Hinton v. City of St. Joseph , 1994 Mo. App. LEXIS 1579 ( 1994 )

SMART, Presiding Judge.

This appeal arises from the dismissal of an action brought by.neighbors of a tract of ground against the City of St. Joseph and the trustees of a benevolent trust to prohibit the sale and development of the tract. Plaintiffs Steven and Rebecca Steele, Elvin and Louann Murphy, Herbert Hinton and Missouri Associates, L.P. contend that the land in question was irrevocably dedicated to the city for park and recreational purposes, and that the city is foreclosed from allowing any other disposition of the property. The trial couid; dismissed the action for failure to state a cause of action. Plaintiffs appeal.

On April 26, 1945, George Bode, Jr., a former resident of St. Joseph, executed a will specifically devising his entire residuary estate in trust for the use and benefit of the citizens of St. Joseph. Bode’s will provided for creation of a trust and directed the trustees to use the trust estate to acquire land within the city as sites and locations for “public parks, playgrounds, athletic fields, including baseball diamonds and grounds, tennis courts, and a zoological garden, if financially possible.” The will directed the trustees to transfer to the city any property acquired by the trust subject to the following conditions:

(1)that the city or public agency accepting the conveyance shall make the improvements necessary to cany out the purpose or purposes for which the conveyance is made and will adequately maintain the property for such purpose or purposes.

(2) that the property and the facilities thereof and thereon shall at all times be equally open and available to all citizens of St. Joseph, without regard to creed or denomination.

(3) that the property shall not be used for any political, religious, or sectarian purpose.

(4) that the property be dedicated in the name of either BODE or my mother’s maiden name, WENZ.

On December 22,1970, the City of St. Joseph accepted a conveyance of a 30 acre tract of land (referred to herein for convenience as the “Bode tract”) from the Bode trust by a special ordinance, which recited that the trustees would convey the land subject to the conditions imposed by the will and that the city would accept the land for recreational purposes subject to those conditions. Thereafter, the deed was executed and the deed and ordinance were recorded.

Before 1992, the individual plaintiffs purchased property within the city in close proximity to the 30 acre tract. Some plaintiffs claim that in making the purchases they relied on information that the land could lawfully be used only for park or recreational purposes. From 1970 to 1992, the city held title to the tract of land, but did not develop the land in any way. On June 18, 1992, the city council enacted an emergency special ordinance, which purported to authorize and effect the conveyance of the tract back to the trustees of the Bode trust with the restriction that any proceeds derived by the trust from the sale of the property would ultimately be used for future city parks and recreation purposes. It was understood that the trustees desired to sell the land to Wal-Mart Stores, Inc., and to use the proceeds from the sale to develop park facilities elsewhere in the city.

On September 28, 1992, the city council approved a recommendation of the City Planning Commission that the Bode tract be rezoned from residential to commercial use. On October 7, 1992, the trustees of the Bode trust executed a deed purporting to convey the land to Wal-Mart, to be used for the development of a large retail store. Plaintiffs commenced this action in November 1992. In March 1993, defendants filed motions to dismiss the petition. On April 1, 1993, during a hearing on the motions to dismiss, plaintiffs obtained leave to file a first amended petition. After hearing arguments on the motions to dismiss, the trial court entered an order dismissing the first amended petition. On April 12, plaintiffs filed a motion for reconsideration and for leave to file a second amended petition, which was denied by the trial court on April 12, 1993. After twice dismissing appeals on the ground that the notice of appeal had not been timely filed, this court granted plaintiffs’ motion to file an appeal out of time.

Plaintiffs now contend, inter alia, that the trial court erred in dismissing their petition for failure to state a claim upon which relief may be granted. The trial court held that the facts as recited in plaintiffs’ petition show that the city abandoned the proposed dedicated use of the property, requiring the reversion of the property to the dedicator. Therefore, the trial court reasoned, the transfer of the property back to the trust by the city was not improper.

