Treme v. St. Louis County, 40523

• Decision Date: 14 October 1980
• Docket Number: No. 40523,40523
• Citation: 609 S.W.2d 706
• Parties: Wallace J. TREME et al., Plaintiffs-Appellants, v. ST. LOUIS COUNTY, Missouri, Defendant-Respondent, and Grasso Brothers, Inc., Intervenor-Respondent.
• Court: Missouri Court of Appeals

Page 706

609 S.W.2d 706

Wallace J. TREME et al., Plaintiffs-Appellants, v. ST. LOUIS COUNTY, Missouri, Defendant-Respondent, and Grasso Brothers, Inc., Intervenor-Respondent.

No. 40523.

Missouri Court of Appeals, Eastern District, Division Four.

Oct. 14, 1980.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Dec. 12, 1980.

Husch, Eppenberger, Donohue, Elson & Cornfeld, Carroll J. Donohue, Sally E. Barker, St. Louis, for plaintiffs-appellants.

Steven W. Koslovsky, Robert H. Grant, Albert A. Michenfelder, Jr., Clayton, for defendant-respondent and intervenor-respondent.

SMITH, Presiding Judge.

Plaintiffs appeal from the judgment of the trial court upholding the constitutionality and validity of an ordinance of St. Louis County rezoning a tract of land from M-3 to C-8. ¹ Plaintiffs are the owners of residential property which abuts the tract. Grasso Bros., Inc., the owner of the tract and the party petitioning for the rezoning, intervened in the case.

The property is located at the southeast corner of Watson and Grant Roads in St. Louis County. ² The area is unincorporated, although across Watson is the incorporated city of Webster Groves and across Grant Road is the incorporated city of Crestwood. The tract is trapezoidal in shape and covers 18.1 acres. It extends approximately 1200 feet south of Watson Road on Grant and approximately the same distance east of Grant on Watson. It is unimproved except for one building which was formerly a residence and is now a commercial establishment. The preliminary development plan calls for a two building complex and extensive parking to house a shopping center. North across Watson from the tract the land is zoned commercial and the land in use is either commercial or institutional; west across Grant the land is zoned commercial and light industrial and is used for light industrial. The tract has been zoned M-3 (Planned Industrial District) since 1965. Several applications for a change of zoning to C-8 were made between 1965 and 1975 and were either withdrawn or denied. The present application was made in 1975 and was approved by the County Planning Commission by a 5-4 vote. The reasons for this approval were stated as follows:

"In summary and considering the extensive commercial land uses already existing along Watson Road, the absence of interest in industrial development of the subject site, the petitioner's demonstrated concern for nearby residential property owners and the previous favorable recommendation for a similar request for the subject tract; ³ the Planning Commission recommends approval of the subject request."

In due course the County Council enacted Ordinance 7878 which approved the preliminary development plan and rezoned the tract to C-8. Plaintiffs sought a declaratory judgment in Circuit Court to declare the ordinance invalid and sought injunctive relief to prevent St. Louis County (through the Planning Commission) from proceeding to consider a final development plan for the property. From a judgment denying relief to plaintiffs and upholding the validity of the ordinance, plaintiffs appeal.

We must deal with one preliminary matter raised only peripherally by the parties. The court's judgment consisted of five numbered paragraphs. Paragraph 1 held valid Ordinance 7878; paragraph 2 held valid Sec. 1003.145 (as amended) St. Louis County Zoning Ordinance, which established the C-8 district; paragraph 4 denied plaintiffs' prayer for judgment and injunction' and paragraph 5 taxed the costs against plaintiffs. Paragraph 3 directed the County and the Intervenor "to forthwith cause and effect the amendment of Ordinance 7878, by appropriate means, so as to prohibit the construction of any part of any building on the real property described in Ordinance 7878 closer than 90 feet from the south line of said tract, ...." This paragraph further recited that it was separable from the remainder of the paragraphs and that those paragraphs were not dependent upon the validity of paragraph 3, and that "if a reviewing court should hold that this court did not possess the power to enter that portion of this judgment contained in Section 3, then it is the intention of this Court that the balance of this judgment shall be in full force and effect and not be rendered invalid or in any way impaired by such finding or partial invalidity."

Plaintiffs argue that this finding by the court renders the judgment inherently contradictory and demonstrates that Ordinance 7878 is not a reasonable exercise of the zoning power. We will deal with that argument later. The matter of immediate concern is whether paragraph 3 of the judgment is within the jurisdiction of the court. If not, it is void.

