Longview of St. Joseph, Inc. v. City of St. Joseph, WD

• Decision Date: 26 March 1996
• Docket Number: No. WD,WD
• Citation: 918 S.W.2d 364
• Parties: LONGVIEW OF ST. JOSEPH, INC., Appellant, v. CITY OF ST. JOSEPH, Respondent. 50629.
• Court: Missouri Court of Appeals

Page 364

918 S.W.2d 364

LONGVIEW OF ST. JOSEPH, INC., Appellant, v. CITY OF ST. JOSEPH, Respondent.

No. WD 50629.

Missouri Court of Appeals Western District.

March 26, 1996.

Appeal from the Circuit Court of Buchanan County; Edwin H. Smith ¹, Judge.

Creath S. Thorne, Stephen H. Briggs, St. Joseph, for appellant.

A. David Peppard, St. Joseph, for respondent.

Before SPINDEN, P.J., and BERREY and LAURA DENVIR STITH, JJ.

SPINDEN, Presiding Judge.

Longview of St. Joseph, Inc., has been offended by St. Joseph's refusing to let it operate a solid waste transfer station and recycling center on a nearly four-acre site in the city, and by the city's classifying its operation as a junk yard. After its request for a use permit was turned down by St. Joseph's city council, Longview took its case to the circuit court, but the circuit court sided with the city council. Longview appeals, contending that the circuit court's ruling that the city had not acted arbitrarily and capriciously was wrong, and it asserts that the court erroneously failed to rule on the constitutional issues it raised. We affirm the circuit court's judgment.

Longview first proposed operating its facility on a 23-acre tract on Alabama Street, but pared it back to 3.8 acres. The city had zoned the tract M-2, St. Joseph's least restrictive zone. Longview described its proposal as "a trucking terminal where solid waste would be transferred to larger trucks inside a building out of public view.... No disposal or dumping of waste would occur on the property.... No overnight storage of waste would be done.... No hazardous, flammable or liquid wastes would be accepted.... No processing of solid waste would go on."

After Longview's president explained to city officials in October 1992 what Longview wanted to do, assistant city planner Richard Rossiter consulted with one of St. Joseph's attorneys and decided that Longview's operation should be classified as a junk yard. The attorney had reached this conclusion after reading Tohickon Valley Transfer, Inc. v. Tinicum Township Zoning, 97 Pa.Cmwlth. 244, 509 A.2d 896 (1986), in which the court held that "trash transfer stations" were "junkyards" under a local zoning code.

Although Longview disputed the junk yard classification, it applied in November 1992 for a special use permit to operate one. St. Joseph's planning commission conducted two public hearings in December 1992 and January 1993 during which Longview explained its operation. The city staff presented its report to the commission and several opponents voiced their concerns. The commission recommended that the city council deny Longview's application.

In March 1993, the city council considered the application at a public hearing during which it heard evidence in addition to considering the planning commission's record. At this hearing, Longview challenged the classification and the constitutionality of the city's requiring it to obtain a special use permit. The city council affirmed the classification and voted unanimously to deny Longview's application.

Longview then asked the circuit court to review the matter. Its six-count petition sought a writ of mandamus, a writ of certiorari, declaratory judgment, injunctive and equitable relief, damages, and judicial review pursuant to § 536.100 RSMo 1994. The parties presented evidence during a hearing on October 28, 1994. The circuit court dismissed all of the counts except for the one seeking a writ of certiorari. The circuit court issued a writ on December 2, 1994. On December 23, 1994, the circuit court issued its judgment finding that the city council's decision was supported by competent and substantial evidence and was not arbitrary, capricious, or illegal, or an abuse of discretion. Longview appeals.

Waiver of Constitutional Issues

As a preliminary matter, we address St. Joseph's contention that Longview waived its constitutional claims by not properly pleading or timely raising them. We disagree.

Longview sent a letter to the assistant city planner in March 1993 advising him of the constitutional issues which it believed were at issue, and Longview referred to this letter when it appeared before the city council. In November 1993, Longview filed a motion in limine setting forth its constitutional claims and asserted these issues at the hearing on the motion in limine in January 1994. Longview also raised the constitutional claims and presented evidence in support of them at the October 1994 hearing. St. Joseph did not object that these issues exceeded the scope of the pleadings. At the final hearing in November 1994, Longview specifically asked the court whether the evidence regarding the constitutional issues would "stand on the record and be part of the evidence before the Court with its final decision?" The circuit court said that it would, and St. Joseph did not object.