We begin our analysis by considering the contention of respondents that plaintiffs lacked standing in the trial court and continue to lack it in this court to challenge the transfer of the property. Plaintiffs contended that they had standing to bring this action on two bases: 1) they claim that all plaintiffs have standing as taxpayers to challenge the improper handling of public property; and 2) they claim that the individual defendants have standing as owners of property located near the tract of land because them enjoyment of their property, and the value of their property, will be adversely affected by the development.¹

In determining the issues related to standing, we will consider not only plaintiffs’ petition but also the additional non-contested facts which all parties accepted as true at the time of argument on the motion to dismiss. Thus, we will engage in a summary judgment mode of analysis, seeking to determine whether the issue of standing is resolved as a matter of law on the basis of the undisputed facts. The issue of standing may be raised at any time and may be reviewed by the court sua sponte. Gowen v. Cote, 875 S.W.2d 637, 639 (Mo.App.1994).

Taxpayer Standing

In examining the issue of the standing of plaintiffs, we first evaluate the claim of taxpayer standing. In order to claim the benefit of taxpayer standing, plaintiffs must be able “to demonstrate á direct expenditure of funds generated through taxation, or an increased levy in taxes, or a pecuniary loss attributable to the challenged transaction of a municipality,” absent fraud or other compelling circumstances. Eastern Missouri Laborers Dist. Council v. St. Louis County, 781 S.W.2d 43, 47 (Mo. banc 1989). Plaintiffs claim that public funds do not have to be expended to have taxpayer standing, citing Hight v. City of Harrisonville, 328 Mo. 549, 41 S.W.2d 155 (1931), because they have an equitable ownership interest not only in public funds, but also in “other public property.” In Hight, the Missouri Supreme Court found that plaintiffs had an equitable interest in the city’s electric distribution system which conferred taxpayer standing on them. 41 S.W.2d at 158. However, this court disavowed Hight in J.C. Nichols Co. v. City of Kansas City, 639 S.W.2d 886, 888 (Mo.App.1982), stating:

Hight is the only case to which plaintiffs direct us in support of their contention that an expenditure of public funds is not necessary for taxpayer standing. However, Missouri law on this point has evolved beyond that 1931 case.

By contrasting two similar cases, we can see that the movement toward permitting standing in the absence of proof of an illegal expenditure of public funds was short-lived. In Civic League of St. Louis v. City of St. Louis, 223 S.W. 891 (Mo.1920), plaintiffs had been permitted to bring an action to enjoin fiscal officers from paying the salary of the superintendent of excavations based on their allegation that the office was illegally held. However, nineteen years later in Smith v. Hendricks, 136 S.W.2d 449 (Mo.App.1939), on very similar facts where plaintiffs sought to enjoin the continued employment of a bus driver alleged to be unqualified for the position, the court interpreted New-meyer to permit standing only where the tax burden would be increased, and held that because it would cost as much to hire a qualified driver as an unqualified one, the taxpayers lacked standing. Instead, where the tax burden is not increased, the court held at 454 that “the remedy is the elective franchise.”

The Missouri Supreme Court, in 1989, redefined its position in Eastern Missouri Laborers, appearing to take a position consistent with J.C. Nichols Co.:

Absent fraud or other compelling circumstances, to h$ve standing a taxpayer must be able to demonstrate a direct expenditure of funds generated through taxation, or an increased levy in taxes, or a pecuniary loss attributable to the challenged transaction of a municipality.

781 S.W.2d at 47. The court also, in Harris v. Missouri Gaming Commission, 869 S.W.2d 58 (Mo. banc 1994), found that a taxpayer had pleaded facts amounting to standing by alleging that the implementation of riverboat gambling regulations would require the direct expenditure of public funds. Here, there is no illegal expenditure of public funds shown. Nor is there any reason to believe taxes will be increased by virtae of this transaction. Rather, it is admitted by all that the funds generated from the sale of the property to Wal-Mart will result in increased funds for public uses in view of the increased funds available to the trust. In accordance with Eastern Missouri Laborers, plaintiffs have failed to prove taxpayer standing.

