Heidrich v. City of Lee's Summit

Decision Date05 December 1995
Docket NumberNo. WD,WD
Citation916 S.W.2d 242
PartiesPierre HEIDRICH, and Maria Long, Appellants, v. CITY OF LEE'S SUMMIT, and Tarquad Corporation, Respondents. 49843.
CourtMissouri Court of Appeals

Sherwin L. Epstein, John W. Roe, Mark H. Epstein, Sherwin L. Epstein & Associates, Kansas City, for appellants.

Timothy J. Seal, Mark F. Brady, Polsinelli, White, Vardeman & Shalton, Kansas City, for Respondent Tarquad Corporation.

Stephen P. Chinn, Neil R. Shortlidge, Stinson, Mag & Fizzell, Kansas City, Christine M. Treat, City Attorney, T. Chris Williams, Assistant City Attorney, Lee's Summit, for Respondent City of Lee's Summit.

Before BRECKENRIDGE, P.J., and ULRICH and LAURA DENVIR STITH, JJ.

LAURA DENVIR STITH, Judge.

Plaintiffs-Appellants Pierre Heidrich and Maria Long appeal from a judgment of the trial court finding Zoning Ordinance No 3645 of Respondent the City of Lee's Summit, Missouri to be reasonable and not arbitrary. Plaintiffs raise two points on appeal. Under Point I, Plaintiffs contend that the trial court erred in upholding Zoning Ordinance No. 3645 because the Site Development Plan did not satisfy the requirements of Lee's Summit Ordinance Section 170. Under Point II, Plaintiffs contend that the trial court erred in finding Zoning Ordinance No. 3645 reasonable and not arbitrary.

The judgment of the trial court upholding Zoning Ordinance No. 3645 as to Phases II and III is affirmed. We find, however, that the zoning ordinance is arbitrary and unreasonable as to Phases IV and V only and reverse the judgment of the trial court as to these phases.

The judgment of the trial court finding that the Site Development Plan satisfied the requirements of Section 170 is also affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

This is an appeal from a legislative action of the Board of Aldermen of the City of Lee's Summit, Missouri, rezoning approximately 138 acres of undeveloped property to District C-P, a planned business district.

A. A Description of the Property.

The property which is the subject of this case ("Subject Property") lies at the northeast corner of U.S. Highway 50 and Todd George Road, a major thoroughfare in Lee's Summit, Missouri (the "City"). 1 The Subject Property includes approximately 138 acres of land which extends east of Todd George Road for one and one-quarter mile to the Lee's Summit city limits. The Subject Property is divided roughly down the middle by property owned by the Methodist Board of Missions and Church Extension Society of Greater Kansas City. The latter property is the location of a new church. Other than the church, the Subject Property is undeveloped.

The Subject Property was formerly part of unincorporated Jackson County. It was annexed by the City in April, 1987. Various portions of the property remained zoned as County Zoning A (first dwelling house), B (second dwelling house), F (general business), D (agricultural) and City Zoning R-3P (multi-family planned). That portion of the Subject Property which is adjacent to Todd George Road was zoned as County Zoning F. Under this zoning classification, it could have been developed as residential or as commercial. 2

The area north of the Subject Property is residential (the Charleston Park residential subdivision). The area east of the Subject Property is in the unincorporated portion of Jackson County and is zoned agricultural.

The area immediately west of the Subject Property and Todd George Road, and fronting on the north side of U.S. Highway 50, is zoned for unplanned commercial uses and is undeveloped.

Plaintiff-Appellants Pierre Heidrich and Maria Long own houses and lots in a subdivision known as Silkwood Estates. Ms. Long is also the developer of Silkwood Estates. Silkwood Estates is to the west of the Subject Property, across Todd George Road, and north of the area immediately adjacent to U.S. Highway 50 which is zoned for unplanned commercial use.

B. The Application to Rezone the Subject Property.

Defendant Tarquad, Inc. filed an application to rezone the Subject Property in February, 1992. The application requested that the Subject Property be rezoned from its current zoning to District C-P, a planned business district.

