Sears v. City of Columbia

• Decision Date: 13 September 1983
• Docket Number: No. WD,WD
• Citation: 660 S.W.2d 238
• Parties: James SEARS, et al., Plaintiffs-Respondents, v. CITY OF COLUMBIA, a Municipal Corporation, Defendant-Appellant. 32646.
• Court: Missouri Court of Appeals

Page 238

660 S.W.2d 238

James SEARS, et al., Plaintiffs-Respondents, v. CITY OF COLUMBIA, a Municipal Corporation, Defendant-Appellant.

No. WD 32646.

Missouri Court of Appeals,

Western District.

Sept. 13, 1983.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

Nov. 15, 1983.

Application to Transfer Denied

Dec. 20, 1983.

Raymond C. Lewis, Jr., Columbia, for defendant-appellant.

James C. Butcher, Columbia, for plaintiffs-respondents.

Before NUGENT, P.J., and TURNAGE and LOWENSTEIN, JJ.

LOWENSTEIN, Judge.

This appeal follows a trial court memorandum decision and judgment finding unconstitutional and invalid certain tax bills sought to be assessed against plaintiffs-respondents (comprising some 23 of 41) abutting landowners (Landowners), by the defendant-appellant City of Columbia (City) for widening, paving and other reconstruction made by the City on Oakland Gravel Road (Oakland Gravel). The trial court found the proposed tax bills invalid on the ground that the plaintiffs-Landowners' properties had not been benefited, and that the actions of the City in assessing the "improvements" were arbitrary and capricious. Issuance of and levying upon the tax bills had been temporarily enjoined by the court prior to trial. After a three week trial the court took the case under advisement and found sufficient abuses had occurred to entitle it to judicially review the legislative decisions of the City. In its judgment, besides holding the tax bills invalid, the court declared unconstitutional, null and void the actions, resolutions, council bills and ordinances of the City as they pertained to tax bills to the Landowners on Oakland Gravel. The trial court also made permanent the temporary injunction against the City proceeding any further with the passage of Ordinance # 385-76 which had authorized the assessment and issuance of special tax bills against the Landowners' properties. The court further enjoined the assessing or levying of any special tax bills against the 23 plaintiff-Landowners for the reconstruction of Oakland Gravel.

The City raises some seven points and a quantity of sub-points on appeal. All these points are denied and the judgment of the trial court is in all respects affirmed.

As the facts and circumstances surrounding this case are quite complex a brief history here seems in order. Many of the quoted portions of the facts herein emanate from Judge Conley's memorandum decision. Oakland Gravel was first used as a road for wagons going to the coal mines located north of Columbia. It originally had a dirt surface which was changed to gravel then shale in the 1930's. It was later rocked, and was finally improved to an oiled "black-top" road in the early 1940's. This improvement was done at the cost of the abutting property owners. The owners were charged $2.00 per foot for maintenance. During this period of time the individual tracts of land along Oakland Gravel were much larger than the average in-town lots and more closely resembled land platted for "limited" agricultural use. Prior to this project Oakland Gravel, a two lane street, ranged in width from 16 1/2 feet to 24 feet. There were no curbs or gutters or sidewalks. Most of the properties are zoned single family residential. Many of the homes fronting on Oakland Gravel are set back a substantial distance from the road (an average of 109 feet) and have large well cared for lawns and trees planted to the street. The largest tract involved in this suit is 25 acres. This area was annexed by Columbia sometime in 1971.

Up until the time of the "improvement" in 1975, Oakland Gravel was a road providing a very attractive semi-rural residential setting for the homes along the tree-lined road. The road served the people in the immediate neighborhood quite adequately as a "residential" street. There had been no subdivision of the lots. With the growth of industry and subdivisions in Columbia, the City Planners and City Council determined the need for a traffic corridor to the north to be established in the area around the Oakland Gravel residences. In the vicinity of the area, two schools were built in the early 1970's. Also new residential areas had been built as well as an airport, juvenile justice center and a municipal swimming pool.

