Home Bldg. Co. v. City of Kansas City

• Decision Date: 03 November 1980
• Docket Number: No. WD,WD
• Citation: 609 S.W.2d 168
• Parties: HOME BUILDING COMPANY, a corporation, Appellant, v. The CITY OF KANSAS CITY, a Municipal Corporation, Charles B. Wheeler, Edward E. Quick, Joseph R. Serviss, Robert M. Hernandez, Joanne M. Collins, Charles A. Hazley, Joel Pelofsky, Richard Berkley, Leon Brownfield, Bruce R. Watkins, Victor F. Swyden, Arthur E. Asel and J. Harold Hamil, Respondents. 31206.
• Court: Missouri Court of Appeals

Page 168

609 S.W.2d 168

HOME BUILDING COMPANY, a corporation, Appellant, v. The CITY OF KANSAS CITY, a Municipal Corporation, Charles B Wheeler, Edward E. Quick, Joseph R. Serviss, Robert M Hernandez, Joanne M. Collins, Charles A. Hazley, Joel Pelofsky, Richard Berkley, Leon Brownfield, Bruce R Watkins, Victor F. Swyden, Arthur E. Asel and J. Harold Hamil, Respondents.

No. WD 31206.

Missouri Court of Appeals, Western District.

Nov. 3, 1980.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Dec. 2, 1980.

Don M. Jackson, R. Scott Smith, Kansas City, for appellant.

Aaron A. Wilson, City Atty., James C. Bowers, Jr., Kathleen A. Hauser, Asst. City Attys., Kansas City, for respondents.

Before CLARK, P. J., and DIXON and SOMERVILLE, JJ.

CLARK, Presiding Judge.

Appellant Home Building Company alleged in a petition for declaratory judgment that respondent City of Kansas City had obstructed use and development of real estate owned by the Company by unreasonably, arbitrarily and capriciously applying a zoning ordinance. The petition sought a declaration that the ordinance was therefore invalid as to the property in question. The facts agreed by the parties to be applicable to the controversy were stipulated and each moved for summary judgment in reliance on the pleadings and the facts so stipulated. The trial court denied the Company's motion, sustained the motion of the City, entered judgment accordingly and the Company appeals.

On this appeal, the Company contends in substance that the judgment of the trial court lacks any evidentiary foundation because no reason appears for denial of the Company's proposed use of its land. Such being the state of the record, they argue, a zoning decision restricting the use of private property without a demonstrated benefit to public health, safety, morals or welfare is, perforce, arbitrary and void.

The Company is the owner of a tract of unimproved land in Clay County comprising some forty-seven acres in the vicinity of North East Forty-Third Street and Russell Road. The land is bordered on the north and south by low-cost single-family residences, on the east by a development of four-story apartments and on the west by a large tract of unimproved property owned by the North Kansas City School District. To the southwest lies an area of high-cost one-family homes and to the southeast there is a mixture of apartments, offices and retail business establishments. A parochial school-church complex is situated to the northeast. The Company's property is zoned District R-1b, single-family dwellings. In conformity with the uses above mentioned, the zoning of adjacent properties ranges from single-family dwellings to multi-storied apartments and retail business districts.

Efforts by the Company to obtain approval for the land development project which is the subject of this action were initiated June 27, 1974 when the Company filed a plan with the City proposing construction of 370 group housing units in various multi-family building configurations. The existing residential zoning of the land, District R-1b, authorizes a mixture of single and multi-family structures in districts otherwise zoned only for single-family use if the development tract is twenty acres or more and if other requirements of the applicable ordinance, Section 65.270, Revised Ordinances of Kansas City, 1956, are observed. Among the conditions prerequisite to approval of such a plan, known in zoning terminology as a community unit project, is the adoption of an appropriate ordinance by the city council. The final plan showing streets, location and size of structures and other details becomes a part of the ordinance and binds the developer to the exact configuration of the completed project.

After initial screening by various departments of the City including transportation, parks and recreation, public works and engineering, and modifications required in this process, the Company's project plan reached the city plan commission. There, the Company was obliged to accept additional modifications which included a reduction in the number of living units by approximately twenty percent. The plan commission thereupon approved the project and on November 6, 1974, an ordinance accepting the revised community unit project was laid before the city council. As is apparently customary in such matters, the council referred the ordinance to its plans and zoning committee for hearing and recommended disposition.

