Hoffman v. City of Town and Country

• Court: Missouri Court of Appeals
• Writing for the Court: SATZ; SMITH, P.J., and CARL R. GAERTNER
• Citation: Hoffman v. City of Town and Country, 831 S.W.2d 223 (Mo. App. 1992)
• Decision Date: 28 April 1992
• Docket Number: No. 59436,59436
• Parties: Allan R. HOFFMAN, et al., Respondents, v. CITY OF TOWN AND COUNTRY, Appellant.

Page 223

831 S.W.2d 223

Allan R. HOFFMAN, et al., Respondents, v. CITY OF TOWN AND COUNTRY, Appellant.

No. 59436.

Missouri Court of Appeals,

Eastern District,

Division Four.

April 28, 1992.

Robert B. Hoemeke, Robert J. Will, St. Louis, for appellant.

Peter W. Herzog, Jr., Michael Angelo Vitale, St. Louis, for respondents.

SATZ, Judge.

This is a declaratory judgment action in which plaintiffs, partners in Centre Park Forty Associates (CP40), challenge the reasonableness of the residential zoning of their property located on the north outer road of Highway 40, in the defendant city, Town and Country. The trial court found the residential zoning to be unconstitutionally unreasonable. Town and Country appeals. We affirm.

Scope of Review

At the outset, the parties disagree about the scope of our review. Town and Country argues that we must review de novo the evidence adduced at trial, and, in turn, it also contends that our review is not restricted by the standards of appellate review established in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). CP40 contends that challenges to the validity of zoning ordinances are to be reviewed de novo, but, in doing so, the appellate court must defer to the findings of the trial court in factual issues, "especially those that were made with respect to conflicting testimony."

This disagreement stems, in part, from the review process itself and from the language used by our courts explaining that process. Both parties are partially correct.

In Missouri, zoning, rezoning and refusals to rezone are considered to be legislative acts, not quasi-judicial acts. E.g., Erigan Company, Inc. v. Town of Grantwood Village, 632 S.W.2d 495, 496 (Mo.App.1982). The review of the local legislative body's grant or denial of rezoning is not initiated in a trial court by direct appeal on the record made before the legislative body, rather review is initiated by a plenary action, such as the request for a declaratory judgment to declare the grant or denial of rezoning to be a deprivation of rights. See, e.g. Vatterott v. City of Florissant, 462 S.W.2d 711, 713 (Mo.1971). The trial court is, thus, not confined to nor concerned with the record made before the legislative body.

However, the challenger to the legislative body's grant or denial of rezoning does not begin the plenary action unburdened. The grant or denial is presumed to be valid, with the burden placed upon the challenger to overcome that presumption. Id. In conjunction with and, perhaps, in amplification of that presumption, it is said that the decision of the legislative body to grant or deny rezoning, being a legislative act, will be upheld if the decision is "fairly debatable". E.g., Elam v. City of St. Ann, 784 S.W.2d 330, 335 (Mo.App.1990); see Binger v. City of Independence, 588 S.W.2d 481, 486 (Mo. banc 1979) (annexation). In short, the trial court, in a plenary action, reviews a presumptively valid decision of the local legislative body to determine whether the decision was fairly debatable, on a record which may, and probably quite often does, differ from the record before the legislative body.

Normally, in this review process many of the operative, relevant facts are not in dispute, such as the topography of the land in question, the development of adjacent and nearby property and the history of that development. The dispute is usually between the opinions of the parties' respective experts--one or more experts testifying the property is properly zoned, their counterparts testifying it is not. If the experts disagree on the operative facts underpinning their respective opinions, the trial court must credit one or the other. The facts discredited, in turn, discredit the opinion based upon them, and the facts credited, in turn, credit the opinion based upon them. If the trial court engages in this type of credibility determination, Rule 73.01(c) and the mandate of Murphy v. Carron require us as an appellate court to defer to the trial court's determination. See, e.g. National Super Markets, Inc. v. City of Bellefontaine Neighbors, 825 S.W.2d 24, 26-27 (E.D.Mo.App.1992).

But, quite often, the parties' respective experts reach their individual opinions by using different sets of operative facts, and no expert disputes the facts used by an opposing expert. The credibility of the experts then "occupies a very narrow field; the questions are rather those of judgment, and the logic (or lack of it) in expert opinions." Huttig v. City of Richmond Heights, 372 S.W.2d 833, 839 (Mo.1963); Loomstein v. St. Louis County, 609 S.W.2d 443, 447, n. 3 (Mo.App.1980).

