Ewing v. City of Springfield, 8804
| Decision Date | 02 January 1970 |
| Docket Number | No. 8804,8804 |
| Citation | 449 S.W.2d 681 |
| Parties | I. V. EWING, Safety Federal Savings and Loan Association, a corporation, H. Ben McCoy, Robert D. Adams Plumbing & Heating Company, a corporation, and One Hundred Two Glenstone, Inc., a corporation, Plaintiffs-Respondents, v. The CITY OF SPRINGFIELD, Missouri, a municipal corporation, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Don G. Busch, Springfield, for defendant-appellant.
F. B. Freeman, Thom G. Field, Neale, Newman, Bradshaw & Freeman, Springfield, for plaintiffs-respondents.
This is a declaratory judgment action in which plaintiffs, as owners of several contiguous tracts in Springfield, sought to have the City's general zoning ordinance declared invalid as to the land described in the petition on the ground that it was unreasonable, arbitrary and confiscatory as so applied. The trial court found for the plaintiffs, and the City has appealed.
We have had first to examine the question of our jurisdiction. The City assures us, without citation of authority, that the case involves only the application, not the construction, of constitutional provisions; the plaintiffs assert as positively that a live constitutional question is presented for decision. In this instance, the value of the relief sought is not shown to be in excess of our jurisdictional amount, as was the case in Huttig v. City of Richmond Heights, Mo., 372 S.W.2d 833, and Wrigley Properties, Inc. v. City of Ladue, Mo., 369 S.W.2d 397. The plaintiffs had evidence that the property involved would be worth more if it were rezoned, but they did not undertake to prove how much its value would be increased. For the original appellate jurisdiction of the Supreme Court to attach because of the amount in dispute, the record must show affirmatively and with certainty that the amount in dispute or value of the relief sought exceeds $15,000, exclusive of costs. Superior Concrete Accessories v. Kemper, Mo., 284 S.W.2d 482, 485(1, 2); Sanderson v. Richardson, Mo.App., 432 S.W.2d 625, 627--628(2). If this court lacks jurisdiction, it is because a '* * * construction of the Constitution of the United States or of this state * * *' is required within the intendment of Mo.Const. art. 5, § 3 (1945).
No doubt in a very general sense constitutional principles are involved in this case. It is well established that a valid general zoning ordinance may be so arbitrary and unreasonable in its application to a particular tract as to tend toward confiscation, and when that is true the ordinance infringes the rights of the owners under the due process provisions of both the federal and state constitutions. Women's Kansas City St. Andrew Society v. Kansas City, Mo., 8 Cir., 58 F.2d 593, 599; Huttig v. City of Richmond Heights, supra, 372 S.W.2d at 843(8). Nevertheless, this court is not called on to 'construe,' that is, to 'determine the meaning and proper effect' 1 of either U.S.Const. amend. XIV, § 1, or Mo.Const. art. 1, § 10. Whether or not the plaintiffs' constitutional rights have been infringed in this case is essentially a question of fact. Landau v. Levin, 358 Mo. 77, 80--81, 213 S.W.2d 483, 484(1); Taylor v. Schlemmer, 353 Mo. 687, 696, 183 S.W.2d 913, 916(3). Otherwise put, the 'constitutional issue' presented is really nothing more than a contention that the zoning law has been incorrectly applied by the City, and we have jurisdiction of the appeal. Wrigley Properties, Inc. v. City of Ladue, supra, 369 S.W.2d at 397--398(1).
Several factual aspects of the case should be preliminarily noted. In the first place, the plaintiffs are the owners of five separate but contiguous tracts of land which front on Sunshine Street in south Springfield. These individual tracts vary in size, and they were not, at trial time, uniformly zoned. The individual tracts were zoned R--3 (multi-family) to a depth (north and south) of 200 feet, but the parts of the plaintiffs' individual tracts extending beyond that depth were zoned R--1 (single family), and in one case partially R--1 and partially R--2 (two-family). Plaintiffs--and the City makes a considerable point of this--did not seek to have all their property rezoned, but in their petition described a tract of land 200 feet deep (north and south) and 757.5 feet long (east and west) squarely off the north side of the five separate individual tracts. This strip, to which we shall refer as the tract in suit or the subject property, fronts on the south side of Sunshine, beginning at the southeast corner of Sunshine and Pickwick Avenue, and running, as we have said, 757.5 feet east along the south side of the street.
