Petition — Burns v. City of Des Peres

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

STEPHEN T. BURNS, et al.,

Petitioners,

VS.

CITY OF DES PERES, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

for the Eighth Circuit

ELLSWORTH CUNDIFF

524 Jefferson Street

St. Charles, Missouri 63301

Attorney for Petitioners

A

St. Louis Law Printing Co., Inc., 812 Olive Street 63101 314-231-4477

et

47.5.3

INDEX

Page

Petition for Writ of Certiorari

ED vavcecicenb ch sbanneseseanebacenne’ l

SS Gr I voice wkden cmsoccwceweiesdvies l

SS ED «6. 4s wash detnadundeceeuseeuass 2

1. Once the District Court found enough evidence of

bad faith and discriminatory practices to warrant

submission of the cause to the jury and the jury en-

tered its verdict in the petitioners’ favor, did the Dis-

trict Court have jurisdiction to give judgment for the

tw

Was the petitioners’ evidence pertaining to discrimi-

nation and bad faith on the part of the defendants

sufficient to support the jury’s verdict? ........... 3

3. Were the 1973 zoning deliberations of the defend-

ants subject to the exclusionary principles of the rules

of evidence pertaining to settlement negotiations? .. 3

Constitutional Provisions and Statutes Involved ........ 1

I ID -nb.y 0c bach Qce nds ccvectcscosesea 4

Reasons for Granting the Petition ................... 11

FETT eC Tee Tere TT Ter er rere 12

Appendix

Opinion of the United States Court of Appeals, Eighth

Se ES ED 6 2 46 de ccconcccoeccadacwes A-l

CITATIONS

Cases

Adams v. Board of Adjustment of Kansas City, 241 SW

sy ick eel bén hs on4eaneneees 9

Agrashell, Inc. v. Hammons Product Co., 479 F2d 269 (8th

Cir), cert. denied, 414 US 1022 (1973) ............ 6

Andgar Assoc, Inc. v. Board of Zoning Appeals, 291 NYS

ee ee shad ssa neewsevece ean 8

Burt v. New York, 156 F2d 791 (CASC 1976) ........ 9

Cleveland & Pittsburg R. Co. v. City of Cleveland, 15

Ohio CirCt, NS 193, 33 Ohio CirCt 482 ........... &

Drinan v. A. J. Lindemann & Hoverson Co., 141 F.Supp.

7a, OH 256 F268 72 GED Wits 1956)... cece cccves 7

Glynn v. Krippner, 60 F2d 409 (8th Cir 1932) ......... 6

Hanson v. Ford Motor Co., 278 F2d 586 (8th Cir 1960).. 6

Moran v. Washington, 49 F2d 679 (DCCA 1931) ...... 6

Ross Packing Co. v. US, 42 F.Supp. 932 (ED Wash.

eee eee s Cee e ew che ieee e sO Ke bad 9, 10

St. Louis, Southwestern Railway Co. v. Robert H. Mays,

STE Ca CES GEE BUUED on ccc rccnceceveseses 9, 10

Slocum v. New York Life Ins. Co., 228 US 364, 33 S.Ct.

Pk Oe ee ee SE ED cn cvnvccccescensess 6

State ex rel. Magidson v. Henze, 342 SW2d 261 (App

re ee arene 9

State ex rel. Ludlow v. Guffey, 306 SW2d 552 (Sup 1957) 9

Constitution and Statutes

ee Se Fs nc c ccse 0 bbb hee tees tees’ 6, 11

of fo err res ees Te 4,9

Pe re On eas ae kab See ae i)

Miscellaneous

15SA CJS, Compromise & Settlement, $1, note 1.5, page

rr re Teer Te rrr ss

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

STEPHEN T. BURNS, et al.,

Petitioners,

VS

CITY OF DES PERES, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

for the Eighth Circuit

Petitioners pray that a writ of certiorari issue to review the

decree of the United States Court of Appeals for the Eighth

Circuit entered upon April 14, 1976, affirming the decree of

the District Court of the United States for Eastern District of

Missouri, Eastern Division, rendered upon June 3, 1975.

OPINION BELOW

The opinion of the court below entered upon April 14, 1976,

is printed in an appendix to this petition, for the convenience

of this Court.

BASIS OF JURISDICTION

Jurisdiction is invoked under Section 1984 of Title 42 and

Section 1254(1) of Title 28 of the United States Code.

=

The opinion of the United States Court of Appeals for the

Eighth Circuit was filed, as stated, upon April 14, 1976, and

the mandate of said court was issued upon May 5, 1976.

QUESTIONS PRESENTED

The questions presented here for determination are impor-

tant but may be stated very briefly. They are as follows:

1. At the close of all the evidence the defendants requested

a directed verdict. Instead of ruling thereon, the trial court

submitted the cause to the jury which decided in plaintiffs’ fa-

vor against three defendants and the court entered its judgment

accordingly. The defendants thereupon filed their motion for

judgment notwithstanding the verdict which the trial court

granted. Quere, once the District Court found enough evidence

of bad faith and discriminatory practices to warrant submission

of the cause to the jury and the jury entered its verdict in the

petitioners’ favor, did the District Court have jurisdiction to give

judgment for the defendants and set aside the jury verdict?

2. The jury was instructed by the District Court as follows:

1. The Court instructs the jury that the burden of proof

rests upon the plaintiff to prove their case by a preponder-

ance or greater weight of the credible evidence, and unless

they have done so, your verdict will be in favor of the

defendants.

2. That defendants knowingly refused to allow plaintiffs

the use of their property as requested while the ordinances

of the City of Des Peres permitted these uses, as alleged;

or that defendants knowingly refused to allow plaintiffs the

use of their property as requested, even though the defend-

ants have granted to others similarly situated the same use,

as alleged.

po, ve

3. That the acts and conduct of the defendants, of which

the plaintiffs complain, were knowingly done in bad faith,

and under such circumstances, as to deprive the plaintiffs

of their federal constitutional rights not to be denied the

use of their property without due process or equal protec-

tion of the law.

