State ex rel. Petti v. Goodwin-Raftery

• Decision Date: 25 April 2006
• Docket Number: No. ED 86886.,ED 86886.
• Citation: 190 S.W.3d 501
• Parties: STATE ex rel. Jerome A. PETTI and Stanley F. Ebersohl, Appellants, v. Karen GOODWIN-RAFTERY, et al., Respondents.
• Court: Missouri Court of Appeals

190 S.W.3d 501

STATE ex rel. Jerome A. PETTI and Stanley F. Ebersohl, Appellants, v. Karen GOODWIN-RAFTERY, et al., Respondents.

No. ED 86886.

Missouri Court of Appeals, Eastern District, Division Four.

April 25, 2006.

COPYRIGHT MATERIAL OMITTED

Steve Koslovsky, St. Louis, MO, for appellant.

James E. Mello, John M. Hessel, St. Louis, MO, for respondent.

ROBERT G. DOWD, JR., Judge.

Jerome A. Petti and Stanley F. Ebersohl (collectively referred to as "Plaintiffs") appeal from the trial court's dismissal of their petition for writ of mandamus and declaratory judgment against Karen Goodwin-Raftery, the City Clerk for the City of Florissant, ("City Clerk") and the City of Florissant ("Florissant") (collectively referred to as "Defendants"). Because Plaintiffs' petition failed to invoke principles of substantive law that, if proved, would entitle them to mandamus and declaratory relief, we affirm the trial court's dismissal of Plaintiffs' petition.

Plaintiffs are residents of Florissant. Florissant is governed by a city charter that was approved by the voters in May of 1963, pursuant to Article VI, Section 19 of the Missouri Constitution. Plaintiffs are opponents of a TIF redevelopment project known as "The Shoppes at Koch Park." The Florissant City Council passed and approved Ordinance No. 7149, which changed the zoning of certain property within the city from single family to commercial for "The Shoppes at Koch Park" development. Plaintiffs and other residents of Florissant opposing the project sought to have the zoning decision set aside by placing the matter before the voters through a referendum in accordance with Article XIII, Section 13.2 of the city charter. According to the pleadings, Article XIII, Section 13.2 of the charter reads as follows:

The people shall have the power to approve or reject any ordinance of a legislative character, except ordinances appropriating money, authorizing the levy of taxes, calling an election, or amending the zoning ordinance. Prior to the effective date, as provided in Section 3.9 of the Charter, of any ordinance which is subject to the referendum, a petition containing the full title of such ordinance and signed by registered voters of the City equal in number to at least twenty (20) percent of the votes cast for the office of mayor in the last preceding regular municipal election may be filed with the city clerk, requesting that such ordinance either be repealed or submitted to a vote of the registered voters of the city.

After obtaining the required signatures of registered voters on their referendum petition, Plaintiffs filed the referendum petition with the City Clerk. The City Clerk refused to submit the referendum petition to the Board of Election Commissioners for certification. Defendants refused to process the referendum petition because it contended that Ordinance 7149 was not the proper subject of referendum under the charter because it constituted an "amendment of the zoning ordinance."

Plaintiffs filed a petition seeking a writ of mandamus and declaratory judgment as to their rights under the city charter and to compel Defendants to proceed with the referendum. Plaintiffs attached Ordinance 7149 to their petition. The Shoppes at Koch Park, L.L.C. ("Koch Park") was granted leave to intervene. Thereafter, Defendants and Koch Park filed separate motions to dismiss Plaintiffs' petition for failure to state a claim upon which relief can be granted. The trial court requested the parties to submit proposed orders. The trial court subsequently granted the motions to dismiss and dismissed Plaintiffs' petition with prejudice. The trial court's order and judgment followed the proposed orders and judgments submitted by Defendants and Koch Park. Plaintiffs now appeal.

In their first point, Plaintiffs contend the trial court erred in dismissing their petition for mandamus and declaratory judgment because Plaintiffs set forth averments entitling them to a declaration of their rights to a referendum under the city charter. Plaintiffs also assert that the trial court's dismissal was improperly based upon the merits of Plaintiffs' claims and the trial court did not have the documents essential to such a determination in the record before it. We disagree.

Our review of a trial court's judgment of dismissal is de novo, and is based upon the record the parties have submitted to us. Dodson v. City of Wentzville, 133 S.W.3d 528, 533 (Mo.App. E.D. 2004). In reviewing the trial court's dismissal, we deem all facts pleaded to be true, liberally construe the petition's averments, and draw all reasonable and fair inferences therefrom. Id. The plaintiff is entitled to the benefit of every favorable inference that can be reasonably derived from the facts pleaded, and we must determine whether the petition invokes any substantive principle of law. Id. A petition cannot be dismissed for failure to state a claim unless it appears that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. Goe v. City of Mexico, 64 S.W.3d 836, 839 (Mo.App. E.D.2001).

