May Dept. Stores Co. v. County of St. Louis, 40017.

• Decision Date: 05 November 1980
• Docket Number: No. 40017.,40017.
• Citation: 607 S.W.2d 857
• Parties: MAY DEPARTMENT STORES COMPANY et al., Plaintiffs-Respondents, v. COUNTY OF ST. LOUIS, Missouri et al., Defendants-Appellants.
• Court: Missouri Court of Appeals

607 S.W.2d 857

MAY DEPARTMENT STORES COMPANY et al., Plaintiffs-Respondents, v. COUNTY OF ST. LOUIS, Missouri et al., Defendants-Appellants.

No. 40017.

Missouri Court of Appeals, Eastern District, Division Three.

November 5, 1980.

COPYRIGHT MATERIAL OMITTED

Bryan, Cave, McPheeters & McRoberts, Michael G. Biggers, Thomas C. Walsh, R. H. McRoberts, St. Louis, Albert Michenfelder, Jr., Ziercher, Hocker, Tzinberg, Human & Michenfelder, Clayton, for plaintiffs-respondents.

Thomas W. Wehrle, County Counselor, James H. White, Assoc. County Counselor, Clayton, defendants-appellants.

KELLY, Chief Judge.

The appellants, the County of St. Louis, the St. Louis County Council and its members at the time, Donald L. Bond, Carl W. Breihan, James R. Butler, Brainerd W. La-Tourette, Jr., Maurice L. Stewart, Elizabeth Van Uum, and Harry Van Romer and Robert J. Hagel, Director of Public Works of St. Louis County, appeal from a judgment of the St. Louis County Circuit Court in an action for declaratory judgment and injunction instituted by the respondents, The May Department Stores Company, Woodcrest Development Company, Inc., and Linclay Corporation.¹

Reduced to its simplest issues, this case is concerned with the legality of the construction of a Venture Store on some real estate consisting of thirty-three acres of land, five acres of which are within the city limits of the City of Creve Coeur, and the remaining twenty-eight acres of which are located within the unincorporated area of St. Louis County in the vicinity of Highway I-270 and Olive Street Road. Because there are critical factual issues which play a decisive role in the result we reach with respect to several Points Relied On presented by appellants, we would take cognizance, at this point, that the review of this case is governed by the principles announced in Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976), and we are required to uphold the judgment in this court-tried case unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.

The trial court filed eighty-three (83) Findings of Fact, which, we conclude were supported by substantial evidence. The evidence supporting these findings, and germane to our decision, was that plaintiff, Linclay Corporation, (hereinafter Linclay) was a developer and builder of commercial and office property in St. Louis County; that in particular, Linclay had developed the Bellerive Executive Park in west St. Louis County; and the success of this combined office and commercial project from Linclay's standpoint led Linclay to look for other west St. Louis County property in order to develop a similar project. During the summer of 1975-1976, Linclay became interested in certain property located in the unincorporated areas of St. Louis County at the northwest corner of the intersection of Olive Street Road and I-270. This property, together with certain adjoining property, located within the City of Creve Coeur was later identified as Woodcrest. In view of the location and the other commercial and institutional occupants along Olive Street Road near Woodcrest, the Woodcrest site was most suitable for development for commercial purposes but the Woodcrest property was zoned residential and Linclay needed rezoning for commercial and office development of said Woodcrest. In connection with its efforts to have the property rezoned for commercial usage Linclay emphasized and requested a need for the developer to have more flexibility than was permitted in the development of Bellerive. Officials in the St. Louis County Planning Department agreed with this need for flexibility. In a hearing before the St. Louis County Planning Commission on Linclay's rezoning request, held on July 12, 1976, Linclay compared its proposed Woodcrest project to the Bellerive development, emphasizing that its promotional materials were purely schematic and stressing that its request provided maximum flexibility for the developer. Linclay made no representations about "discount stores" at this hearing and did not commit itself on any of the details of the development. At a similar hearing before the Creve Coeur Planning Commission in June of 1976, Linclay, upon questioning, stated that it could not rule out the possibility of a "discount store" at Woodcrest.

