Temple Stephens Co. v. Westenhaver

• Decision Date: 29 August 1989
• Docket Number: No. WD,WD
• Citation: Temple Stephens Co. v. Westenhaver, 776 S.W.2d 438 (Mo. App. 1989)
• Parties: TEMPLE STEPHENS COMPANY, Respondent, v. Ronald WESTENHAVER, et al., Appellants. 40890.
• Court: Missouri Court of Appeals

Page 438

776 S.W.2d 438

TEMPLE STEPHENS COMPANY, Respondent, v. Ronald WESTENHAVER, et al., Appellants.

No. WD 40890.

Missouri Court of Appeals Western District.

Aug. 29, 1989.

Danieal H. Miller, Cleaveland and Miller, Columbia, for appellants.

Robert C. Smith and John L. Roark, Smith, Lewis, Beckett & Powell, Columbia, for respondent.

Before LOWENSTEIN, J., Presiding, and NUGENT and ULRICH, JJ.

ULRICH, Judge.

The appellants, Ronald Westenhaver, John Peters, James Glascock, and Charles Roemer, general partners of Rockbridge Development Partnership, appeal from (1) a declaratory judgment in favor of respondent, Temple Stephens Co., a Missouri corporation, holding rezoning of appellants' property invalid and (2) the trial court's award of attorney fees in the amount of $21,049.19 plus costs to respondent and against the appellants. The judgment is affirmed in part and reversed in part and remanded.

The defendants Ronald Westenhaver, John Peters, James Glascock and Charles Roemer were general partners in the Rockbridge Development Partnership. The partnership was formed to develop a self-storage complex on a piece of land in south Columbia, Missouri (City). ¹ The subject land was sold to the partnership by George and Ann Dexheimer and the Rockbridge Development Corporation. Mr. Roemer worked as an agent for the Dexheimers and the Rockbridge Development Corporation and originated the idea of developing the self-storage project.

Prior to the sale of the subject land to the partnership, the Dexheimers and the Rockbridge Development Corporation, through their agent Mr. Roemer, filed an application to rezone the property from C-1 (intermediate business district) to C-P (planned business district) zoning. Mr. Roemer oversaw the preparation of this application which, pursuant to Section 29-34(a)(3) of the Columbia City Code, required the filing of a petition and application for rezoning and a list of all landowners within lines drawn parallel to and 185 feet from the boundaries of the tract to be zoned. The City used the list to mail notice to property owners of the date and time of all public hearings pertaining to the rezoning application, an established procedure utilized by the City whenever rezoning applications are filed. Receipt of such notice also serves to inform the recipient of the commencement of the rezoning process regarding the identified real property. The list of landowners accompanying the Dexheimers' application failed to include respondent, Temple Stephens Co., owner of approximately 26 percent of the land adjoining the land subject to rezoning.

Section 29-34(a)(4) of the Columbia City Code requires the City Director of Planning and Development (Director) to determine whether a rezoning petition and application is in compliance with the requirements of Section 29-34. The Director erroneously determined compliance of the Dexheimer application because Temple Stephens Co. had been omitted from the list of landowners. Because Temple Stephens Co. was not included on the Dexheimers' list, notice of the rezoning hearings was not mailed to it.

Other provisions for notice were complied with. Notice of the date and time of scheduled public hearings was given pursuant to Section 29-34(a)(4) which requires one notice in a newspaper of general circulation and the posting of a sign on the subject property at least fifteen days before a public zoning hearing. However, the City posted the sign in a location where it could not be observed from property owned by Temple Stephens Co. No agent or employee of Temple Stephens Co. had actual knowledge of either of these notices, and because Temple Stephens Co. did not know the Dexheimer application had been filed, it did not attend the public hearings held on March 7, 1985, by the City of Columbia Planning & Zoning Commission and on April 1, 1985, by the Columbia City Council. The court found that no officer, director or employee of the Temple Stephens Co. had actual knowledge of the rezoning prior to September 1986, eighteen months after the property was rezoned.

The trial court found that appellant, Mr. Roemer, intentionally omitted Temple Stephens Co. from the list of nearby landowners because he knew of its opposition to the project, and he knew that Temple Stephens Co. could file a written protest. City Code Section 29-34(b), which allows for such written protest, requires a "super majority," six out of seven members of the council, to approve a rezoning ordinance when protest is filed. A simple majority is required to approve a rezoning ordinance when no protest is filed.