During succeeding months while the ordinance remained in committee, additional changes in the plan, apparently in response to protests from nearby property owners, were suggested and accepted by the Company. Finally, on December 13, 1976, more than two years after first receiving the ordinance, the committee returned it to the council with a recommendation favoring adoption. At a following council meeting on January 7, 1977, however, no vote was taken on the ordinance and, for reasons not revealed in this record, the ordinance was again sent to the plans and zoning committee, evidently in anticipation of additional hearings. After a further hearing and upon reconsideration, the plans and zoning committee again returned the ordinance to the council with a report that it be adopted. Inexplicably, when the council at last voted on the ordinance on February 25, 1977, it failed to pass.

The Company next moved the council to reconsider its action in defeating the ordinance and the motion to reconsider was adopted. In place of again voting on the ordinance, however, it was referred for the third time to the plans and zoning committee for study and thereafter for the third time, the committee considered the ordinance and returned it to the council with the recommendation that it pass.

Earlier, a petition protesting approval of the project had been filed with the City by adjacent property owners. Under the cited ordinance, if written and acknowledged protest is made by owners of ten percent or more of the land area within 185 feet of the development, approval of the community unit plan requires the affirmative vote of at least three-fourths of the council membership. The subject ordinance was presented for vote on July 7, 1977 and received eight votes in favor and three opposed. Because two council members were absent and not participating, the ordinance failed to pass, lacking the required majority under the voting rule imposed by reason of the protest.

The subject case was, as noted above, decided on summary judgment and on stipulated facts. Significantly, however, both the Company and the City moved for judgment and thus submitted opposing contentions which were not, of necessity, mutually exclusive. This review must therefore consider each facet of the correlative judgments and determine if competent and substantial evidence and the correct application of the law supports both. Before discussing these questions, however, it is necessary to review the constraints on judicial latitude where declaratory judgment actions bring in question legislative or quasi-legislative acts restricting property use through zoning.

Municipal legislatures derive their authority to regulate construction and use of improvements on land within their boundaries by statutory delegation from the state. The compelling state interest and, hence, the municipal concern served by zoning regulation of land use is promotion of health, safety, morals or general welfare. Section 89.020, RSMo 1978. Zoning regulation is in derogation of private property rights and must bear a substantial relationship to furtherance of the public interest as the source of validity. Allen v. Coffel, 488 S.W.2d 671 (Mo.App.1972). The duty rests initially on the municipal legislature to determine appropriate zoning classifications and such enactments restricting property uses in particular areas bear the presumption of validity. Lafayette Park Baptist Church v. Board of Adjustment, 599 S.W.2d 61, 66 (Mo.App.1980).

A zoning ordinance may be valid generally, yet invalid in its application to a specific tract. Flora Realty & Investment Co. v. City of Ladue, 362 Mo. 1025, 246 S.W.2d 771 (Mo. banc 1952); Huttig v. City of Richmond Heights, 372 S.W.2d 833, 838 (Mo.1963). Zoning which restricts property to a use for which it is not adapted is unreasonable and constitutes an invasion of the property rights of the owner. Herman Glick Realty Co. v. St. Louis County, 545 S.W.2d 320, 324 (Mo.App.1976). While arbitrary and unreasonable application of zoning ordinances is a subject for judicial inquiry, if the municipal zoning action is fairly debatable, the court cannot substitute its opinion for that of the legislative body. Desloge v. County of St. Louis, 431 S.W.2d 126, 131 (Mo.1968). Whether application of a zoning ordinance to a particular tract is reasonable and constitutional or arbitrary and unconstitutional depends on the facts, circumstances and the evidence in each case. Tealin Co. v. City of Ladue, 541 S.W.2d 544, 548 (Mo. banc 1976).

The subject case is distinguishable in form if not in substance from the usual zoning controversy by reason of the use authorization sought by the Company and the procedures required and employed to accomplish this end. Some consideration of the community unit plan concept therefore is appropriate.

Approval or disapproval of a community unit plan does not alter the zoning of the property in question because the underlying zoning authorizes community unit projects upon compliance with the ordinance requirements. Unlike exceptions and variations which may ordinarily be granted by administrative action,...