Dahman v. City of Ballwin, 34185

• Decision Date: 27 June 1972
• Docket Number: No. 34185,34185
• Citation: 483 S.W.2d 605
• Parties: Ronald DAHMAN et al., Plaintiffs-Appellants, v. CITY OF BALLWIN, a municipal corporation, et al., Defendants,-respondents. . Louis District
• Court: Missouri Court of Appeals

Page 605

483 S.W.2d 605

Ronald DAHMAN et al., Plaintiffs-Appellants, v. CITY OF BALLWIN, a municipal corporation, et al Defendants,-respondents.

No. 34185.

Missouri Court of Appeals, St. Louis District.

June 27, 1972.

Motion for Rehearing or to Transfer to Supreme Court Denied

July 27, 1972.

Application to Transfer Denied Sept. 11, 1972.

Harold B. Bamburg, St. Louis, for plaintiffs-appellants.

Richard F. Provaznik, St. Louis, for defendants-respondents, City of Ballwin, and others.

Padberg, Raack, McSweeney & Slater, R. J. Slater, St. Louis, for respondent, Parc Renaissance, Inc.

WEIER, Judge.

In this action the plaintiffs sought a declaratory judgment holding the City of Ballwin zoning ordinance No. 736 invalid and enjoining the defendant City of Ballwin and its city officials from issuing building permits which would authorize construction of any dwelling units other than single-family units, on lots not less than 20,000 square feet each, on the land regulated by the ordinance. They also requested that the defendant, Parc Renassance, Inc., be enjoined from building dwelling units on this property other than in compliance with the minimal zoning standards outlined above.

The land in question is a 78-acre tract of land lying at the northeast corner of the City of Ballwin. This tract of land is completely undeveloped and its topography varies considerably--containing a steep hill on its southern portion, a creek running through it, and many ravines cutting through the terrain joining the creek. But, for the most part, the land is low in elevation and could best be described, as it had previously been designated, as 'flood plain.'

Prior to its annexation by the City of Ballwin on November 24, 1969, the property was in unincorporated territory and was governed by the zoning regulations of St. Louis County. The county had classified the land Residential--3 and Flood Plain Residential--3. According to the St. Louis County zoning ordinance only single-family residences could be constructed thereon and each residential unit was required to have a minimum lot area of 10,000 square feet. As a consequence, this zoning classification would allow no more than 283 houses to be erected on this tract of land.

The contemplated annexation of the land by the City of Ballwin began a sequence of events which led to the commencement of this lawsuit. After the annexation proceedings were commenced, the planning and zoning commission of the City of Ballwin was directed to prepare a preliminary report and hold hearings on the subject of zoning this 78-acre tract of land. The preliminary report was issued, recommending that this tract be zoned Residential--2, Single-Family District. This would permit construction of single-family residences only, with a minimum lot requirement of 20,000 square feet. Hearings were then held, pursuant to § 89.070, RSMo 1969, V. A.M.S. ¹ (concerning the procedural requirements for acts of original zoning) and a final report of the zoning and planning commission was issued on October 8, 1969, recommending the adoption of the zoning classification as outlined in its preliminary report.

A public hearing was scheduled for October 27, 1969, by the board of aldermen with respect to the zoning classification of the land to be annexed. Prior to this date a protest petition was submitted by the plaintiffs. The record shows that this petition complied with the requirements of § 89.060, in that it contained the signatures of the owners of at least ten per cent of the area of land adjacent to the 78-acre tract. The effect sought by this petition was to require the board of aldermen to secure a three-quarter majority vote to pass any action designated 'rezoning.' Absent a protest petition, only a simple majority would be required to 'zone' or to 'rezone.' §§ 89.060 and 89.070.

A public hearing was commenced by the board of aldermen on October 27, 1969, continued on November 10, 1969, and terminated on November 24, 1969. After the hearing, and at the November 24 regular meeting of the board of aldermen, the board adopted Ordinance No. 734, annexing the 78-acre tract of land to the City of Ballwin. Ordinance No. 736 was also introduced and passed by a 4-to-2 vote. This ordinance would classify the newly annexed land as Residential-5, Multiple Dwelling District, and would allow the construction of multiple dwellings on lots requiring an area of only 2,000 square feet per family. The mayor vetoed the measure and the board of aldermen overruled this veto at their December 8 meeting by a 4-to-2 vote.