We test the sufficiency of Plaintiffs' petition for declaratory judgment not by determining whether they are entitled to the relief prayed for, but by asking whether they are entitled to a declaration of rights or status on the facts they pleaded. Dodson, 133 S.W.3d at 535. We review the allegations in their petition to determine whether Plaintiffs invoked principles of substantive law that, if proved, would entitle them to declaratory relief. Id. Plaintiffs' petition must state facts, not mere conclusions, which support its allegations and demonstrate a justiciable controversy. Id.

Plaintiffs' claim for a declaratory judgment is refuted by the plain language of the city charter, which forbids a referendum to "approve or reject any ordinance ... amending the zoning ordinance."¹ Municipal charters are adopted by a vote of the citizens of a municipality. MO. CONST. Article VI, Section 19; State ex rel. Childress v. Anderson, 865 S.W.2d 384, 387 (Mo.App. S.D.1993). The authority granted to municipalities by the Missouri Constitution to adopt and amend a charter reflects a city's "broad authority to tailor a form of government that its citizens believe will best serve their interest." City of Springfield v. Goff, 918 S.W.2d 786, 789 (Mo. banc 1996). The only limitation of that authority is that charter provisions must be consistent with Missouri's constitution and laws. Id. If consistent with and subject to the constitution and laws of the state, charter provisions have the force and effect of enactments of the legislature. State ex rel. Childress, 865 S.W.2d at 387.

Contrary to Plaintiffs' assertion in their petition, Article III, Section 52(a) of the Missouri Constitution does not grant an unlimited right to referendum.² While Article III, Sections 49 and 52(a) of the Missouri Constitution sets forth the power reserved to the people of Missouri to propose and enact or reject laws and amendments to the constitution by initiative and to approve or reject by referendum acts of the general assembly, the powers reserved to the people of Florissant with respect to use of the initiative and referendum processes are defined and limited by the city charter.³ See State ex rel. Powers v. Donohue, 368 S.W.2d 432, 434 (Mo. banc 1963).

Furthermore, in State ex rel. Powers, the Missouri Supreme Court held that a charter provision that prohibits zoning from being the subject of initiative or referendum is valid and enforceable. In State ex rel. Powers, property owners filed a writ of mandamus asking the trial court to direct members of the board of election commissioners to place on the ballot an initiative petition to repeal an amendment to the St. Louis County zoning ordinances approved by the St. Louis County Council that rezoned from industrial classification to single family classification a 225 acre tract of land. Id. at 433-34. The trial court ordered that the proposed ordinance be placed on the ballot. Id. The Missouri Supreme Court overturned the trial court's ruling and determined that the rezoning ordinance passed by the St. Louis County Council was "an amendatory zoning ordinance" that could not be subject to the initiative or referendum process because the St. Louis County Charter exclusively reserved zoning matters to the St. Louis County Council. Id. at 438-39.

The State ex rel. Powers decision is on point and controlling. Here, like the St. Louis County charter in State ex rel. Powers, the Florissant city charter prohibits the use of referendum for an amendment to the zoning ordinance. This prohibition complies with the Missouri Constitution and state laws, and therefore is valid and enforceable. The trial court properly dismissed Plaintiffs' claim for declaratory judgment.

Next we turn to Plaintiffs claim for mandamus. Mandamus is a discretionary writ, not a writ of right. State ex rel. Chassaing v. Mummert, 887 S.W.2d 573, 576 (Mo. banc 1994). Mandamus will lie only when there is a clear, unequivocal, and specific right. Id. Mandamus is not appropriate to establish a legal right, but only to compel performance of a right that already exists. Id. The purpose of mandamus is "to execute, not adjudicate." Id.

In the present context, mandamus is clearly inappropriate. Section 13.2 of the city charter provides that the "people shall have power to approve or reject any ordinance of a legislative character, except ordinances appropriating money, authorizing the levy of taxes, calling an election, or amending the zoning ordinance." Plaintiffs' request for mandamus was properly denied because under the city charter, the City Clerk cannot take any action with respect to the referendum petition. The City Clerk was under no clear, unequivocal, presently existing duty to process Plaintiffs' referendum petition. Therefore, Plaintiffs did not have a specific right for mandamus to...