Evidence presented at trial without objection automatically amends the pleadings to conform to the evidence, and the issues are deemed to be tried by consent. Murray v. Ray, 862 S.W.2d 931, 934 (Mo.App.1993). Issues tried by consent are treated as if they had been raised in the pleadings. Shelton v. Julian, 610 S.W.2d 129, 131 (Mo.App.1980). Longview presented evidence in support of its constitutional claims without objection, so we shall treat those issues as if Longview had pleaded them.

Constitutional Issues

Longview argues that the circuit court erred by refusing to rule on its constitutional claims. This is partly true. Most of Longview's constitutional attacks alleged due process violations. The circuit court specifically found "that the City Council's decision ... was not arbitrary, capricious, or illegal; and, that the City Council's decision ... was not an abuse of discretion." To the extent that this ruling was correct, it answered Longview's due process contentions. Longview, however, raised an equal protection issue and asserted a "takings" violation apparently not ruled on by the circuit court.

Rule 84.14 authorizes this court to "give such judgment as the [circuit] court ought to give." We, therefore, will consider Longview's equal protection and "takings" issues and give the judgement which the circuit court should have given. Because Longview did not seem to understand at oral argument how the circuit court's ruling answered its due process contentions, we will explain that, too.

Rational Basis for City Council's Decision

Longview first claims that St. Joseph's reliance on city ordinance § 26-310, governing use of property zoned M-2, was unconstitutional because the city had permitted other, much "heavier," uses of M-2 tracts. Moreover, Longview asserts, its operation would meet the ordinance's performance standards, and the city's classifying it as a junk yard was irrational. In a related point, Longview argues that the city council did not have a sufficient basis for denying the application.

These issues implicate the due process clauses of the Missouri and United States constitutions ² which require that zoning regulations be reasonable and bear a reasonable relationship to a community's health, safety, morals or welfare. White v. City of Brentwood, 799 S.W.2d 890, 892 (Mo.App.1990); Euclid v. Ambler Realty Company, 272 U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed. 303 (1926). A zoning ordinance may be proper on its face but still be a due process violation because of the unreasonable or arbitrary manner in which a city applies it to a particular tract. State ex rel. Barber & Sons Tobacco Company v. Jackson County, 869 S.W.2d 113, 117 (Mo.App.1993); ³ Nectow v. Cambridge, 277 U.S. 183, 187-88, 48 S.Ct. 447, 448, 72 L.Ed. 842 (1928).

We presume that a zoning ordinance is valid, and the party challenging its application has the burden of proving, by clear and convincing evidence, that the ordinance is unreasonable as applied. Barber & Sons, 869 S.W.2d at 117. We resolve any uncertainty as to the reasonableness of the zoning in the government's favor. Id.

The ordinance challenged by Longview states its general intent and purpose:

For the purpose of promoting health, safety, morals or the general welfare of the community, the council of St. Joseph finds it necessary to adopt these regulations made in accordance with a comprehensive plan and designed to lessen congestion in the streets, to secure safety from fire, panic and other dangers; to promote health and the general welfare, to provide adequate light and air, to prevent the overcrowding of land, to avoid undue concentration of population, to preserve features of historical significance, to facilitate the adequate provisions of transportation, water, sewage, schools, parks and other public requirements.

The standards governing the city council's decision whether to grant or deny a special use permit are set out in § 26-400 of St. Joseph's code:

Any of the following uses and only the following uses may be located in those districts as indicated, following approval of a special use permit by the city council, under the same procedure as a change in zoning and under such conditions as to operation, site development, parking, signs, accessory uses and time limit as may be necessary in order that such use will not injure the appropriate use of neighboring property, and will conform to the general intent and purpose of this ordinance[.]

Longview emphasizes that its use was much less obnoxious than many other uses of land zoned M-2 permitted by St. Joseph. Those other uses included asphalt manufacturing, battery manufacturing, chlorine production, coal distillation, hide tanning, fertilizer manufacturing, livestock auctioning, poultry raising and processing, sand blasting, a slaughterhouse, tar product manufacturing and wood distillation. While the contention may be accurate, it misses the point.

The point is whether St. Joseph's application of an ordinance, otherwise proper on its face, was so arbitrary or unreasonable as to constitute a...