As required by Lee's Summit Ordinance Section 170 District C-P, Planned Business District ("Section 170"), Tarquad submitted a Site Development Plan with the application. 3 The Site Development Plan shows five phases of development resulting in approximately 900,000 square feet of construction with 5,400 parking spaces. Phase I is the church property described above which is roughly in the middle of the Subject Property. 4 Phases II and III are to the west of Phase I, and Phases IV and V are to the east of Phase I. A simple diagram of the basic structure of the proposed rezoning is attached as Appendix A.

A proposed outer road is shown to the south of the Subject Property and running parallel to U.S. Highway 50. A proposed inner road ("Shenandoah Drive") is shown to the north of the Subject Property. Both the outer and inner roads intersect Todd George Road. Running between Phases IV and V is a proposed Blackwell Road which runs north and south. The Site Development Plan does not show it to intersect with U.S. Highway 50.

Section 170(B)(1) states that a Site Development Plan must show contour levels at intervals "not greater that two (2) feet, unless waived by the Planning Commission or Board of Aldermen." Contour levels show the level of the ground at the time of the zoning application. Section 170(B)(1) also states that the plan "shall show sufficient proposed control grades to interpret the intent of the developer." Control grades show the topography of the ground after the proposed construction is completed. By letter dated January, 1992, Tarquad requested that the requirements of contour levels at two-foot intervals and of control grades be waived. The Site Development Plan it submitted showed contour levels at ten foot intervals and did not show control grades.

C. The Planning Commission Hearing.

The Lee's Summit Planning Commission held a public hearing on the zoning application in February, 1992. Susan Van Petten, Director of City Development, presented the Planning Commission with the Staff Report of the Development Review Committee of Lee's Summit. She also testified at the hearing.

Ms. Van Petten testified that the requested District C-P, a planned business district, and not the current zoning, was appropriate for the Subject Property. The Committee recommended, however, that the property closest to Todd George Road be restricted to an Office District, rather than a general commercial area, to minimize the impact of the rezoning on Silkwood Estates, which is located across Todd George Road from the planned rezoning. The Committee also recommended that an eighty-foot wide landscaped buffer be provided along Todd George Road for the same reason. Lastly, the Committee recommended that Phases IV and V not be approved for rezoning unless and until access to Blackwell Road were to be provided at U.S. Highway 50.

Richard Link is the developer of this area and a partner with Mark Twain Bank in the development of the Subject Property. Mr. Link testified that he was opposed to an Office District along Todd George Road and requested that the entire Subject Property be rezoned to planned commercial as stated in the application. He also agreed that Phases IV and V should not be rezoned until Blackwell Road is provided access to U.S. Highway 50.

A traffic study by Johnson, Brickell and Mulcahy Consulting Engineers ("JBM Traffic Study") was submitted to the Planning Commission, along with a traffic analysis prepared by the Lee's Summit Engineering Department. Both studies only included Phases II and III, and did not include Phases IV and V, impliedly because any traffic from Phases IV and V was to be directed out the proposed Blackwell Road. No allowance was made for traffic which might travel from Phases IV and V out of Shenandoah Drive and onto Todd George Road.

Both studies concluded that Todd George Road will require four lanes of traffic and additional turn lanes in order to accommodate the increase in traffic due to the commercial development. They also concluded that the traffic in the area would remain at an acceptable level following the development of the commercial property.

Ms. Long and Mr. Heidrich testified against the rezoning, contending that the commercial development would have a negative impact on property values in Silkwood Estates. Ms. Long was concerned with the fact that Shenandoah Drive intersects Todd George Road directly across from the "show house" for Silkwood Estates. Not only did she expect to take a loss on the show house due to the increased traffic, but she also was concerned about how the increased traffic would affect other residences in Silkwood Estates. Ms. Long and Mr. Heidrich were also concerned about the increase in traffic on Todd George Road and that this traffic would endanger children attending an elementary school located north of the Subject Property.

The Planning Commission approved the rezoning application but did not require as a condition thereof that the portion of the Subject Property along the east side of Todd George Road be restricted to an Office District. The Planning Commission also waived the requirement of Section 170(B)(1) that the Site Development Plan contain contour levels at two-foot intervals and control grades.

The Planning Commission's approval was, however, made subject to fulfillment of certain conditions set out in a letter dated March 17, 1992, from Ms. Van Petten to Kenneth R. Murray, City Administrator (the "Staff Letter"). Most of the conditions were matters within the control of the developer, such as the construction of inner and...

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