Heidrich v. City of Lee's Summit

Decision Date31 May 2000
Citation26 S.W.3d 179
Parties(Mo.App. W.D. 2000) Pierre Heidrich and Maria Long, Appellants/Respondents v. City of Lee's Summit, Respondent, Community Bank of Pettis County, Respondent/Appellant. WD56869 0
CourtMissouri Court of Appeals

Appeal From: Circuit Court of Jackson County, Hon. William W. Ely

Counsel for Appellant: Sherwin Epstein and John Roe

Counsel for Respondent: Neil Shortlidge, T. Chris Williams, Christine Bushyhead and Stanley B. Cox

Opinion Summary: When the city council of Lee's Summit approved Community Bank of Pettis County's plan to erect a bank building at 1800 S.E. Blue Parkway, Pierre Heidrich and Maria Long asked the circuit court to declare that the plan did not conform to the city's comprehensive zoning ordinance and to enjoin the bank's erection. They also averred that the ordinance approving the building's erection was void because it was arbitrary, unreasonable, not fairly debatable, illegal and unconstitutional, and they asked the circuit court to enjoin the city council from passing any zoning ordinances affecting the property and from issuing permits to construct the bank according to the plans submitted to the city. The circuit court disagreed with Heidrich's and Long's contentions and entered judgment for Lee's Summit and the bank. Heidrich and Long appeal, and the bank cross-appeals.

Division holds: (1) The circuit court did not err in refusing to dismiss Heidrich's and Long's claim as moot. Even if construction is complete, the court must determine whether zoning ordinances were violated and order the appropriate remedy.

(2) Substantial evidence existed in the record establishing that the bank's preliminary and final site plans met the requirement of the city's comprehensive zoning ordinance, No. 715.

(3) The ordinance did not require that the planning commission and the city council approve the entire project again, but only "substantial or significant changes" in the preliminary development plan.

(4) The city council's decision to adopt Ordinance No. 4453 and to approve the bank's site plan was not arbitrary and unreasonable, but was fairly debatable.

Paul M. Spinden, Presiding Judge

When the city council of Lee's Summit approved Community Bank of Pettis County's plan to erect a bank building at 1800 S.E. Blue Parkway, Pierre Heidrich and Maria Long asked the circuit court to declare that the plan did not conform to the city's comprehensive zoning ordinance and to enjoin erection of the bank building. They also averred that the ordinance approving the building's erection was void because it was arbitrary, unreasonable, not fairly debatable, illegal and unconstitutional, and they asked the circuit court to enjoin the city council from passing any zoning ordinances affecting the property and from issuing permits to construct the bank according to the plans submitted to the city. The circuit court disagreed with Heidrich's and Long's contentions and entered judgment for Lee's Summit and the bank. Heidrich and Long appeal. We issued an opinion on March 21, 2000, affirming the circuit court's judgment. We granted Heidrich's and Long's motion for rehearing filed on April 5, 2000, to reconsider the issue of whether the city presented substantial evidence that the bank's site plans met the requirements of the city's comprehensive zoning ordinance, 715. After reconsideration, we again affirm the circuit court's judgment.

Heidrich and Long have been feuding with governing authorities in Lee's Summit for some time about the development of 138 acres of land which extends 1.25 miles north of U.S. 50 and is bounded on the west by Todd George Road. See Heidrich v. City of Lee's Summit, 916 S.W.2d 242 (Mo. App. 1995). In 1978, Jackson County authorities zoned the land for "unplanned," commercial use. Lee's Summit annexed the land and, on April 7, 1992, rezoned it as a planned business district (C-P), and it became known as Charleston Park. Heidrich and Long sued Lee's Summit in 1992, challenging this rezoning. The circuit court upheld the rezoning. On appeal, this court upheld rezoning Phases II and III of Charleston Park but invalidated rezoning Phases IV and V.1 Id.

On December 11, 1996, Community Bank obtained 1.74 acres of Charleston Park's Phase II. Preliminary development plans for Phase II indicated that it would be developed as a "strip shopping center" with seven pads comprising 293,000 square feet of structures and a parking lot for 1604 vehicles. The original plans did not provide for a building on the land purchased by Community Bank.

Across Todd George Road to the west of the tract is Silkwood Estates, a single-family residential subdivision. Long is Silkwood Estates' developer, and she owns a house in the subdivision which she uses as a model house and office. Heidrich owns a house and resides in the subdivision.