After hearing all the evidence, except that excluded by the Dis-

trict Court, the District Court submits the cause to the jury

even though the defendants had requested a directed verdict at

the close of all the evidence. The jury entered its verdict in favor

of the plaintiffs and the District Court entered its judgment ac-

cordingly. The District Court later takes away the verdict stat-

ing “there was no evidence to sustain a verdict against the

three defendants.” Quere, Was the petitioners’ evidence pertain-

ing to discrimination and bad faith on the part of the defend-

ants sufficient to support the jury's verdict?

3. During 1967, the petitioners requested the rezoning of

three parcels of ground which they owned in the City of Des

Peres, Missouri. Officials of the City of Des Peres denied this

request whereupon the petitioners appealed said denial to the

Circuit Court of the State of Missouri as provided by statute.

Prior to a hearing on this appeal, in 1973 the petitioners

amended their proposed development plans and requested a

reconsideration of their rezoning request by City officials which

was conducted under the direction of the Circuit Court as “set-

tlement negotiations.” The rezoning request was again denied

by City officials whereupon the petitioners brought this present

action. During the course of the trial the trial court refused all

evidence pertaining to the 1973 actions of the defendants who

were City officials. Quere, were the 1973 zoning deliberations

of the defendants subject to the exclusionary principles of the

rules of evidence pertaining to settlement negotiations?

In answering these questions we assign as error the action

of the United States Court of Appeals in taking away the jury

— oon

decision on the basis of its interpretation of the evidence and

in excluding the 1973 reconsideration by the defendants under

the exclusionary principles of the rules of evidence pertaining to

settlement negotiations.

CONSTITUTIONAL PROVISIONS AND STATUTES

INVOLVED

Petitioners’ complaint is basically premised upon the Four-

teenth Amendment to the Constitution of the United States and

42 U.S.C. § 1983. Jurisdiction is conferred by virtue of 42

U.S.C. § 1984 and 28 U.S.C. § 1254(1). This petition further

involves the Seventh Amendment to the Constitution of the

United States.

SUMMARY STATEMENT

To avoid controversy, we adopt the following statements

from the opinion of the United States Court of Appeals, Eighth

Circuit which sets up the controlling facts concisely:

In October, 1973, the present action was instituted by

Burns against the City of Des Peres and 23 individual de-

fendants who were elected or appointed officials of the city.

This action is basically premised upon 42 U.S.C. § 1983

(1970) and the Fourteenth Amendment. Burns contends

that he was denied due process and equal protection of the

law because of defendants’ failure to rezone his property.

He seeks a recovery of $1,135,000 in compensatory and

punitive damages. The City of Des Peres and five in-

dividual defendants were dismissed pursuant to pretrial

motions for summary judgment and the case proceeded to

trial with 18 individual defendants. The jury returned a

verdict against defendants Tapper, Smith and Styles for

and:

ion tim

$6,000. The District Court granted defendants’ motion

for judgment notwithstanding the verdict, finding no evi-

dentiary basis for the verdict. Burns’ first assignment of

error on this appeal is that the District Court improperly

granted this motion.

Burns contends that the District Court erred in refusing

to admit in evidence certain material relating to settlement

iiegotiations between the parties. It is alleged that the failure

to admit this evidence deprived Burns of the opportunity

to develop his case against the defendants who were exon-

erated by the jury verdict.

In his state court case, which is presently pending, Burns

has assailed Des Peres Ordinance No. 206 as being in-

valid as applied to his property. On January 17, 1973,

Burns submitted a revised plat to the Des Peres Board of

Aldermen with the hope that the plat would be acceptable

as a settlement of the state court suit. To encourage settle-

ment of the suit, the circuit court of St. Louis County

issued the following order on March 30, 1973:

(The) Court upon its own motion and by agreement

of the parties’ orders the defendant City to review the

entire matter with a view toward possible settlement

of the cause, hereby giving said defendant City 30

days within which to consider settlement disposition

of said cause * * *.

Burns’ revised plat was ultimately referred to the Planning

and Zoning Commission, which approved it. On May 29,

1973, the Board of Aldermen rejected the revised plat and

authorized the City Attorney to defend the City in the

state court proceedings.

In the present case the District Court ruled that all evi-

dence relating to settlement negotiations by the parties be-

——

tween January 17, 1973, and May 29, 1973, would not

be admitted in evidence. * * *

In its opinion the Court of Appeals stated, first, that from

its review of the circumstances of this case, it could not at-

tribute any discriminatory animus of bad faith to the defendants.

Citing its decision in Hanson y. Ford Motor Co., 278 F.2d 586

(8th Cir. 1960), the Court of Appeals found that the District

Court properly granted defendants’ motion for judgment not-

withstanding the verdict. Secondly, the Court of Appeals, citing

its decision in Agrashell, Inc. v. Hammons Products Co., 479

F.2d 269, 288 (8th Cir.), cert. denied, 414 U.S. 1022, 1032

(1973), found that the 1973 actions of the defendants were

inadmissib!e under the exclusionary principles relating to settle-

ment negotiations.

The Court of Appeals, in reaching its opinion that the Dis-

trict Court had acted properly in granting the defendants’ mo-

tion for judgment notwithstanding the verdict, did so solely on

its review and interpretation of the evidence. Yet, the Seventh

Amendment to the Constitution of the United States places

such a review and decision solely within the purview of the

jury. Solcum v. New York Life Insurance Co., 228 U.S. 364,

33 S.Ct. 523, 57 L.Ed. 879. Ann. (as. 19141), 1029. Both

the District Court and the Court of Appeals have encroached

upon the jurisdiction of the jury in granting the motion for judg-

ment notwithstanding the verdict which is beyond the scope of

their judicial authority. Glynn v. Krippner, 60 F.2d 409 (8th

CCA, 1932). The Seventh Amendment clearly denies such

power to a federal judge. Moran v. Washington R.Y. and

Electric Co., 49 F.2d 679 (DCCA, 1931). These previous

decisions clearly indicate that, at best, the trial court only

possessed jurisdiction to order a new trial but was without juris-

diction to take away the jury's decision on the basis of the

evidence.

