DONNELLY, Judge.
In this class action for declaratory and injunctive relief, The Home Builders Association of Greater Kansas City, and certain subdividers of land, challenge the constitutionality of Section 31.32 of Chapter 31 of the General Ordinances of Kansas City, Missouri. Section 31.32 reads as follows:
“(a) Dedication. Subdivision plans shall dedicate land for park uses at locations designated in the comprehensive plan, or the official parks plan adopted by the Board of Parks and Recreation Commissioners or as determined by the subdi-vider and the staff of City Development and Parks and Recreation, at the rate of four (4) acres per one hundred (100) living units or nine percent (9%) of the merchantable land. When the percentage of merchantable land will result in a tract of less than four (4) acres, the City Plan Commission may require the open space to be located at a suitable place on the periphery of the subdivision, so a more usable tract will result when addi[833]*833tional open space is obtained when adjacent land is subdivided. In all cases, the developer will dedicate such approved park land to the city for park purposes as a condition of final subdivision approval. All land to be dedicated to the City for park purposes shall have the prior approval of the Board of Parks and Recreation Commissioners, and shall be shown and marked on the plan as ‘dedicated to Kansas City, Missouri, for parks and/or recreation purposes’, and the plat will be so endorsed by the President of the Board of Parks and Recreation Commissioners. When the percentage of merchantable land indicates an open space parcel of less than two (2) acres, or in the opinion of the City Plan Commission will create an insurmountable hardship to the development, the City Plan Commission at its option may require the subdivider, in lieu of dedication of open space to pay a sum of money per planned housing unit in lieu of dedication.
“(b) Cash in lieu of land dedication. When the dedication of park land, as required by this section has been determined to work an undue hardship on the development, or the tract size is inadequate for the intended purpose in the opinion of the City Plan Commission, the subdivider shall deposit with the City Treasurer for the Parks and Recreation Acquisition and/or Development Trust Fund prior to receiving a building permit, a cash payment without recourse or the right of recovery, equal to sixty dollars multiplied by a designed number of living units in the subdivision, less a credit that any land actually dedicated for park purposes, bears to the proportion of total land required for park purposes in subsection (a) hereof. Such funds shall be used for the acquisition, development or improvement of a public park generally, within one half-mile of the periphery of the subdivision by the Parks and Recreation Department as authorized by the City Charter.
“(c) Private development and operation of park-recreational open space. The applicant may comply with the requirements of this section to furnish land for recreational purposes by providing an area with a community unit project, group housing project, GP district or any other planned district under the zoning ordinance provisions, which shall meet the minimum standards as required in section 31.32(a) and (2) provided that such area shall be developed and maintained by the subdivider or by the lot owners in the subdivision as private property under a legal arrangement approved by the city counselor as adequate to insure its continued operation and maintenance.
“The above provisions of this subsection (c) shall not apply to any subdivision consisting of single occupancy, single lots.”
Trial was had without a jury and the Circuit Court of Jackson County entered judgment which reads in part as follows:
“The fixed percentage dedication requirement of Sec. 31.32(A) is an arbitrary requirement unsupported by any showing of necessity and as such constitutes an unconstitutional taking of Plaintiffs’ property without compensation in violation of Article I, Sections 10 and 26 of the Constitution of the State of Missouri and the Fifth and Fourteenth Amendments to the Constitution of the United States and is declared to be unconstitutional and void.”
An appeal was then taken to this Court by the City of Kansas City.
This case represents another episode in a series of clashes between the exercise of police power by a city for the purpose of protecting the health and welfare of its citizens and provisions that private property shall not be taken for public use without just compensation. For a discussion of the general question, see Vol. 1, Nichols’ Law of Eminent Domain, § 1.42. For a discussion of the narrower question attending forced dedications for the purpose of preserving open space, see Vol. 2, Nichols’ Law of Eminent Domain, § 6.3511 and the cases collected in Annotation, Validity and Construction of Statute or Ordinance Requiring Land Developer to Dedicate Portion of Land for Recreational Purposes, or Make Payment in Lieu Thereof, 43 A.L.R.3d 862. [834]*834See also: Johnston, Constitutionality of Subdivision Control Exactions: The Quest for a Rationale, 52 Cornell Law Quarterly 871 (1967); Landau, Urban Concentration and Land Exactions for Recreational Use: Some Constitutional Problems in Mandatory Dedication Ordinances in Iowa, 22 Drake Law Review 71 (1972); and Ellickson, Suburban Growth Controls: An Economic and Legal Analysis, 86 Yale Law Journal 385, 481-486 (1977).
