Ford Leasing Development Co. v. City of Ellisville, 51003

• Decision Date: 21 October 1986
• Docket Number: No. 51003,51003
• Citation: 718 S.W.2d 228
• Court: Missouri Court of Appeals
• Parties: FORD LEASING DEVELOPMENT CO., Plaintiff-Respondent, v. CITY OF ELLISVILLE, Edward M. O'Reilly, Robert K. Voegele, John A. Klein, Vernon H. Jaycox, Frank Eaton, Lyall Cunningham, Clark Compton, & Gerad W. Wolf, Defendants-Appellants.

Page 228

718 S.W.2d 228

FORD LEASING DEVELOPMENT CO., Plaintiff-Respondent, v. CITY OF ELLISVILLE, Edward M. O'Reilly, Robert K. Voegele John A. Klein, Vernon H. Jaycox, Frank Eaton Lyall Cunningham, Clark Compton, & Gerad W. Wolf, Defendants-Appellants.

No. 51003.

Missouri Court of Appeals,

Eastern District,

Division Three.

Oct. 21, 1986.

Donald K. Anderson, Jr., St. Louis, for defendants-appellants.

Albert Michenfelder, St. Louis, for plaintiff-respondent.

KAROHL, Judge.

The City of Ellisville (City) denied the application of Ford Leasing Development Company (Ford Leasing) to subdivide 9.52 acres of land within the City into a 4.0 acre tract and 5.52 acre tract. City also denied Ford Leasing a conditional use permit for the four acre tract. In a Chapter 536, RSMo 1978, proceeding the trial court found the decision of the City unsupported by competent and substantial evidence. The trial court ordered the City to permit subdivision and to issue a conditional use permit subject to conditions of operation requested by the Board of Aldermen of the City and agreed to by Ford Leasing. The City appeals. We affirm.

BACKGROUND

The land in question was formerly owned by Bud Anderson Ford Company. In December, 1977, City granted to Bud Anderson Ford Company a conditional use permit to operate a new and used automobile agency on five and one half acres of land at 1081 Manchester Road. Chapter 32 [zoning] of the City of Ellisville's Municipal Code governed such permits. In April, 1983, the Board passed Ordinance No. 1106 pursuant to Chapter 32, Section 21, granting Bud Anderson a conditional use permit to operate an AMC Jeep Dealership on the four acres. The four acres abut the five and one half acres on it's west boundary. Pursuant to this permit, Bud Anderson constructed on the four acre tract a sales agency building containing approximately 2500 square feet. Ford acquired the nine and one half acres from Bud Anderson and proposes to use the four acres in a manner similar to the use by Bud Anderson under the 1983 Ordinance. The plans approved by the City for Bud Anderson also included construction in the future of a larger service building which was never built. AMC vehicles were to be serviced by an existing Ford agency on the five and one half acres until the service building was constructed.

We now consider the application of Ford Leasing which was filed with the City in the Spring of 1984. While this application was pending Frank Bommarito Oldsmobile filed an application for a use permit to develop a sales and service building consisting of 15,000 square feet from which it intended to operate a Mazda Dealership. Frank Bommarito is located across the street from Ford Leasing. The application of Bommarito Oldsmobile was granted on June 27, 1984. After public hearings the application of Ford Leasing was denied on January 16, 1985.

THE APPLICATION OF FORD LEASING

In January, 1984, Ford Leasing purchased from Bud Anderson the entire nine and one half acre tract. Thereafter, the eastern five and one half acres were leased to Bo Beuckman Ford. Ford Leasing closed the AMC Agency on the four acre tract and filed applications to subdivide the two tracts and for a conditional use permit for the four acres. The application requested permission to construct an additional dealership facility for the purpose of selling and servicing new and used Lincoln-Mercury automobiles. It was Ford Leasing's intention to continue to lease the five and one half acre tract to Bo Bueckman Ford Agency and to obtain from the City permission to build the Lincoln-Mercury Dealership on the remaining four acres.