_— =

However, we do admit a degree of ambiguity in the law in

this area. Several more recent decisions of district courts appear

to have eroded these principles. In Drinan v. A. J. Lindemann

& Hoverson Company, 141 F.Supp. 73 aff. 238 F.2d 72 (D.C.-

E.D. Wisc. 1956), such authority was assumed by the District

Court. Again, in Turner Construction Co. v. John 1. Houlihan,

139 F.Supp. 88, aff. 240 F.2d 435 (D.C.-R.I., 1956), the Dis-

trict Court assumed such authority. While we do not feel that

either of these opinions were based upon circumstances similar

to the present instance, the decision of the District Court in the

latter case at page 91 is especially noteworthy:

The verdict of a jury should not be set aside unless it is

so grossly excessive as to shock the courts’ sense of justice

and the impropriety of allowing it to stand up is manifest.

Surely, the District Court did not find the jury's verdict of

$6,000 against three defendants to be so grossly excessive as

to shock its sense of justice. If such be the case, the District

Court would have merely granted the defendants’ motion for

directed verdict at the close of all the evidence rather than

submitting the cause to the jury.

Recognizing that evidence can often be interpreted differently

by different individuals, we question the propriety of the United

States Court of Appeals interpreting the evidence contrary to the

findings of the jury. Being properly instructed, it was within

the purview of the jury to review the evidence—and obviously

the District Court felt there was sufficient evidence to warrant

consideration by the jury because of its refusal to grant defend-

ants’ motions for directed verdict—and to determine its suffi-

ciency. Much of the evidence was highly controverted, spe-

cifically with respect to the granting of similar land uses to

adjoining property owners. The United States Court of Ap-

peals held that surrounding property was zoned substantially

the same as the petitioners’ property. However, the issues put

to the jury concerned not the zoning, but the actual uses which

had been permitted. The majority of these uses were of sub-

stantially the same nature as that requested by the petitioners.

We believe that the United States Court of Appeals erroneously

interpreted this evidence and that the jury decision that the de-

fendants had acted in bad faith, maliciously, and oppressively

should be allowed to stand.

A major element of petitioners’ appeal rested in the argument

that the District Court erred in refusing to receive certain evi-

dence relating to “settlement negotiations” between the peti-

tioners and the Board of Aldermen of the Cit“ of Des Peres

by the petitioners to the Circuit Court concerning the appeal

of the Board of Aldermen's denial in 1967 of the petitioners’

development plans. The petitioners contended that the failure

to admit this evidence deprived them of the opportunity to

present their full case against the defenJants who were exoner-

ated by the jury and against the defendants who the jury found

had deprived the plaintiffs of their rights.

The Court affirmed the District Court's actions in excluding

this evidence but in so doing failed to consider the point of law

that the defendants were without power to consider any compro-

mise of their zoning powers. Andgar Assoc., Inc. v. Board of

Zoning Appeals, 291 N.Y.S.2d 991, 30 App.Div.2d 672. A

municipality may not, under the guise of a compromise, destroy

or impair its governmental functions or public duties. Cleveland

& Pittsburgh R. Co. v. City of Cleveland, 15 Ohio Cir. Ct.

N.S. 193, 33 Ohio Cir. Ct. 482. There simply was no legal

avenue of compromise available to the Board of Aldermen

with respect to the petitioners’ request.

Before a municipality can compromise an action, the claim

must be within the subject matter concerning which the munici-

pality has the general power to contract (see 15A C.J.S. Com-

promise & Settlement, § 1, note 1.5 page 171). Under Missouri

law, a municipality may not delegate or contract away its police

ati en

powers. Adams v. Board of Adjustment of Kansas City, 241

§.W.2d 35 (App. 1951); State ex rel. Ludlow v. Guffey, 306

§.W.2d 552 (Sup. 1957). In the absence of the legal authority

to enter into a compromise agreement, there could have been

no compromise negotiations. Ross Packing Co. v. U.S., 42 F.

Supp. 932 (D.C., E.D. Wash., 1942); St. Louis Southwestern

Railway Co. v. Robert H. Mays, 177 F.Supp. 182 (D.C. Ark.,

1959). The only conclusion which remains is that no compro-

mise or settlement was being attempted other than the granting

of the petitioners’ original request for “B” zoning.

Missouri law is clear in its mandate that the legislative body

of the city shall provide the manner in which zoning regulations

are to be changed. 89.050 R.S.Mo. In adopting Ordinance

206, the legislative body of the City of Des Peres decided that

such changes could be instituted either by petition or by

motion of the Board of Aldermen. The Board of Aldermen

cannot go beyond the scope of the authority delegated it by

the State in exercising its zoning powers. State ex rel. Madison

v. Henze, 342 S.W.2d 261 (App. 1961). There is no other

procedure through which the zoning ordinances of the City of

Des Peres can be changed. Any consideration of a change

in zoning by the Board of Aldermen can only be conducted

as provided by law and should be open to judicial review. The

petitioners have the right to present their entire case against

the defendants. Burt v. New York, 156 F.2d 791 (CASC

1946). 42 U.S.C. § 1983 specifically applies to actions taken

under color of law.