In 1926, the United States Supreme Court decided the landmark case of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303. The Court upheld a zoning ordinance and significantly said (at pages 386 and 387, 47 S.Ct. at page 118):
“Building zone laws are of modern origin. They began in this country about twenty-five years ago. Until recent years, urban life was comparatively simple; but with the great increase and concentration of population, problems have developed, and constantly are developing, which require, and will continue to require, additional restrictions in respect of the use and occupation of private lands in urban communities. Regulations, the wisdom, necessity and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive. Such regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations, which, before the advent of automobiles and rapid transit street railways, would have been condemned as fatally arbitrary and unreasonable. And in this there is no inconsistency, for while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise. But although a degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles, statutes and ordinances, which, after giving due weight to the new conditions, are found clearly not to conform to the Constitution, of course, must fall.”
The Court then declared (at page 395, 47 S.Ct.
Free access — add to your briefcase to read the full text and ask questions with AI
DONNELLY, Judge.
In this class action for declaratory and injunctive relief, The Home Builders Association of Greater Kansas City, and certain subdividers of land, challenge the constitutionality of Section 31.32 of Chapter 31 of the General Ordinances of Kansas City, Missouri. Section 31.32 reads as follows:
“(a) Dedication. Subdivision plans shall dedicate land for park uses at locations designated in the comprehensive plan, or the official parks plan adopted by the Board of Parks and Recreation Commissioners or as determined by the subdi-vider and the staff of City Development and Parks and Recreation, at the rate of four (4) acres per one hundred (100) living units or nine percent (9%) of the merchantable land. When the percentage of merchantable land will result in a tract of less than four (4) acres, the City Plan Commission may require the open space to be located at a suitable place on the periphery of the subdivision, so a more usable tract will result when addi[833]*833tional open space is obtained when adjacent land is subdivided. In all cases, the developer will dedicate such approved park land to the city for park purposes as a condition of final subdivision approval. All land to be dedicated to the City for park purposes shall have the prior approval of the Board of Parks and Recreation Commissioners, and shall be shown and marked on the plan as ‘dedicated to Kansas City, Missouri, for parks and/or recreation purposes’, and the plat will be so endorsed by the President of the Board of Parks and Recreation Commissioners. When the percentage of merchantable land indicates an open space parcel of less than two (2) acres, or in the opinion of the City Plan Commission will create an insurmountable hardship to the development, the City Plan Commission at its option may require the subdivider, in lieu of dedication of open space to pay a sum of money per planned housing unit in lieu of dedication.
“(b) Cash in lieu of land dedication. When the dedication of park land, as required by this section has been determined to work an undue hardship on the development, or the tract size is inadequate for the intended purpose in the opinion of the City Plan Commission, the subdivider shall deposit with the City Treasurer for the Parks and Recreation Acquisition and/or Development Trust Fund prior to receiving a building permit, a cash payment without recourse or the right of recovery, equal to sixty dollars multiplied by a designed number of living units in the subdivision, less a credit that any land actually dedicated for park purposes, bears to the proportion of total land required for park purposes in subsection (a) hereof. Such funds shall be used for the acquisition, development or improvement of a public park generally, within one half-mile of the periphery of the subdivision by the Parks and Recreation Department as authorized by the City Charter.
“(c) Private development and operation of park-recreational open space. The applicant may comply with the requirements of this section to furnish land for recreational purposes by providing an area with a community unit project, group housing project, GP district or any other planned district under the zoning ordinance provisions, which shall meet the minimum standards as required in section 31.32(a) and (2) provided that such area shall be developed and maintained by the subdivider or by the lot owners in the subdivision as private property under a legal arrangement approved by the city counselor as adequate to insure its continued operation and maintenance.
“The above provisions of this subsection (c) shall not apply to any subdivision consisting of single occupancy, single lots.”
Trial was had without a jury and the Circuit Court of Jackson County entered judgment which reads in part as follows:
“The fixed percentage dedication requirement of Sec. 31.32(A) is an arbitrary requirement unsupported by any showing of necessity and as such constitutes an unconstitutional taking of Plaintiffs’ property without compensation in violation of Article I, Sections 10 and 26 of the Constitution of the State of Missouri and the Fifth and Fourteenth Amendments to the Constitution of the United States and is declared to be unconstitutional and void.”
An appeal was then taken to this Court by the City of Kansas City.
This case represents another episode in a series of clashes between the exercise of police power by a city for the purpose of protecting the health and welfare of its citizens and provisions that private property shall not be taken for public use without just compensation. For a discussion of the general question, see Vol. 1, Nichols’ Law of Eminent Domain, § 1.42. For a discussion of the narrower question attending forced dedications for the purpose of preserving open space, see Vol. 2, Nichols’ Law of Eminent Domain, § 6.3511 and the cases collected in Annotation, Validity and Construction of Statute or Ordinance Requiring Land Developer to Dedicate Portion of Land for Recreational Purposes, or Make Payment in Lieu Thereof, 43 A.L.R.3d 862. [834]*834See also: Johnston, Constitutionality of Subdivision Control Exactions: The Quest for a Rationale, 52 Cornell Law Quarterly 871 (1967); Landau, Urban Concentration and Land Exactions for Recreational Use: Some Constitutional Problems in Mandatory Dedication Ordinances in Iowa, 22 Drake Law Review 71 (1972); and Ellickson, Suburban Growth Controls: An Economic and Legal Analysis, 86 Yale Law Journal 385, 481-486 (1977).
