McDermott v. Village of Calverton Park

• Decision Date: 11 May 1970
• Docket Number: No. 55224,55224
• Parties: Genevieve S. McDERMOTT, Plaintiff-Respondent, v. VILLAGE OF CALVERTON PARK, Virgil Syberg, George Barbero, Arthur Quillo, Joseph Gordon, Charles Myles, Jean Poropat, Lowell Girardier, and C. S. Lafferty, Defendants-Appellants.
• Court: Missouri Supreme Court

Page 577

454 S.W.2d 577

Genevieve S. McDERMOTT, Plaintiff-Respondent, v. VILLAGE OF CALVERTON PARK, Virgil Syberg, George Barbero, Arthur Quillo, Joseph Gordon, Charles Myles, Jean

Poropat, Lowell Girardier, and C. S.

Lafferty, Defendants-Appellants.

No. 55224.

Supreme Court of Missouri, En Banc.

May 11, 1970.

Arthur H. Slonim, Richard L. Ross, Slonim & Ross, Clayton, for plaintiff-respondent.

John J. Gerst, St. Louis, for defendants-appellants.

HOLMAN, Judge.

In this declaratory judgment action P. Joseph McDermott and Genevieve S. McDermott, his wife, sought to have the court declare invalid the general zoning ordinance of the Village of Calverton Park, St. Louis County. Plaintiffs were the owners, by the entirety, of a tract of land in the village. The individual defendants are members of the Board of Trustees and other officials of the village. After an extended trial the court found the ordinance 'invalid as not meeting the requirements of Chapter 89, 'Zoning and Planning' of the Revised Statutes of Missouri.' Defendants appealed to the St. Louis Court of Appeals. That court, acting under the compulsion of the case of City of Moline Acres v. Heidbreder, Mo.Sup., 367 S.W.2d 568, affirmed the judgment. The appeals court, however, indicated that it disagreed with our decision in Moline Acres and accordingly transferred the case to this court so that we could re-examine the existing law. It will be determined here 'the same as on original appeal.' Civil Rule 84.05(h), V.A.M.R., and Mo.Const., Art. V, § 10, V.A.M.S. After the appeal was taken Mr. McDermott died and therefore Mrs. McDermott now appears as the sole plaintiff.

The question before us concerns the validity of Zoning Ordinance No. 77 enacted by the village on January 15, 1953. It did not provide for any commercial use and, with certain exceptions not here material, limited the use of the land to one-family dwellings.

The lots in Calverton Park were platted about the year 1925. By the time the zoning ordinance was adopted, in 1953, single-family dwellings had been constructed on about 70% of the lots and there had been no commercial construction. Calverton Park is a relatively small village which, at the time of trial, had about 1,700 inhabitants. The village adjoins the City of Florissant on the north and east, and the City of Ferguson on the south. Prior to the adoption of Ordinance No. 77 a Planning and Zoning Commission was appointed and that Commission, after eight or ten meetings and the holding of a public hearing, made the report and recommendation to the Board of Trustees of the village which culminated in the adoption of the ordinance. The ordinance made provision for public buildings, parks and golf courses, but, as indicated, restricted other uses to one-family dwellings. It divided the city into four zoning districts. R1 consisted of a portion of the village which had been subdivided into small lots. R2 encompassed the lots fronting on Florissant Road and these lots were somewhat larger. R3 consisted of large tracts of from one to twelve acres upon which had been constructed a number or very fine homes. R4 was also made up of fairly sizeable tracts. The ordinance contained specifications regarding the minimum lot size, locations of buildings on the lots, and minimum standards of construction materials allowable in each of the zoning districts. The ordinance also contained a provision whereby the Board of Trustees was authorized, after public notice and hearings, to amend or change the regulations contained in the ordinance.