In the absence of the power to compromise, all that the de-

fendants could have been attempting in 1973 was a review of

the record. Depending upon the results of this review, the

Board of Aldermen possessed the power to either affirm or alter

their previous position on the petitioners’ request. They chose

to affirm their previous position. In as much as this review is

essentially that which is required by State law and the City

—

ordinances, it is open to judicial review and constituted ad-

missible evidence. St. Louis, Southwestern Railway Co. vy.

Robert H. Mays, supra; Ross Packing Co. v. U. S., supra.

The petitioners believe that the Court of Appeals overlooked

this point of law in considering the petitioners’ appeal. Ap-

parently this issue has not been decided by this Court in the

past with respect to land use matters. Failure to clearly resolve

this matter can only serve to further erode the exercise of

zoning powers by municipalities in that such municipal actions

typically involve a great deal of negotiation efforts.

—

REASONS FOR GRANTING THE PETITION

This unique case presents a question of great public im-

portance, involving property rights and the right to trial by

jury under the Seventh Amendment. Matters of equal protec-

tion and due process in zoning considerations are of the greatest

importance. In addition, it appears that the United States Court

of Appeals makes a holding which is squarely contrary to

numerous previous decisions of different Circuits and past deci-

sions of this Court.

The opinion of the United States Court of Appeals as evi-

denced by its decision, was that the decision in Solcum v. New

York Life Ins. Co., 228 U.S. 364, 33 S.Ct. 523, 57 L. Ed. 879,

and subsequent decisions do not hold with respect to land use

cases brought under 42 U.S.C. 1983. This is apparently a mis-

construction of the applicability of the provisions of the Seventh

Amendment to the Constitution of the United States. Other

circuits have held in similar situations, that the Constitution of

the United States denies the very power to a federal judge which

the Court of Appeals has assumed in its present decision. The

refusal of the United States Court of Appeals to follow its pre-

vious decisions amounts to a denial of the provisions of the

Seventh Amendment to the United States Constitution. At best,

this present holding creates and perpetuates a high degree of

ambiguity in the law.

Similarly, it was the opinion of the United States Court of

Appeals, as evidenced by its decision, that City officials possess

the legal authority to compromise the City’s police powers and

that acts required to be performed by law are subject to the

exclusionary rules pertaining to settlement negotiations. While

we have been unable to ascertain any instances in which this

Court decided these issues with respect to land use considera-

tions, other jurisdictions have taken contrary positions. Under

=

Missouri law, such a holding is clearly untenable. We believe

this matter is of greatest importance, and that it can be resolved

expeditiously by tthis Court to remove any confusion existing

in this field and to correct the error of the court below.

CONCLUSION

The issues raised by this case merit the attention of the Court,

and the petition for a writ of certiorari should therefore be

granted.

Respectfully submitted

ELLSWORTH CUNDIFF

524 Jefferson Street

St. Charles, Missouri 63301

314-946-6166

Attorney for Petitioners

Certificate of Service

The undersigned hereby certifies that on the ..... day of

<a e ee aes , 1976, he mailed a copy of the above and fore-

going to all attorneys of record at their address appearing in

the pleadings.

Ellsworth Cundiff

524 Jefferson Street

St. Charles, Missouri 63301

314-946-6166

Attorney for Petitioners

APPENDIAN

—~ ~

APPENDIX

United States Court of Appeals

For the Eighth Circuit

No. 75-1466

Stephen T. Burns, et al., )

Appellants, | Appeal from the

v. United States District

Court for the Eastern

City of Des Peres, et al., District of Missouri.

Appellees. —

Submitted: February 8, 1976

Filed: April 14, 1976

Before Gibson, Chief Judge, Bright, Circuit Judge, and Van

Pelt, Senior District Judge.*

Gibson, Chief Judge.

Plaintiff, Stephen T. Burns,' appeals from the District

Court’s* granting of a motion for judgment notwithstanding the

* The Honorable Robert Van Pelt, United States Senior District

Judge for the District of Nebraska, sitting by designation.

1 Also joined as a party in this case is Stephen Burns’ wife, Edna,

For the sake of convenience we will refer to Burns in the singular.

2 The Honorable James H. Meredith, Chief Judge, United States

District Court for the Eastern District of Missouri.

— *

verdict in favor of three individual defendants—Steve Tapper,

Edward Smith and Scott Styles. The remaining 21 defendants

were either dismissed prior to trial or were exculpated by a jury

verdict in their favor.

The defendant City of Des Peres is 2 smal! community of ap-

proximately 5,000 persons which is within the suburban reaches

of St. Louis, Missouri. As an expanding community in the early

1950's, Des Peres annexed a rather large portion of land to the

north of the city. Burns’ property, comprised of 4.11 acres, is

contained in this annexed portion.

In order to promote a more orderly and structured develop-

ment of the property within its borders, Des Peres promulgated

zoning ordinances as permitted by Missouri law. Mo. Rev. Stat.

$ 89.020 (1969). There are four ordinances which are relevant

to Our inquiry in this case.

Ordinance No. 23 was enacted on January 9, 1949, and es-

tablished, inter alia, two residential zoning classifications:

“A” Single Family Dwelling—requiring lots of at least

53,560 square feet (one acre) with an average width of 150

feet;’ and

“B” Single Family Dwelling—requiring lots of at least

15,000 square feet with an average width of 100 feet or

more.

All of the newly annexed property in Des Peres was zoned “A”

classification pursuant to Ordinance No. 23.

Ordinance No. 206 was adopted on December 28, 1959, as an

amendment to Ordinance No. 23. In general, Ordinance No.

206 created additional residential and commercial zoning classi-

fications. The one-acre lot size for “A” residential zones was re-

tained but the minimum lot for “B” districts was increased from

* If no sewage disposal system was available the lots could not

be less than three acres with an average width of 300 feet.

—_~

15,000 to 17,500 square feet. Ordinance No. 206 also made

comprehensive provisions for nonconforming uses.