Linclay contacted numerous office, commercial and hotel businesses as potential tenants for the proposed Woodcrest development. One of these contacts was with plaintiff, the May Department Stores Company (hereinafter May). Between the months of May, 1976, and September of 1976, Linclay and May negotiated for the possible lease of commercial space at Woodcrest for a retail store of May's Venture division. Venture is the second largest retailer in annual sales volume in the St. Louis area, trailing only the Famous-Barr stores, also owned by May. Venture's twenty-four stores, ten of which are in the St. Louis area, are characterized by the use of self-service check-out features, a broad variety of merchandise, encouragement of family and recreational shopping, and the promotion of a "good value" image. These Venture stores attract basically the same class of customers as the Famous-Barr stores, aiming at all customers except those in the very high and the very low income brackets. There is a substantial overlap in merchandise except for the very top of the line items, and the merchandise is in general offered at slightly lower prices at a Venture store. Venture stores are different in that they carry a minimum of designer clothing and furniture or heavy appliances, have more self-service, do not have their own credit service, and are somewhat less expensive in their interior decor.

During negotiations over a Venture lease at Woodcrest, Linclay made several demands designed to insure the quality of the Woodcrest development, and May consented to them. Linclay required a different, more expensive exterior design and construction than any other Venture store by requiring brick on exterior walls, a non-rectangular building, a different roof treatment, exterior landscaping, deletion of the traditional Venture canopy, and restrictions on signs.

Linclay completely and totally terminated negotiations with May on September 25, 1976. Negotiations were terminated because Maurice Stewart, a member of the St. Louis County Council, had indicated to Linclay a few days preceding termination of Linclay's negotiations with May that a Venture store was unacceptable to him as an occupant of that location. No agreement had been reached by Linclay and May on most of the specific terms of the possible lease and in particular, no agreement had been reached on the amount of space to be leased or on the amount of rent to be paid. Councilman Stewart's opposition to Venture stores, and to "discount" stores in general in west St. Louis County had been previously demonstrated in 1973, when, upon learning that Venture might locate a store in a development by Shell Oil Company at the corner of U. S. Highway 40 and Highway 141, Stewart introduced and secured passage of an ordinance repealing the C-8 Planned Commercial District zoning for that property. Litigation by Shell followed, and upon its settlement, Stewart sponsored Ordinance No. 7409, which explicitly prohibited the use of that property for "discount" stores.

Councilman Stewart was also instrumental in the insertion of language in Ordinance No. 7513 prohibiting "discount" stores in Bellerive Executive Park in west St. Louis County to insure that there would be no such stores there. Language barring "discount" stores was inserted in that Ordinance after Councilman Stewart learned of negotiations between the developer, Linclay, and K-Mart, which was identified as a so-called "discount store." Councilman Stewart also introduced Ordinance No. 7999, adopted two weeks after the Woodcrest rezoning, specifically prohibiting a "discount" store in another west St. Louis County development. There are no such prohibitions against "discount" stores in any ordinances relating to developments in north St. Louis County or south St. Louis County.

Councilman Stewart admitted that he is opposed to the location of any Venture store or any other store which he regards as a "discount" store in the area of west St. Louis County, west of Lindbergh Boulevard and bounded by Clayton Road on the south and Olive Street Road on the north, which area is substantially in his Council District.

On or about September 17, 1976, Dale Perkinson, President of Linclay, met with Councilman Stewart at his office and presented him with a letter from Mr. Henry A. Lay, May's Executive Vice-President, describing the proposed Venture store. Councilman Stewart refused to read or keep a copy of the letter, again expressing his opposition to any discount store at this location.

Following Linclay's termination of negotiations on September 25, 1976, Mr. Lay and Linclay had absolutely no contact with respect to Woodcrest again until October 28, 1976. After Linclay terminated its negotiations with May, several officers of Linclay formed a partnership known as Woodcrest Associates, to develop a commercial building on Woodcrest. Architectural plans for this building were developed in late September and October, 1976, and labeled first "Woodcrest Walk" and later, "Woodcrest Plaza" by the architect, Robert Boland. This building, as proposed, would have been located in part on what is now identified as Lot 4 of Woodcrest and would have occupied some of the same property as that occupied by the building presently being constructed at that site. Linclay expended time and effort in specific lease negotiations with several prospective tenants for this building. May had no representative at any hearings or meetings of the County Council (hereinafter Council) or Planning Commission dealing with the Woodcrest...