Gould v. Kansas City

316 S.W.2d 571, 1958 Mo. LEXIS 643
CourtSupreme Court of Missouri
DecidedSeptember 8, 1958
DocketNo. 46636
StatusPublished
Cited by2 cases

This text of 316 S.W.2d 571 (Gould v. Kansas City) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gould v. Kansas City, 316 S.W.2d 571, 1958 Mo. LEXIS 643 (Mo. 1958).

Opinion

DALTON, Judge.

This action constitutes a direct attack upon zoning ordinance No. 18931 of Kansas City, Missouri, on the ground that, as applied to plaintiffs’ described real estate, the ordinance is arbitrary, unreasonable, discriminatory and confiscatory and, therefore, unconstitutional and void. Plaintiffs designate the action as one for declaratory judgment, injunction, mandamus and other relief. Ordinance No. 18931, adopted May 20, 1955, re-enacted and continued in force R-4 zoning restrictions in a low apartment isidential district, including restrictions against temporary or seasonal off-street commercial parking stations in the portion of the R-4 area in which plaintiffs’ property was located, but authorized such commercial parking stations in another portion’ of the R-4 area. After a hearing on the merits, the trial court denied relief and dismissed the petition. Plaintiffs have appealed.

A long record is presented for review. Certain facts have been stipulated, but there are many exhibits, including printed documents such as ordinances and proposed ordinances, reports of hearings, financial reports, detailed data as to traffic conditions and many plats and photographs. Some of the facts shown by oral testimony are not disputed but, on certain essential fact issues, we find directly conflicting oral testimony. We have carefully reviewed the entire record and will here briefly state some of the evidence. The action being one in equity in which affirmative equitable relief is sought in addition to a determination of the validity of the ordinance, we must review the record de novo and reach our own conclusion as to the weight and value of the evidence, giving due deference to the trial chancellor’s findings on the oral testimony of witnesses who appeared before him.

The record shows that plaintiff Gould is primarily engaged in the operation of commercial parking lots and operates five such lots near the Kansas City Municipal Stadium. Plaintiff Baseball Parking Company is a family corporation in which plaintiff Gould is a stockholder. Plaintiff Gould is the owner and the corporation is lessee of the property here in question which fronts on the west side of Brooklyn Avenue, between 24th Street and 24th Street Terrace, in Kansas City. The tract is [573]*573irregular in shape, with a frontage of 130 feet on Brooklyn, but it narrows in a tapering fashion toward the west. It does not face on any other street, but a plotted, unopened street, crosses the property. The tract consists of three pairs of lots running lengthwise. Its total area is a little more than one acre.

When acquired the property was vacant, rough, and gullied. It had been “a hole” and had been filled with dirt hauled from the Lincoln High School area when that building was constructed. Weeds grew and bottles and beer cans had been deposited in the area. In 1953, plaintiff Gould acquired the property (2410 Brooklyn) in two parcels for approximately $3,000. He purchased the property as a speculative venture, anticipating and hoping that Kansas City might sometime have a major league baseball club. The area was zoned R-4, low apartment buildings, small homes, rooming houses, a residential area. Seasonal or temporary parking was not legally authorized in districts R-l to R-4, inclusive, prior to the adoption of ordinance No. 18931.

In February 1955, plaintiff Gould had the ravines and gullies leveled by bulldozer and grader and the property put in shape to apply crushed rock to give it a hard surface. A day or two after the work started, a group of neighbors to the north appeared and wanted to know what he was “going to put there.” When advised that he was preparing the property for use as a parking lot, they advised that he “could not do it.” He knew he was “running into some obstacles there from the neighbors,” but he continued with the work and finished the blading off and leveling up process and then hard-surfaced the lot. He did not know that temporary or seasonal commercial parking was not permitted in the area until February or March 1955, but, when he discovered this fact, he consulted counsel and was advised to complete the project. The improvements were made without obtaining a permit from the city. On April 11, 1955, he was served with a cease and desist order, but his attorneys contacted the city authorities and he was given 30 days time and permitted, along with other lot owners, to operate his commercial parking lot until May 12, 1955, or a total of 11 or 12 days during the baseball season in 1955, in violation of the provisions of the ordinance. In 1956, he oiled and anti-dust treated the surface of the lot and built a six foot woven wire fence back of the adjoining residence property on 24th Street.

When this action was filed in April 1956, he obtained a temporary restraining order from the circuit court and operated a commercial parking lot on the premises during the 1956 baseball season, for 40 night games and about 34 day games, a total of 66 days. The temporary restraining order was rescinded when the final decree was entered. The capacity of the parking lot was 250 to 275 cars, but the average number of cars parked was 165 to 175. The improvements made in 1955 cost between $2,500 and $3,000 and those made in 1956 cost about $1,000. The market value of the improved lot on July 23, 1956, subject to the existing R-4 zoning restrictions, was approximately $7,500.

The Kansas City Municipal Stadium is located on the west side of Brooklyn Avenue between 20th and 21st Streets. It is east of the Lincoln High School grounds and is across 22nd Street north of the Lincoln Coles Junior High School. No parking is provided on the Stadium location. The territory immediately surrounding the Stadium location is zoned M-l, light industrial district, and this M-l area is surrounded on the east, west and south by territory zoned R-4, where prior to May 20, 1955, commercial parking stations had been prohibited since 1923. Plaintiffs’ property is located some two and one-half city blocks south of 22nd Street which adjoins the south side of the Stadium. There is a level grade from the Stadium to plaintiffs’ property. A small C-l neigh[574]*574borhood retail business district is located at the intersection of 24th Street and Brooklyn Avenue covering- the four corners of the intersection and, in this area, there are two grocery stores. The evidence shows certain business places in the territory zoned R-4, which business places were shown to have been in existence many years and which, we assume, were nonconforming existing uses when zoning was first adopted. It was stipulated that plaintiffs claim no legal non-conforming use of their property.

The petition alleges and the answer admits that prior to 1955, Kansas City, Missouri was the home of the Kansas City Blues, a professional baseball team in the American Association, which is commonly known as “a minor league.” In 1954 it became known that the franchise and location of the Philadelphia Athletics, a baseball team which is a member of the American League was subject to transfer. The American League is commonly known as one of the “big leagues.” In a campaign by Kansas City leaders to have the said Athletics’ franchise acquired and the team relocated in Kansas City, a special bond election was held in which the voters overwhelmingly authorized the purchase of the the Kansas City Blues’ Stadium and the improvement thereof to increase its seating capacity.

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Bluebook (online)
316 S.W.2d 571, 1958 Mo. LEXIS 643, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gould-v-kansas-city-mo-1958.