Ordinance No. 209 was promulgated on May 9, 1960, and

established an “AA” Single Family Dwelling classification. The

ordinance required “AA” districts to maintain lots averaging

37,000 square feet with no single lot being less than 30,000

square feet. The frontage of all subdivision lots in this district

was to average 150 feet per lot. The “AA” lot sizes were a

reasonable accommodation between the large “A” district lots

and the smaller “B” district lots.

Ordinance No. 244 was adopted on September 11, 1961, and

created the “Density Development Procedure”. This procedure

was intended to alleviate the problems arising from the develop-

ment of certain areas where substantial topographical altera-

tions would be required in order to develop the property in

strict conformance with existing zoning ordinances. The city

officials concluded that the removal of top soil, trees and other

natural objects would tend to destroy many of the aesthetic as-

pects of the community. This ordinance provided that, in lieu

of requiring such destruction, the developer could merely re-

duce his lot sizes to mitigate unnecessary destruction of natural

objects and preserve the rustic atmosphere of the area to the

extent possible. The ordinance, while not allowing an increase

in the number of lots in a particular zoning classification, per-

mitted a developer to reduce the lot size to the next lowest zon-

ing classification.

The Burns’ property, which is the subject of this litigation,

is comprised of three adjoining tracts of land located in the

“A” district zoning classification. Two of the tracts are ap-

proximately 75 feet by 670 feet; the third tract is 120 feet by

670 feet. On March 1, 1967, Burns initiated proceedings to

obtain administrative relief from the “A” district classification.

On that date, he submitted a plat to the Des Peres Planning

—_—

and Zoning Commission (Commission) for approval. The plat

proposed a 10-lot subdivision with a minimum lot size of 15,000

square feet. The Commission rejected the plat on the basis that

it failed to comply with Ordinance No. 206. The apparent

reason is that the lot sizes proposed on the plat were substan-

tially smaller than the 43,560 square feet lots required in “A”

districts.

Burns submitted a new plat to the Commission on April 18,

1967. This revised plat established an 8-lot subdivision with a

minimum lot size of 17,500 square feet. The Commission re-

fused to hold a public hearing on the question of whether the

plat should be approved and informed Burns that a petition for

change in zoning would have to be filed. Thereafter, Burns

petitioned the Commission to change his zoning classification

from “A” district to “B” district. This petition was approved by

the Commission on June 7, 1967, after a public hearing.

The Commission's favorable recommendation was forwarded

to the Des Peres Board of Aldermen which had previously re-

ceived a petition for rezoning Burns’ property to “B” district.

After a public hearing the Board of Aldermen unanimously de-

nied Burns’ rezoning request on August 14, 1967. Defendants

Tapper, Smith and Styles voted to deny the request. It is the

denial of this request by the Board of Aldermen which has

spawned the instant litigation.

After the Board of Aldermen rejected his rezoning request,

Burns persisted in his efforts to seek relief from “A” district re-

Strictions. He requested the Des Peres Board of Adjustment

to approve a resubdivision of .he property into eight lots. The

Board of Adjustment ruled that the matter was beyond its juris-

diction and refused to act on Burns’ request. Burns then pe-

titioned for a writ of certiorari against the Board of Adjustment

in the circuit court of St. Louis County, Missouri, to force the

Board to rule on his request. The court concluded that the

——

Board of Adjustment had no jurisdiction to entertain a request

for resubdivision and dismissed Burns’ petition.

On June 12, 1969, Burns filed another petition in the circuit

court of St. Louis County seeking a declaratory judgment that

Ordinance No. 206 is invalid as applied to the Burns’ property.

Burns named members of the Board of Aldermen and other city

officials, some of whom are defendants in the present suit, as

defendants in the state court action. That case is still pending

in the state courts.

In October, 1973, the present action was instituted by Burns

against the City of Des Peres and 23 individual defendants who

were elected or appointed officials of the city. This action is

basically premised upon 42 U.S.C. § 1983 (1970) and the Four-

teenth Amendment.* Burns contends that he was denied due

process and equal protection of the law because of defendants’

failure to rezone his property. He seeks a recovery of $1,135,-

000 in compensatory and punitive damages. The City of Des

Peres and five individual defendants were dismissed pursuant to

pretrial motions for summary judgment and the case proceeded

to trial with 18 individual defendants. The jury returned a ver-

dict against defendants Tapper, Smith and Styles for $6,000. The

District Court granted defendants’ motion for judgment notwith-

standing the verdict, finding no evidentiary basis for the verdict.

Burns’ first assignment of error on this appeal is that the District

Court improperly granted this motion.

At the outset, it is necessary to carefully circumscribe the

scope of our inquiry in regard to this allegedly erroneous ruling

on defendants’ motion. We are concerned only with the activities

of defendants Tapper, Smith and Styles during the course of

4 The complaint also stated claims for recovery pursuant to 42

U.S.C. §§ 1985(3), 3601-33 (1970), as amended, 42 U.S.C.

$§ 3604-06 (Supp. IV, 1974). The District Court dismissed these

claims prior to trial.

—

their membership on the Des Peres Board of Aldermen. Tapper

served as Alderman from April, 1967, to April, 1971; Smith

served from June, 1967, to April, 1970; Styles served from

April, 1964, to April, 1968. The activities of the other indi-

vidual defendants and any official action by the Board of Alder-

men subsequent to the tenure of these defendants are relevant

only to the extent that they may reflect on the purpose or moti-

vation for these three defendants’ actions during their alder-

manic tenure.

