McCarty v. City of Kansas City, WD

Decision Date17 April 1984
Docket NumberNo. WD,WD
Citation671 S.W.2d 790
PartiesF. Walter McCARTY and Miriam J. McCarty and John P. Miller and Old Mill Development, Inc. and Berbiglia, Inc., Appellants, v. CITY OF KANSAS CITY, Missouri, A Municipal Corporation and Cecil Van Tuyl, Respondents. 34338.
CourtMissouri Court of Appeals

Sherwin L. Epstein, Brian Timothy Meyers, Kansas City, for appellants.

Richard Ward, City Atty., Kathleen A. Hauser, Asst. City Atty., Judith P. Rea, Allen S. Russell, Rea, Chamberlin & Russell, Kansas City, for respondents.

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

CLARK, Judge.

This is a declaratory judgment suit brought to test the validity of a Kansas City ordinance affecting use of real estate owned by respondent Van Tuyl. Appellants are the owners and lessees of adjacent land. They contested enactment of the ordinance and oppose the commercial development which the ordinance authorized. The trial court ruled the ordinance properly enacted and this appeal followed. Reversed.

Essential to a discussion and understanding of the issues in the case is a delineation of the land holdings of the parties, the relationship of each parcel of property to the others and a history of the commercial development and related zoning activity.

The properties owned by appellants and that owned by Van Tuyl lie in south Kansas City a short distance east of the Missouri-Kansas state line. The tracts owned by Old Mill Development, Inc. and respondent Van Tuyl and the land occupied by Berbiglia, Inc. all front on 103rd Street. The westerly tract of Old Mill is improved with retail shops, a movie theatre and automobile parking. The easterly tract is leased by Berbiglia with a purchase option and is used for the business of a retail package liquor store. The Van Tuyl property, which is unimproved, lies between the Old Mill and Berbiglia land. The vacant land owned by appellants McCarty and Miller abuts the Van Tuyl tract on the north. The subject land of respondent Van Tuyl is therefore bounded on three sides by the properties of appellants and on the south by 103rd Street.

Real estate along 103rd Street in the area of the subject holdings has experienced rapid commercial development since 1962 when the area was residential in character and zoning. This adaptation to commercial use was recognized by rezoning commencing in 1962. At that time, the Van Tuyl tract and the land later occupied by Berbiglia were under a common ownership. Upon application of the then owner in 1962, the Van Tuyl and Berbiglia properties were rezoned as a single tract to District CP-2, planned business center. That underlying zoning classification has remained and, at the time of trial, it was undisputed that the District CP-2 zoning was still applicable to the properties. 1

Rezoning for a planned business center district differs from ordinary retail or business zoning in that an approved development plan is required before improvements and commercial usage may commence. The development plan, as an integral part of the CP-2 zoning, is required to show the nature and location of all improvements proposed for construction in the center. This includes buildings, driveways and walkways, parking areas, plantings and free space and any other detail needed to illustrate the features of the project as it will ultimately be completed. Construction in the planned center must conform to the development plan without substantial variation. Actual use of the land in the planned center may deviate from the development plan as approved only upon submission of a revised plan and approval of the changes, after notice and hearing, by the adoption of an ordinance by the city council.

The approved development plan for the CP-2 business center, now consisting of the Van Tuyl and Berbiglia tracts, provided for one structure on the easterly portion with the remainder of the land devoted to parking and open space. The present Berbiglia store is located in conformity with the approved development plan both as to situs and building dimensions. The development plan did indicate the use of the building to be for a restaurant but the change to a retail store within the same building did not require any plan modification. All of the land area now under the Van Tuyl ownership is shown on the approved development plan as parking and open space and is thus unavailable for erection of any structure without submission and approval of a revised development plan.

When Van Tuyl acquired the subject property, its unavailability for any use except the accessory use of automobile parking was known. Van Tuyl therefore caused a revised development plan to be prepared as a precondition to his intended use of the property for an automobile sales agency and repair garage. The plan was submitted to the city planning commission, public hearings were conducted and on January 29, 1982 the ordinance challenged in this suit was adopted by the city council. The effect of the ordinance, which approved the revised development plan, was to permit Van Tuyl to construct the automobile sales and repair facilities on the portion of the CP-2 business center originally reserved for parking and open space.

Appellants have opposed the revised development plan from its inception and have contended the proposed car agency would depreciate the values of their properties and, in the cases of Old Mill and Berbiglia, would injure their businesses. This suit followed the council action on the ordinance. In this appeal from the adverse result in the trial court, appellants urge three points of error. Only one requires discussion because it is dispositive of the case.

The facts associated with the point to be considered are these. The ordinance approving the revised development plan for the subject property was introduced before the council December 10, 1981. On December 28, 1981, a document protesting the ordinance and bearing the signatures of the McCartys, Miller and the president of Old Mill was filed with the city clerk. When the ordinance in question came before the city council, eight votes were cast in favor of the ordinance and four votes were cast against it. The fact is undisputed that the protestors, the McCartys, Miller and Old Mill, owned more than 40% of the land abutting the Van Tuyl property or within 185 feet from its boundaries.

Appellants contend in their point relied on that the trial court erred in failing to declare void the ordinance approving the revised development plan because the ordinance did not receive the required three-fourths majority vote in accordance with § 89.060, RSMo.1978. 2 That section becomes applicable when the specified protest against the change in zoning is filed by the owners of 10% or more of the land within the area of proposed change or within 185 feet of the boundaries of the area.

There is no contest in this case over the content of the protest, the timeliness of filing or the qualification of the protestors as owners of more than 10% of the land abutting the boundaries of the Van Tuyl tract. The issue is whether the revision in the CP-2 development plan is a change in or an amendment to the zoning regulation and restriction effective under the CP-2 zoning, and thus subject to the protest procedures.

No Missouri case has directly confronted this issue, perhaps because the planned unit development concept exemplified by the CP-2 district is of relatively recent origin. Without controlling Missouri precedent, it is first appropriate to look to the applicable statutes and then to case law as available from other jurisdictions.

The powers of municipal bodies to regulate land use are derived from the state police power as that power is delegated through enactment of statutes. State ex rel. Ellis v. Liddle, 520 S.W.2d 644, 646 (Mo.App.1975). It is an elementary principle that a municipality must conform to the terms of the grant when using the powers delegated to it by the legislature. Dahman v. City of Ballwin, 483 S.W.2d 605, 608 (Mo.App.1972). It is well established in Missouri that the exercise of zoning powers delegated to cities is a legislative function. Strandberg v. Kansas City, 415 S.W.2d 737, 742 (Mo. banc 1967). A municipality exercises its legislative function only through the enactment of ordinances. Layne v. City of Windsor, 442 S.W.2d 497, 500 (Mo.1969). The delegated authority to a municipality to legislate on a subject pre-supposes the authority both to enact and repeal ordinances, but both may be limited by the terms of the grant of the power. Stine v. Kansas City, 458 S.W.2d 601, 611 (Mo.App.1970).

Applied to the subject of land use regulation, the foregoing authorities require the conclusion that respondent Kansas...

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