Vatterott v. City of Florissant

• Decision Date: 11 January 1971
• Docket Number: No. 1,No. 55033,55033,1
• Citation: 462 S.W.2d 711
• Parties: Joseph H. VATTEROTT, Respondent, v. CITY OF FLORISSANT et al., Appellants
• Court: Missouri Supreme Court

Page 711

462 S.W.2d 711

Joseph H. VATTEROTT, Respondent, v. CITY OF FLORISSANT et al., Appellants.

No. 55033.

Supreme Court of Missouri, Division No. 1.

Jan. 11, 1971.

Motion for Rehearing or to Transfer to Court En Banc Denied

Feb. 8, 1971.

Robert P. Baine, Jr., Busch, Ossenfort & Baine, Clayton, for respondent.

Carroll J. Donohue, Shulamith Simon, Husch, Eppenberger, Donohue, Elson & Cornfeld, St. Louis, for appellants.

HIGGINS, Commissioner.

Appeal from judgment that Ordinance 1625, the 'zoning ordinance' of the City of Florissant, is confiscatory and void as applied to a certain tract owned by plaintiff-respondent. The action involves constitutionality of the ordinance in question, Marshall v. Kansas City, Mo., 355 S.W.2d 877, 879(1); and evidence shows that some $95,000 is also in controversy. Wrigley Properties, Inc. v. City of Ladue, Mo., 369 S.W.2d 397, 398(1); Huttig v. City of Richmond Heights, Mo., 372 S.W.2d 833, 834.

The property involved is the south 240 feet of Parcel B of Duchesne Hills, Plat 2, a subdvision in the City of Florissant. Duchesne Hills No. 2 was a tract of farm land when acquired by plaintiff June 15, 1954. A plat was recorded February 25, 1955, and its accompanying 'Protective Covenants' recite that 'All lots (198 in number) shall be known and described as single-family residential lots except Parcel A and Parcel B and Lots 102, 103, 104, 105, 106, 107, 108, and 109. Parcel A may be used for business or playground purposes and Parcel B may be used for commercial purposes. Lots 102 to 109 inclusive may be used for either single-family residences or as the site for two-family brick duplex residences.' The covenants also covered matters such as height of buildings, approval of proposed construction by an Architectural Control Committee, minimum costs, set-back lines, and provisions controlling signs, animals, trash and sewage. Prior to recording, the plat and covenants were 'approved' by the City of Florissant 'Plan and Zoning Commission' February 3, 1955, and by the Florissant City Council February 14, 1955.

The plat shows Parcel A as a tract having approximately 360 feet on the north side of St. Anthony Lane and 515 feet on the east side of Washington Street. Parcel B is shown as having approximately 360 feet on the south side of St. Anthony and 570 feet on the east side of Washington. The interior lines of both tracts are adjacent to residential lots.

In 1957 plaintiff sold a portion of Parcel B, 125 feet 125 feet at the corner of St. Anthony and Washington, to the Tidewater Oil Company for $55,000, or $3.52 per square foot, for a gasoline service station. In 1959 plaintiff sold another portion of the north part of Parcel B, 110 feet on St. Anthony by 125 feet in depth, adjoining the service station, for $12,500 or $0.90 per square foot, for a 'Quick Shop' grocery. In February, 1965, an L-shaped portion in the north part of Parcel B with frontage on both St. Anthony and Washington, surrounding the other two portions, was sold to Kroger Company for $142,864.50, or $1.00 per square foot, for a supermarket and a parking area. The south 240 feet of Parcel B fronts on Washington, and is approximately 364 feet along its north line, 305 feet along its east line, and 439 feet on its south boundary. It is generally flat, with an approximately three per cent slope, and contains some 96,000 square feet, or 2.2 acres. It abuts residential development on its south toward St. Edwards Lane, on its east toward St. Eugene Lane, and on its west across Washington. To the north are the service station, Quick Shop, and Kroger store.

On February 9, 1959, Florissant enacted Ordinance 903 'reaffirming, amending, and revising Ordinance 142, ¹ the zoning ordinance, and all ordinances in amendment thereto and the map accompanying Ordinance 142.' A district map under Ordinance 903 showed all of Parcel B as District E, Commercial.

In November, 1965, Florissant enacted Ordinance 1625, 'Zoning Ordinance of the City of Florissant,' 'reaffirming, amending and revising Ordinance No. 142 as amended, and particularly as amended by Ordinance No. 903, * * * and all ordinances in amendment thereto and the map accompanying said Ordinance.' The district map under Ordinance 1625 placed the property in question, i.e., the south 240 feet of Parcel B, in R--4, Single Family, 7,500 square feet, and recognized the commercial character of the previously developed remainder of Parcel B to the north.

In June, 1967, plaintiff listed the property in question with the Bank of St. Louis and, on June 14, the bank advised plaintiff by letter that 'they had checked the zoning prior to putting up a 'for sale' sign and at that time they learned that the property was no longer zoned commercial but had been changed to residential * * *. At that time we elected to file an application for change of zoning' to B--3, Extensive Commercial.

On November 20, 1967, the Florissant Planning and Zoning Commission approved the requested rezoning; but, upon referral, the city council in January, 1968, denied the application for rezoning and this denial gave rise to plaintiff's petition for declaratory judgment, filed April 9, 1968, the principal allegations of which were that the value of the property if available for commercial use 'is greatly in excess of its value for residential use'; that Ordinance 1625 is 'unconstitutional, illegal, and invalid in that it is arbitrary, discriminatory and unreasonable in restricting' plaintiff's property to residential use. Plaintiff's prayer was that Ordinance 1625 be declared 'unreasonable, unconstitutional, unlawful and void with respect to the application and enforcement of the same against the land,' and that defendants be 'enjoined and forever prohibited from preventing plaintiff's use of said land for business or commercial uses commensurate with such uses now permitted in the surrounding area.' The court's principal findings were that residential development of the property would be 'impossible due to the lack of necessary frontage along Washington Street by nearly 10 feet'; that there was no showing that the development as commercial 'would have a harmful effect or be inimical in any way to the surrounding property owners or to the general public health, safety, morals or general welfare * * *. Evidence, however, does show * * * a $95,000 difference in the value of the tract if the R--4 zoning is permitted to stand.' Accordingly, the court entered the judgment previously described, granting the relief prayed by plaintiff, and this appeal followed.

Appellant's position is that the trial court erred because a zoning classification is a legislative function not to be set aside unless shown to be so arbitrary and unreasonable as to render its application not fairly debatable, and that plaintiff did not present the proof necessary to substitution of judicial judgment for that of the legislative body.

The rules governing resolution of the issue thus presented are well known but can bear yet another recital. Whether the classification and enforcement of a zoning ordinance is reasonable and constitutional or whether it is arbitrary and unreasonable and therefore unconstitutional in its application to a specific property depends upon the evidence and the facts and circumstances of each case. City of Richmond Heights v. Richmond Heights Memorial Post Benev. Ass'n, 358 Mo. 70, 213 S.W.2d 479, 480(3). As collected in Desloge...