Nearby Property Oumer Standing

We next examine the issue of the standing of the individual plaintiffs as nearby property owners. The purpose of the doctrine of standing to sue is to ensure that litigation is brought only by appropriate parties having a present, substantial interest in the outcome. 59 Am.Jur.2d Parties § 30 (1987). The concept of standing also serves the function of promoting an efficient allocation of access to scarce judicial resources. Id. Generally, an individual does not have standing to seek redress of a public wrong, or of a breach of public duty, if such individual’s interest does not differ from that of the public generally, even though the complainant’s loss is greater in degree than that of other members of the public. 59 Am.Jur.2d Parties § 33 (1987). We note also in passing that charitable trusts are generally not enforceable by potential beneficiaries or by members of the general public. Dickey v. Volker, 321 Mo. 235, 11 S.W.2d 278 (1928), cert. denied, 279 U.S. 839, 49 S.Ct. 252, 73 L.Ed. 986 (1929); see also IVA A. Scott and W. Fratcher, Scott on Trusts § 391 (1989). The proper party to enforce the interests of the general public with regard to a charitable trust is generally the state attorney general. IVA A. Scott and W. Fratcher, Scott on Trusts § 391 (1989).

Here, these individual plaintiffs, whose land does not adjoin the tract in question, claim standing based upon the fact that their properties are located within one-quart'er mile and within sight of the boundary of the tract. The issue is whether these plaintiffs have a legally protectible interest at stake. Gowen v. Cote, 875 S.W.2d 637, 640 (Mo.App.1994). The trial court in this case ruled that, while the plaintiffs did not have taxpayer standing, the court would allow them standing on the ground that they claim that they would be directly and adversely affected by the commercial development of the property in that they would be caused to suffer excess noise, increased pollution, traffic congestion, loss of property value, and loss of enjoyment of their property. Plaintiffs express the same kind of interest they would express in challenging a zoning proposal.² Here,' however, they base their petition on the terms of a purported dedication of land which has already been reversed by the dedicator and the city.

In the ordinary dedication, the dedicator or one claiming under the dedicator has full dominion and control over the dedicated property, subject to the easement in the public, and may bring an action to enforce the uses for which the dedication was made and to prevent a diversion therefrom, or to otherwise prevent interference therewith. The traditional rule is that no person other than the attorney general or the dedicator (or one claiming under the dedicator) may challenge the diversion of dedicated property unless the claimant has a substantial special injury, usually an economic injury, which warrants allowing that person standing to enforce the dedication. 23 Am. Jur.2d Dedication § 71 (1983). Thus, a home owner and resident of a city lacks standing to object when a church which owns property irrevocably dedicated to church purposes proposes to sell the land to the county to allow the county to construct a courthouse and jail on the property. Armstrong v. Portsmouth Bldg. Co., 57 Kan. 62, 45 P. 67 (1896). Similarly, a home owner residing near, but not owning property in, a subdivision containing a park which was dedicated as a park in the plat of the subdivision, should be held to lack standing to object when the developer and the lot owners within the subdivision choose to do something else with the park land. Owens v. Elliott, 257 N.C. 250,125 S.E.2d 589 (1962) (purchaser of land outside subdivision had no enforceable rights with respect to dedicated streets of subdivision).

Plaintiffs here are not members of a subdivision seeking to enforce a subdivision dedication or a restrictive covenant adopted specifically for the benefit of owners of land in the subdivision. See Gowen v. Cote, 875 S.W.2d 637 (Mo.App.1994) (owners of land in the subdivision entitled to enforce restrictive covenant). Here, the dedication was not for the purpose of benefiting residents of plaintiffs’ neighborhood. Rather, the dedication was specifically for the general citizenry of St. Joseph. As citizens, plaintiffs have no greater enforcement rights than any other citizen.

The relief sought by plaintiffs in this case is the invalidation of the transfer to Wal-Mart and the reversal of the rezoning from residential to commercial. Plaintiffs desire, in effect, a return to the prior status — one in which the city simply holds the 30 acres, and does not develop it. Such an objective is contrary to the purposes of the proposed dedication. The city could, within the purposes of the proposed dedication, construct a complex of stadiums and athletic fields, or a zoo, or a community center, or bowling alleys and skating rinks, and so on. The proposed dedication was conditioned upon the city developing the property for recreational purposes. The trustees have already elected not to compel the city to develop facilities on this land. Instead, the trustees have accepted a reconveyance of the tract in order to sell it and apply the proceeds to develop recreational facilities elsewhere in the city. These plaintiffs, in contrast, have no interest in compelling development of recreational facilities, either on the tract in question or elsewhere. Their desire is to forestall development. They seek simply the invalidation of the conveyance to Wal-Mart, and an order reversing the zoning decision. The result they seek, the continuation of the status of undeveloped land, does not correspond to the purpose of the proposed dedication in the first place. Thus, plaintiffs’ interests do not correspond to those of the general public.