The scope of judicial review is also limited by the nature

of this case. When an individual contends that a municipal com-

mission has unconstitutionally applied a zoning ordinance to his

property, courts are not entitled to review the evidence and re-

verse the commission merely because a contrary result may be

permissible. Courts are not to assume the role of a “super zoning

board”. Steel Hill Development, Inc. v. Town of Sanbornton,

469 F.2d 956. 960 (Ist Cir. 1972); see Village of Belle Terre

v. Boraas, 416 U.S. 1, 13 (1974) (Marshall, J., dissenting). A

decision not to rezone a particular tract is vested in the dis-

cretion of the proper municipal soning authorities and their

legislative decisions are not to be subjected to court scrutiny

to determine whether their refusal was expedient or provident.

See Geneva Investment Co. v. City of St. Louis, 87 F.2d 83

(8th Cir.), cert. denied, 301 U.S. 692 (1937); Strandberg v.

Kansas City, 415 S.W.2d 737, 746 (Mo. 1967). Our function

in this type of case is to ascertain whether there has been a

transgression upon the property owner's constitutional rights.

McMahon v. Cit» of Dubuque, 255 F.2d 154, 160 (8th Cir.),

cert. denied, 358 U.S. 833 (1958). In order to support his

constitutional claims the plaintiff is required to prove that the de-

fendants’ actions were clearly arbitrary, unreasonable and dis-

criminatory and bore no substantial relation to the health, safety,

convenience and welfare of the community. McMahon v. City

of Dubuque. supra at 160; Dennis v. Village of Tonka Bay, 156

—

F.2d 672, 674-75 (8th Cir. 1946); see Village of Euclid v.

Ambler Realty Co., 272 U.S. 365, 395 (1926).

Burns has attempted to develop two theories to support his

claim that these defendants infringed upon his due process and

equal protection rights: (1) all property in the immediate vi-

cinity of the Burns’ property has been developed pursuant to “B”

district specifications, thus Burns was entitled to have his prop-

erty rezoned to “B” district; and (2) Burns’ property constituted

a nonconforming use and the provisions of Ordinance No. 206

permitted nonconforming uses to be changed to “B” district

uses.

To support his first theory Burns adduced evidence purport-

ing to show that much of the property proximate to his hac

either been zoned “B” district or had been developed pursuant

to “B” distri t specifications despite different zoning classifica-

tions. The defendants contend that to grant Burns’ request for

rezoning would have changed the zoning classification in the

area and would have encouraged an influx of rezoning requests

from other property owners who desired more intensive residen-

tial uses.

The resolution of this issue requires an understanding of the

various zoning classifications and uses in Burns’ neighborhood.

In assessing whether Burns has been discriminatorily treated, it

is necessary to compare similarly situated parties in the area

and determine if Burns has been treated disparately and, if so.

whether reasonable grounds exist for the disparate treatment.

See Lewis v. District of Columbia, 190 F.2d 25, 28 (D.C. Cir.

1951).

Immediately to the east and contiguous to the Burns’ prop-

erty is a development characterized as Gray Estates which has

been developed in two subdivisions pursuant to two separate

plats. The first plat was approved on August 13, 1962, and was

accorded an “AA” zoning classification. There is substantial

—"

evidence in the record to support defendants’ contention that

this property was developed in accordance with Ordinance No.

244, the density development procedure. On February 28, 1968,

six months after the Board of Aldermen denied Burns’ request

for rezoning from “A” to “B” district, the second plat for Gray

Estates was presented to the Des Peres Planning and Zoning

Commission accompanied with a request to rezone from “A”

to “B” district. This request was denied. A revised plat was

submitted which established “AA” district lot sizes and which

proposed that the property be developed pursuant to the den-

sity development procedure. This second plat was approved by

the Board of Aldermen on February 23, 1970. While a few of

the lots in the Gray Estates subdivision were slightly smaller

than the 30,000 square feet minimum required in “AA” 4is-

trict. the variation is justified due to the density development

procedure. In any event, all the lots were substantially larger

than the 17,500 square feet lots sought by Burns.

To the south of the Burns’ property are the Lynn Acre Ken-

nels. This tract had been used as a dog kennel since approxi-

mately 1945 and has been permitted to continue as such pur-

suant to the nonconforming use provisions of the Des Peres

ordinances.

Also to the south of the Burns’ property is the Royal Estates

subdivision which is zoned “A” district. Two of the four lots

in Royal Estates satisfy the one-acre lot size requirement for

“A” zones. Since the other two lots were slightly less than one

acre, the developer obtained a variance from the city to per-

mit development pursuant to “A” district specifications. It is

notable that, although Burns’ property and Royal Estates each

approximate four acres in size, Royal Estates has been devel-

oped in four lots while the Burns’ rezoning request contemplated

eight lots.

Further to the south of Burns’ property appear the cotermi-

nous subdivisions of Andre Drive and Briarbrook Trail. These

OA, es ee,

=—

subdivisions are located in the “A” district zoning classification

and the plats for these developments were approved over 20

years ago. It was ascertained at trial that a small percentage of

the lots in these subdivisions were slightly smaller than the re-

quired one acre. The testimony indicates that the plats were

not as thoroughly checked and surveyed during that period of

time. Furthermore, the fact that a few of the lots were negli-

gibly smaller than 43,560 square feet would not automatically

entitle Burns to have his property downzeued two zoning classi-

fications to permit 17,500 square feet lots.

Somewhat removed from the Burns’ property to the south

and east are four subdivisions which were rezoned to “B” dis-

trict prior to the adoption of Ordinance No. 206 in 1959. We

consider these subdivisions to be too remote to be classified in

the immediate vicinity of the Burns property. Directly to the

west of the Burns’ property is an undeveloped tract of land.

To the north are a number of small 6,000 square feet lots lo-

cated in the City of Crystal Lake.

