dissenting.
I respectfully dissent.
Our jurisdiction to transfer cases from the court of appeals is set forth in Mo. Const, art. V, § 10.
Cases pending in the court of appeals shall be transferred to the supreme court ... because of the general interest or importance of a question involved in the case, or for the purpose of reexamining the law, or pursuant to supreme court rule.
Rule 83.03 provides:
In any case in which a motion for rehearing has been overruled and an application for transfer under Rule 83.02 has been denied, the case may be transferred by order of this court on application of a party for any of the reasons specified in Rule 83.02, or for the reason that the opinion filed is contrary to a previous decision of an appellate court of this state.
The reasons for transfer specified in Rule 83.02 are: “because of the general interest or importance of a question involved in the case, or for the purpose of reexamining the existing law.” We should not transfer a case to substitute our view of the facts.
I adopt the opinion of the Western District Court of Appeals as my dissenting opinion. The opinion authored by David J. Dixon, Judge in cause No. WD38633 and concurred in by Pritchard, J., Presiding and Shangler, J., follows verbatim.
“This action for extraordinary relief arises from a suit for condemnation filed by the Planned Industrial Expansion Authority (PIEA) of Kansas City, Missouri. The PIEA, claiming power to condemn under ‘The Planned Industrial Expansion Law,’ §§ 100.300-.620, RSMo Supp.1984,1 filed a petition for condemnation to acquire relators’ property at 1500 Baltimore, Kansas City, Missouri. Relators sought a writ of mandamus, or in the alternative, a writ of prohibition to halt the condemnation proceedings. This court issued a preliminary writ of prohibition on August 26, 1986.
“Aside from the inherent issue of the availability of the writ, the issues to be determined in this case are limited by the preliminary writ. Those issues are first, whether the PIEA development plan adopted by the City Council on September 28, 1982, sufficiently complies with §§ 100.-300-.620, RSMo., to permit the condemnation and, second, whether the developer’s plan approved by the PIEA on December 8, 1982, so substantially changed the PIEA plan as to constitute a violation of the statutory scheme, particularly of § 100.400.1(10), which requires legislative approval for a change in the plan.
“Public activity concerning the area encompassing relators’ property began several years ago. On June 15, 1978, the Kansas City City Council passed a resolution approving a development plan for the Downtown Industrial Area which includes *157relators’ property. Also in 1978, the Kansas City Corporation for Industrial Development caused a survey to be made of the condition of this area from 15th to 17th Streets, Baltimore to Broadway. This survey found no substandard properties on Baltimore or Broadway.
“Thereafter, Jerome Ogburn, President of PGAV/Community Resource Corporation, conducted a blight survey for the area from Central to Wyandotte, 15th to 17th Streets, known as the 16th and Central project area. He concluded that the 16th and Central project area was a blighted area, and this conclusion was corroborated in general terms at hearings before the City Plan Commission and the Zoning and Planning Committee of the City Council by Whitney Kerr, a partner in Kerr-Andersen (K-A) Company, and Richard Schoegler, the Executive Director of the PIEA. At the request of the PIEA, the City passed an ordinance on August 18, 1981, declaring the 16th and Central project area to be one of the City’s blighted, insanitary or undeveloped industrial areas.
“Later, at the request of the PIEA, Og-burn and his firm expanded the blight survey to include the west side of the Baltimore from 15th Street to 17th Street, so that the 1500 Baltimore property was included in the blighted area. He then found the entire area to be blighted, although no substandard buildings were found in the expansion area itself. At the request of the PIEA, the City Council, after recommendation by the City Plan Commission, passed an ordinance declaring an area that included the west side of Baltimore from 15th Street to the south line of 16th Street, as well as the area covered by the initial ordinance, to constitute a blighted, insanitary or undeveloped industrial area.
“The PIEA then prepared a general development plan calling for solely commercial development of the area designated as blighted. The City Council approved PIEA’s development plan in Ordinance No. 54369 on September 28,1982. After advertising for redevelopment proposals, the PIEA approved a redevelopment proposal of K-A Company in December 1982.2 This plan was neither submitted to nor approved by the City Council.
“On November 21, 1985, the PIEA adopted a resolution authorizing the commencement of condemnation proceedings against the 1500 Baltimore property. On November 27, 1985, the PIEA filed its petition for condemnation of the area. On that same day, relators filed an action for declaratory judgment contesting the right of the PIEA to take their property. The PIEA and other named defendants moved to have the petition dismissed. The motion was first overruled but after the PIEA moved for disqualification of the overruling judge, the case was transferred to Judge Coburn. Judge Cobum, upon a motion to reconsider, dismissed the petition for declaratory judgment with prejudice and proceeded with trial of the condemnation suit.3 Five months after the trial of the condemnation suit, in July 1986, Judge Coburn sustained the petition for condemnation and appointed the commissioners to view the property. On August 20,1986, relators filed their petition for extraordinary relief, and a preliminary writ of prohibition was granted on August 26, 1986.
