MISSOURI CIRCUIT COURT

TWENTY-SECOND CIRCUIT
(City of St. Louis)

FRIENDS OF THE SAN LUIS, INC., )

)
Plaintiff, )
) No. 0922-CC08307
v. ) Div. 18
)
ARCHDIOCESE OF ST. LOUIS, )
etc., et al., )
)
Defendants. )

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. St.L. Ordinance

64689. 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