In 1926, the United States Supreme Court decided the landmark case of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303. The Court upheld a zoning ordinance and significantly said (at pages 386 and 387, 47 S.Ct. at page 118):
“Building zone laws are of modern origin. They began in this country about twenty-five years ago. Until recent years, urban life was comparatively simple; but with the great increase and concentration of population, problems have developed, and constantly are developing, which require, and will continue to require, additional restrictions in respect of the use and occupation of private lands in urban communities. Regulations, the wisdom, necessity and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive. Such regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations, which, before the advent of automobiles and rapid transit street railways, would have been condemned as fatally arbitrary and unreasonable. And in this there is no inconsistency, for while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise. But although a degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles, statutes and ordinances, which, after giving due weight to the new conditions, are found clearly not to conform to the Constitution, of course, must fall.”
The Court then declared (at page 395, 47 S.Ct. at page 121) the test of constitutional validity of an ordinance to be whether its “provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.”
In 1961, the Supreme Court of Illinois decided the case of Pioneer Trust & Savings Bank v. Mount Prospect, 22 Ill.2d 375, 176 N.E.2d 799. The Court held an ordinance requiring a subdivider to dedicate a portion of land for public use invalid, and applied the following test (176 N.E.2d 799, at 802):
“. . . If the requirement is within the statutory grant of power to the municipality and if the burden cast upon the subdivider is specifically and uniquely attributable to his activity, then the requirement is permissible; if not, it is forbidden and amounts to a confiscation of private property in contravention of the constitutional prohibitions rather than reasonable regulation under the police power.”
In 1971, the Supreme Court of California decided the case of Associated Home Builders, Inc. v. Walnut Creek, 4 Cal.3d 633, 94 Cal.Rptr. 630, 484 P.2d 606. The Court held an ordinance requiring dedication of land or payment of fees as a condition to approval of a subdivision map valid, and held (94 Cal.Rptr. 630, at 634, 484 P.2d 606, at 610) that the statute authorizing it “can be justified on the basis of a general public need for recreational facilities caused by present and future subdivisions. The elimination of open space in California is a melancholy aspect of the unprecedented population increase which has characterized our state in the last few decades. Manifestly governmental entities have the responsibility to provide park and recreation land to accommodate this human expansion despite the inexorable decrease of open space available to fulfill such need.”
In 1972, in State ex rel. Noland v. St. Louis County, 478 S.W.2d 363, 367 (Mo.), [835]*835this Court held that “there must be some ‘reasonable relationship’ between the proposed activity of the landowner and the exactions of government.” This Court then found that the requirements that the subdi-vider relocate a new road and widen and pave an old road were not reasonably related to the activity of the subdivider.
We have concluded that the Pioneer Trust rule, in view of Euclid, supra, and Noland, supra, is too restrictive and should be modified. The fact that a subdivision merely threatens to “contribute” to a community need for open space should not exempt it from bearing a fair share of the burden of meeting the need. We adopt the following rule in Missouri as to mandatory dedications for recreational purposes: If the requirement is within the statutory grant of power to the municipality and if the burden cast upon the subdivider is reasonably attributable to his activity, then the requirement is permissible; if not, it is forbidden and amounts to a confiscation of private property in contravention of the constitutional prohibitions rather than reasonable regulation under the police power. Insofar as the establishment of a subdivision within a city increases the recreational needs of the city, then to that extent the cost of meeting that increase in needs may reasonably be required of the subdivider.
We turn then to a consideration of the issues in this case. We must hold the trial court erred because it placed the burden of proof on the wrong party. An ordinance enacted by the legislative body of a city pursuant to the police power is presumed to be valid. The person (or persons) challenging the constitutionality of the ordinance on the ground of unreasonableness has the burden of proving unreasonableness. Flora Realty & Investment Co. v. City of Ladue, 362 Mo. 1025, 1040, 246 S.W.2d 771, 778 (banc 1952); Euclid v. Ambler Realty Co., supra. The court placed the burden of justifying its ordinance on the City of Kansas City. It erred in this regard.
Accordingly, the case must be remanded for new trial. We suggest that on re-trial the attorneys for the subdividers introduce evidence on the fairness of specific exac-tions as to specific properties. Cf. Euclid v. Ambler Realty Co., supra, 272 U.S. 365, at 397, 47 S.Ct. 114; Collis v. City of Bloomington, 246 N.W.2d 19, 27-28 (Minn.1976); and State ex rel. Noland v. St. Louis County, supra.
The judgment is reversed and the cause remanded.
MORGAN, C. J., and BARDGETT, HENLEY and SEILER, JJ., concur.
FINCH, J., dissents in separate dissenting opinion filed.
RENDLEN, J., dissents and concurs in separate dissenting opinion of FINCH, J.