“The first issue to be determined necessarily is whether prohibition should be made available in cases such as this. Although “[t]he case law in this state concerning the use of prohibition is not totally consistent nor reconcilable,” State ex rel. Devanssay v. McGuire, 622 S.W.2d 323, 325 (Mo.App.1981), writs of prohibition have issued in condemnation cases.
“Prohibition was used in State ex rel. Gove v. Tate, 442 S.W.2d 541, 542 (Mo. *158banc 1969), to prevent condemnation when the court found that in addition to a nonpublic purpose for the taking there was no ordinance authorizing the city to proceed with condemnation. In State ex rel. Clothier v. Yeaman, 466 S.W.2d 632, 634 (Mo.banc 1971), a writ of prohibition was issued when the court found it was “clearly evident” that an attempt was being made to condemn private property for a nonpublic use. Prohibition was also found to be an appropriate remedy in State ex rel. Weatherby Advertising Co. v. Conley, 527 S.W.2d 334, 341-342 (Mo.banc 1975), in which the respondent judge was found to lack jurisdiction to proceed with condemnation because the condemning authority had failed to comply with the statutory conditions precedent before filing its petition for condemnation. Finally, in Devanssay, 622 S.W.2d at 324, a preliminary writ of prohibition was issued to allow review of the landowners’ allegation that the ordinance approving a Chapter 353, RSMo 1978, urban redevelopment plan and granting the redevelopment corporation the power of eminent domain was arbitrary and void because the plan did not contain the “ ‘detailed statement of the proposed method of financing the redevelopment’ ” required by the redevelopment enabling ordinance.
“Devanssay provides an excellent discussion of the use of prohibition in condemnation proceedings and its reasoning is dis-positive here.
“As is pointed out in Devanssay, the court, in a condemnation proceeding, must first determine whether the condemnation is authorized by law. Id. at 325. A finding that the petitioner has the right to condemn is interlocutory only and is not appealable by the landowner at that point. Id.; State ex rel. Clothier, 465 S.W.2d at 634. Second, the landowner’s damages resulting from the taking must be established. Commissioners are appointed to assess the landowner’s damages and upon payment of the commissioners’ award into the court, the condemning authority acquires the property and may utilize it as prayed in the petition for condemnation. Devanssay, 622 S.W.2d at 325. Either party may contest the amount of the commissioners’ award and request a jury trial to determine damages. See Id. Only after such trial has concluded is the case appealable. Id.
“In many instances by the time an appellate court can determine that the taking was invalid, the condemning authority will have so changed the property that redress of the landowner is impossible. The De-vanssay court concluded that in light of the nature of condemnation proceedings, “prohibition is a proper method to prevent such alleged injustice.” Id. at 326.
“Prohibition is the proper relief for rela-tors to seek in this instance. If the proceedings do not comply with the statute, then the trial judge is without jurisdiction to order the condemnation to proceed. An appeal after the taking of the property and any demolition by the PIEA and the development company would be a totally futile and ineffective remedy.
“The first issue within the scope of these writ proceedings is whether the ordinance approving the plan for the development was valid. The statute predicates the acquisition of real property upon the City Council’s approval of the plan of the PIEA pursuant to § 100.400, RSMo. Under the specific direction of § 100.400.1(4):
A plan shall be sufficiently complete to indicate its relationship to definite local objectives as to appropriate land uses, improved traffic, foster employment, public transportation, public utilities, recreational and community facilities and other public improvements and the proposed land uses and building requirements in the project area, and shall include without being limited to:
(a) The boundaries of the project area, with a map showing the existing uses and condition of the real property therein;
(b) A land use plan showing proposed uses of the area;
(c) Information showing the standards of population densities, unemployment within area of adjacent areas, land coverage and building intensities in the area after completion of the plan;
*159(d) A statement of the proposed changes, if any, in zoning ordinances or maps, street layouts, street levels or grades, building codes and ordinances;
(e) A statement as to the kind and number of additional public facilities or utilities which will be required in the area after completion of the plan;
(f) A schedule indicating the estimated length of time needed for completion of each phase of the plan.
“The plan submitted by the PIEA mentions all the matters set forth in the foregoing subsections. The question to be determined is whether the plan’s language sets forth enough factual material to permit a determination that the plan complies with the statute.
