Opinion
No. ED78444
Opinion Filed: May 9, 2001
APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY, HONORABLE JAMES R. HARTENBACH
Donald J. Ohl, 22 Ginger Creek Parkway, P.O. Box 760, Knapp, Ohl Green Glen, Carbon, IL 62034, for appellant.
Kevin A. Nelson, 10097 Manchester Road, Suite 207, Nelson Wolff, St. Louis, MO 63122, for respondent.
Before Russell, J., and Teitelman, J.
Chesterfield Village, Inc. (the Village), appeals from a judgment dismissing its claim against the City of Chesterfield, Missouri (the City), because the petition failed to state a claim upon which relief could be granted. The Village contends the trial court erred in dismissing its claim because it pleaded sufficient facts to support a cause of action for (1) a temporary regulatory taking without just compensation, (2) inverse condemnation, and (3) a violation of the Fifth and Fourteenth Amendments of the United States Constitution. We reverse and remand.
A motion to dismiss for failure to state a cause of action is solely a test of the adequacy of the plaintiff's petition. Nazeri v. Missouri Valley College, 860 S.W.2d 303, 306 (Mo.banc 1993). It assumes that all of plaintiff's averments are true, and liberally grants to plaintiff all reasonable inferences therefrom.Id. No attempt is made to weigh any facts alleged as to whether they are credible or persuasive. Id. Instead the petition is reviewed in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause of action that might be adopted in that case. Id. In reviewing the dismissal of a petition, this Court determines if the facts pleaded and the inferences reasonably drawn therefrom state any ground for relief. Martin v. City of Washington, 848 S.W.2d 487, 489 (Mo.banc 1993). A petition is not to be dismissed for failure to state a claim if any set of facts is asserted which, if proved, would entitle the plaintiff to relief.Id. We do not, however, accept the plaintiff's conclusions.Weicht v. Suburban Newspapers of Greater St. Louis, Inc., 32 S.W.3d 592, 598 (Mo.App.E.D. 2000).
With this standard in mind, we review the facts alleged in the Village's petition. The Village avers it owns a 46.3 acre parcel of property. The City obtained jurisdiction over the parcel when it was incorporated as a third-class city. At that time, the City adopted the zoning classifications for the parcel which were previously designated by St. Louis County. The parcel was zoned non-urban, "NU." The Village avers the NU zoning designation limited development of the parcel to lots of three or more acres for single family residences. The Village alleges this would have allowed only a maximum of 15 homes to be built on the parcel.
The Village filed a petition for a change of zoning. The Village wanted a residential classification, "R-3," on the parcel. The Village alleged this would allow it to build 114 homes on the parcel with 10,000 square foot lots. The Village avers it was unable to beneficially use the parcel because the City's NU zoning classification for the parcel was a legally imposed restriction upon the property's use. The Village further alleges the City's refusal to rezone the parcel left the parcel economically infeasible to develop under the NU classification and the Village was thereby forced to leave the parcel economically idle. In particular, the Village alleges it was deprived of all of the economically beneficial or productive use of the parcel by the City's refusal to rezone the parcel as it was not economically feasible to develop the parcel under the NU classification, and the Village was thereby forced to leave the parcel economically idle.
The Chesterfield City Council denied the Village's rezoning petition. The Village filed a cause of action for declaratory judgment and an injunction. The trial court found it was not economically feasible to develop the parcel for use under the NU classification and that the parcel was not adaptable for use under its current zoning. The trial court found that the NU classification was unreasonable, arbitrary, capricious, and unconstitutional as applied to the parcel as it was totally inconsistent with the character of development in the surrounding area and is not required to promote the public safety, health, convenience, comfort, morals, prosperity, or general welfare of Chesterfield. The City later adopted a new ordinance which rezoned the parcel to residential development.
The Village then sued the City for damages. The Village avers the refusal to rezone constituted a temporary regulatory taking in that it was deprived of all of the economically beneficial or productive use of the parcel by the City's refusal to rezone the parcel as it was not economically feasible to develop the parcel under the NU classification, and the Village was thereby forced to leave the parcel economically idle. The Village alleges the refusal to rezone constituted an invasion and/or an appropriation of the Village's property rights as its legal and proper right to use and develop its property. The Village further alleges the refusal further deprived it of a right, privilege, or immunity secured by the Constitution or the laws of the United States. The City filed a motion to dismiss. The trial court granted the City's motion to dismiss because the Village failed to state a claim upon which relief could be granted and dismissed the Village's claims. This appeal follows.
