road with Ladue Road, is a six-pump Phillips 66 Service Station, also in existence prior to the incorporation of the City, and a nonconforming use under the zoning ordinance. North of this service station, along the west side of Spoede Road, are homes consistent with the others in the area. South of Ladue Road, across from plaintiff's tract and east of Spoede Road, is a large tract (about 15 acres) vacant except for a frame residence facing on Spoede Road. On the southwest corner of the intersection of Spoede and Ladue Roads, is a large subdivision of fine homes, known as Oak Park Estates. All of the area adjoining and surrounding plaintiff's tract, with the exception of Country Fair Acres which is in the B district, is in the A district under the zoning ordinances.

Plaintiff's congregation had 1340 members but only the head of a household was considered as a member. The temple was planned with a maximum seating capacity in the sanctuary of 1500 expected to be filled only on the two high holy days. Average weekly attendance was estimated at 200 to 300. There would be regular religious services weekly at 8:15 P.M. on Friday and 10:30 A.M. on Saturday (children's services for Sunday School) with special services for the five major Jewish festivals. Plaintiff's present temple is in the City of St. Louis but about 80 per cent of its members live in St. Louis County.

Plaintiff made an application which was denied, only one member of the Board of five being in favor of it. Plaintiff thereafter brought this suit and contends that these ordinances violate the First Amendment of the Constitution of the United States as applied to the states by the Fourteenth Amendment and also Sections 5, 7 and 10 of Article I of the Constitution of Missouri, V.A.M.S., claiming them to be laws prohibiting the free exercise of religion; that they violate the Fourteenth Amendment and Sections 10 and 13 of Article I of the Missouri Constitution because they lack adequate standards for issuance or denial of special permits, provide for unconstitutional delegation of legislative powers to adjoining landowners, violate the prohibition against ex post facto laws and laws retrospective in their operation, authorize the passage of special laws, and unlawfully discriminate against plaintiff in violation of the equal protection clause. Plaintiff further contends these ordinances are void because they fail to conform to and are not authorized by the Missouri enabling act authorizing zoning (Sections 89.010-89.140; statutory references are to RSMo and V.A.M.S.) saying there is no authority in the act for special permits, they were not adopted as a part of a comprehensive plan, and they fail to conform to the required purposes specified in the...