Reis v. Metropolitan St. Louis Sewer Dist., 49875

• Decision Date: 09 December 1963
• Docket Number: No. 2,No. 49875,49875,2
• Citation: 373 S.W.2d 22
• Parties: Mrs. Erin REIS, Caroline C. Hoelzer, Paul Randall and Leo Lau, Appellants, v. The METROPOLITAN ST. LOUIS SEWER DISTRICT, Respondent
• Court: Missouri Supreme Court

Page 22

373 S.W.2d 22

Mrs. Erin REIS, Caroline C. Hoelzer, Paul Randall and Leo

Lau, Appellants, v. The METROPOLITAN ST. LOUIS SEWER DISTRICT, Respondent.

No. 49875.

Supreme Court of Missouri, Division No. 2.

Dec. 9, 1963.

Charles M. Shaw, Clayton, for appellants.

Thompson, Mitchell, Douglas & Neill, James M. Douglas, David F. Ulmer, W. Stanley Walch, St. Louis, for respondent.

EAGER, Judge.

In this action to enjoin all further proceedings in connection with the proposed construction of a storm sewer, the trial court entered a summary judgment for the defendant. See Rule 74, V.A.M.R. The estimated immediate cost of these sewers is $650,000 and defendant has adopted a resolution finding that the improvement is in the public interest and that the work should proceed. Thus, the aggregate of the special assessments upon the class of persons and property which plaintiffs represent, and consequently the value of the relief to be granted or denied, will far exceed the sum of $15,000, and we have jurisdiction. Cooper v. School District of Kansas City, 362 Mo. 49, 239 S.W.2d 509. The area involved here is in the extreme southeastern part of St. Louis County in the Lemay neighborhood.

The facts which we relate are taken from an affidavit submitted by defendant and from the depositions of the four plaintiffs. We deal first with the affidavit of John H. Sears, Chief of the Subdistrict Development Department of defendant, to which was attached a copy of The Metropolitan St. Louis Sewer District Plan, as adopted on February 9, 1954. This plan provides: that the Board of Trustees is empowered to create subdistricts and to fix the boundaries thereof, either for sewers or drainage facilities; that no such ordinance shall become effective until three weeks after a public hearing is held, and that notice of such hearing shall be published at least three weeks before such hearing; that the Board may levy, assess and collect taxes on all taxable property within a district or subdistrict, and may fix, levy and collect special benefit assessments levied ratably by area upon such lots or parcels of ground as are benefited; that the Board shall adopt a resolution declaring the necessity of any such improvement; that the Board shall give adequate notice of a public hearing on all improvements to be paid for by special benefit assessments and on all others costing $7,500 or more; that such hearing shall be held not less than ten nor more than thirty days after the adoption of the resolution, and that thereafter the Board may determine that it is or is not in the public interest that such improvement be made.

The affidavit of Mr. Sears states, in substance: that the matters stated are within his personal knowledge; that in May 1955, a petition was received from 34 residents in the area in question requesting action for the correction of flooding conditions; that in 1957 a contract was made by defendant for an engineering study and such a report was received; that further studies of boundaries were made by affiant; that a public hearing was called by defendant for February 29, 1960, on a proposal to create such a subdistrict and that notice thereof was published in the St. Louis Globe-Democrat on February 4, 1960; that such public hearing was held and a report thereof made by affiant to the Board; and that on March 31, 1960, the Board adopted Ordinance No. 383 establishing such a subdistrict as 'Subdistrict No. 89 (Loretta-Joplin)' as shown on a map attached to the affidavit; that on June 29, 1961, after another report from affiant, the Board considered the matter further and adopted Resolution No. 422 declaring the necessity of the construction of storm water improvements in that subdistrict, estimating the cost at $1,100,000, providing for payment by special benefit assessments and calling for a public hearing on July 18, 1961; that notice of such hearing was published in the St. Louis Post-Dispatch on July 7, 1961, notices thereof were posted at twelve places in the District on July 6, 1961, and notices were mailed to some of the residents; that such a hearing was held; that thereafter representatives of defendant, including the affiant, met informally on several occasions with some of the property owners to determine whether the proposed special assessments might be reduced; that affiant prepared a revised plan by which the immediate proposed construction would cost $650,000, with the system to be completed later from the proceeds of an annual ad valorem tax levy of from 25 cents to 30 cents per one hundred dollars valuation for a period of not to exceed twenty years; that such plan met with the approval of a majority of the property owners present at an informal meeting; that on October 30, 1961, affiant reported these developments to the Board and that the Board adopted its Resolution No. 467 repealing the prior Resolution (No. 422), redetermining the necessity of 'adequate major storm sewers' and estimating the cost at $650,000 to be paid for by special benefit assessments and providing for a public hearing on November 20, 1961; that notice of such hearing was published on November 9, 1961, in the St. Louis Post-Dispatch, notices were posted in seventeen locations in the subdistrict on said day, and written notices were mailed to those persons whose addresses were in defendant's billing records; that such a hearing was held, all persons present were given an opportunity to be heard, and that people present did speak both pro and con; that a report of such hearing was filed and the Board, on December 7, 1961, adopted Resolution No. 474 finding and declaring that such improvement was in the public interest and that such improvements should proceed. On December 19, 1961, the present suit was filed.