“In determining this question, the first and primary inquiry must be the intent and purpose of the legislature in drafting the statute to require that certain elements be included in the plan.
“Because the whole issue in this case turns on the question of the propriety of the condemnation action, it is appropriate to consider the grant of condemnation authority in the light of the statute. The power of the state to condemn, and particularly the delegation of that power to corporations public and private, is viewed jealously, and its exercise carefully limited. See Maryland Plaza Redevelopment Corp. v. Greenberg, 594 S.W.2d 284, 292 (Mo.App.1979); State ex rel. Terrell v. Nicholls, 719 S.W.2d 862, 866 (Mo.App.1986). In determining whether or not the power of condemnation exists under a given statute delegating the same to a public or private entity, the courts will examine the requirements of the statute with some care to determine that the condemnation power is appropriately delegated and exercised. See Maryland Plaza Redevelopment Corp., 594 S.W.2d at 292; State ex rel. Terrell, 719 S.W.2d at 866. It is in the light of that overriding principle in eminent domain law that the particular statutory sections must be considered.
“The passage of an ordinance by the City Council is a legislative act. Annbar Associates v. West Side Redevelopment Corp., 397 S.W.2d 635, 655 (Mo.banc 1965), appeal dismissed, 385 U.S. 5, 87 S.Ct. 41, 17 L.Ed.2d 4 (1966); Parking Systems, Inc. v. Kansas City Downtown Redevelopment Corp., 518 S.W.2d 11, 15, 19 (Mo.1974). Such an act will ordinarily be deferred to by the courts but when the City Council has acted arbitrarily or as a result of fraud, collusion or bad faith, the City Council’s decision need not be accepted by the court. State on Inf. of Dalton v. Land Clearance for Redevelopment Authority, 364 Mo. 974, 989, 270 S.W.2d 44, 52 (banc 1954); Annbar Associates, 397 S.W.2d at 655; State ex rel. Atkinson v. Planned Industrial Expansion Authority, 517 S.W.2d 36, 45 (Mo. banc 1975).
“No allegations of fraud or bad faith have been set forth here. The validity of the city ordinance in question turns on whether or not the ordinance was arbitrarily passed. If the City Council passed the ordinance approving the PIEA’s redevelopment plan without any factual material in the plan or evidence before the Council to support a legislative determination of compliance with § 100.400, RSMo, then the ordinance is indeed arbitrary and void.
“Turning now to the question of the ordinance and plan in the instant case, it should be noted that the ordinance itself does not contain any specific findings with respect to the matters contained in § 100.400.1(4), (a) through (f), set forth above. All of the verbiage concerning these matters is contained in the plan itself and the ordinance simply adopts the plan. It is apparent from the statute that its general purpose and intent is to require a legislative oversight of the plan developed by the agency. The plan must be approved by the City Council and every substantial change must likewise receive approval. The statute clearly requires the legislative body to find that the plan complies with the statute before the legislative body may approve the plan. The whole purpose of the statute would be thwarted if there was not a legislative determination of the validity and sufficiency of the plan prior to the development of the project. The legislature has seen fit to require legislative approval prior *160to acquisition of land or any other such implementation of a redevelopment plan.
“Looking at the subsections of § 100.400.1(4), (c) through (e), subsection (c) requires:
Information showing the standards of population densities, unemployment within an area and adjacent areas, land coverage and building intensities in the area after completion of the plan[.]
The plan “anticipates” that approximately 500,000 square feet of office space will be built in the project area. The only other language even remotely suggestive of the “information” required by subsection (c) is the following.
Any specific development proposal approved ... will contain among other things adequate provision for traffic, vehicular parking, safety from fire, adequate provision for light and air, sound desire and arrangement and improved employment opportunities. The plan is not expected to have any significant negative impact on adjacent traffic patterns or public transportation.
There is simply no factual material of any sort concerning standards of population densities, unemployment within the area and adjacent areas or land coverage after completion of the plan. The only exhibit that purports to demonstrate the area after the implementation of the plan, which was an attachment to the plan itself, is a sketch of the area showing the ground elevations and two proposed streets. There is not a shred of factual material nor evidence before the Council concerning the specific factual matters required by subsection (c).
“Subsection (d) reads as follows:
A statement of the proposed changes, if any, in zoning ordinances or maps, street layouts, street levels or grades, building codes and ordinances^]
Again the plan itself contains absolutely no factual material concerning any proposed changes in zoning ordinances or maps, street layouts, street levels or grades, building codes or ordinances. Regarding streets and zoning, the following language is all that appears:
It is contemplated that major portions of Central and Wyandotte Streets and associated alleys will be vacated. Proposed new traffic corridors are shown on at-, tached Exhibit 4 [proposed land use map]. Depending upon the nature of future development, it may be necessary.' to construct other streets or alter the' location of the proposed traffic corridors.
