Turner v. City of Independence

186 S.W.3d 786, 2006 Mo. App. LEXIS 84, 2006 WL 162789
CourtMissouri Court of Appeals
DecidedJanuary 24, 2006
DocketWD 64998, WD 65048
StatusPublished
Cited by5 cases

This text of 186 S.W.3d 786 (Turner v. City of Independence) 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
Turner v. City of Independence, 186 S.W.3d 786, 2006 Mo. App. LEXIS 84, 2006 WL 162789 (Mo. Ct. App. 2006).

Opinion

PAUL M. SPINDEN, Presiding Judge.

After Independence’s city council enacted ordinances to rezone two large tracts in the city’s Little Blue Valley area from agricultural use to residential planned unit development, area property owners filed this declaratory judgment action. They asked the circuit court to declare that the city council had acted arbitrarily and capriciously in enacting the rezoning ordinances. The circuit court declared that the city council had acted lawfully, and the property owners appeal. We affirm the circuit court’s judgment.

This dispute arose when, during 2003, Independence’s council enacted ordinances to rezone the tracts in the Little Blue Valley at the request of Arcadia Communities, LLC. Arcadia wanted to develop the tracts into two “traditional neighborhood design” projects, dubbed Crenshaw and Village One. Traditional neighborhood design projects are housing developments built to resemble neighborhoods and typically include a neighborhood center around which mixed income housing is constructed. Crenshaw involved a 169-acre tract on which Arcadia planned to build 240 dwelling units. Village One was to be a 233-acre tract on which Arcadia would build 599 dwelling units. The City Council authorized rezoning the land from agricultural to R-la-PUD (single family residential planned unit development). Before enacting the ordinances, the City Council held two hearings. Independence’s City Planning Commission had held two hearings before recommending that the City Council approve the projects.

Area property owners Matthew and Shawn Turner, Dave and Sharon Parker, Christine Sevage, Thomas Noffsinger, and Sandra Colyer filed this declaratory judgment action, seeking the circuit court’s declaration that the ordinances were “arbitrary, capricious, and unreasonable” and “illegal, unconstitutional, null and void.” They also sought to enjoin Independence from passing zoning ordinances and from approving further development plans regarding Crenshaw and Village One. After a bench trial, the circuit court entered judgment for Independence. The property owners appealed, and Independence cross-appealed.

The circuit court issued findings of fact and conclusions of law. In reviewing its judgment, we defer to its findings of fact by reviewing them to ascertain only that they are supported by substantial and competent evidence. Roorda v. City of Arnold, 142 S.W.3d 786, 789 (Mo.App.2004). We do not defer to its conclusions of law but make our own independent determinations concerning them. Marshall v. Pyramid Development Corporation, 855 S.W.2d 403, 406 (Mo.App.1993).

We first consider Independence’s cross-appeal in which it challenges appellants’ standing to challenge the ordinance that rezoned a tract for the proposed Crenshaw development. Independence argues that the appellants were not aggrieved by the *789 ordinance because Crenshaw will not cause special injury to them.

Before the circuit court could assume jurisdiction of the appellants’ action, the appellants had to establish that they had standing. Dodson v. City of Wentzville, 133 S.W.3d 528, 533 (Mo.App.2004). To show standing in a zoning decision, a plaintiff must establish either that a statute confers him or her with standing or that the decision adversely affects more distinctly and directly his or her interest than it affects the general public’s interest. State ex rel. Westside Development Company, Inc. v. Weatherby Lake, 935 S.W.2d 634, 637 (Mo.App.1996). An interest adversely affected still affords standing even if it is attenuated, slight, or remote. Ste. Genevieve School District R-II v. Board of Alderman of the City of Ste. Genevieve, 66 S.W.3d 6, 10 (Mo. banc 2002) (citations omitted). If a zoning decision affects or will affect the plaintiffs property interest adversely, the plaintiff has the requisite interest in the controversy. Allen v. Coffel, 488 S.W.2d 671, 674 (Mo.App.1972). “An adjoining, confronting or nearby property owner has standing, without further proof of special damage, to assert the right for review of an administrative decision affecting the property in question.” Citizens for Safe Waste Management v. St. Louis County, 810 S.W.2d 635, 639 (Mo.App.1991).

No statute conferred appellants with an interest, so, to establish standing, they had to show that they will be directly and adversely affected by the rezoning for the Crenshaw development. Appellants alleged that the development would create numerous problems for them, including dangerous traffic conditions on the narrow roads abutting their properties. Considering that traffic from Cren-shaw property would empty onto the narrow roads abutting appellants’ properties and that appellants alleged the traffic would create congested and dangerous conditions, Crenshaw stands to impact appellants adversely and more distinctly than the community in general. This was sufficient to establish standing. Although appellants’ properties do not directly abut the Crenshaw property, this is not required to satisfy the standing requirement. Id.

Turning to appellants’ arguments, they first assert that the circuit court erred by not allowing appellants Turner, Noffsinger, Parker and Sevage to testify regarding the market value and diminution in value of them properties. Appellants mischaracterize what happened. The circuit court did allow appellants to testify of their properties’ values, but it sustained Independence’s objection to their opining about the impact of Arcadia’s projects on their properties’ values. Appellants, however, did not make an offer of proof for the testimony of Turner, Noff-singer, and Parker. Even assuming ar-guendo that the circuit court erred, this error is not preserved for our review. ‘Nothing is preserved for appellate review when a court rejects evidence, in the absence of an offer of proof.’ ” Tile-Craft Products Company, Inc. v. Colonial Properties, Inc., 498 S.W.2d 547, 549 (Mo.1973) (quoting Hays v. Western Auto Supply Company, 405 S.W.2d 877, 881 (Mo.1966)).

Appellants did make an offer of proof of Sevage’s testimony, but we cannot determine whether or not the circuit court erred in prohibiting Sevage’s opinion because her offer of proof was insufficient to preserve the issue for our review. It was not specific or definite:

Q.... Ms. Sevage, if allowed to testify about your property value, your specific property that you have purchased, what would your opinion be on the impact of *790

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Bluebook (online)
186 S.W.3d 786, 2006 Mo. App. LEXIS 84, 2006 WL 162789, Counsel Stack Legal Research, https://law.counselstack.com/opinion/turner-v-city-of-independence-moctapp-2006.