State ex rel. Chiavola v. Village of Oakwood

• Decision Date: 09 August 1994
• Docket Number: No. WD,WD
• Citation: 886 S.W.2d 74
• Parties: STATE of Missouri ex rel. George A. CHIAVOLA and Conne S. Flott, Respondents, v. The VILLAGE OF OAKWOOD, Missouri, Willared S. Norton, John W. Grimwade, Morris L. Phillips, L. Homer Orr and J. Jerry Shields, Appellants. 48239.
• Court: Missouri Court of Appeals

Page 74

886 S.W.2d 74

STATE of Missouri ex rel. George A. CHIAVOLA and Conne S.

Flott, Respondents, v. The VILLAGE OF OAKWOOD, Missouri, Willared S. Norton, John

W. Grimwade, Morris L. Phillips, L. Homer Orr and

J. Jerry Shields, Appellants.

No. WD 48239.

Missouri Court of Appeals,

Western District.

Aug. 9, 1994.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Oct. 4, 1994.

Application to Transfer Denied

Nov. 22, 1994.

Robert H. Freilich, Stephen J. Moore, Freilich, Leitner & Carlisle, Kansas City, for respondents.

James F. Ralls, Jr., Feldhause & Ralls, P.C., and Sherwin L. Epstein, Sherwin L. Epstein & Associates, Kansas City, for appellants.

Before LOWENSTEIN, P.J., and SPINDEN and BERREY, JJ.

LOWENSTEIN, Presiding Judge.

This appeal stems from a trial court determination that the single zoning ordinance (Ordinance No. 10) of the Village of Oakwood (Oakwood), which allows only single family residential usage in Oakwood: (1) is unconstitutional on due process grounds; and (2) as being infirm because Oakwood failed to develop a comprehensive plan under § 89.040, RSMo 1986. The Appellant, Oakwood, is a small bedroom community located in Clay County, and is a suburb of Kansas City. Oakwood consists of 80 single family dwellings on 80 platted lots.

The Plaintiffs/Respondents (Landowners) filed a multi-count petition. The trial court granted summary judgment on Count I which prayed for a declaration that Ordinance No. 10, and "all zoning ordinances" of Oakwood, were unconstitutional both facially and as applied ¹ to Landowners and for the municipality's failure to have a separate comprehensive plan. The remaining counts, which prayed for damages under several theories, were not reached since they hinged on the ruling of Count I. Pursuant to Rule 74.01(b) the trial court determined the appealability in its declaration that its ruling was final and appealable. The trial court did not take up Landowners' request for attorney fees in Count I, under 42 U.S.C. § 1988 and under Missouri Declaratory Judgment Act §§ 527.010--.130 RSMo 1986, or in any of the other five counts. Landowners have cross-appealed on this non-ruling of attorney fees. Their cross-appeal will be addressed at the end of this opinion.

At the very heart of this appeal lies the issue of whether a Missouri municipality may enact valid zoning ordinances without having first formally adopted a "comprehensive plan," under § 89.040, which provides that regulations on zoning and districts "... shall be made in accordance with a comprehensive plan...."

Summary judgment was granted on the portion of Landowners' petition which sought declaratory relief from Oakwood's only ordinance, Ordinance No. 10, relating to zoning and land use. Ordinance No. 10 was adopted in 1955, shortly after residents of a housing subdivision were incorporated as a village under § 80.020 RSMo 1986. The ordinance limited the use of the 80 lots comprising Oakwood to single-family residential use with a lot size of 30,000 square feet.

Oakwood is now bordered by a major thoroughfare, North Oak Trafficway (North Oak), as well as a portion of Kansas City and other villages in Clay County. North Oak carries approximately 25,000 cars per day and contains many commercial properties in the other municipalities it passes through.

In 1981 the Landowners, Chiavola and Flott purchased a house in Oakwood located on a six acre lot. They sought to rezone the portion of their land which abuts North Oak, approximately 4.7 acres, for commercial use. Oakwood's zoning commission, and later its trustees, denied the rezoning petition. The circuit court reversed, holding among other reasons; Ordinance No. 10 was invalid because Oakwood had not previously adopted a "comprehensive plan" pursuant to chapter 89, and the ordinance would not suffice as both the zoning "plan" and the zoning ordinance. As a result of the demise of Ordinance No. 10 Oakwood presently has no zoning ordinance on any land within its boundaries.

Ordinance No. 10 was the product of an Oakwood Zoning Commission hearing held in February, 1955, which recommended to the Trustees that the boundaries of Oakwood be zoned as "one residential district." Attached to the Commission's report was a description of the 80 lot plats of Oakwood. The report and subsequent ordinances provided for streets and parks but no commercial areas. This ordinance was passed in March, 1955. Although amendments were made to Ordinance No. 10 in 1966 and 1967, Oakwood has limited the land use to single-family dwellings.