In its move to upgrade Oakland Gravel the City reclassified the reconstructed and widened street from what the court described as "a meandering 20 foot residential street" to a concrete 38-foot "residential collector" street, changing its rural "country lane" appearance to a prototype of current suburbia with concrete sidewalks, gutters and curbs at the roadside. The road "improvement" or reconstruction also changed the nature and quantity of the traffic. The City, following its stated policy that every abutting landowner in Columbia "owed the general public a 32-foot street," had the Public Works Department compute costs and apportion to the abutting property owners that portion of costs to have paid for a 32-foot street. Those costs resulted in the tax bills in question. The City was to pay for the rest of the construction cost and of all other improvements. This unwritten policy of the City was based on the rationale that a 32-foot improved residential street is of "special benefit" to the individual abutting home owners. The underlying issue in this case is whether any special benefits as opposed to general benefits accrued to the landowners' property along this 5750-foot section of Oakland Gravel due to the City's reconstruction. The properties involved in this lawsuit have generally between 100 feet (equating to a tax bill of $1,823.18) and 1329 feet ($24,238.98) abutting Oakland Gravel.

Dozens of witnesses, hundreds of exhibits and over 1500 pages of transcript supplemented many pages of stipulated facts. Such additional facts will be presented with the evaluation of the relevant point of error relied upon by the City.

I.

The City's first point on appeal contends the trial court erred in reviewing the legislative determination made by Columbia's City Council as to the issue of benefits, and particularly erred in finding five purported abuses and using them as the pretext for judicial review of the issue of benefits. A) Columbia further contends that none of the five abuses were pleaded by the Landowners nor referred to in their petition nor litigated at trial; and such findings of abuse were contrary to the uncontradicted evidence; B) the City next alleges that the purported abuses, even if proved would not justify judicial review as they were incidental in nature; C) they constituted minor or technical irregularities; and, D) were not prejudicial to the Landowners in any way. This multi-faceted point is ruled against the City.

The City's first contention about the trial court's finding of five abuses as being a pretext for judicial review is linked to its last point on the scope of judicial review. Paraphrased in part and without use of quotation marks, Judge Conley made the following detailed findings which served as the basis for findings of abuse and arbitrary action by the City.

1. Columbia is a home rule charter city.

2. The City on February 21, 1972, passed Council Bill No. 59-72 calling for the reconstruction of Oakland Gravel Road from Vandiver Road (now Holly Avenue) ¹ north to the city limits, payment for construction to be made by special tax bills against abutting property not to exceed $13.70 for asphaltic concrete per linear property front foot; the street was reconstructed of asphaltic concrete to a width of thirty-eight feet (38') with concrete curbs and gutters and a concrete sidewalk on the east side running the length of the project.

3. On February 19, 1973, the Council passed Bill No. 43-73(a), Ordinance No. 5969, approving and adopting the plans for reconstruction of Oakland Gravel Road and setting a maximum tax bill of $13.70 per front foot.

4. The City on March 27, 1973, passed Ordinance 5992 (Council Bill No. 89-73) accepting the contract and bid of Richardson and Bass Paving Company in the amount of $347,062.40 for the Oakland Gravel Road reconstruction from Holly Avenue, north to the city limits.

5. On March 10, 1975, the Council passed Ordinance No. 6615 releasing Richardson and Bass from that part of their agreement pertaining to the Oakland Gravel Road construction under the contract previously approved by Ordinance No. 5992.

6. On April 7, 1975, the Council passed Bill No. 128-75 resolving that the cost of construction had increased to $350,000.00 and, thus finding it necessary to increase the amount to be assessed against abutting property owners from $13.70 to $18.60 per front foot.

7. The City on June 2, 1975, passed Ordinance No. 6696 (Council Bill No. 200-75) accepting the bid of Richardson and Bass for the reconstruction of Oakland Gravel Road from Holly Avenue to twenty feet (20') north of Grace Ellen Drive, (the length of the project being shortened from that which was called for under the original contract, Ordinance No. 5992), for the amount of $346,237.35.

8. Reconstruction was begun on June 16, 1975 and was completed on or about December 1, 1975 at a total cost of $394,144.72.

9. On January 5, 1976, the City accepted the final engineer's report and approved the construction as completed.

10. That defendant City, on October 4, 1976, passed CB 385-76, Ordinance No. 7194 which assessed and issued special tax bills against plaintiffs' properties and other abutting Oakland Gravel Road, the amounts of assessment ranging from $10.93 to $18.23 per front foot; that no evidence was presented to explain the variance charged the different property owners; and that the City Manager and City Councilman who testified were unable to explain the variation in amounts charged, but the Public Works Director testified that owners of corner lots may have been charged less.

11. On April 5, 1976 the Council passed an Ordinance (No. 7010)...