The general area in question is that part of the City south of Sunshine (which runs east and west) between its intersections with National Avenue on the west and Glenstone Avenue on the east. Several maps and stetches of this general area were introduced in evidence. We have carefully examined these exhibits, but we shall not discuss them in detail beyond saying that one, the City's Exhibit 7, is obviously a district zoning map, though it is not so denominated. It is drawn to scale, and it very clearly shows the general layout of the property in the area, along with the zoning classification of each tract. It shows, among other things, that between its intersection with National Avenue on the west and Glenstone Avenue on the east, Sunshine is intersected by four north-south streets on the north side, and four north-south streets on the south; however, with the exception of Fremont Street, the intersections are not even generally aligned, and the only street which crosses Sunshine between the two intersections is Fremont.
As a further preliminary, it should be noted that the contest here is between classification as R--3, for which the City contends, and C--2, for which the plaintiffs argue. R--3 is designated 'multifamily' in the general zoning ordinance, but it is not a strictly residential classification; this part of the ordinance contemplates uses which involve the employment or occupancy of land by relatively large numbers of people. Uses permitted as of right include boarding houses, apartment houses, hospitals (subject to some limitation), clubs and recreational buildings. Subject to the issuance of a 'use permit,' office buildings are authorized. The R--3 category, however, excludes commercial usage; 'incidental' businesses may be conducted in apartment houses, but window displays or advertisements are generally forbidden, and while clubs or recreational facilities may be constructed, that may be done only 'provided any such use is not for commercial gain.' Office buildings may be construed upon the issuance of a use permit, but the issuance of such a permit is conditioned upon a finding by the zoning authority that no inventory of merchandise will be maintained on the premises for sale at wholesale or retail. Moreover, the lot coverage provisions restrict the use of property considerably by limiting the combined area of the main and accessory buildings to 40 per cent of the total area of the lot. The C--2 classification, on the other hand, contemplates use as a retail sales district. Forty-eight uses are permitted as of right, in addition to the 14 permitted as of right in the R--3 classification, the general limitation being that no manufacture, compounding or processing may be carried on in a C--2 district, except such as is clearly incidental to a permitted use. In the C--2 category the lot coverage restrictions apply only to structures used as dwellings.
With these preliminary matters noted, we may consider the general factual background of the case. Sunshine has for many years been a major route of travel for east-west traffic, but in recent years, and since the enactment of the general zoning ordinance, it has been widened and the volume of traffic has greatly increased. Sunshine is 62 feet wide at the point involved here. There are two twelve-foot driving lanes on either side for through traffic, and between the outside driving lanes there is a fourteen-foot painted median lane which is used primarily as an alterance turn lane for left-turning traffic. Except at the intersection of Fremont and Sunshine, some 336 feet west of the west line of the subject property, there is direct access to all abutting properties. Sunshine is part of U.S. Highways 60 and 65, and Missouri Highway 160, and is so designated. Approximately 1550 feet east of the east line of the subject property, Sunshine intersects Glenstone at right angles. The record indicates that this is the busiest intersection in the City. Traffic counts made some two and one-half years before the trial indicated that the volume of traffic through the intersection varied from 12,022 to 27,050 vehicles per day, depending on the approach at which the traffic was measured. Several witnesses testified that the volume of traffic at the intersection and to the west on Sunshine is increasing rapidly.
In the subject tract itself, beginning on the west at the intersection of Sunshine and Pickwick, there are: a federal savings and loan bank (constructed after the commencement of this litigation upon the issuance of a 'use permit'), an insurance office, an office building, and two residences. Immediately east of the subject property, there is a multi-specialty medical clinic operated by a group of physicians. From there east to the intersection of Sunshine and Glenstone--some 1300 feet--the south side of Sunshine is zoned C--2 to a depth varying from 250 to 600 feet. In this strip, there are: four residences, a flower shop, a dentist's office, a fabric shop, an optician's office, a knit shop, a combination barber and beauty center, a piano sales agency, a paint store, an interior decorating shop, another beauty shop, a self-service laundry, a bicycle sales and repair shop, a 'music store,' and an office building. It is stipulated by the City that 490 feet of this 1300...
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