Ours v. City of Rolla , 965 S.W.2d 343 ( 1998 )

PREWITT, Judge.

Plaintiffs sought to enjoin Defendant City of Rolla, its mayor, and city council members from selling property in the city known as Buehler Park. After non-jury trial, judgment was entered determining that Plaintiffs lacked standing to challenge the proposed sale of the park property. The judgment also appeared to decide the matter on the merits, and in it Plaintiffs were denied the relief sought. Plaintiffs appeal.

Review is under Rule 73.01. Under that rule, we affirm the trial court “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” In re Marriage of Lafferty, 788 S.W.2d 359, 361 (Mo.App.1990).

The City acquired the property under a “warranty deed,” dated February 28, 1958, from the Rolla Chamber of Commerce, Incorporated. The deed recites that the land is “conveyed to the City of Rolla, Missouri for Park purposes only and none other, and to be known as Buehler Park.” Since the conveyance, the land was improved and maintained by the City as a park. On March 3, 1997, the City and Cracker Barrel Old Coun-

try Store, Inc. entered into a contract for the sale of the property.

By “corporation quit claim deed,” dated April 14, 1997, “the Rolla Area Chamber of Commerce, formerly Chamber of Commerce at Rolla, Missouri, a/k/a Rolla Chamber of Commerce, Incorporated, a pro forma corporation” did “remise, release and forever quit claim” to the city of Rolla the park property. The deed says that its purpose “is to release the restriction that the above described real property be used for park purposes only and be known as Buehler Park,” as set forth in the warranty deed referred to above. The quit claim deed further recited that the Chamber “releases any right of entry and any reversionary right it may have in and to the above described real property and releases any right it may have to enforce as a covenant the provision in said deed that said land be used for a park.”

On appeal, Plaintiffs contend the trial court erred in determining that they lacked standing to challenge the proposed sale, contending that: “A. As inhabitants and property holders of the city, plaintiffs have standing”; “B. As users of the park, plaintiffs have standing”; “C. As taxpayers, plaintiffs have standing, without proof of special damage, to enjoin the illegal expenditure of public funds.” These contentions are discussed in the order set forth.

A. As inhabitants and 'property owners of the City of Rolla, Plaintiffs claim they have standing.

Plaintiffs reside in Rolla and, with one exception, own property there. Standing to sue to challenge the abuse of the public trust requires more than merely being an inhabitant and property holder of the city. “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.” Hinton v. City of St. Joseph, 889 S.W.2d 854, 859 (Mo.App.1994).

In Hinton, nearby property owners sought to prevent the sale of property conveyed to St. Joseph for recreational purposes, never developed by the City. The property in Hinton was dedicated “not for the purpose of benefiting residents of plaintiffs’ neighborhood. Rather, the dedication was specifically for the general citizenry of [the city]. As citizens, plaintiffs have no greater enforcement right than any other citizen.” Id. Similarly, Buehler Park was not dedicated for the purpose of benefiting the Plaintiffs’ neighborhoods, but the general citizenry of the City of Rolla.¹

In Hinton, the court further noted that 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 ...” Id. at 859. The Rolla Chamber of Commerce deeded the property, but did not challenge the action of the City.

In Cummings v. City of St. Louis, 2 S.W. 130, 90 Mo. 259 (1886), the court granted standing to plaintiffs who were owners of property contiguous to the public property in question. Being owners of such contiguous property, however, was not the sole basis for standing. The plaintiffs in that case had to first prove that they would suffer an injury to his or her individual rights. Cummings, 2 S.W. at 132. Plaintiffs in the instant case have testified that they will no longer be able to enjoy the scenery, shade, and playground at Buehler Park if the planned sale and development is allowed to occur. These injuries are no different than the injuries which would be suffered by the public as a whole, and hence do not show that the Plaintiffs will suffer an injury to his or her individual rights.

Plaintiffs have shown no special injury related to the challenged action, hence they do not have standing to sue based upon the fact that they are inhabitants and property owners of the City of Rolla.