There are two arguments which Oakwood, Appellants, presents as error to this court: 1) Ordinance No. 10 is not facially unconstitutional; and 2) it is not statutorily invalid. The parties, in both their briefs and arguments, seem to confuse the issues of constitutionality and statutory validity. This opinion will first outline the constitutional issues, and then the statutory issue. This court finds Ordinance No. 10 to be both constitutionally and statutorily sound and, therefore, reverses the judgment. Landowners cross-appeal is dismissed.

Standard of Review

Since zoning and refusal to rezone are legislative acts, this court reviews de novo any challenges to their validity. J.R. Green Properties Inc. v. Bridgeton, 825 S.W.2d 684, 686 (Mo.App.1992); Elam v. St Ann, 784 S.W.2d 330 (Mo.App.1990). This court is to first determine whether or not the legislative judgement was fairly debatable, and if it is, then the decision must stand. Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926); Binger v. Independence, 588 S.W.2d 481 (Mo. banc 1979). There is a presumption of validity for zoning ordinances; the presumption is rebuttable, but Landowners bear the burden of proving Ordinance No. 10 is unreasonable in order to successfully rebut the presumption. Elam, 784 S.W.2d at 335; Flora Realty & Inv. Co. v. Ladue, 362 Mo. 1025, 246 S.W.2d 771, 778 (banc 1952). Where there is uncertainty regarding the reasonableness of a zoning regulation, it is to be resolved in the government's favor. Flora Realty, 246 S.W.2d at 778.

I. Constitutional Attack

A. Reasonableness

The first point on appeal is that the court erroneously held Ordinance No. 10 to be unconstitutional. An ordinance may be either facially unconstitutional or unconstitutional as applied to a particular tract of land. Here it is asserted that on its face, Ordinance No. 10 is unconstitutional. The due process clauses of the Fourteenth Amendment to U.S. Constitution and the Missouri Constitution, Art. 1 § 10, require zoning "to bear a substantial relationship to health, safety, morals or the public welfare." Flora Realty, 246 S.W.2d at 778. The constitutional standard is essentially one of reasonableness. White v. Brentwood, 799 S.W.2d 890, 892 (Mo.App.1990), (citing Vatterott v. Florissant, 462 S.W.2d 711, 713 (Mo.1971)). Zoning may be unreasonable on its face or as applied to a particular tract of land. In Missouri, courts not only "determine whether application of the zoning is substantially related to the alleged purpose of the zoning, but also the private detriment caused by such application." Elam v. St. Ann, 784 S.W.2d at 334. Therefore, even where the zoning is related to the public welfare, the zoning may be considered unconstitutional where it demonstrates a detriment to private interests which outweighs the public benefit from retaining it. Id. at 334-335.

What is reasonable depends on the requirements of the locality, for what might be reasonable in one place may be unreasonable in another. Flora Realty, 246 S.W.2d at 778. The fact that economic loss will be sustained if the ordinance is upheld is not controlling; nor does the fact that neighboring or adjoining land is less restrictively zoned establish that the regulation is arbitrary or unfairly discriminatory. Id. at 779.

Here the zoning regulation, calling for single-family residential use, is facially reasonable. The general plan, as it can be inferred from Ordinance No. 10, its amendments via subsequent ordinances, and the development of Oakwood, was to establish a small bedroom community consisting of 80 homes. The ordinance provided for the single-family homes, churches and community buildings, public parks, and accessory uses customarily incident to the other allowable uses not involving the conduct of business or industry. This court can not say the zoning ordinance does not bear a substantial relationship to public health, safety, morals or general welfare and, therefore, is unreasonable or, that the detriment to Landowners outweighs the public benefits.

B. Comprehensive Single Use Zoning

The judgment also infers the ordinance is facially unconstitutional because it provides for only one type of zoning ... single-family residential. McDermott v. Calverton Park, 454 S.W.2d 577 (Mo. banc 1970), controls on this issue. The Court in Calverton Park overruled a portion of its earlier ruling in Moline Acres v. Heidbreder, 367 S.W.2d 568 (Mo.1963), which held a municipality could not adopt a single-use zoning ordinance.

In Moline Acres, the city was incorporated as a village and adopted a single-use zoning ordinance. The Court held the Missouri statutes were "never intended ... to give to a municipality the power to adopt a one use district zoning ordinance encompassing the whole town." Id. at 573. Thus, the Court found the village lacked the authority to enact such an ordinance. Id.

The Supreme Court of Missouri, in Calverton Park specifically overruled the quoted portion of Moline Acres saying, "We have read and reread the applicable statutes and find nothing therein to indicate a legislative intent that, under all circumstances, a municipality must provide for more than one use in its zoning ordinance." Calverton Park, 454 S.W.2d at 577. This is especially true for small bedroom communities situated in large metropolitan areas. Id. at 581. In Calverton Park, the village...