State ex rel. Terrell v. Nicholls

719 S.W.2d 862, 1986 Mo. App. LEXIS 4697
CourtMissouri Court of Appeals
DecidedSeptember 16, 1986
DocketNo. 51641
StatusPublished
Cited by5 cases

This text of 719 S.W.2d 862 (State ex rel. Terrell v. Nicholls) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Terrell v. Nicholls, 719 S.W.2d 862, 1986 Mo. App. LEXIS 4697 (Mo. Ct. App. 1986).

Opinion

KAROHL, Judge.

Relators are sisters with a property interest in real estate located at 3940-42 Olive Street in St. Louis, Missouri. They applied to this court for a writ of prohibition to prevent respondent Circuit Judge from proceeding on a petition of McPherson Redevelopment Corporation (McPherson) condemning their real estate as part of an urban redevelopment project. We granted a provisional writ to determine: (1) whether respondent judge had personal jurisdiction over relators; and, (2) whether McPherson had failed to comply with legal conditions precedent so as to deprive respondent of authority to order condemnation.

Relators claim defective service of process. A writ of prohibition will lie to review this claim. State ex rel Lesliy v. Aronson, 362 S.W.2d 61 (Mo.App.1962). They also claim that McPherson, as con-demnor, failed to comply with conditions precedent to the exercise of the condemnation power and that if condemnation is improperly granted an appeal would be an inadequate remedy because the condemnor would exercise it’s rights of possession under § 523.055 RSMo 1978. A writ of prohibition was granted on this basis in State ex rel. Weatkerby Advertising Co. v. Conley, 527 S.W.2d 334, 341-2 (Mo. banc 1975).

We find decisive relators claim that the Court was without authority to proceed in condemnation because McPherson had not satisfied conditions precedent to the exercise of the condemnation powers. Relators assigned two reasons for this view. Each reason relies upon the fact that the ordinance of the City of St. Louis granting the power of eminent domain to McPherson includes: (1) an agreement between McPherson and the City of St. Louis which incorporates a redevelopment plan submitted by McPherson; and, (2) Community Development Commission (C.D.C.) guidelines. The ordinance does include the provisions of the agreement and the guidelines. The issue is whether admitted failures to comply with one provision of the Plan [notice to property owners of execution of the development contract together with a copy of the plan] and one C.D.C. guideline [execution of agreement within ninety days of the date of ordinance] create a limitation on McPherson’s power to condemn. Relators phrase the issue to be, “is McPherson’s eminent domain power ineffective for failure of McPherson to carry out the redevelopment program authorized by the ordinance”. McPherson contends that its right to acquire property by eminent domain is absolute and limited only by the jurisdictional prerequisite that it make an offer to the landowner provided the landowner can be located, and the parties are unable to reach agreement as to price. § 523.010, RSMo 1978; State ex rel. Weatkerby Advertising Co. v. Conley, 527 S.W.2d 334 (Mo. banc 1975).

It is agreed that McPherson is an urban redevelopment corporation. § 353.030, RSMo 1978. Its right to exercise the power of eminent domain over relators’ property is derived from § 353.130, RSMo 1978, Chapter 11.06 of the Revised City Code for the City of St. Louis1 and City Ordinance No. 58764.

Chapter 11.06 describes redevelopment procedures for blighted areas. Under Chapter 11.06, the process of condemnation [864]*864for urban redevelopment begins with a proposed ordinance to declare an area blighted. Any redevelopment corporation may file a development plan with C.D.C. to develop the area to be blighted. The contents of the plan are specified in § 11.06.080. There are 22 requirements, none of which are pertinent to the right of property owners to participate in redevelopment or time limits on when the redevelopment agreement must be signed after a redevelopment ordinance is adopted. The function of the commission is to review the plan(s) and recommend to the Mayor and the Board of Aldermen. If a plan is introduced before the Board there may be a public hearing in a committee of the Board at the corporation’s expense. The bill must be approved within six months or it is automatically denied. The Board may permit the redevelopment corporation to use the powers of eminent domain in the development. § 11.-06.180 and § 11.06.220. Specific terms to be included in every ordinance approving a redevelopment plan are found in § 11.01.-230. After enactment, the city and the developer shall enter into an agreement for the development in accord with Chapter 11.06 and the new ordinance. Where the C.D.C. guidelines are included in the plan and the plan is incorporated in the ordinance the signing of the agreement should be done within 90 days of enactment of the ordinance.

In order to implement the work of the C.D.C., as an advisory body to the Mayor and the Board of Aldermen, it adopted and published guidelines to be used by a redevelopment corporation in submitting a plan to redevelop a blighted area. One guideline required, “a draft copy of the contract which the developer proposes to enter into with the city” containing a provision that the contract “shall be executed within ninety days of the enactment of said ordinance”.

McPherson’s agreement, executed by it and the City on July 16, 1985, adopts the applicable provisions of Chapter 11.06 and the enabling Ordinance No. 58764. It also incorporates it’s plan of March 22, 1982, which provides, inter alia, that

Upon execution of a contract between the Corporation and the City, and within ninety (90) days after the effective date of the ordinance approving this Development Plan, the Corporation shall mail to each record owner in the project area whose name and address appears in the public land records of the Recorder of Deeds of the City of St. Louis, a notice of the execution of the Development contract and a copy of the Development Plan. Such notice shall specifically advise such owner of his rights to file plans and to enter into contracts with the Corporation for the development or rehabilitation of his existing building or for new construction, and the time limits within which actions may be taken by the owner. It will further notify such owner of the address to which inquiries concerning plans and contract may be made. A copy of the notice together with certificate of the mailing shall be filed by the Corporation with the Clerk of the Board of Aider-men and with the President of the Board of Public Service. Failure of any owner to receive such notice shall not change or alter any such owner’s rights, duties and obligations under the Plan, extend or delay the time within which owner has a right to take or perform any act, or give such owner any defense to any action of the Corporation, (emphasis ours)

The enabling ordinance, No. 58764, was approved February 22, 1983. It refers to McPherson’s March 22,1982, plan and C.D. C.’s report recommending approval. The ordinance requires that C.D.C.’s conditions be “Specifically made a part of the ordinance and accompanying agreement”. It grants the power of eminent domain to McPherson as developer. It recited the development agreement in full. Because the agreement incorporated the Plan the requirements of the Plan are part of the agreement. Because the ordinance makes the agreement a provision the terms of the plan becomes part of the ordinance. Accordingly, the ordinance required McPherson to (1) sign the agreement with the city within ninety days of enactment of the [865]

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Cite This Page — Counsel Stack

Bluebook (online)
719 S.W.2d 862, 1986 Mo. App. LEXIS 4697, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-terrell-v-nicholls-moctapp-1986.