State ex rel. St. Louis County v. Jones, 5
| Decision Date | 31 July 1973 |
| Docket Number | No. 5,R,No. 35249,5,35249 |
| Citation | 498 S.W.2d 294 |
| Parties | STATE of Missouri ex rel. ST. LOUIS COUNTY, Missouri, Relator, v. The Honorable Douglas L. C. JONES, Judge of the Circuit Court of the 21st Judicial Circuit of Missouri, Divisionespondent. . Louis District, Division Two |
| Court | Missouri Court of Appeals |
George F. Gunn, Jr., St. Louis County Counselor, Thomas W. Wehrle, Deputy County Counselor, James H. White, Associate County Counselor, Clayton, for relator.
James L. Sullivan, Stephen W. Woodard, Robert O. Snyder, St. Louis, for respondent.
This is an original proceeding on the relation of St. Louis County to prohibit respondent judge of the Circuit Court of the County of St. Louis from exercising jurisdiction and entering further orders or enforcing a previously issued restraining order in an injunction suit hereafter described. Mo.Const. Art. V., § 4, V.A.M.S.
In an unincorporated area of St. Louis County there is a large tract of land owned by Mr. Roy Schacht which consists of 44.98 acres on the east side of DesPeres Road, west of I--244. Sometime during 1972, after an annexation election was held to annex certain lands to the City of DesPeres, including that owned by Mr. Schacht, he filed a petition with the Planning Commission of St. Louis County for a conditional use permit for authorization to construct a nursing home-retirement center on the property (Petition No. 119--72) pursuant to the St. Louis County Revised Ordinances, § 1003.181. 1
On October 6, 1972, (or September 11, 1972, according to the suggestions in opposition to the petition for prohibition), the Planning Commission, by a vote of 5 to 3, 'approved' the permit, although this was denied by the respondent in his return. Thereafter, on October 16, 1972, a protest signed by the owners of more than 51% (by area) of the property within 1,000 feet of the Schacht property was received by and filed with the St. Louis County Council, the governing body of the County. On December 8, 1972, the Planning Commission reported to the Council that the protestors' objections to the permit were not well taken and adhered to its earlier 'approval.' The Council then scheduled a public hearing on the permit for March 22, 1973, but by order of January 18, rescheduled the hearing for March 8, 1973.
On April 6, 1971, an election was held to annex to the City of DesPeres certain lands located in the unincorporated area of the County which included the property owned by Schacht. Thereafter, the City, in accordance with § 71.015, RSMo 1969, V.A.M.S., filed a declaratory judgment action in St. Louis County entitled City of DesPeres v. Stapleton, et al., cause no. 321058, seeking judicial approval of the annexation of the territory so that the area to be annexed would be part of the municipal boundaries of the City and subject to its zoning ordinances. The County, among others, intervened in the suit. At the time of this proceeding in this court, the Circuit Court of St. Louis County has not ruled upon the validity of the annexation.
On March 6, 1973, the City of DesPeres and Seven Hills Citizens for Community Betterment Corp. (hereinafter referred to as injunction plaintiffs) filed a petition for injunction in the Circuit Court of the County seeking to restrain the County, its Planning Commission, its County Council, and 'all of the officials concerned with the granting of conditional use permits' from proceeding with the Schacht petition until such time as the court shall finally determine and resolve all of the issues pending in the annexation proceeding brought by the City of DesPeres.
The petition alleged that an election was held and the voters approved the annexation; that subsequently the declaratory judgment suit to approve the annexation was brought, and that the City has in full force and effect a comprehensive zoning ordinance. The petition further alleged that St. Louis County unreasonably intervened in the annexation declaratory judgment action and that the property for which the conditional use permit was sought was originally designated as single family residential. It alleged that the County, through its Planning Commission, acted upon the Schacht petition and it was purportedly approved by that Commission with less than a two-thirds favorable majority. The petition alleged that immediately following that vote a protest was filed by the residents of Dougherty Woods and Dougherty Lake Subdivision objecting to the permit, and that the Council referred the protest to the Commission for its review and comments. The report refuting the protests, it is alleged, constituted the view of the director of planning and was made without proper investigation by the Commission. The injunction petition alleged that the Council set a date for a public hearing to be held on the matter of the issuance of the permit for March 22, 1973, but on the request of Schacht the hearing was rescheduled and advanced to March 8, 1973, 'which would not allow sufficient time for preparation of material to be presented in opposition to the issuance of said conditional use permit.' (The rescheduling of the hearing was made on January 18, 1973.) Finally, it was alleged that there was an inadequate investigation made by the applicable regulatory bodies of the County and that the City's zoning ordinance makes no provision for a nursing and retirement home except when certain conditions are met. The injunction plaintiffs alleged that if the County Council should grant the permit, the City would be harmed in that there would be created a use for the Schacht property which is not permitted by the City's zoning ordinance, and that there would be thrust upon the residents of the City the burden of sewage disposal, fire protection, pollution, etc., so as to deny the protestors due process of law.
On March 7, 1973, the day after the filing of the petition for injunction, the respondent, by order of court, issued a temporary restraining order enjoining the County from proceeding on the conditional use permit. The court modified its order to permit a public hearing on March 8, as long as the injunction plaintiffs '. . . are permitted to present such evidence and argument to the said Council as would otherwise be proper until and on March 22, 1973.' The injunction plaintiffs, as we understand it, have never presented their objections to the Council, although a hearing was held on March 8, and the Council has taken the Schacht petition for conditional use permit under advisement.
On March 8 the County sought a preliminary rule in prohibition in this court and we issued our preliminary writ returnable March 26, 1973. The petition prayed that respondent be prohibited from entering any orders in the injunction suit because respondent has no jurisdiction to grant the temporary restraining order or to enforce the order or to entertain further proceedings in the action.
In this extraordinary proceeding relator contends that the preliminary writ should be made permanent. As grounds for its contention it urges: (1) that there is a clear and adequate remedy at law by way of administrative review under Rule 100, V.A.M.R. or by certiorari so as to bar the equitable relief granted by respondent and which would deprive respondent of jurisdiction to enter the restraining order; (2) that respondent, in exercising jurisdiction, has interfered with the exercise of the legislative function of the County Council given by constitutional grant; (3) that even if the Council, in the proceeding to consider and rule on the conditional use permit, acts administratively rather than legislatively, the Council has primary jurisdiction and the injunction plaintiffs have not therefore exhausted their administrative remedies; and (4) that the injunction petition failed to state a cause of action, or more property, a claim upon which relief may be granted.
The injunction plaintiffs, on the other hand, urge that: (1) there is no clear and adequate remedy at law available to them and hence the injunctive relief was proper; (2)...
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