Maryland Plaza Redevelopment Corp. v. Greenberg, s. 40697

• Decision Date: 13 November 1979
• Docket Number: Nos. 40697,40846,s. 40697
• Citation: 594 S.W.2d 284
• Court: Missouri Court of Appeals
• Parties: MARYLAND PLAZA REDEVELOPMENT CORPORATION, Appellant, v. Jan C. GREENBERG & Ronald K. Greenberg et al., Respondents.

Page 284

594 S.W.2d 284

MARYLAND PLAZA REDEVELOPMENT CORPORATION, Appellant, v. Jan C. GREENBERG & Ronald K. Greenberg et al., Respondents.

Nos. 40697, 40846.

Missouri Court of Appeals, Eastern District, Division Two.

Nov. 13, 1979.

As Corrected Dec. 11, 1979.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Dec. 14, 1979.

Application to Transfer Denied Jan. 15, 1980.

Jim J. Shoemake, G. Lane Roberts, Jr., Thomas M. Utterback, Guilfoil, Symington, Petzall & Shoemake, St. Louis, for appellant.

Armstrong, Teasdale, Kramer & Vaughan, Donald U. Beimdiek, Wm. J. Travis, St. Louis, for Medical Arts Bldg. Co.

Richard A. Hetlage, Richard P. Sher, J. Reed Johnston, Jr., Peper, Martin, Jensen, Maichel & Hetlage, St. Louis, for respondents Greenberg.

GUNN, Presiding Judge.

Appellant Maryland Plaza Redevelopment Corporation is a private redevelopment corporation organized pursuant to Chapter 353, RSMo 1969. On July 2, 1974, as the initial step of the two part procedure for urban redevelopment, the Board of Aldermen of the City of St. Louis passed Ordinance No. 56791 (Blighting Ordinance) blighting the Maryland Plaza area, which is bounded by Kingshighway Boulevard, the alley north of Maryland Plaza, Euclid Avenue and West Pine. On March 18, 1975 the Board of Aldermen took the second step and passed Ordinance No. 56933 (Development Ordinance) approving appellant's redevelopment plan for the blighted area and granting it the power of eminent domain. Thereafter, appellant filed a three count petition in condemnation against owners of three tracts of land in the area: count I involved property owned by S.A. and Florence Sperber ¹; count II, property owned by respondent Medical Arts Building; and count III, property owned by Gerhart Real Estate Company. Following a joint hearing on the petition, the trial court refused condemnation as to counts I and II but granted condemnation as to count III. In a consolidated appeal appellant challenges the denial of condemnation as to counts I and II. ²

The trial court denied condemnation as to count I on unspecified grounds. As to count II, the trial court granted Medical Arts Building's motion to dismiss at the close of plaintiff-appellant's evidence and denied condemnation as the condemnation petition failed to contain a statement of the use for which the property was taken; that it failed to allege that the property was being taken for a public use; that appellants failed to establish a public use for the property and failed to prove a bona fide effort to agree on compensation; and that appellant's redevelopment plan did not consider redevelopment of the property in count II.

On appeal, our primary concern is with the correctness of the result not the route by which it is reached. State ex rel. Keeven v. City of Hazelwood, 585 S.W.2d 557 (Mo.App.1979); Farm Bureau Mut. Ins. Co. v. Broadie, 558 S.W.2d 751 (Mo.App.1977). When the trial court fails to assign grounds for its decision, as in count I, or assigns incorrect reasons, its judgment will be affirmed if supported by any reasonable theory. Boswell v. Brinckmann, 579 S.W.2d 781 (Mo.App.1979); McHenry v. Claspill, 545 S.W.2d 690 (Mo.App.1976). After consideration of the issues raised on appeal as to the validity of the blighting ordinance and the development ordinance, we affirm the trial court's denial of condemnation as to counts I and II.

Prior to addressing the procedural and constitutional issues concerning the two ordinances, we must consider respondents' contention that appellant's condemnation petition is barred by the two year limitations period of Rule 86.06, which provides:

The court, . . . shall appoint three disinterested commissioners, . . . to assess the damages which the owners may severally sustain by reason of such appropriation.

. . . (U)pon failure to pay the assessment aforesaid within ten days after it becomes final, or, in the case of a municipality, within thirty days thereafter, the court may, upon motion and notice by the party entitled to such damages, enforce the payment of the same by execution, unless the condemner shall, within said ten or thirty day period, elect to abandon the proposed appropriation of any property, by an instrument in writing to that effect, to be filed with the clerk of such court, and entered on the minutes of the court, and to so much as is thus abandoned the assessment of damages shall be void. If such appropriation be so abandoned as to any property, proceedings for the condemnation of the same property shall not be instituted again within two years after such abandonment. . . .

