Desloge v. St. Louis County

• Decision Date: 09 September 1968
• Docket Number: No. 52960,No. 1,52960,1
• Citation: 431 S.W.2d 126
• Parties: Joseph DESLOGE et al., Appellants, v. COUNTY OF ST. LOUIS et al., Respondents
• Court: Missouri Supreme Court

Page 126

431 S.W.2d 126

Joseph DESLOGE et al., Appellants, v. COUNTY OF ST. LOUIS et al., Respondents.

No. 52960.

Supreme Court of Missouri, Division No. 1.

Sept. 9, 1968.

Joseph B. Moore, St. Louis County Counselor, Thomas W. Wehrle, Deputy County Counselor, Robert N. Rosenblum, Asst. County Counselor, Clayton, for respondents, St. Louis County and others.

Ziercher, Tzinberg, Human & Michenfelder, Albert A. Michenfelder, Jr., Clayton, for respondents, The Mayfred Corp., Arthur J. and Kevin E. Daniels and Herman J. and Mary G. Meyer.

David G. Dempsey, Dempsey & Dempsey, Clayton, for plaintiffs-appellants.

HIGGINS, Commissioner.

Action to have the zoning ordinance (Ordinance 3552) of St. Louis County declared invalid and void due to alleged procedural defects; to have it declared invalid, void, arbitrary, unreasonable and capricious insofar as it places property of defendants Daniels, Mayer, and Mayfred Corporation (Mayfred) in District R--4 (7,500 square feet minimum size residential lots); and to have the County Supervisor, Public Works Director, and Members of the St. Louis County Council enjoined from granting any permits to Mayfred Corporation to build on its R--4 property.

Judgment denied relief to plaintiffs and upon their appeal St. Louis County, a political subdivision of the State of Missouri, is a party defendant-respondent. Witt v. City of Webster Groves, Mo., 383 S.W.2d 723, 725(1).

On June 13, 1946, St. Louis County enacted its first zoning ordinance and the Mayfred property in the Florissant Valley of northern St. Louis County was zoned B--4 Residential, one residence per acre. At that time north St. Louis County had not experienced residential growth of note, but has since become one of the fastest growing areas of the county due to the industrial complex in and around the St. Louis airport.

In 1958 St. Louis County employed Harland Bartholomew and Associates to prepare an inventory of all actual uses of land without regard for existing zoning. This study, 'A general Land Use Plan,' was completed in January, 1960, and stated that 'the major segments of the level land still available for development are in the northern part of the county generally in the Florissant Valley and around Spanish Lake.' Based on this study the St. Louis County Planning Commission in the Spring of 1961, prepared a more detailed study, a 'Guide for Growth,' which proposed proper, as opposed to actual, uses of land in the county. 'Guide for Growth' stated: 'In general, high and medium density (7,500 square feet lots) residential development is proposed throughout the level Florissant Basin west of Halls Ferry Road.'

After approximately two more years of work, the Planning Commission and its staff in May, 1964, completed text and maps for a proposed new Master Zoning Ordinance for all of St. Louis County lying outside incorporated cities. Between May and July 14, 1964, the Planning Commission held a series of public hearings on the proposed Master Zoning Ordinance.

On July 21, 1964, the Planning Commission also held a public hearing on a specific request of Mayfred Corporation to rezone its 350-acre tract south of the intersection of Shackelford and New Halls Ferry Roads in North St. Louis County from B--1 classification under the 1946 Ordinance to R--4. Both proponents and opponents, including many of the parties to this action, were heard. The Commission met in executive session August 3, 1964, recommended denial of the request, and transmitted that recommendation to the St. Louis County Council. The Council entered an order September 3, 1964, whereby the recommendation of the Commission was ordered to 'be received and filed.'

The text and maps of the proposed new Master Zoning Ordinance, as prepared by the Planning Commission, were submitted to the County Council in December, 1964. The proposal recommended placing the Mayfred tract in a new category, nonurban, which would limit residential development to one residence per three acres.

Ordinance 3552, embodying the proposed zoning code, began its life when introduced in the Council as Bill No. 1, January 7, 1965. Bill No. 1 had for its purpose the repeal of the existing zoning ordinance relating to zoning of the unincorporated area of St. Louis County and enactment of a new chapter relating to the same subject. A public hearing was held by the Council on Bill No. 1 January 28, 1965, pursuant to notice dated January 18, 1965. The notice advised of the date, time, and place of the hearing, and that 'interested persons are invited to express their views * * *.' Provision was made for continuing the hearing beyond regular working hours if necessary for all persons to be heard and advised also that 'The Council will review written submissions.'

