Hinton v. City of St. Joseph

• Decision Date: 11 October 1994
• Docket Number: No. WD,WD
• Citation: 889 S.W.2d 854
• Parties: Herbert HINTON, et al., Appellant, v. CITY OF ST. JOSEPH, MO., Trustees of George Bode, Jr. Benevolent Trust, Wal-Mart Stores, Inc., Respondents. 48479.
• Court: Missouri Court of Appeals

Page 854

889 S.W.2d 854

Herbert HINTON, et al., Appellant, v. CITY OF ST. JOSEPH, MO., Trustees of George Bode, Jr.

Benevolent Trust, Wal-Mart Stores, Inc., Respondents.

No. WD 48479.

Missouri Court of Appeals,

Western District.

Oct. 11, 1994.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Nov. 29, 1994.

Application to Transfer Denied

Jan. 24, 1995.

Leonard J. Johnson, Kansas City, for appellant.

John D. Boeh, St. Joseph, Ronald E. Taylor, Agency, John R. Cleary, Kansas City, for respondents.

Before SMART, P.J., and LOWENSTEIN and HANNA, JJ.

SMART, Presiding Judge.

This appeal arises from the dismissal of an action brought by neighbors of a tract of ground against the City of St. Joseph and the trustees of a benevolent trust to prohibit the sale and development of the tract. Plaintiffs Steven and Rebecca Steele, Elvin and Louann Murphy, Herbert Hinton and Missouri Associates, L.P. contend that the land in question was irrevocably dedicated to the city for park and recreational purposes, and that the city is foreclosed from allowing any other disposition of the property. The trial court dismissed the action for failure to state a cause of action. Plaintiffs appeal.

On April 26, 1945, George Bode, Jr., a former resident of St. Joseph, executed a will specifically devising his entire residuary estate in trust for the use and benefit of the citizens of St. Joseph. Bode's will provided for creation of a trust and directed the trustees to use the trust estate to acquire land within the city as sites and locations for "public parks, playgrounds, athletic fields, including baseball diamonds and grounds, tennis courts, and a zoological garden, if financially possible." The will directed the trustees to transfer to the city any property acquired by the trust subject to the following conditions:

(1) that the city or public agency accepting the conveyance shall make the improvements necessary to carry out the purpose or purposes for which the conveyance is made and will adequately maintain the property for such purpose or purposes.

(2) that the property and the facilities thereof and thereon shall at all times be equally open and available to all citizens of St. Joseph, without regard to creed or denomination.

(3) that the property shall not be used for any political, religious, or sectarian purpose.

(4) that the property be dedicated in the name of either BODE or my mother's maiden name, WENZ.

On December 22, 1970, the City of St. Joseph accepted a conveyance of a 30 acre tract of land (referred to herein for convenience as the "Bode tract") from the Bode trust by a special ordinance, which recited that the trustees would convey the land subject to the conditions imposed by the will and that the city would accept the land for recreational purposes subject to those conditions. Thereafter, the deed was executed and the deed and ordinance were recorded.

Before 1992, the individual plaintiffs purchased property within the city in close proximity to the 30 acre tract. Some plaintiffs claim that in making the purchases they relied on information that the land could lawfully be used only for park or recreational purposes. From 1970 to 1992, the city held title to the tract of land, but did not develop the land in any way. On June 18, 1992, the city council enacted an emergency special ordinance, which purported to authorize and effect the conveyance of the tract back to the trustees of the Bode trust with the restriction that any proceeds derived by the trust from the sale of the property would ultimately be used for future city parks and recreation purposes. It was understood that the trustees desired to sell the land to Wal-Mart Stores, Inc., and to use the proceeds from the sale to develop park facilities elsewhere in the city.

On September 28, 1992, the city council approved a recommendation of the City Planning Commission that the Bode tract be rezoned from residential to commercial use. On October 7, 1992, the trustees of the Bode trust executed a deed purporting to convey the land to Wal-Mart, to be used for the development of a large retail store. Plaintiffs commenced this action in November 1992. In March 1993, defendants filed motions to dismiss the petition. On April 1, 1993, during a hearing on the motions to dismiss, plaintiffs obtained leave to file a first amended petition. After hearing arguments on the motions to dismiss, the trial court entered an order dismissing the first amended petition. On April 12, plaintiffs filed a motion for reconsideration and for leave to file a second amended petition, which was denied by the trial court on April 12, 1993. After twice dismissing appeals on the ground that the notice of appeal had not been timely filed, this court granted plaintiffs' motion to file an appeal out of time.