In its first point, the Village contends the trial court erred in dismissing its claim because it pleaded sufficient facts to support a cause of action for a temporary regulatory taking without just compensation.
Missouri has not squarely addressed whether a cause of action for a temporary regulatory taking exists, and if so, what standards apply. Clay County ex rel. County Com'n of Clay County v. Harley and Susie Bogue, Inc., 988 S.W.2d 102, 107 (Mo.App.W.D. 1999). Several factors point to its adoption as a cause of action in Missouri.
A regulatory taking is a recognized cause of action in Missouri. See Harris v. Missouri Department of Conservation, 755 S.W.2d 726, 730 (Mo.App.W.D. 1988). Missouri has also long recognized a cause of action for a temporary taking. See City of Cape Girardeau v. Hunze, 284 S.W.2d 471 (Mo. 1926). Furthermore, the United States Supreme Court established that the just compensation clause of the United States Constitution requires the government to pay for temporary regulatory takings. First English Evangelical Lutheran Church v. Los Angeles, 482 U.S. 304, 318 (1987).
In First English, the United States Supreme Court held that temporary regulatory takings are not different in kind from permanent takings and require compensation under the Constitution.Id. Because the United States Supreme Court's determination is grounded in the United States Constitution, we find it must also be recognized as a cause of action in Missouri and just compensation must be paid if established facts prove the elements for a regulatory taking for a temporary period of time.
To understand what is required for a temporary regulatory taking, we first examine the factors for a regulatory taking. A regulatory taking occurs when a regulation enacted under the police power of the government goes too far. Harris, 755 S.W.2d at 730. When a court finds that a regulation has gone too far and constitutes a taking, it is essentially finding that the public at large, rather than a single owner, must bear the burden of an exercise of state power in the public interest. Id.
There is no litmus test for determining whether there has been a taking. Id. Generally, courts make that determination on a case-by-case basis. Id. The United States Supreme Court has recognized only two situations where a property owner is entitled to compensation for a regulatory taking without a case specific inquiry. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015 (1992). These two situations are (1) when a regulation causes an actual physical invasion of property, and (2) when a regulation denies all economically beneficial or productive use of land. Id.
The United States Supreme Court has indicated that three factors are of particular importance in determining whether a government regulation constitutes a taking of property. Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124 (1978). These factors are (1) the economic impact of the regulation on the claimant, (2) the extent to which the regulation has interfered with distinct investment-backed expectations, and (3) the character of the governmental action. Id.
Article I, Section 26 of the Missouri Constitution provides, "private property shall not be taken or damaged for public use without just compensation." Missouri considers the same factors the United States Supreme Court considers, as detailed above, in making a determination of whether a taking has occurred under Article I, Section 26 of the Missouri Constitution. Harris, 755 S.W.2d at 729.
The test set out above is for a regulatory taking. The question before us on this appeal is whether or not the facts pleaded by the Village state a cause of action for a temporary regulatory taking.
Here, the Village avers in its petition that the City's refusal to rezone deprived the Village of all of the economically beneficial or productive use of the parcel as it was not economically feasible to develop the parcel under the NU classification. The Village further avers it was forced to leave the parcel economically idle for a period of time.
In its petition, the Village has averred facts, which if proven true, could establish a temporary regulatory taking. This ruling does not, at this early stage, attempt to assess the ultimate merits of the Village's action. Whether or not the Village can meet their burden of proof is a question of fact to be tested by summary judgment or trial, and not by a motion to dismiss. We further note the rule set out in the United States Supreme Court's case, First English, may not apply in situations of normal delays of changes in zoning ordinances. First English, 482 U.S. at 321. We are not addressing in this opinion the issue of whether or not the time delay here was a normal delay in a change in zoning ordinance. That is again an issue that can be tested in a motion for summary judgment or at trial. We do hold that the pleaded facts, liberally construed, invoke principles of substantive law that meet the elements of the cause of action for a temporary regulatory taking. Point granted.
In its second point, the Village argues the trial court erred in dismissing its claim because it pleaded sufficient facts to support a cause of action for inverse condemnation.
The claim to compensation for condemnation is predicated on the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Sections 10 and 26 of the Missouri Constitution of 1945. The Fifth Amendment guarantees that no person shall be deprived of property without due process of law, nor shall private property be taken for public use without just compensation. Under the Fourteenth Amendment, these protections apply to actions taken by the states. Bi-State Development Agency of Missouri-Illinois Metropolitan Dist. v. Nikodem, 859 S.W.2d 775, 778 (Mo.App.E.D. 1993). Likewise, Article I, Section 10 of the Missouri Constitution provides that "no person shall be deprived of life, liberty or property without due process of law" and Article I, Section 26 requires that "private property shall not be taken for public use without just compensation."
