State ex rel. Chiavola v. Village of Oakwood, WD

• Decision Date: 13 August 1996
• Docket Number: No. WD,WD
• Citation: 931 S.W.2d 819
• Court: Missouri Court of Appeals
• Parties: STATE ex rel. George CHIAVOLA & Connie Flott, Appellants, v. VILLAGE OF OAKWOOD, Mo., et al., Respondents. 51383.

Page 819

931 S.W.2d 819

STATE ex rel. George CHIAVOLA & Connie Flott, Appellants, v. VILLAGE OF OAKWOOD, Mo., et al., Respondents.

No. WD 51383.

Missouri Court of Appeals,

Western District.

Aug. 13, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Oct. 1, 1996.

Application to Transfer Denied

Nov. 19, 1996.

Robert H. Freilich, Kansas City, for Appellants.

James Franklin Ralls, Jr., Kansas City, for Respondents.

Before EDWIN H. SMITH, P.J., and LOWENSTEIN and SMART, JJ.

LOWENSTEIN, Judge.

This is the second time this court has been asked to render a decision on this case. In Chiavola I, State ex rel. Chiavola v. Village of Oakwood, 886 S.W.2d 74 (Mo.App.1994), cert. denied --- U.S. ----, 115 S.Ct. 1724, 131 L.Ed.2d 582 (1995), this court determined that a small bedroom community's single zoning practices (all residential) were facially constitutional, and that a comprehensive plan, required under § 89.040, RSMo. (1986) could be inferred from zoning ordinances and subsequent action by the communities without producing a separate written plan. Chiavola I came to this court on a summary judgment motion which ruled the Village of Oakwood (Oakwood) zoning scheme was unconstitutional. The case was remanded to the trial court for a decision on the Plaintiffs' remaining issues in their multi-count petition. On remand, the trial court determined that the decision in Chiavola I caused the remaining counts "to fall like dominoes" and dismissed the as-applied counts and all remaining counts of the Plaintiffs, Chiavola and Flott (Chiavola) petition. Plaintiffs have appealed the dismissal of their remaining counts, contending that they are entitled to have their evidence heard before the trial court renders a decision. At issue here in Chiavola II is whether the decision in Chiavola I rendered Chiavola's remaining counts moot.

By way of recap, in the appeal in Chiavola I, Oakwood prayed for this court to declare that: (1) Ordinance No. 10 in which all property zoned residential with lots of 2-3 acres, was not facially unconstitutional; and (2) neither the ordinance nor the scheme were statutorily invalid for failing to provide a separate written comprehensive plan. This stemmed from the trial court's finding that Oakwood's single use zoning plan enacted in 1955 through its sole zoning Ordinance was unconstitutional facially and as it applied to Chiavola's property and for the municipality's failure to have a separate comprehensive plan as required by statute § 89.040, RSMo. (1986). In the Order of Summary Judgment the trial court struck down and held Oakwood's zoning ordinance invalid, (which was in reality, as discussed further below, an order of partial summary judgment), and Oakwood appealed.

In Chiavola I this court was asked to address the facial constitutionality issue in this case and determined that the general plan from Ordinance No. 10 was to create a small bedroom community consisting of 80 homes. This court ruled it could not say that such a plan did not bear a substantial relationship to public health, safety, morals or general welfare and, therefore, was unreasonable or, that the detriment to Landowners outweighed the public benefits. 886 S.W.2d at 77. Thus, this court determined that Ordinance No. 10 was not facially unconstitutional. Id. at 77. Furthermore, this court determined that the language of § 89.040, RSMo. (1986), did not require a separate written comprehensive plan but that one could be inferred from Ordinances and subsequent actions of municipalities. Specifically, this court addressed Oakwood's Ordinance No. 10 and found that the comprehensive plan of creating and keeping the community strictly residential was inferable, therefore, the Ordinance was not statutorily invalid. Id. at 82. As will be pointed out later, it was unclear in the appeal in Chiavola I whether an issue in that appeal was another Chiavola assertion; and whether the zoning scheme was unconstitutional on due process grounds "as applied" to the landowners. This court noted in footnote 1 at page 76:

The issue of whether Ordinance No. 10 is unconstitutional as it applied to Chiavola and Flott was not preserved on appeal. Both parties directed their efforts towards the facial unconstitutionality of Ordinance No. 10 and therefore we focus on that issue. This court finds even had they chosen to assert an as applied argument, the Ordinance was constitutional as it applied to their land.

