Missouri Circuit Courth San Luis Demolition Decision

MISSOURI CIRCUIT COURT TWENTY-SECOND CIRCUIT (City of St. Louis) FRIENDS OF THE SAN LUIS, INC., Plaintiff, v. ARCHDIOCESE OF ST. LOUIS, etc., et al., Defendants.

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No. 0922-CC08307 Div. 18

MEMORANDUM, ORDER AND JUDGMENT Plaintiff wants to stop defendants from demolishing a building that belongs to the defendants.

Defendants have jumped through the

necessary bureaucratic hoops to secure a demolition permit from the City of St. Louis and are in the process of demolishing the building. Plaintiff seeks a preliminary injunction to halt demolition until plaintiff can secure review of the grant of the demolition permit before the City's Preservation Review Board, which has already given "preliminary" approval to the demolition permit.

Defendants (the

record owner and the Archdiocese, which is really in control of the premises), naturally, oppose the preliminary injunction and have moved to dismiss the plaintiff's action for lack of standing. Defendants' building, known as the San Luis Apartments, sits vacant and deteriorating on Lindell Boulevard in an area designated as a "historic district" by ordinance of the City. 64689.

St.L. Ordinance

Although not a registered historic landmark, the building is

"eligible" for registration, and plaintiff's board members fervently believe that it is worthy of preservation as a landmark.

Plaintiff

asserts that Ordinance No. 64689 confers upon it standing to appeal the demolition permit as an "aggrieved person," and that it will file such an appeal, but it has not yet done so.

Plaintiff presents

evidence of no direct injury to its own interests, pecuniary or otherwise, as a result of the demolition.

Plaintiff's office is not

within the historic district embracing defendants' building; it owns no property adjacent to defendants' building, or otherwise so situated as to be exposed to any injury from the demolition process; none of its board members have any different stake in this lawsuit. Nevertheless, plaintiff contends that, as a resident of the City of St. Louis, it has standing to seek enforcement of the City's preservation ordinance. Defendants' evidence shows that a contract for demolition has been let, that "soft demolition," i.e., stripping of the interior of the building, has begun, that the building is in a deteriorated and hazardous condition, and that delay of demolition will cost defendants at least $10,000 per month in additional expense to keep the building secure and will cost the demolition contractor as much as $5,000 per day if its heavy equipment is idled. Because the building lies within a "historic district," it is subject to a species of elaborate bureaucratic interference with ownership rights that characterizes much of urban land use regulation. St.L. Ordinance No. 64689, as amended; see generally, P. Howard, The Death of Common Sense; see also Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 138 (1978)(Rehnquist, J., dissenting).

In

this case, however, the regulators appear to have acted with common

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sense and with a consciousness of defendants' constitutional rights as an owner of property.

Plaintiff wishes to insert itself into the mix,

but its standing to do so is imperceptible. Notwithstanding Judge Wolff's recent exploration of "the land of no jurisdiction," see J.C.W. v. Wyciskalla, 275 S.W.3d 249 (Mo.banc 2009), the law of Missouri remains clear that Mo.Const. art. V, §14(a), conferring upon circuit courts jurisdiction of "cases and matters," does not authorize courts to entertain lawsuits unless the plaintiff has the necessary personal stake in the outcome of the case to create a justiciable controversy, the existence of which is necessary to confer upon the court the authority to proceed.

See

Harrison v. Monroe County, 716 S.W.2d 263, 266 (Mo.banc 1986); see also Phillips v. Mo. Dept. of Social Services, 723 S.W.2d 2 (Mo.banc 1987).

In other words, in order to establish standing, the plaintiff

(a) must have suffered an “injury in fact,” (b) must show a causal connection between the injury and the conduct complained of, and (c) must show that it is likely that the injury may be redressed.

Lujan

v. Defenders of Wildlife, 504 U.S. 555 (1992). It is patent that plaintiff lacks standing.

Plaintiff has not

shown any pecuniary or personal interest, other than its generalized interest in preservation of "historic" structures in the City of St. Louis, that is directly in issue or jeopardy and which can be the subject of some consequential relief.

Contrary to plaintiff's

assertions, nothing in Ordinance 64689 confers standing on anyone who wants to contest a demolition permit.

The ordinance employs the

classic administrative law phrase "person aggrieved," in describing

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those who may seek review of a demolition permit before the Preservation Board.

The ordinance itself recognizes that only a

person "aggrieved," i.e., who has standing, may prosecute an appeal. Even if the ordinance purported to confer standing on any citizen, it would not suffice to clothe this Court with jurisdiction.

City

ordinances cannot add to or subtract from this Court's constitutional jurisdiction.

Cf. State ex rel. City of St. Louis v. Mummert, 875

S.W.2d 108 (Mo.banc 1994). It is evident, therefore, that this action must be dismissed. Ordinarily, a determination of lack of standing would end the matter.

However, the Court considers it appropriate, in the event of

an appeal and possible application for relief pending appeal, alternatively to address the motion for preliminary injunction.

Cf.

Kelly v. Hanson, 959 S.W.2d 107 (Mo.banc 1997). When considering a motion for a preliminary injunction, a court should weigh “the movant’s probability of success on the merits, the threat of irreparable harm to the movant absent the injunction, the balance between this harm and the injury that the injunction’s issuance would inflict on other interested parties, and the public interest.” State ex rel. Director of Revenue, State of Missouri v. Gabbert, 925 S.W.2d 838, 839; Pottgen v. Missouri State High Sch. Activities Assoc., 40 F.3d 296, 928 (8th Cir.1994). In the Court's view, plaintiff lacks any probability of success on the merits, even if plaintiff had standing, as the administrative body having primary jurisdiction over the matter of the demolition permit has rejected plaintiff's position in its preliminary approval

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decision.

Furthermore, the balance of hardships and the public

interest militate against preliminary relief.

Defendants have a

constitutional right to put their property to a reasonable use. Intervention by this Court could cost defendants hundreds of thousands of dollars, in addition to exposing them and the public to the potential hazards of maintaining a deteriorating building for an indefinite period of time.

In the Court's view, the public interest

is embodied in Mo.Const. art. I, §§ 2, 10 and 26:

defendants have the

right to enjoy the gains of their own industry, the right to the use of their property, and the right not to be deprived of that property by the government without compensation.

Certainly where the

regulatory authorities themselves agree with defendants that demolition is in order, plaintiff cannot persuade this Court to stand in the way. ORDER AND JUDGMENT For the foregoing reasons, it is ORDERED that plaintiff's motion for preliminary injunction be and the same is hereby denied; and it is FURTHER ORDERED, ADJUDGED AND DECREED that defendants' motion to dismiss be and the same is hereby granted, and plaintiff's action is dismissed with prejudice for lack of standing; costs taxed against plaintiff. SO ORDERED: _______________________________ Robert H. Dierker Circuit Judge Dated: _____________________, 20__ cc: Counsel 5