The plaintiffs commenced their action in the Circuit Court of St. Louis County on December 8, 1969. Although not residents of the City of Ballwin, they owned homes in the Fox Creek Subdivision, a subdivision of single-family residences, lying north of and adjacent to the annexed land.

The trial began on May 18, 1970, and lasted four days. Much testimony was elicited from witnesses whose interest was manifested by their ownership of the adjacent property, from planners, architects, and engineers whose expertise was relevant to the feasibility of a multi-family dwelling complex, and from members of the then existing municipal government who were involved in the legislative process. A substantial portion of the evidence related to the reasonableness of an R--5 zoning classification on the annexed territory. The evidence also established the flexibility of construction permitted on this land under the City of Ballwin ordinance, as opposed to the limited single-family dwellings permitted under the St. Louis County ordinance.

The Circuit Court rendered judgment in favor of the defendants, finding the enactment of Ordinance No. 736 procedurally valid as well as being a valid exercise of the judgment of a 'duly constituted legislative body.' The plaintiffs appealed from the judgment, contending:

(1) The adoption of Ordinance No. 736 was an act of 'rezoning' and thus invalid because it was not passed by the necessary three-quarter majority, as required by § 89.060;

(2) The zoning classification was arbitrary and unreasonable;

(3) The trial judge did not apply the proper test in determining the question of the reasonableness of the ordinance in question.

In regard to the plaintiffs' first argument, their reasoning is twofold. They contend:

(1) that all territory annexed to the city initially is classified as R--1 Single-Family Dwelling Districts and in accordance with Article II, Section 3, Zoning Ordinance of the City of Ballwin, and that any subsequent zoning legislation must be categorized as 'rezoning'; and,

(2) that because of the zoning designation placed upon the 78-acre tract by St. Louis County prior to annexation, any subsequent zoning legislation by the City of Ballwin must be categorized as 'rezoning.'

Zoning ordinances, although operating locally, constitute an exercise of the police power of the state. A city has no inherent police power and must look to the statutes to determine the extent of the power delegated by the state to it. State ex rel. Sims v. Eckhardt, Mo., 322 S.W.2d 903, 906(2, 3). It has long rested upon elementary principles that the enabling act (§ 89.010 to § 89.140) requires those using the powers delegated to conform to the terms of the grant. State ex rel. Kramer v. Schwartz, 336 Mo. 932, 82 S.W.2d 63, 66(1). The procedures to be followed in enacting zoning regulations or changing those existing are set forth in §§ 89.050 to 89.070. Provisions for public hearing and official notice are applicable to all zoning legislation. However, two distinctions do exist between an act of original zoning and changes made to existing regulations: (1) all acts of original zoning must first be submitted to a zoning commission for study, public hearing and a report, (§ 89.070); and, (2) while all acts of original zoning require a simple majority of the approving legislative body, any change submitted for approval which has been protested by owners of ten per cent of land 185 feet distant from the boundaries of the land to be rezoned requires approval of a three-quarter majority of the legislative body. § 89.060.

Article II, Section 3, of the Zoning Ordinance of the City of Ballwin (July 11, 1966) reads as follows: 'In any case where property is not specifically within a district shown on the District Map, such property shall be considered as being within the R--1, Single-Dwelling Family District until or unless otherwise classified by ordinance. All territory which may hereafter be annexed to the City of Ballwin shall be automatically classified in the R--1 Single-Family Dwelling District until otherwise classified by ordinance.'

This ordinance fails to provide the minimal procedural requirements of notice and hearing required by the enabling act and set forth above, and for that reason alone is invalid zoning legislation. City of Monett, Barry County v. Buchanan, Mo., 411 S.W.2d 108, 113(2); Wippler v. Hohn, 341 Mo. 780, 110 S.W.2d 409, 411(5).

But it is also suggested that the City of Ballwin ordinance is valid, absent any of the procedural requirements, because its function is that of an 'interim' zoning measure. The question of the validity of interim zoning ordinances has appeared only sporadically in Missouri case law. In State ex rel. Kramer v. Schwartz, supra, 336 Mo. 932, 82 S.W.2d 63, the court rejected the validity of 'interim' ordinances, stating: 'In our view, both of the provisions of the Enabling Act just mentioned (public hearings and the appointment of a board of adjustment) are material and substantial requirements intended to safeguard the property owner, the public, and the municipality against injustice, error, and precipitate or ill-advised action by local legislative bodies or administrative officers, the mandatory in character, in that compliance with these requirements is essential to the validity of any zoning ordinance, whether denominated 'interim' or...