As for plaintiffs’ special injury, plaintiffs claim that they are near neighbors, residing within one-quarter mile of the 30 acre tract. They also claim that they can see the tract from their property. Their concerns are the kinds of concerns commonly addressed in zoning decisions. There is no financial interest claimed other than the assertion that development of the land may affect their property values. Even assuming, for purposes of our analysis, that plaintiffs’ property value will be affected, there is no suggestion that plaintiffs’ property values will suffer substantially more than other home owners in the near vicinity of the park. This is not like a ease which would exist if plaintiffs had built a substantial business operation on their land in reliance upon the dedication, the success of which was wholly dependent on the tract in question becoming and remaining a park.

It appears that there was an acceptance of the dedication³ by virtue of the city’s ordinance purporting to accept the property, and that a right vested in the general public as well as in the dedicator. Nevertheless, we conclude that these plaintiffs do not represent the interests of the general public as against the trustees, who, as the dedicators, more nearly represent the interests of the public. This case is thus distinguishable from cases in which the citizen-plaintiffs were acting in the interest of the general public. For example, in Parsons v. Walker, 28 Ill.App.3d 517, 328 N.E.2d 920 (1975), the issue was the standing of some private citizens to bring an action to preserve a park, which had been deeded in trust to the University of Illinois and operated as a park for 28 years. The court there found that there was a public trust in the park which individual citizens and taxpayers had an interest in preserving and standing to do so in the court. This case is more like Calkins v. Westervelt, 214 F. 415 (W.D.Mich.1913). In that case, suit was brought by two owners of land in a development on the shore of Lake Michigan. At the time each plaintiff bought a lot and built a summer cottage, the plat showed that a portion of the land was reserved for park purposes. The developer’s successor, The Maeatawa Park Company, later conveyed a tract of land to defendant by unrecorded deed, and then purported to sell the same land again to Maeatawa Resort Company. The land allegedly sold to defendant was located in the tract reserved for park purposes, and defendant proposed to build upon a portion of the land. Plaintiffs sued to invalidate the deed which purported to transfer the property to defendant. The court in that case stated:

If the deed from the Maeatawa Park Company to defendant be set aside, the title to the parcel of land in controversy will thereby be revested either in the municipality within whose territory it is located or in the present owner of the unsold portions of Maeatawa Park, the Maeatawa Resort Company. But neither the municipality or the resort company is a party to this suit ... complainants do not pretend to represent either the public or the alleged owner of the land, and have no such personal interest therein as will entitle them to relief on their own behalf.

Calkins, 214 F. at 417. The court noted that the plaintiffs had no appurtenant rights in and to the parks and no rights of any kind except as are common to all property owners in that vicinity. The plaintiffs’ suit was dismissed for lack of standing. Calkins, 214 F. at 418.

In this case, as in Calkins, the plaintiffs represent neither the general public nor the dedicator. They do not have appurtenant rights to this land. A colorable claim of standing will be defeated where the individual or entity having greater privity and standing does not join in the attempted enforcement. In the case before us, the dedicator, which was in privity with the city, declined to enforce the dedication in the way these neighbors would have liked, and instead chose to accept a reversion of the land. The trustees, because of their duty to serve the interests of the general citizenry of St. Joseph, more nearly represent the public interest than do these plaintiffs. While in this case plaintiffs may purport to act in the interest of the general public, the nature of their claim and the relief they seek shows that they are seeking to protect their own unique individual interest, which the public does not share generally. Their right is based on their claim to special injury. But their “special” injury differs only in degree, not in quality or substance, from the injury which could be asserted by others living in the same general vicinity. We hold that their claimed special injury is not of such a character as would justify a grant of standing.⁴ Plaintiffs have not shown a sufficient justiciable interest to justify their right to bring an action in this matter.

