Schell v. Kansas City, Mo.

• Decision Date: 13 February 1950
• Docket Number: No. 1,No. 41296,41296,1
• Citation: 360 Mo. 27,226 S.W.2d 718
• Parties: SCHELL et al. v. KANSAS CITY, MISSOURI et al
• Court: Missouri Supreme Court

Page 718

226 S.W.2d 718

360 Mo. 27

SCHELL et al. v. KANSAS CITY, MISSOURI et al.

No. 41296.

Supreme Court of Missouri, Division No. 1.

Feb. 13, 1950.

Duvaul P. Strother, Kansas City, for appellants.

David M. Proctor, City Counselor, Guy W. Rice, Assistant City Counselor, Kansas City, for respondents.

HYDE, Judge.

Declaratory judgment action to declare unconstitutional and void an amendment to the Zoning Ordinance of Kansas City, by which certain property was rezoned from business to residential use. Plaintiffs contend this amendment is arbitrary and unreasonable spot zoning. The trial court held the amendment valid and plaintiffs appealed.

Plaintiffs bought their property in this rezoned area, in 1907, when it was outside the city limits. It is at the northwest corner of the intersection of 63rd Street and Swope Parkway, fronting 150 feet on each street, across the intersection from the northwest corner of Swope Park. Plaintiffs built a residence on the north 50 feet, fronting on Swope Parkway. The rest of the land, fronting 100 feet on Swope Parkway and 150 feet on 63rd Street has remained vacant. The City limits were extended to include it in 1909 and the first Zoning Ordinance of Kansas City was adopted in 1923. It zoned both sides of 63rd Street for retail business from Swope Parkway west to Wornall Road, more than 35 blocks away. Plaintiffs stated that they had always held the property for business use. 63rd Street has recently been designated as a trafficway and there is now a bus line on it which connects with a streetcar line on Swope Parkway.

Previously both sides of 63rd Street, between Prospect and Indiana (about six blocks), had been rezoned from retail business to residential. The present challenged rezoning covers an area on both sides of 63rd Street to a line 125 feet north of and parallel to the north line of 63rd Street and 125 feet south of and parallel to the south line of 63rd Street, and from the center line of Swope Parkway to a line 150 feet west of and parallel to the west line of Indiana Avenue, which is on the west side of the block in which plaintiffs' property is located. The area rezoned has a total of 2,736 front feet on both sides of 63rd Street; that is 1,368 feet fronting on each side of the street. On the north side, between Indiana and Swope Parkway (which is much larger than the average block) there are four residences; the remainder is vacant. On the south side there is a church (on the southwest corner of the intersection of 63rd Street and Swope Parkway) and the rest is part of the playground and athletic field of Southeast High School. (There is some indication in the record that a girl's home owns some property next to the church but it has no building on 63rd Street.) In that part of the area rezoned west of Indiana, on both sides of 63rd Street for a distance of 150 feet, there are two residences, both of which are on the south side of 63rd Street. The north side is vacant. Thus, in the entire area rezoned there is a church, school playground, and six residences. The nearest business was located at 60th and Swope Parkway and the next nearest was at 67th and Swope Parkway. Plaintiffs had evidence to show that the value of their land would be considerably less for residence purposes than for retail business.

Plaintiffs rely on Wippler v. Hohn, 341 Mo. 780, 110 S.W.2d 409; Mueller v. Hoffmeister Undertaking & Livery Co., 34o Mo. 430, 121 S.W.2d 775; Women's Kansas City St. Andrew's Society v. Kansas City, 8 Cir., 58 F.2d 593. In the Wippler and Mueller cases we held that a reclassification of a small area for purely individual advantage which had no lawful basis of some reasonable reference to public health, safety, morals or general welfare was arbitrary and unreasonable. The St. Andrew's Society case held that a restriction of a use was arbitrary and unreasonable where public welfare could not in any way receive benefits from such restriction. However, the rule is that, if the question as to whether or not the legislation is unreasonable or arbitrary or an unequal exercise of power is fairly debatable, the legislation must be upheld as valid. Zahn v. Board of Public works, 274 U.S. 325, 47 S.Ct. 594, 71 L.Ed. 1074; See also Marblehead Land Co. v. City of Los Angeles, 9 Cir., 47 F.2d 528 certiorari denied, 284 U.S. 634, 52 S.Ct. 18, 76 L.Ed. 540; Geneva Investment Co. v. City of St. Louis, 8 Cir., 87 F.2d 83; 58 Am.Jur. 954-955, Sec's. 21-22; ...