Public hearings were held by the City to consider Ford's application on September 5, September 9, and October 17, 1984. The land in question is zoned Business District. Sections 32-20 and 32-21 of the City's Municipal Code describe permitted uses in a Business District. Section 32-20 provides that a new and used automobile sales agency is a permissible use in a Business District Zone only after the issuance of a conditional use permit. Section 32-21 requires an application for the permit; a recommendation [for or against] by the Planning and Zoning Commission to the Board of Aldermen and a public hearing conducted by the Board before the permit is issued. "After such hearing, the Board of Aldermen shall determine whether such building use will: (1) Substantially increase traffic hazards or congestion; (2) Substantially increase fire hazards; (3) Adversely affect the character of the neighborhood; (4) Adversely affect the general welfare of the community; (5) Overtax the sewage or public utilities." Section 32-21(d). "If the Board of Aldermen's findings be negative as to all subjects here in referred to in paragraphs (1), (2), (3), (4), and (5) of subsection (d), then the application shall be granted; if affirmative, as to any subject, then such permit shall be denied." (emphasis ours) Section 32-21(e).

At the public hearings, Ford Leasing offered evidence to negate each of the concerns mentioned in the Ordinance which would prevent issuance of a conditional use permit. Ford presented a traffic study conducted by a traffic consulting firm which indicated there would be little difference between traffic produced by the former use of the four acres, AMC Jeep Sales Agency, and the proposed Lincoln-Mercury operations. The study demonstrated that traffic generated by the new Lincoln-Mercury dealership would be considerably less during peak hours than if the property was used as an office or retail business, but it would generate more traffic on Saturdays.

The Building Commissioner of the City responded and offered his own interpretation of the study. By his own admission he was not qualified as an expert. Traffic hazard in this context is not a matter readily apparent to a layman. He concluded that the Lincoln-Mercury agency would increase traffic by two percent. Ford Leasing's consulting firm indicated that the Building Commissioner did not take into account the fact that the traffic would be going in both directions and therefore the two percent increase in traffic should be divided in half and the traffic would effectively increase by only one percent. There was no evidence to refute this testimony. Additionally, no evidence was presented that a one percent or even a two percent increase in traffic would cause an increase in traffic hazard or congestion.

The Ballwin Fire District approved the Plan presented by Ford Leasing and concluded that there would not be a substantial increase in any fire hazard.

On the issue of whether the proposal would "adversely affect the character of the neighborhood" Ford Leasing presented a study performed by a real estate appraiser. The appraiser stated that his study included twenty-eight automobile agency sites, fifteen fast-food sites and eight service stations to determine the proposal's effect on the value of adjacent residential property. He concluded there was no indication the value of residential homes closest to the Ford property would vary in value from the homes a greater distance away in neighboring subdivisions. He noted in his study that while there are many people who might not wish to voluntarily live near any type of commercial facilities, there are just as many others of opposite views in the market place. Because the market place is very large and includes so many diverse types of people there is little discrimination between sites and therefore the market value is not affected. The appraiser concluded that there would be no adverse effects on the neighborhood. When asked by a Board member whether his study addresses the present situation where a dealership is withdrawn and an additional dealership is substituted in it's place, he responded, "no".

The only evidence presented at the hearings regarding the effects on the character of the neighborhood were made by three owners of abutting or nearby property along the north line [rear] of the proposed agency. The three owners expressed their concern about noise from the dealership's loud speakers and tools as well as the upkeep and maintenance of the buffer zone between the commercial and residential properties. None of the owners stated specifically that it would diminish the value of their property. However, one owner stated he would assume the proposed agency may have an adverse effect on the value on his property but offered no substantial evidence to support the same. No comparison was made between the previous use by AMC Jeep sales and the proposed use by Ford Leasing on this account.

In regard to the proposal's effect on the general welfare of the community, the Mayor of the City stated, "I feel six dealers in a town of 6,000 people is adequate." The City requested Ford Leasing to submit an Environmental Impact Report which was performed by a professional engineer. The report analyzed the potential environmental effect of the proposed dealership and concluded that the dealership could produce adverse effects on the environment, but that these effects were outweighed by "progress". The Board chose to accept only part of the report regarding the adverse effects and rejected the "progress" portion of the report based on the fact that one dealership existed for every 1,000 persons within the City. The Environmental Impact Report was not discussed during the public hearings and was submitted to the Board after the third and final public hearing.

Structural Systems Inc. submitted a report stating, "[a]ll utilities including sanitary sewage are available and adequate for the tract." The only evidence in opposition on this subject was the testimony of a Lieutenant of Police for the City. He stated that, "if one more large automobile dealership goes into the city, we will probably be asking the Board for extra man-power." Calculations were made and offered regarding the costs of an extra police officer versus the amount of...