The record does not indicate that any of these appellants or their representatives expressed themselves on any of the proposed zoning; however, appellants' brief concedes their presence at the hearing, alleging 'Not a word, spoken or written, is raised to protest the proposed nonurban zoning of the Mayfred Tract. Those present in favor of that recommendation go away secure in the thought that the ugly and monotonous sprawl of suburbia has finally been stopped.'

Mayfred Corporation expressed its position in favor of R--4 zoning of its tract and registered its objection to the proposed nonurban classification of its property by written submission to the Council on January 28, 1965. This protest and submission recited the nonurban classification in the proposed ordinance which refers 'to 'areas within which rough natural topography, geological conditions or distances from urbanized areas cause practical difficulty or excessive cost in providing and maintaining public roads and public or public-utility service and facilities or areas where significant non-urban uses have been established.' * * * 'the purpose of these regulations is to restrain development which would require a burdensome or disproportionate expenditure of public funds for the provision of necessary supporting roads and facilities. '' The written submission emphasized that, contrary to this definition of the nonurban district, the Mayfred tract was flat, lending itself to residential development of 7,500 square feet lots; all public utilities already exist in the area; road access already is available by Shackelford and New Halls Ferry Roads which are under plans for state improvements; the property adjoins property annexed to the City of Florissant zoned for 7,500 square feet residential lots and is but 500 feet from a similarly developed subdivision; a market for such lots exists, and this is an appropriate area for their development.

Between the hearing January 28, 1965, and April 8, 1965, the Council met in executive session on six occasions to consider changes in the ordinance. On April 3 and 4, 1965, a weekend session, the Council completed nine changes in text and sixty-five changes on the maps.

On April 8, 1965, Substitute Bill No. 1 for Bill No. 1 was introduced in the Council. This bill reflected the changes agreed upon by the Council, among which was R--4 zoning of the Mayfred tract. The amended bill was adopted as Ordinance 3552, April 8, 1965, by a vote upon suspension of the rules.

Appellants contend that Ordinance 3552 was enacted by the St. Louis County Council without proper notice and public hearing. The argument is that at the public hearing held by the Council 'there was no hint of any possible change in the recommendation of the Planning Commission that the Mayfred Tract be zoned for non-urban use'; that the change to R--4 residential use was made in executive session without notice, actual or constructive, of the possible change; that this, plus enactment of Substitute Bill No. 1 (Ordinance 3552) on the day of its introduction, 'prevented appellants from expressing their views regarding the proper zoning of the Mayfred Tract,' and thus 'requirements of notice, public hearing, and due process were not met.'

The question thus posed is: After notice has been given and a hearing has been held by the legislative body (St. Louis County Council) on a proposal for comprehensive zoning of all unincorporated areas in the county, is the Council thereafter free to modify the proposal without further notice, or is the Council limited to consideration of the recommendation concerning which notice was given? See City of Monett v. Buchanan, Mo., 411 S.W.2d 108, 112. See also Annotation 96 A.L.R.2d 449: 'Validity and construction of statutory notice requirements prerequisite to adoption or amendment of zoning ordinance or regulation,' and particularly the problem of notice as it 'concerns measures noticed in one form and passed in another,' 96 A.L.R.2d l.c. 457.

Missouri has recognized the existence of two views in other jurisdictions for resolution of this problem. In one view, where sufficient notice is given prior to the public hearing, the zoning body may change or amend the proposal in the course or passage without another public hearing; in another view, the zoning ordinance may be void if substantial amendments are made after the public hearing on the proposal without any new notice and hearing on the changes and amendments. The authorities under the second view demonstrate additional problems with what constitutes a substantial change. Each case must be viewed in its own posture and even 'compliance (with second notice requirements) may be excused where the contesting party suffered no prejudice or other harm as a result of the improper notice, or where, despite its alleged deficiencies, he was sufficiently informed to have attended the hearing or at least to have known that it was taking place.' 96 A.L.R.2d l.c. 456; City of Monett v. Buchanan, supra, 411 S.W.2d l.c. 113(1--3).

Appellants do not question the sufficiency of the notice given for the public hearing held by the Council January 28, 1965. By that notice they were...