Burns contends that the zoning classifications and uses in his

immediate community, described above, require his property to

be rezoned to “B” district and that the defendants violated his

constitutional rights by refusing to grant him the rezoning. We

disagree. INo subdivision in the immediate vicinity of the Burns’

property has been zoned as “B” district. The developers of these

tracts either developed the tracts in conformance with “A” dis-

trict requirements, received variances from “A” district restric-

tions or rezoned to “AA” district and developed pursuant to

the density development procedure. While a small percentage

of the lots were slightly smaller than the required size, valid

justifications have been advanced to explain the variance. None

of the lots in the immediate area even approximated the small

17,500 square feet lots sought by Burns. While the defendants

may have been obligated to consider zoning classifications in

adjoining municipalities, cf. Huttig v. City of Richmond Heights,

372 S.W.2d 833, 842 (Mo. 1963), we cannot say that defend-

— A-10 —

ants violated Burns’ constitutional rights by adhering to the Des

Peres zoning scheme and not reducing lot sizes to approach the

small lots of Crystal Lake.

Defendants’ refusal to rezone Burns’ property is further sup-

ported by the fact that several persons, including various prop-

erty owners in the area, voiced objections to the rezoning at a

public hearing. Property owners in the area who have relied

on the existing zoning classification have an interest in the per-

petuation of such scheme unless the public good dictates a

change. Allen v. Coffel, 488 S.W.2d 671, 678-79 (Mo. 1972).

The defendants were entitled to consider these objections in

ruling on Burns’ request for rezoning. The evidence in this case

shows that defendants’ decision not to rezone Burns property

was not arbitrary, unreasonable or discriminatory.”

Burns second theory is premised upon his conviction that

his property constitutes a nonconforming use since it fails to

comply with the frontage requirements for “A” districts. Ordi-

nance No. 206 requires “A” district lots to maintain a frontage

of 150 feet. Burns’ three parcels of land have frontages of ap-

proximately 70 feet, 75 feet and 120 feet respectively. Burns

argues that, at the time of his request, Ordinance No. 206 pro-

vided that nonconforming uses could be changed to any use

permitted in a “C-1” district and that “B” district uses were

permitted in “C-1” districts." Consequently, defendants were

obligated to grant Burns’ request for “B” district zoning.

* Although defendants rejected Burns’ request for rezoning, it is

notable that Burns possessed less extreme, unpursued alternatives.

He has never sought a variance to permit relief from the “A” dis-

trict frontage requirements. Rosedale-Skinker Improvement Ass'n

v. Board of Adjustment, 425 $.W.2d 929 (Mo. 1968). Burns has

never sought rezoning into the next lowest zoning classification,

“AA”, and has never requested permission to develop his property

pursuant to the density development procedure. Burns has tly

attempted to have his property downzoned two zoning classifications.

* On January 27, 1969, the Board of Aldermen passed Ordi-

nance No. 412 which was a comprehensive revision of the permissible

uses available in “C-1" districts. The general purpose of the ordi-

— A-l1 —

Initially, there is nothing in the record to indicate that Burns

mentioned or relied upon any nonconforming use provisions

when he presented his petition for rezoning to the Board of Al-

dermen. The Board was concerned only with whether Burns had

proved that he was entitled to have his property rezoned to “B”

district. The Board was not requested to consider, nor did it

have the occasion to discuss, whether the Burns’ property con-

stituted a nonconforming use and whether the existing ordi-

nances permitted “B” district specifications on the property.

In addition, there is some question in the record as to whether

there was any reliance on the nonconforming use provisions at

all by Burns. When Burns was seeking resubdivision of his prop-

erty before the Board of Adjustment subsequent to the defend-

ants’ refusal to rezone his property, his attorney told the Board

the following:

For the record, if | might add, Mr. Chairman, this is not a

nonconforming use, because the use is residential under

our request and the use is residential under the zoning or-

dinance. So we are not requesting a nonconforming use,

merely that a variance be granted so that the lot size can

be maintained.

While Burns later expressed his own view that the property was

nonconforming, it appears from the record that Burns’ noncon-

nance was to restrict the proliferation of gasoline stations, fast food

restaurants and other similar businesses in certain portions of the

city. The ordinance also removed “B” district uses from the list

of permissible uses in a “C-1i" district. Burns contends that this ex-

cision of “B” district uses was specifically directed against him and

was adopted to prevent him from applying the nonconforming use

provisions to his land. Defendants Tapper and Smith were members

of the Board of Aldermen when Ordinance No. 412 was adopted.

Contrary to Burns’ charges, we find nothing in the record to indicate

that Ordinance No. 412 was in any way intended to adversely affect

Burns individually. The ordinance was promulgated for valid mu-

nicipal purposes and was intended to remedy a particular problem

in community. This legislative enactment is not subject to at-

tack under the facts of the instant case.

— A-12 —

forming use theory was not developed until after the Board of

Aldermen denied the request for rezoning in 1967. At no time

after 1967 did defendants Tapper, Smith and Styles have the

Opportunity to review another Burns’ request for zoning relief

since Burns’ court actions were pending during the balance of

their tenure on the Board of Aldermen.

Burns has little cause to complain that his post hoc noncon-

forming use theory has been unavailing. If he had determined

that the theory was meritorious, he should have presented it to

the Board of Aldermen so that a full consideration could have

been given to the matter. A complete development of the facts

on this issue is important since there is some dispute between

the parties and considerable doubt regarding whether Burns’

property actually constitutes a nonconforming use within the

letter and spirit of the Des Peres zoning ordinance.‘

Our review of the record indicates that defendants consid-

ered Burns’ rezoning request fairly and with impartiality. We

cannot attribute any discriminatory animus or bad faith to

* The evidence adduced by defendants at trial indicates that

Lurns nonconforming use theory may be untenable. While we need

not determine whether Burns’ property actually constituted a non-

conforming use, we recognize that adopting Burns’ theory would

lead to some rather inexpedient results. Nonconforming uses are

generally classified into four categories: “1. nonconforming build-

ings, 2. conforming uses of nonconforming buildings, 3. nonconform-

ing uses of conforming buildings, and 4. nonconforming uses of

land.” D. Hagman, Urban Planning and Land Development Control

Law 147 (1971). Most ordinances provide for the continuation of

nonconforming uses which have effectively antedated the ordinances.