Plaintiffs now contend, inter alia, that the trial court erred in dismissing their petition for failure to state a claim upon which relief may be granted. The trial court held that the facts as recited in plaintiffs' petition show that the city abandoned the proposed dedicated use of the property, requiring the reversion of the property to the dedicator. Therefore, the trial court reasoned, the transfer of the property back to the trust by the city was not improper.

We begin our analysis by considering the contention of respondents that plaintiffs lacked standing in the trial court and continue to lack it in this court to challenge the transfer of the property. Plaintiffs contended that they had standing to bring this action on two bases: 1) they claim that all plaintiffs have standing as taxpayers to challenge the improper handling of public property; and 2) they claim that the individual defendants have standing as owners of property located near the tract of land because their enjoyment of their property, and the value of their property, will be adversely affected by the development. ¹

In determining the issues related to standing, we will consider not only plaintiffs' petition but also the additional non-contested facts which all parties accepted as true at the time of argument on the motion to dismiss. Thus, we will engage in a summary judgment mode of analysis, seeking to determine whether the issue of standing is resolved as a matter of law on the basis of the undisputed facts. The issue of standing may be raised at any time and may be reviewed by the court sua sponte. Gowen v. Cote, 875 S.W.2d 637, 639 (Mo.App.1994).

Taxpayer Standing

In examining the issue of the standing of plaintiffs, we first evaluate the claim of taxpayer standing. In order to claim the benefit of taxpayer standing, plaintiffs must be able "to demonstrate a direct expenditure of funds generated through taxation, or an increased levy in taxes, or a pecuniary loss attributable to the challenged transaction of a municipality," absent fraud or other compelling circumstances. Eastern Missouri Laborers Dist. Council v. St. Louis County, 781 S.W.2d 43, 47 (Mo. banc 1989). Plaintiffs claim that public funds do not have to be expended to have taxpayer standing, citing Hight v. City of Harrisonville, 328 Mo. 549, 41 S.W.2d 155 (1931), because they have an equitable ownership interest not only in public funds, but also in "other public property." In Hight, the Missouri Supreme Court found that plaintiffs had an equitable interest in the city's electric distribution system which conferred taxpayer standing on them. 41 S.W.2d at 158. However, this court disavowed Hight in J.C. Nichols Co. v. City of Kansas City, 639 S.W.2d 886, 888 (Mo.App.1982), stating:

Hight is the only case to which plaintiffs direct us in support of their contention that an expenditure of public funds is not necessary for taxpayer standing. However Missouri law on this point has evolved beyond that 1931 case.

By contrasting two similar cases, we can see that the movement toward permitting standing in the absence of proof of an illegal expenditure of public funds was short-lived. In Civic League of St. Louis v. City of St. Louis, 223 S.W. 891 (Mo.1920), plaintiffs had been permitted to bring an action to enjoin fiscal officers from paying the salary of the superintendent of excavations based on their allegation that the office was illegally held. However, nineteen years later in Smith v. Hendricks, 136 S.W.2d 449 (Mo.App.1939), on very similar facts where plaintiffs sought to enjoin the continued employment of a bus driver alleged to be unqualified for the position, the court interpreted Newmeyer to permit standing only where the tax burden would be increased, and held that because it would cost as much to hire a qualified driver as an unqualified one, the taxpayers lacked standing. Instead, where the tax burden is not increased, the court held at 454 that "the remedy is the elective franchise."

The Missouri Supreme Court, in 1989, redefined its position in Eastern Missouri Laborers, appearing to take a position consistent with J.C. Nichols Co.:

Absent fraud or other compelling circumstances, to have standing a taxpayer must be able to demonstrate a direct expenditure of funds generated through taxation, or an increased levy in taxes, or a pecuniary loss attributable to the challenged transaction of a municipality.

781 S.W.2d at 47. The court also, in Harris v. Missouri Gaming Commission, 869 S.W.2d 58 (Mo. banc 1994), found that a taxpayer had pleaded facts amounting to standing by alleging that the implementation of riverboat gambling regulations would require the direct expenditure of public funds. Here, there is no illegal expenditure of public funds shown. Nor is there any reason to believe taxes will be increased by virtue of this transaction. Rather, it is admitted by all that the funds generated from the sale of the property to Wal-Mart will result in increased funds for public uses in view of the increased funds available to the trust. In accordance with Eastern Missouri Laborers, plaintiffs have failed to prove...