On April 1, 1985, the City Council passed Ordinance Nos. 10520 and 10521, which purported to rezone the subject property and approve the Preliminary C-P Development Plan of the Rockbridge Self Storage Center. On May 20, 1985, Ordinance No. 10590 was passed approving the final C-P Development Plan. On September 2, 1986, the Dexheimers and the Rockbridge Development Corporation conveyed the subject property to the Rockbridge Development Partnership.

Temple Stephens Co. filed suit October 3, 1986, to challenge the rezoning. It sought a declaratory judgment invalidating the rezoning for procedural defects and its costs. At trial both parties made a record of the attorney fees expended.

Actions taken by a city in matters of zoning may be legislative or administrative in nature. Actions delegated by a municipality to a board or commission or retained to itself to enforce an ordinance are administrative. Reynolds v. City of Independence, 693 S.W.2d 129, 131 (Mo.App.1985). Administrative acts merely pursue an adopted plan. Id. at 132. Administrative acts affecting private rights are reviewable under the Administrative Procedure Act, Chapter 536 RSMo 1986, requiring analysis of the legality of the decision and determination whether substantial evidence supports the decision. § 536.140, RSMo 1986.

In rezoning the property, the City adopted a new policy or scheme, exercising its legislative function as opposed to its administrative function. State ex rel. Kolb v. County Court of St. Charles, 683 S.W.2d 318, 321 (Mo.App.1984); compare, Sanbothe v. City of Olivette, 647 S.W.2d 198, 203 (Mo.App.1983). Review of the court's decision is, therefore, pursuant to Rule 73.01(c) and the standard expressed in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), requiring affirmation of the trial court's judgment unless substantial evidence does not support it, it is against the weight of the evidence, or it erroneously declares or applies the law. See also City of Ladue v. Horn, 720 S.W.2d 745, 748 (Mo.App.1986).

The scope of judicial review in zoning matters is limited. The trial court may determine whether the action of the zoning authority was arbitrary or unreasonable. The reviewing court cannot substitute its opinion for the zoning authorities. City of Ladue at 747-48; State ex rel. Kolb, at 321.

Notice requirements imposed by ordinances facilitating rezoning real property afford affected landowners an opportunity to be heard before the issue is determined. Bonds v. City of Webster Groves, 432 S.W.2d 777, 783 (Mo.App.1968). The failure of a zoning authority to comply with notice requirements is unreasonable. The failure to provide notice to affected property owners pursuant to ordinance invalidates zoning ordinances. State ex rel. Casey's General Stores v. City of Louisiana, 734 S.W.2d 890 (Mo.App.1987); Bonds, 432 S.W.2d at 783; Himmel v. Leimkuehler, 329 S.W.2d 264 (Mo.App.1959).

The Columbia rezoning ordinance provided for notice. Columbia City Ordinance, Section 29-34(a)(4). The ordinance required publication, posting and submission of a list of identified property owners for the purpose of mailing notice to them. Although publication of the rezoning application filing in a local newspaper on a single occasion stated the time of the scheduled hearing and the posting of a single sign on the subject property by the City at a location not viewable from the Temple Stephens Co.'s property satisfied the notice requirements of City Ordinance, Section 29-34(a)(4), these notice requirements by themselves did not provide notice sufficient enough to obviate the requirement of City Ordinance Section 29-34(a)(3) to file a correct list of affected property owners to facilitate mailing notice to them.

Appellants concede that Mr. Roemer failed to list Temple Stephens Co. on the list of property owners filed with the rezoning application as required by City ordinance. Temple Stephens Co. did not receive notice of the rezoning application from the City by mail because its name had been omitted from the list. The trial court determined that Temple Stephens Co. did not have actual knowledge that the rezoning application had been filed until eighteen months after the property was rezoned.

Mr. Roemer's failure to provide an accurate list of affected property owners in full compliance with the City ordinance rezoning application requirements resulted in Temple Stephens Co. not having knowledge of the legal effort to change the zoning classification of the subject property. Thus, Temple Stephens Co. was not permitted the opportunity to exercise its right to protest the effort to rezone the subject property before the issue was decided, thereby "triggering" the super majority provision requiring six of seven voting councilmen to approve the rezoning application for rezoning to be effected. The rezoning was effected pursuant to the simple majority voting standard because no protest was filed.

The court determined that Mr. Roemer intentionally omitted listing Temple Stephens Co., an affected property owner, as required by ordinance. Substantial convincing evidence supports the court's finding. Mr. Roemer spoke to Mr. Stephens before filing the rezoning application. Mr. Stephens, President of the Temple Stephens Co., contrary to the testimony of Mr. Roemer, expressed opposition to rezoning the subject property. The...