In September 1996, Community Bank applied for a special use permit to allow erection of a temporary structure on the property. City officials advised Charleston Park's owner, Tarquad, Inc., that Tarquad would have to file a revised preliminary site plan for Phase II. On October 10, 1996, Tarquad filed a revised preliminary site plan. The city's planning staff recommended that the city council deny a special use permit for the temporary building, and Community Bank and Tarquad withdrew their applications and the revised preliminary development plan for Phase II.

On March 10, 1997, Community Bank filed a final site plan for a building to house a full-service bank with four drive-up windows and an automated teller machine. The total site area was 1.742 acres. The site plan showed an 80-foot buffer between the proposed bank building and Todd George Road.

The city's planning commission scheduled a hearing on the plan for April 14, 1997. Before the hearing, however, city officials decided that the bank's final site plan changed Phase II's "ownership pattern or stages of construction [and would] lead to a different development concept." City officials told Community Bank that it would have to file a revised preliminary development plan. On March 20, 1997, the bank filed its application for revised preliminary site plan approval. Section 170.B.5 of the city's comprehensive zoning ordinance provides that approval of a preliminary development plan, when granted separately from the rezoning of the subject property, must be done by amendment to the tract's original rezoning and only after a public hearing. The city, therefore, scheduled a public hearing for May 12, 1997.

On May 12, 1997, the city's planning commission held a public hearing. After the hearing, the commission unanimously recommended approval of the bank's preliminary site application. On June 3, 1997, the city council held a public hearing on the bank's application. After the hearing, the council passed a motion to approve the bank's preliminary site plan application. Thereafter, the council adopted an ordinance amending Charleston Park's original rezoning ordinance and approved the bank's final site plan application.

Heidrich and Long then filed their petition for declaratory judgment and injunction. The circuit court found that the bank's preliminary site plan application and the final site plan application reasonably conformed to the requirements of the city's comprehensive zoning ordinance and that the city council's decision to amend Charleston Park's rezoning ordinance to permit the bank building was not arbitrary and unreasonable. Heidrich and Long appeal.

In response to Heidrich's and Long's appeal, the bank asserts a cross-claim. It contends that the circuit court erred in not dismissing Heidrich's and Long's claim as moot. It argues:

[T]he only relief prayed for by [Heidrich and Long] was injunctive relief prohibiting the issuance of building or occupancy permits . . . which is now moot because all permits have been granted and the building has been built. Even if this Court determined that the [Lee's Summit] ordinance . . . is unconstitutional or otherwise void, that relief would have no effect upon [the bank]. A ruling of this Court determining that the [Lee's Summit] ordinances . . . are unconstitutional or void or that [Lee's Summit] approval of the [bank] was unauthorized, has no practical effect upon the real controversy which is [Heidrich's and Long's] objection to the construction and occupancy of the [bank].Heidrich and Long, however, also sought the circuit court's declaration that the bank's preliminary and final site plans did not comply with the city's comprehensive rezoning ordinance. Even if construction is complete, we must determine whether zoning ordinances were violated and order the appropriate remedy. This court has the authority to order removal of the building if we determine that it was erected in violation of a zoning ordinance. See 4 Robert M. Anderson, American Law of Zoning section 29.03 (1986); Donald G. Hagman and Julian Conrad Juergensmeyer, Urban Planning and Land Development Control Law section 23.6 (2nd ed. 1986); 4 Arden H. Rathkopf and Daren A. Rathkopf, Rathkopf's The Law of Zoning and Planning section 45.04 (Edward H. Ziegler, Jr., reviser, 1999). This case is not moot.

In reviewing Heidrich's and Long's appeal, we are guided by the same standard of review as was announced in Heidrich's and Long's previous appeal:

[T]he exercise of zoning power is a legislative rather than a quasi-judicial function. . . . Upon review, this [c]ourt may reverse a legislative action "only if arbitrary and unreasonable, meaning that the decision is not 'fairly debatable.'" Summit Ridge Dev. Co. v. Independence, 821 S.W.2d 516, 519 (Mo. App. 1991) (citations omitted). A decision is considered arbitrary and unreasonable if it bears no substantial relationship to the public health, safety, morals, or general welfare. State ex rel. Barber & Sons Tobacco Co. v. Jackson County, 869 S.W.2d 113, 117 (Mo. App. 1993). . . . Zoning ordinances are presumed...

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    ...is presumed, uncertainties about their reasonableness "must be resolved in the government's favor." Heidrich v. City of Lee's Summit, 26 S.W.3d 179, 184 (Mo.App. W.D.2000); See Hoffman v. City of Town & Country, 831 S.W.2d 223, 225 (Mo.App. E.D.1992) (noting that the "fairly debatable" test......
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