Plaintiffs' First Amended Petition (filed as a class action) was filed on January 31, 1962; defendant answered on March 6, 1962. On May 31, 1962, defendant filed its Motion for Summary Judgment pursuant to Rule 74.04 (with Mr. Sears' affidavit attached as an exhibit) on the grounds that: the pleadings, the depositions on file, and the affidavit of Mr. Sears showed that there was 'no genuine issue as to any material fact and that defendant is entitled to judgment in its favor as a matter of law.' In the meantime, on March 22, 1962, the depositions of the four plaintiffs had been taken by defendant's counsel. On September 15, 1962, the Court sustained defendant's motion and entered judgment for defendant and against all plaintiffs. After the overruling of a motion for rehearing asserting that there remained an issue of fact, plaintiffs filed notice of appeal. Before digesting further facts, we note that the amended petition charged (aside from formal allegations, including the intention to install the sewer) that no hearing of the plan to establish the subdistrict had properly been held, that the proposal was not for the public good or general welfare, that it would work an undue hardship on the property owners, that defendant's acts were oppressive and in excess of its jurisdiction, and that there would be no benefit to the property owners.

In the depositions of the four plaintiffs the following was developed, treating the evidence collectively: that in flash floods from five to seven homes are sometimes flooded, but that most of the water comes down Kingston Street which is a state highway and spills over on to private property; that if the State would provide better drainage on the highway (which, it was claimed, had only a 'little' drain) there would be no flooding; that there is occasional flooding at Broadway and Kingston, at Broadway and Ripa, and at Perrin and Arlee; that there have been times when cars and busses could not go through; that the cost of this sewer project would hurt a lot of people who could not afford to pay, such as old age pensioners, etc., and that some would lose everything; that the witnesses did not feel that the community needed the sewer and felt that its cost would be 'oppressive'; that no public benefit would be derived from the plan; that there were three meetings and at one (at Notre Dame High School) there were sundry people present who did not live in the district; that one of the officials said at one meeting that 'they were going to put them in whether we wanted them or not'; that various persons spoke in opposition to the project at the meetings, and that there were probably three hundred people at the third meeting; that the property owners had formed an organization and that its officers met with the officials; that some of these officers agreed to a revised plan of assessment at the rate of five cents per square foot (instead of the original eight cents) plus an added property assessment, but that many people were still dissatisfied; that the property owners were never asked at the meetings whether they wanted the sewer or not; that the planned diagonal course of the sewer would disrupt the communnity, and that, as proposed, the sewer is too large; that probably 1,500 people are in the group opposing the sewer. One plaintiff (Hoelzer) testified that her total cost (assessment and increased ad valorem tax) on each of two 125 X 360 foot lots would be about $3,000 and that the lots cost $9,000 and $9,500, respectively, in 1958 and 1959. It is conceded by defendant that the proposed special assessments will be at the rate of five cents per square foot, plus the added ad valorem tax for the future completion of the project; defendant states in its brief that the largest assessment will be approximately $2,250 on each of the Hoelzer lots (which may readily be calculated), or approximately 25% of the supposed value, plus an anticipated total increase of $180 in the ad valorem taxes on each lot over a twenty-year period. This seems to be partially outside the record, but the precise figures are not, in our view, conclusive or highly material. No showing was made as to whether the storm...