Marianist Province of the United States v. City of Kirkwood

• Decision Date: 07 September 2018
• Docket Number: No. 4:17-CV-805 RLW,4:17-CV-805 RLW
• Parties: MARIANIST PROVINCE OF THE UNITED STATES and ST. JOHN VIANNEY HIGH SCHOOL, INC., Plaintiffs, v. CITY OF KIRKWOOD, Defendant, and BOARD OF ADJUSTMENT OF THE CITY OF KIRKWOOD, Respondent.
• Court: U.S. District Court — Eastern District of Missouri

MARIANIST PROVINCE OF THE UNITED STATESand ST. JOHN VIANNEY HIGH SCHOOL, INC., Plaintiffs, v. CITY OF KIRKWOOD, Defendant,and BOARD OF ADJUSTMENT OF THE CITY OF KIRKWOOD, Respondent.

No. 4:17-CV-805 RLW

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

September 7, 2018

MEMORANDUM AND ORDER

This matter is before the court on Plaintiffs' Motion for Partial Summary Judgment Pursuant to Fed. R.Civ. P. 56(C) (ECF No. 58), Plaintiff's Request for Certiorari Reversing the Board of Adjustment's Variance Denial, and Defendants' Cross-Motion for Partial Summary Judgment (ECF No. 72). These matters are fully briefed and ready for disposition.

BACKGROUND

Vianney is an all-male Marianist high school, which has been located in the City of Kirkwood ("the City") since 1960. (Defendants' Statement of Undisputed Material Facts ("DSUMF"), ECF No. 74, ¶1). Vianney is located at 1311 South Kirkwood Road, Kirkwood, Missouri (the "Property"). (Plaintiffs' Statement of Uncontroverted Material Facts ("PSUMF"), ECF No. 58-2, ¶8). Marianist Province owns the Property and Vianney is the leaseholder pursuant to a long-term lease. (PSUMF, ¶7). According to its Mission Statement, Vianney "is dedicated to forming young men for spiritual, academic and personal excellence in the Catholic, Marianist tradition." (PSUMF, ¶4). Vianney has been located at the Property for approximately 56 years. (PSUMF, ¶9).

The Property consists of approximately 37 acres that is used as a school campus, including school buildings, a track, an outdoor football and soccer stadium, a sports field, and a cemetery for the professed Marianist Priests and Brothers. (PSUMF, ¶10). An approximately 4.5 acre parcel at the north end of the Property is used for the sports field, which has primarily been used for baseball (the "Sports Field Property"). (PSUMF, ¶11; DSUMF, ¶3). Vianney has used its Sports Field Property and played baseball and other sports on that field without lights for over fifty-seven years. (DSUMF, ¶4). The west and northwest sides of the Sports Field Property is bordered by residential homes. (DSUMF, ¶5). Vianney has a turfed football, soccer, and track facility on the south side of its campus that has lights and a sound system, which Vianney operates without any restrictions from the City. (DSUMF, ¶6). The lights for Vianney's football/soccer facility were installed prior to 2012. (DSUMF, ¶7).

Prior to 2012, Kirkwood's Zoning Code did not contain any lighting regulations. (DSUMF, ¶8). In November 2012, Kirkwood adopted a revised Zoning Code that included lighting regulations limiting the height of all pole-mounted lighting fixtures for outdoor sports activities and play fields to 80 feet and limiting the maximum illumination level of light cast off-site onto adjoining residential properties to less than or equal to 0.1 footcandles ("Lighting Regulations"). (DSUMF, ¶9). The stated "Purpose" of the Lighting Regulations is "to strike a balance of safety and aesthetics by providing lighting regulations that protect drivers and pedestrians from glare and reduce to reasonable limits the trespass of artificial lighting ontoneighboring properties and public or private rights of way." (DSUMF, ¶10). The Lighting Regulations have higher maximum illumination levels for properties adjacent to commercial non-residential properties than for those adjacent to single-family residential uses. (DSUMF, ¶12). The current Lighting Regulations provide in relevant part: "The maximum illumination level of light cast off-site onto properties with single-family residential uses shall be less than or equal to 0.1 footcandles (fc) at finished grade" (hereinafter "Maximum Illumination") (DSUMF, ¶13). Section 17-36 of the City's Sound Regulations states that "[i]t shall be unlawful for any person to make, continue, or cause to be made or continued any loud, unnecessary or unusual noise or any noise which unreasonably or unnecessarily either annoys, disturbs, injures or endangers the comfort, repose, health, peace or safety of others in the city." (PSUMF, ¶26).