B. As users of Buehler Park, Plaintiffs claim they have standing.

Plaintiffs assert: “In the case of a dedication, the users have standing.” Plaintiffs are correct in their statement that Hinton does “nothing to undermine the standing of users” of public land because the plaintiffs in that case did not claim to be users of the public land. It must first be established, however, that “users” of a park do have standing. Citizens who have “an interest in the maintenance of a public use” have been granted standing. See Tracy v. Bittle, 112 S.W. 45, 49, 213 Mo. 302 (1908). In Tracy, the plaintiffs had a number of immediate relatives buried in the graveyard subject to the lawsuit. The court held that those plaintiffs did have a peculiar right in the maintenance of the land as a cemetery, and found them to have standing. There is no similar interest by the plaintiffs in this case.²

Plaintiffs have not established standing based upon use of Buehler Park because they failed to show a sufficient interest in the maintenance of the land as a park.

C. Standing based upon Plaintiffs’■ status as taxpayers.

Taxpayer standing requires that the plaintiff demonstrate a direct expenditure of funds generated through taxation, an increased levy of taxes, or a pecuniary loss caused by the challenged transaction. Hinton, 889 S.W.2d at 857. Merely being a taxpayer is not enough to confer standing to bring an action against a municipality. Pace Construction v. Mo. Hwy. & Transp. Comm’n, 759 S.W.2d 272, 275 (Mo.App.1988).

Evidence in this case indicated that the only expenditures by the City related to the sale of Buehler Park were salaries for staff time of City employees, correspondence and telephone calls, and the payment of a real estate commission.

Such salaries are not the type of expenditure of public funds which would give standing, as they are general operating expenses which would be incurred whether or not the challenged transaction took place. See Mid-America Georgian Gardens, Inc. v. Missouri Health Facilities Review Committee, 908 S.W.2d 715, 718 (Mo.App.1995).

Cases which have held that staff expenses were an unlawful expenditure of public funds were cases in which the underlying law was being challenged and ultimately found to be unconstitutional or otherwise void. See O’Reilly v. City of Hazelwood, 850 S.W.2d 96, 98 (Mo. banc 1993), and Missouri Coalition for the Environment v. Joint Committee on Administrative Rules, 948 S.W.2d 125 (Mo. banc 1997).

No evidence was presented in this case showing that the real estate broker’s commission was to be paid if the sale did not occur. Real estate sales commission are normally paid out of the sale proceeds and we assume that to be true in this instance. The payment of the commission was therefore in no way a pecuniary loss attributable to the sale of Buehler Park, nor was it a direct expenditure of funds generated through taxation.

Allegations and proof of the illegal expenditure of public funds or the prospect of such illegal expenditures is an essential element to grant taxpayer standing. See Worlledge v. City of Greenwood, 627 S.W.2d 328, 331 (Mo.App.1982). Here, Plaintiffs have not shown an illegal expenditure of public funds, nor that such is about to occur.

As Plaintiffs do not have standing to bring this action, the trial court’s judgment is affirmed.

CROW, J., concurs. GARRISON, P.J., files dissenting opinion.

1 . The plaintiffs in Hinton contended special injury in that they were near neighbors to the property and could see the land from their property. The court noted that plaintiffs' concerns were the type normally addressed in zoning decisions, and that there was "no financial interest claimed other than the assertion that development of the land may affect their property values” and that plaintiffs property values would not suffer substantially more than other home owners in the vicinity. Hinton, 889 S.W.2d at 859-860.

2 . Plaintiffs cite two other cases to support their position of standing based upon use of the park: Coffey v. State ex rel. County of Stone, 893 S.W.2d 843 (Mo.App.1995), and Whittom v. Alexander-Richardson Partnership, 851 S.W.2d 504 (Mo. banc 1993). Plaintiffs did not explain why these cases are favorable to their position, merely stating that "the use of the park by plaintiffs [is] sufficient to confer standing.” This Court has determined that neither case supports Plaintiffs’ position, as both cases were decided on issues of common law dedication of roadways. Neither cases directly discusses the issue of standing. Awarding the public use of land acquired through common law dedication and predicating standing upon the right to use are not equivalent.