Some ordinances provide that the nonconforming use may be con-

verted to a less intensive use. Since nonconforming uses detract

from the overall zoning scheme, they are not favored in the law.

“Platted but undeveloped land is not normally regarded as a ‘use’

in zoning law for purposes of establishing a prior nonconforming

use.” Parks v. Board of County Commissioners, 11 Ore. App. 177,

—, 501 P.2d 85, 95 (1972). Provisions in an ordinance which per-

mit nonconforming uses are to be strictly construed. Frost v. Lucey,

231 A.2d 441 (Me. 1967). The record in the present case does not

indicate that Burns’ use of his land is contrary to the general residen-

tial use in the area. Apparently, no Missouri court has ever ruled

— A-13 —

them." The defendants’ decision was not arbitrary or unreason-

able and it promoted the general welfare of the community.

McMahon v. City of Dubuque, supra at 160. In light of all the

circumstances of this case, there was no abridgment of Burns’

constitutional rights. The District Court properly granted de-

fendants’ motion for judgment notwithstanding the verdict. See

Hanson v. Ford Motor Co., 278 F.2d 586 (8th Cir. 1960).

Burns contends that the District Court erred in refusing to

admit in evidence certain material relating to settlement nego-

tiations between the parties. it is alleged that the failure to ad-

mit this evidence deprived Burns of the opportunity to develop

his case against the defendants who were exonerated by the jury

verdict.

In his state court case, which is presently pending, Burns has

assailed Des Peres Ordinance No. 206 as being invalid as ap-

plied to his property. On January 17, 1973, Burns submitted

a revised plat to the Des Peres Board of Aldermen with the

hope that the plat would be acceptable as a settlement of the

state court suit. To encourage settlement of the suit, the circuit

that a residential lot with an inadequate frontage constitutes a non-

conforming use in a residential zone. However, according to Burns’

theory, any property in the middle of a residential district which

did not satisfy the frontage, sideyard or setback requirements could

not only be changed to a more intense residential use pursuant to the

Des Peres ordinances, but could be used for a restaurant, filling sta-

tion or any other use permitted in a “C-1” district. Upon full con-

sideration the Board of Aldermen might conclude that Burns’ inter-

pretation conflicts with the general principle that zoning ordinances

are intended to diminish or decrease nonconforming uses. Hoffman

v. Kinealy, 389 S.W.2d 745, 750 (Mo. 1965).

‘ The parties differ as to the standards of aldermanic immunity

to be invoked in this case. Burns argues that the liberal immunity

test of Wood v. Strickland, 420 U.S. 308, 322 (1975), should be

applied to defendants. Defendants urge that a stricter standard is

applicable. Cf. Snowden v. Hughes, 321 U.S. 1, 8 (1944). We need

not determine what standards ern in this case since it is clear

that defendants would not be liable even under the more relaxed

principles of Wood v. Strickland, supra.

ae fp am

court of St. Louis County issued the following order on March

30, 1973:

[The] Court upon its own motion and by agreement of the

parties orders the defendant City to review the entire mat-

ter with a view toward possible settlement of the cause,

hereby giving said defendant City 30 days within which to

consider settlement disposition of said cause * * *.

Burns’ revised plat was ultimately referred to the Planning and

Zoning Commission, which approved it. On May 29, 1973, the

Board of Aldermen rejected the revised plat and authorized the

City Attorney to defend the City in the state court proceedings.

In the present case the District Court ruled that all evidence

relating to settlement negotiations by the parties between Janu-

ary 17, 1973, and May 29, 1973. would not be admitted in

evidence. Burns argues that this ruling was erroneous because

the negotiations between the parties were settlement negotiations,

not compromise negotiations. Burns contends that although of-

fers to compromise are generally inadmissible, offers of settle-

ment are fully admissible. Burns’ attempt to draw a fine seman-

tical distinction between “compromise” and “settlement” serves

no purpose. In a practical sense the technical distinction be-

tween offers to compromise and offers of settlement is largely

illusory. However, although the record clearly supports the con-

clusion that the parties were actually engaged in compromise

negotiations, it is not necessary to draw the distinction between

compromise and settlement negotiations. We have recognized

that evidence relating to both types of negotiation is inadmis-

sible. Agrashell, Inc. v. Hammons Products Co., 479 F.2d 269,

288 (8th Cir.), cert. denied, 414 U.S. 1022, 1032 (1973);

Greyhound Lines, Inc. v. Miller, 402 F.2d 134, 139 (8th Cir.

1968 ).”

" The Federal Rules of Evidence, which were not in effect at the

time of Burns’ trial, would not mandate a different result. Fed. R.

Ev. 408 sets forth the general rule proscribing the admission of com-

== fpt§ —

We have reviewed Burns’ other assignments of error, includ-

ing those relating to the District Court's dismissal of certain

defendants, and find them to be without merit.

The judgment of the District Court is affirmed.

A true copy.

Attest:

Clerk, U.S. Court of Appeals, Eighth Circuit.

promises or offers to compromise except under limited circumstances.

The fact that offers of settlement are not explicitly mentioned does

not necessarily sanction their admissibility. e Senate report used

the word “settlement” rather than “compromise” when discussing

Rule 408. S.Rep. No. 93-1277, 93d Cong., 2d Sess. 10 (1974). It

is clear that evidence relating to settlement negotiations is treated

the same as compromise negotiations under Fed. R. Ev. 408. See

Iberian Tankers Co. v. Gates Construction Co., 388 F.Supp. 1190.

1192 (S.D.N.Y. 1975): Fed. R. Ev. 408, Notes of Advisory Com-

mittee.