In late 2014 and early 2015, Vianney decided to renovate its Sports Field Property. (DSUMF, ¶15). Vianney desired to put lights on the North Sports Field as part of its renovations. (DSUMF, ¶16). In early 2015, Vianney's contractors told Vianney that there was no lighting configuration that would both comply with the Lighting Regulations and allow baseball to be played safely at night. (DSUMF, ¶21). On or about June 19, 2015, Vianney submitted a variance application to the City that requested the ability to use lights at the Sports Field Property that exceed the 0.1 footcandle requirement in the Zoning Code ("Original Variance Application"). (PSUMF, ¶37). Vianney then sought a variance from the Kirkwood Board of Adjustment. (DSUMF, ¶22). In Vianney's June 2015 variance application, Vianney President Mike Loyet stated that Vianney wanted to light the field "to practice and compete" in sporting events. (DSUMF, ¶25). Kirkwood's former City Planner, Ryan Spencer, determined a variance was not required based on his belief that there were already lights on the Sports Field Property and that the existing non-conforming existing lights would be improved by theproposed lighting. (DSUMF, ¶26). Spencer contacted Vianney's engineers and told them that a variance was not required because "a currently, non-conforming situation is being less non-conforming." (DSUMF, ¶28; PSUMF, ¶40). Spencer's belief that there were already lights on the Sports Field Property was incorrect because there had never been lights on that field. (DSUMF, ¶27). Shortly after the June 23 email was received, Vianney President Michael Loyet spoke with City Attorney John Hessell, who also informed Mr. Loyet that the situation underlying the Original Variance Application did not fall under the City's normal variance process and that Vianney could proceed with installation of the lights. (PSUMF, ¶42). In early October 2015, Vianney submitted the 2015 Lighting Plan a second time (the first being early June 2015) prepared by Musco to the City Public Works Department. (PSUMF, ¶44). On October 14, 2015, Vianney submitted a site plan relating to the improvements to the Sports Field Property to the City's Planning and Zoning Commission. (PSUMF, ¶45). On October 15, 2015, once approving the site plan, the City issued a building permit ("Building Permit") to Vianney authorizing the construction of "Ball Field Dugouts & Light Standards" on the Sports Field Property. (PSUMF, ¶46). Vianney then moved forward with the project on the Sports Field Property and installed lights at a cost of $235,000. (DSUMF, ¶29; PSUMF, ¶48). After the lights were installed, the City received complaints regarding the lights from residents of the neighborhood bordering the Sports Field Property. On February 16, 2016, President Loyet received a letter, dated February 11, 2016, from the City's Public Works Director, informing Vianney was "not permitted to use the lights or the audio system, except for testing purposes, until the site plan review process has been fully completed." (PSUMF, ¶61).

Vianney submitted a site plan, which the City approved in September 2016, subject to several conditions that severely restricted the use of the light and sound systems. (PSUMF, ¶¶68-70).¹ Vianney submitted a variance request to Kirkwood for limited use of the lighting and sound systems. (PSUMF, ¶71). Vianney voluntarily agreed to several variance conditions (the "Self-Imposed Restrictions") that restricted use of the light and sound systems. (PSUMF, ¶76):

a. During the periods of November 15 through March 14 and June 1 to August 31 of each calendar year, the lights shall not be turned on at any time;

b. Lights shall not be turned on any Sunday during the entire calendar year;

c. During the periods of March 15 to May 31 and September 1 to November 14 of each year, the lights shall be completely turned off no later than 9:00 p.m., except: (i) one light standard shall be permitted to remain turned on for a reasonable time thereafter to allow for the safe exit of players and visitors, and (ii) Vianney shall be granted (10) exceptions during the period of use to extend the light usage until 10:00 p.m. in circumstances of a late start, inclement weather delay, or other unforeseen acts of God, unsafe conditions or unique situations;

d. Use of the sounds system shall comply with Section 17-36 of the City Code of Ordinances. The sound system shall not be used later than 9:00 p.m., except that Vianney shall be granted (10) exceptions during the period of use to extend the sound system usage until 10:00 p.m. in circumstances of a late start, inclement weather delay, or other unforeseen acts of God, unsafe conditions or unique situations. No music shall be played after 7:15 p.m., except that the National Anthem shall be permitted to be played on the sound systems at the beginning of games commencing after such time;

e. Vianney shall utilize a maximum of four (4) speakers (reduced from an available six (6) speakers);

f. Vianney is willing to lower the location of the speakers on the poles on which they are mounted if requested by the City or neighboring property owners;

g. Vianney shall use all reasonable effort to encourage visitors not to park on the neighboring streets located on Geyer Forest, Forest Glen, and Oakshire Estates Subdivisions and not to utilize such subdivisions as a means to access the Vianney field; and

h. For the few properties for which lighting at the property line exceeds 0.1 footcandles (fc) at finished grade, Vianney shall provide a one-time allowance of $2,000.00 to provide for additional landscaping on the affected property owner's property, the type and placement of which shall be reasonably requested by the Owner and for blinds, awnings and window treatments.

Vianney's neighbors raised aesthetic and health concerns regarding Vianney's purposed use of the newly installed lights and...