The McDermotts bought their residence which was located on two lots facing North Florissant in June 1946. Thereafter they purchased a number of adjoining vacant lots. They ultimately had a tract containing about two and one-half acres which had a frontage of 280 feet on Florissant, extending between Barto Drive and Connolly Drive and consisted of 19 lots. At that time North Florissant was a two-lane street without much traffic. They set out an orchard on the vacant lots and at one time kept about 300 chickens and a number of ponies. The lots fronting on Florissant are in R2 District and the remainder of the lots are in R1. As the years passed, Florissant Road became a major traffic attery leading to other communities and highways in the northwest part of St. Louis County. In 1958 it was widened to 80 feet and became a four-lane concrete highway. Parking was not permitted on Florissant, and, an electric traffic signal was installed in front of the McDermott property. In 1957 McCluer Senior High School was constructed in the City of Florissant on a tract of land fronting on the east side of North Florissant in the vicinity of the McDermott property. More than 3,400 students attend this school. A short time later a large school bus garage was constructed across from and a short distance south of the McDermott residence. At trial time 53 buses operated out of that garage. Most of them made two trips, both morning and evening, so that there were 180 bus trips a day from the school property. About 350 students cross Florissant going to and from the school each day. Mr. McDermott testified that because of the increased traffic and the resulting noise, fumes, and dirt, they desired to sell their property and listed it with a real estate agent five years before trial. He expressed the opinion that it was worth $60,000 if commercial use were permitted, but that he had been unable to obtain any offer for residential use. There was expert testimony that the property had a value of $66,500 for commercial purposes but that the house and two lots would not be worth more than $17,000 for residential purposes.

In January 1963 the McDermotts entered into a contract to sell their property for $58,500 to Larry Witzer with the provision therein that the sale was subject to the contingency that the seller obtain a rezoning of the property for commercial use (shopping center). The McDermotts accordingly made application for such rezoning. The Planning and Zoning Commission held a hearing thereon and on July 8, 1963, voted unanimously to recommend that the application be denied. The Board of Trustees thereafter denied the application.

On behalf of the McDermotts their real estate broker, in January 1964, filed an application for a building permit to build a shopping center on this land, which permit was denied by the Commissioner. This suit was filed shortly thereafter.

There was an abundance of evidence that ample commercial facilities existed to meet the needs of the residents of Calverton Park. The McDermott property is located almost on the northern boundary of the village. About one block north of that property is a shopping center, and a short distance beyond that is a larger shopping center. The southern boundary of the village is approximately one-half mile south of the property in question. There are commercial facilities on the east side of Florissant just south of the village boundary, and about a half mile beyond is the Duchesne Shopping Center which has almost every type of commercial facility. The main business district of Ferguson is to the south of that shopping center.

There has been no change in the zoning ordinance since its adoption and hence Calverton Park is still used exclusively for one-family dwellings. One other property owner on North Florissant who testified in the case stated that he hoped, if rezoning were permitted, to sell his property for commercial use. Two real estate brokers testified on behalf of plaintiffs that the highest and best use for their property was commercial.

Defendants presented as a witness A. H. Dreyer, a city planner, who testified that he had made a study of Calverton Park and that in his opinion the village is properly zoned; that the village definitely has adequate commercial facilities available for the needs of the people in the surrounding area; that if he had been employed to zone the village he would not have done it materially different than was done in 1953; that to rezone plaintiffs' property for commercial use would be 'spot zoning' and there is no commercial need for such; that if such rezoning occurred it would create a tremendous traffic generation and congestion and there would be more danger to school children crossing Florissant; that there are 90 residences in the village that front on Florissant, all of which are well maintained and desirable residence properties, and that if this shopping center should be constructed it would depreciate the value of residences located on Barto and Connolly Streets. On cross-examination he stated that he had been involved in planning 45 communities and that none of them had zoning which restricted use to one-family dwellings.

In our determination of the questions presented we must consider the following sections of our zoning statutes, V.A.M.S. ¹

'89.020. Powers of municipal legislative body.

'For the purpose of promoting health, safety, morals or the general welfare of the community, the legislative body of all cities, towns, and villages is hereby empowered to regulate and restrict the hight, number of stories, and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts, and other open spaces, the density of population, the preservation of features of historical significance, and the location and use of buildings, structures and land for trade, industry, residence or other purposes.'

'89.030. Zoning districts.

'For any or all of said purposes the local legislative body may divide the municipality into districts of such number, shape, and area as may be deemed best suited to carry out the purposes of sections 89.010 to 89.140; and within such districts may regulate and restrict the erection, construction, reconstruction, alteration or use of buildings, structures, or land. All such regulations shall be uniform for each class or kind of buildings throughout each...