We are aware of no authority which permits a court to amend or require the amendment of a legislative enactment. Such authority would appear to run counter to the doctrine of separation of powers. Courts obviously have the power to declare a legislative enactment void or invalid as contrary to constitutional mandates. But ordering the amendment of an enactment is, in essence, legislating, which is not the function of a court. We do not, however, base any conclusion on that ground. Rather we hold that the court exceeded its jurisdiction in ordering amendment of the ordinance because it went beyond the issues presented and the relief sought in the pleadings. It is well established in this State that "a judgment which is based upon issues not made by the pleadings is coram non judice and void, at least in so far as the judgment goes beyond the issues presented and raised by the pleadings." Riley v. LaFont, 174 S.W.2d 857, 859 (Mo.1943) (5, 6) quoting from Hecker v. Bleish, 319 Mo. 149, 3 S.W.2d 1008, 1019 (1927) (22). See Weatherford v. Spiritual Christian Union Church, 163 S.W.2d 916, 918 (Mo.1942) (2-4); Kennedy v. Boden, 241 Mo.App. 86, 231 S.W.2d 862, 865-866 (1950) (3, 4); Poole v. Poole, 287 S.W.2d 372, 374 (Mo.App.1946) (3); Masters v. Masters, 315 S.W.2d 870, 872 (Mo.App.1958) (1-4). No party requested that the ordinance be amended. No issue was raised in the pleadings and no relief was ever requested which would authorize the court to make an order concerning the location of the buildings on the development site. The court exceeded its jurisdiction in ordering amendment of the ordinance.

It is also well established that where a portion of the judgment is void as beyond the pleadings, the remainder of the judgment remains valid if the void portion is separable. Kennedy v. Boden, supra; Poole v. Poole, supra. Unless the void section here is so contradictory of the remainder of the judgment as to render the entire judgment nugatory (which will be discussed later) section 3 appears to be separable. It was so delineated by the trial court. Paragraph 2 deals with the constitutionality of the enabling ordinance and nothing in paragraph 3 relates to that. Paragraph 1 upholds the validity of Ordinance 7878 and nothing in paragraph 3, on its face, deals with that determination. Paragraphs 4 and 5 simply effectuate the findings in 1 and 2. We hold paragraph 3 void but separable from the remainder of the judgment.

The next matter to be considered is plaintiffs' attack on the validity of Sec. 1003.145, St. Louis County Zoning Code, which creates the C-8 classification. The C-8 Planned Commercial District Regulations create what is frequently referred to as a "floating zone." Unlike most districts created by zoning ordinance it has no fixed location within the community. It is usually attached to a particular tract of land through rezoning of that land by the County Council upon petition by the landowner. Sec. 1003.145.1 specifically states that the purpose of the C-8 regulations is "to facilitate the establishment of combinations of developments and uses for which no provision is made in any other 'C' Commercial District or the establishment of developments and uses in locations where it would be appropriate to the area if it were to take place under approved site plans and conditions necessary to protect the general welfare." A C-8 District may contain any use permitted in any "C" district but the specific ordinance creating the district on a particular tract of land may restrict the uses to be permitted on the tract. In establishing a particular C-8 district the Council is to determine "that any particular tracts or areas should be developed for commercial use, but because of potential conflicts with adjoining uses, existing or potential, a greater degree of control of the manner of development is necessary to protect the general welfare that (sic) is possible under the regulations of the other 'C' Commercial Districts."

Sec. 1003.145 contains extensive provisions concerning the procedures to be followed in obtaining a C-8 rezoning and the extent of control of the development by the Council and the Planning Commission. We need not set those out at length. We can summarize them by stating that they place upon the Planning Commission and ultimately the County Council virtually total control of the appearance and nature of the development.

We have found no cases in this State which have decided the validity of such "floating zones." Plaintiffs attack Sec. 1003.145 on the bases that (1) it constitutes an improper delegation of the legislative function for failure to establish a uniform set of regulations capable of application to all property so zoned, (2) fails to define standards by which the approval or disapproval of a proposed C-8 project is to be determined, and (3) permits spot zoning. The question is whether Sec. 1003.145 is invalid because of any or all of these conditions.

St. Louis County is a county of the first class of the State of Missouri, operating under a home rule charter pursuant to Art. VI, Sec. 18(a) through (1) of the Missouri Constitution. Section 64.010 et seq. R.S.Mo.1978 contains enabling legislation in the area of planning and zoning for first...