The trustees, of course, had standing to compel the city to accept and implement the dedication. Lackland v. Walker, 151 Mo. 210, 52 S.W. 414 (1899). So, presumably, would neighboring landowners have had standing all these twenty years to sue to enforce the dedication, if they had done so in the public interest.⁵ Now, however, the trustees have elected instead to accept the return of the property. The trustees desire to employ the proceeds of the sale to develop recreational facilities elsewhere for the benefit of the citizens of St. Joseph, all in keeping with the purposes of the benevolent trust. Under these circumstances, it would be odd for the law to permit these plaintiffs, who were not privy to this transaction in the first place, and who never obtained a vested interest in the proposed dedication, to invalidate the transfer of the property back to the dedicating party. To do so would be to allow these plaintiffs, who represent their own interests, a veto power over the efforts of the dedicator to enforce its rights to provide for benefits to the general public.

If the plaintiffs in fact represented the interests of the general public, and if the dedicator had not already taken action to enforce its rights, plaintiffs would have a stronger case that they must be allowed standing. We hold only that, because the dedicator has acted to enforce its rights, and because its actions are consistent with the interests of the general public, the plaintiffs have no standing under the facts of this case to challenge the disposition which has been made.

Conclusion

Plaintiffs’ grievance here is not the failure of the city to comply with the proposed dedication in developing the land. Rather, their grievance is the decision of the city and of the trustees of the Bode trust to return the property to the trust, and allow the sale of the property to a party intending a commercial usage. The plaintiffs do not have taxpayer standing to challenge the transaction. Nor can they purport to act in the interests of the general citizenry of the city of St. Joseph. Nor do they have a vested legally cognizable individual interest in the enforcement of the purported dedication. Plaintiffs-appellants lack standing to maintain this appeal. Appeal dismissed.

HANNA, J., concurs.

LOWENSTEIN, J., dissents in separate opinion.

1 . Missouri Associates, L.P., is not an owner of land in the neighborhood of the tract in question. Instead, this plaintiff is the owner of the land and building previously occupied by Wal-Mart. This plaintiff's interest is in blocking the opportunity for Wal-Mart to operate on the "Bode tract” so that the likelihood of future Wal-Mart leases on its own land is enhanced for this plaintiff. Missouri Associates, L.P., claims standing only as a taxpayer. Therefore, if there is no taxpayer standing generally, this plaintiff will lack standing to maintain an action. The fact that the operation of a Wal-Mart store on the "Bode tract" may diminish the opportunities of Missouri Associates to lease property in the future does not convey standing because the injury in such case would be of no different character than that of other potential landlords.

2 . Plaintiffs, of course, had the right to present their grievances before the zoning authorities and the city council. The record before us does not reveal whether they did so.

3 . Acceptance may be formal in nature (as in this case where an ordinance was passed by the city) or inferred from general use by the public, including improvement and repair by public authorities. 2 G. Thompson, Thompson on Real Property § 370 (1980). Where one of the conditions of the dedication is development by the city, and the city wholly fails, over a period of twenty years, to take any steps to develop or maintain the property, it is arguable that there never was a true acceptance of the dedication by the public. In the absence of a formal acceptance by city ordinance, where there has been no development of the land as a park, and any use of the land is only occasional, there being nothing to identify it as a park, there is no public acceptance of the dedication. Vestavia Hills Bd. of Educ. v. Utz, 530 So.2d 1378 (Ala.1988) (occasional use of land by children, hikers, and bird watchers did not by itself constitute an acceptance of the dedication as a park). Perhaps, even where there has been a formal acceptance by city ordinance, it could be argued that the formal acceptance of a conditional grant is not complete without performance of the conditions and without public user. Because we resolve this case on the issue of standing, we do not reach that issue.

4 . The fact that the neighbors may have relied upon an understanding gained from city officials that the land could be used only as a park does not assist them. The city is not estopped by virtue of the legal opinions expressed by its officers. See 31 C.J.S. Estoppel § 138 (1964). Moreover, it is not technically true that the land could have been used only as a grassy park. The land could also have been used for various recreational projects and facilities.

5 . The dissent incorrectly concludes that this opinion holds that these plaintiffs would not have been permitted to sue in behalf of the public to enforce the dedication. This opinion holds that they cannot sue to advance their own interests when the dedicator, whose interests coincide with those of the general public, has already taken action to enforce the public interest. In any event, whether or not the plaintiffs have standing, there is no need for a remand of the case. The trial court allowed standing to the plaintiffs and proceeded to resolve the case on the merits. If the plaintiffs do in fact have standing to maintain the appeal, the only thing remaining would be to affirm or reverse the decision of the trial court on the merits.