Under these constitutional provisions, to recover for a claim of inverse condemnation, a plaintiff must show the government appropriated, without formally condemning, some valuable property right which the landowner has acquired by the legal and proper use of his land. Ressel v. Scott County, 927 S.W.2d 518, 520 (Mo.App.E.D. 1996). The inverse condemnation action was originally conceived and developed to give a landowner a remedy at law when a condemnor physically accomplished a taking or damaging of private property, which was in result like an act of eminent domain, but which was carried out with none of the procedural nor compensational requirements of an eminent domain action. Harris, 755 S.W.2d at 729. Missouri courts recognize a cause of action for inverse condemnation where private property has been taken or has been damaged for public use. Id. To state a claim for inverse condemnation, a plaintiff must allege his property was taken or damaged by the state for public use without just compensation. Id. The landowner does not have to show an actual physical taking of property, but must plead and prove an invasion or an appropriation of some valuable property right which the landowner has to the legal and proper use of his property, which invasion or appropriation directly and specially affects the landowner to his injury. Id.
As stated in the first point, the Village has pleaded sufficient facts to support a cause of action for a temporary regulatory taking. The Village alleges its property was taken for public use through the denial of a zoning change without just compensation in that it was not economically feasible to develop the property. We find this is sufficient to plead a cause of action for inverse condemnation but note that if recovery is available at all, the Village must elect a remedy. Point granted.
In its third point, the Village argues the trial court erred in dismissing its claim because it alleged facts to support a cause of action for a violation of the Fifth and Fourteenth Amendments of the United States Constitution.
Count III of the Village's petition alleges a cause of action for a temporary regulatory taking under 42 U.S.C. § 1983 which states:
Every person who, under color of any statute, of any State subjects, or causes to be subjected, any citizen of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law for redress.
The purpose of Section 1983 is to deter or prevent persons with state authority from using that authority to deprive individuals of federally-guaranteed rights. Knapp v. Junior College Dist. of St. Louis County, Mo., 879 S.W.2d 588, 591 (Mo.App.E.D. 1994). Additionally, should such a deprivation occur, Section 1983 provides a means whereby relief may be found to address the deprivation. Id. Both state and federal courts possess jurisdiction to hear 42 U.S.C. § 1983 cases. Id.
The elements of a claim under Section 1983 are (1) defendant deprived plaintiff of a right, privilege or immunity secured by the Constitution or laws of the United States; and (2) defendant was acting under the color of state law at the time of the conduct constituting the deprivation. Foremost Ins. Co. v. Public Service Com'n of Missouri, 985 S.W.2d 793, 796 (Mo.App.W.D. 1998).
Here, the Village pleaded in its petition that the City deprived it of its property right by not rezoning the parcel. It also pleaded it was deprived of its right to just compensation for the taking of private property. For the second element, the Village pleaded the City's actions were done while acting under color of state law. We find these pleadings were sufficient to state a cause of action under 42 U.S.C. § 1983. Point granted.
The City asserts all of the Village's claims are barred byres judicata. In the first suit, the trial court found for the Village in an action for declaratory judgment and injunctive relief to change the zoning of the parcel. In this second action, the Village is seeking damages for a taking and inverse condemnation. The City claims the damage issue raised below should have been raised in the initial suit.
Res judicata precludes the same parties from relitigating the same cause of action. Elam v. City of St. Ann, 784 S.W.2d 330, 334 (Mo.App.E.D. 1990). A former judgment operates as a bar not only as to all matters which were raised, but also as to all defenses which could have been raised. Id. Res judicata, however, extends only to the facts in issue as they existed at the time the judgment was rendered, and does not prevent a re-examination of the same questions between the same parties where in the interval the facts have changed or new facts have occurred which may alter the legal rights or relations of litigants. Id.
Here, there is a key additional fact that occurred which alters the legal rights of the parties between the initial litigation and the litigation below. At the time of the first judgment for injunctive relief and declaratory judgment, it was unknown when, or if, the City would rezone the parcel. The Village, at the time of the first action did not know if there would be a permanent taking (resulting from the City's failure to rezone) or a temporary taking (resulting from the City's delay in rezoning). The issue of damages the Village is seeking is based on a temporary regulatory taking in which the length of time before the rezoning occurred is a factor. This fact was not in issue at the first litigation. We find the new litigation is not barred by res judicata.
The judgment of the trial court is reversed and remanded for further proceedings.