Maryland Plaza Redevelopment Corp. v. Ziern, a previous condemnation action concerning the same property as in the present petition, was dismissed without prejudice in the St. Louis Circuit Court on June 30, 1977 prior to the appointment of commissioners. In State ex rel. Morton v. Allison, 365 S.W.2d 563 (Mo. banc 1963), it was held that the purpose of the two year bar of Rule 86.06 is to "prevent the harassment of property owners by a condemner who might choose to seek successive awards until, perchance, it might get one which it considered favorable." Id. at 566. Accord: State ex rel. County of Mississippi v. Stallings, 434 S.W.2d 588, 592 (Mo.1968). The express language and the purpose of Rule 86.06 make manifest that it is only applicable to abandonment of condemnation proceedings after the commissioners' assessment of damages. Because Ziern was dismissed prior to the appointment of commissioners, Rule 86.06 does not bar the present suit.

With the disposition of the Rule 86.06 prelude, we consider the cynosure of these proceedings whether the trial court erred in rejecting appellant's acquisitive bid for respondents' property through the fulcrum of eminent domain. Appellant argues that the trial court erred in denying condemnation as to the property in counts I and II in that it was legitimately exercising its powers of eminent domain to acquire property in a blighted area pursuant to Chapter 353, RSMo 1969 and Chapter 29, Revised Code of St. Louis. To support its contention, appellant asserts that: (1) the Board of Aldermen acted reasonably in blighting the Maryland Plaza area; (2) the Board of Aldermen acted reasonably in approving appellant's redevelopment plan for the area and granting it the power of eminent domain; and (3) appellant's petition and proof were sufficient to uphold an award of condemnation. As could be expected, respondents argue otherwise in their disputations.

In passing both the Blighting Ordinance and the Development Ordinance, the Board of Aldermen acted in its legislative capacity. We are bound by the ligatures of review to a determination of whether the action was arbitrary, the result of fraud, collusion, or bad faith, or whether the City exceeded its power. Allright Missouri, Inc. v. Civic Plaza Redevelopment Corp., 538 S.W.2d 320 (Mo. banc 1976), cert. denied, 429 U.S. 941, 97 S.Ct. 358, 50 L.Ed.2d 311 (1976); Parking Systems, Inc. v. Kansas City Downtown Redevelopment Corp., 518 S.W.2d 11 (Mo.1974); Annbar Associates v. West Side Redevelopment Corp., 397 S.W.2d 635 (Mo. banc 1966), cert. denied, 385 U.S. 5, 87 S.Ct. 41, 17 L.Ed.2d 4 (1966); Schweig v. City of St. Louis, 569 S.W.2d 215 (Mo.App.1978). ³ "The issue of whether a legislative determination of blight is arbitrary turns upon the facts of each case. And, the burden of proving that it is arbitrary is on the party so charging," Schweig, 569 S.W.2d at 223, quoting from Allright, 538 S.W.2d at 342. As it is respondents who are challenging the validity of the two ordinances, we review their arguments.

In answer to appellant's count I concerning the Greenberg-Sperber property, respondents argue that the blighting of Maryland Plaza by Ordinance No. 56791 was arbitrary in that: (1) the City Plan Commission failed to consider or make recommendation to the Board of Aldermen regarding a particular portion of the area which was declared blighted; (2) the area was not in fact blighted, or, at least, some of the properties within the area were not blighted; and (3) the blighting of the area was part of a scheme to allow a taking of private property for private use. Respondent Medical Arts Building argues that the blighting in 1974 was arbitrary in that the Board of Aldermen's action was based on an out of date 1970 area study and recommendation by the City Plan Commission. Respondent Medical Arts' argument is congruent with respondent Greenberg's affirmative defense that the Plan Commission failed to study or make a recommendation as to the entire area blighted by the Blighting Ordinance as required by § 29.050, Revised Code of St. Louis. The Blighting Ordinance is essentially a reaffirmation of an earlier ordinance enactment approved April 6, 1971 ⁴, both of which blighted overlapping areas. The minutes of the City Plan Commission and testimony of Dale Ruthsatz, the Deputy Director of the Commission, demonstrate that in 1970 recommendation was made as to the blighting of the entire area covered by the 1974 Blighting Ordinance. Section 29.050, Revised Code of St. Louis, provides that "no referral of a board bill to the City Plan Commission is necessary in the event the introduction of the bill is accompanied by a recommendation . . . from the City Plan Commission." As a portion of the area had already been declared blighted based on a prior City Plan Commission recommendation to blight the entire area, we find that § 29.050 does not require a second recommendation as to blight. See Schweig, 569 S.W.2d at 226. Further, respondents did not produce sufficient evidence to overcome the Board of Aldermen's determination of blight or establish that it had acted unreasonably in reaffirming its earlier declaration of blight or that the blight had been removed. Furthermore, the Board of Aldermen may declare an area blighted despite a contrary recommendation of the City Plan Commission. Allright, 538...