On remand, the circuit court determined that based on this court's mandate and footnote 1 of Chiavola I, the remaining counts in the plaintiffs' petition were no longer justiciable. Specifically, footnote 1 state that while this court was only asked to determine the facial constitutionality of the case, if the "as applied" issues had been presented the court would render the same decision. Footnote 1 addressed an issue not before the court and was dicta.

What is ultimately left to be decided today is whether the mandate in Chiavola I adversely affected all Chiavola's remaining counts requiring them to fail in Chiavola II or whether any of the remaining counts stand unaffected to the degree of being justiciable.

Some additional background must be presented due to the complicated procedural history of this suit. Suffice it to say the underlying suit here brought by landowner, Chiavola, sought to set aside the zoning ordinance of the Village of Oakwood which limited land use to only single-family residential use. Oakwood is a bedroom community in Clay County, with 80 single family dwellings on 80 large lots. Development all around the community has taken place, and there is commercial development all along North Oak which bounds the Village on one side, and also runs parallel to the backside of the Chiavola property. The landowners' amended petition was in six counts and alleged various constitutional questions which would have the effect of declaring the zoning invalid, raised the issue of inverse condemnation and raised the issue of Oakwood's compliance with a Missouri statute on planning requirements made by cities. Although the circuit court entered an order purporting to grant partial summary judgment in favor of Chiavola on all of Count I. (The court's oral comments on the record, according to the parties, limited the ruling to the facial claim and the statutory compliance claim).

Paraphrased and condensed, Count I of the amended petition of Chiavola prayed for a declaration the zoning ordinance of the Village (single-family residential use and requirement of 30,000 square feet per lot for the eighty lots comprising the Village) violated the due process rights of landowner Chiavola. This count stated the ordinance was constitutionally infirm both on its face and as applied to Chiavola. This Count I also asked for a declaration that Oakwood's zoning ordinance could not be enforced since the Village had not adopted a "proper and timely comprehensive plan in violation of RSMo § 89.040". Pursuant to Rule 74.01(b) the court determined the Order of partial summary judgment to be final and appealable. As noted in the footnote in Chiavola I, the then appellant Oakwood, and then respondent Chiavola, chose to brief and argue only the Count I issues of facial invalidity and failure of Oakwood to have a comprehensive plan per § 89.040. 886 S.W.2d at 76, n. 1. The order in favor of Chiavola granting summary judgment which was certified by the trial court in Chiavola I found that the ordinance was "unconstitutional as set forth in Count I", of the petition, and violated § 89.040. A further complicating factor was present in that Count I sought damages and attorney fees for violation of Chiavola's "constitutional right to substantive due process in violation of 42 U.S.C. § 1983." In entering the judgment the trial court specifically excised out the matter of recovery of attorney fees pending the outcome of the appeal.

A box score summary of the entire Chiavola petition would look like this:

COUNT I. Oakwood's Ordinance No. 10 is unconstitutional a) on its face, b) as applied to Chiavola, and, c) violative of § 89.040, sans a plan. In addition to claiming damages under 42 U.S.C. § 1983, Chiavola also prayed for attorney fees under 42 U.S.C. § 1988. As an additional remedy, petition prayed for the zoning ordinance to be struck down. The trial court ruled on the facial claim and the statutory claim, but did not rule on the "as applied" claim.

COUNT II. Failure of Oakwood to grant a use variance to Chiavola violated constitutional rights. Remedy prayed for damages plus special damages, consultant's fees and attorney fees. The trial court did not rule on this count.

COUNT III. By not allowing commercial development of Chiavola's land, the Village has accomplished an inverse condemnation. The trial court did not rule on this count.

COUNT IV. Procedural Due Process violation under Missouri Constitution because Oakwood and its Board did not give timely notice of its decision, prejudging the Chiavola claim and relied on improper evidence. The trial court did not rule on this count.

COUNT V. (DISMISSED by Chiavola before summary judgment in Chiavola I was granted). Asked for relief by way of certiorari on Oakwood's failure to follow proper procedures.

COUNT VI. Mandamus to compel Oakwood to grant Chiavola a commercial use of the property. The trial court did not rule on this count.

What is now emerging is the procedural snarl which envelops the appeal now before the court in Chiavola II. Count I of the petition combined the facial and the as-applied constitutional challenges as well as statutory invalidity (no plan). The trial court entered partial judgment for Chiavola on Count I, except for this "as applied" claim and the claim for attorney fees, struck down the zoning ordinance, and under Rule 74.01(b) determined there was no reason to delay entering a judgment capable of appellate review. When Chiavola I reached this court, the...