Regardless of the determinations made by the trial court to reach its decision that the local legislative body's grant or denial of rezoning was or was not fairly debatable, however, we, in reviewing the trial court's decision, make our own independent determination of whether the legislative body's decision was fairly debatable. Elam supra; Binger, supra. Thus, we said in Elam, perhaps inartfully, that "we review de novo " any challenges to the acts of the legislative body. Elam, supra, 784 S.W.2d at 335. However, to the extent the trial court has discredited an expert's opinion by discrediting the operative facts upon which that opinion is based, we are bound to defer to that determination in making our own independent determination of whether the legislative body's grant or denial of rezoning was fairly debatable. National Super Markets, Inc., supra.

In the present case, the trial court adopted the report of the special master in which extensive findings of fact were made to support the conclusion that Town and Country's refusal to rezone was unreasonable. The court, however, did not expressly discredit the facts upon which Town and Country's experts based their opinions that the refusal to rezone was reasonable. More important, we cannot sensibly find the court so discredited those experts by implication. We cannot do so primarily because the court's findings of fact are facts apparently inferred from the opinions of CP40's experts and those opinions differ from the opinions of Town and Country's experts because, for the most part, they are based upon different sets of operative facts. Thus, we do not find that the trial court necessarily discredited Town and Country's experts. However, we have read the 850 pages of transcript and read and viewed the 75 exhibits, and, independent of the trial court's findings, we have reached the same conclusion it did: Town and Country's refusal to rezone is unconstitutionally unreasonable and that issue is not fairly debatable.

CP40 pleaded its challenge to the existing zoning in two counts: Count I--a request to declare the zoning unconstitutional and to enjoin Town and Country from enforcing it; and Count II, a request for damages for an unconstitutional taking of its property. Summary judgment was entered in Town and Country's favor on Count II, and Count I was referred to a special master for hearing. After the hearing, the master found in favor of CP40 on Count I. The trial court adopted the master's findings and entered judgment in favor of CP40.

On appeal, Town and Country argues that the issue of "constitutional due process" was never pleaded nor tried. We disagree. Although, perhaps, not artfully pleaded in lucid and pristine isolation, CP40 did plead, in Count I, that the existing zoning was "unlawful, arbitrary [and] unreasonable" in violation of the "Fourteenth" [Amendment] to the United States Constitution.

Town and Country also argues that the summary judgment in its favor on Count II effectively prohibited a hearing on the constitutional issues raised in Count I under the doctrines of "res judicata, collateral estoppel and law of the case." Although we disagree on the merits of this broad based attack, we do not address it. Town and Country makes this argument as a bald statement in its brief with reference to that part of the legal file containing similar arguments made by it at trial. Since the argument was not developed in the brief, with appropriate case law support, we deem this argument abandoned. Rule 84.04(d); e.g., Steenrod v. Klipsch Hauling Co., Inc., 789 S.W.2d 158, 166 (Mo.App.1990); Boswell v. Steel Haulers, Inc., 670 S.W.2d 906, 912 (Mo.App.1984).

Location of Property

The property in question is shown in the following schematic sketch not drawn to scale.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

CP40's 13.6 acre tract of land is located approximately midway between Mason Road on the west and Interstate 270 on the east, abutting the north outer road along Highway 40. The property's northern boundary line is the city limit of Town and Country. The property is zoned suburban low which permits single family residences, churches, schools, parks, orchards and farms, and not for profit outdoor recreational areas.

Immediately west of the property is the Citicorp office complex and parking lot, which is zoned office. Continuing west to Mason Road, the land is zoned for office use, and office complexes are built on that land.

The Priory of St. Mary owns land immediately to the northwest of CP40's property. The Priory's land is not located in Town and Country, and the part adjacent to CP40's property is undeveloped. To the north and directly adjacent to CP40's property is a 18.52 acre tract of undeveloped land also owned by CP40, located in Creve Coeur and zoned one acre residential. To the northeast is an undeveloped tract of land owned by Missouri Baptist College, not located in Town and Country.

To the east and directly adjacent to CP40's property is an undeveloped 15.88 acre tract of land owned by the Church of Jesus Christ of Latter-Day Saints, located in Town and Country and zoned suburban low. Continuing east to Highway 270, the land is zoned suburban low, with three or four homes on it and the rest undeveloped.

Across Highway 40, on the south side, between Mason Road...