Given the proposed land uses of this' plan, it is anticipated that the area will be rezoned to an appropriate planned commercial business district. Since it is not possible to anticipate the full extent of future development plans at this time, additional zoning changes may be necessary.
Again, this generalized language fails to provide any factual basis for a legislative determination.
“Under subsection (e), the statute requires:
A statement as to the kind and number of additional public facilities or utilities which will be required in the area after completion of the plan[.]
The plan recognizes that there may be relocation or abandonment of existing water lines as well as construction of new utilities. With respect to these matters, the plan specifically recites as follows: “The type and location of abandonment and/or relocation and/or construction of [water and sewer] lines, at this time, is impossible to determine.” Thus, the plan itself simply denies that a statement as to the kind and number of additional public facilities or utilities which will be required can be made. Obviously a part of the legislative determination made when such a plan is approved is a determination of the consequence of such approval on the overall utility system and scheme of the city and, in particularly on the area in question. The only purpose for the statute to require such factual matters in the plan is to permit the members of the legislative body to make an intelligent, informed and appropriate legislative decision with respect to approval of the plan. Absent such a factual basis, the legislative determination can only be arbitrary and capricious and without any factual foundation. The plan simply does not provide any factual basis for a *161determination by the City Council of the validity of the plan.
“The second issue, the question of modification of the plan without Council approval, is likewise based upon the failure of the plan as presented by the PIEA to provide any specific frame of reference from which to measure any change in the plan from that proposed and approved by the City Council. Section 100.400.1(10) provides, “[w]here the proposed modification will substantially change the plan as previously approved by the governing body.” That language is likewise recited in the ordinance itself. Both the approved plan and the redevelopment proposal of the K-A company are in evidence in this case. The K-A development proposal was approved by the PIEA on December 8, 1982, but has been neither presented to nor approved by the City Council. Comparison of the salient features of the K-A development proposal and the PIEA plan approved by the September 28, 1982, ordinance reveals that the development proposal differs markedly from the PIEA plan. The PIEA plan only makes sketchy provision for access by new streets; the K-A plan substantially modifies existing streets and utilities and the proposals are quite different from those shown in the PIEA plan. The K-A proposal requires the development of a detailed utilities plan for new and upgraded utilities. There are detailed plans for structures for offices, retail shops, a hotel, and a major office building. None of this information is contained in the PIEA plan.
“The foregoing is not intended as a criticism of the plan submitted by the K-A Development Company. It is submitted simply to show that the K-A development proposal makes very substantial changes from the general and nonspecific language of the PIEA plan which factually would provide an entirely different basis for a legislative determination. The exhibits attached to the K-A plan show very substantial departures from the existing situation as well as from the PIEA plan. Very substantial variations in the streets, sewers, and utilities are shown by the K-A plan. This is demonstrated by reason of the site plans and building location plans attached to the K-A plan which when compared with the original PIEA plan show that sewers and utilities would either be partially located under multi-story buildings or would require very substantial rerouting. There is simply no factual information as to the impact of these and other significant changes in the plan upon either the area itself, the City, or the adjacent areas. All of the foregoing leads inevitably to the conclusion that the K-A plan constitutes a substantial modification and departure from the PIEA plan. As such, it has not received the approval of the governing body, the City Council of Kansas City, Missouri, and the use of condemnation to implement the K-A plan will simply violate openly the requirement of the statute and the ordinance that such modifications in the plan receive legislative approval by the City Council of Kansas City, Missouri. For the foregoing reasons, the preliminary writ issued in this cause should be made absolute.
So ordered.”
Cause No. 69528 should be retransferred to the Court of Appeals, Western District as improvidently transferred for entry of and publication of the Court of Appeals opinion or this Court should make the preliminary writ in prohibition absolute thus making Cause No. 69317 for declaratory judgment and damages for tortious interference with property moot.
. The pertinent PIE statues in effect at the time this case arose are set out in RSMo Supp.1984. All statutory cites refer to RSMo Supp.1984 unless otherwise designated.
. Relators include a 1985 development proposal with their exhibits. The 1985 proposal differs from both the PIEA plan and the December 1982 redevelopment proposal. Since the record does not indicate that the 1985 proposal was ever approved by the City Council or the PIEA, it is not necessary to consider here the substantial changes in the 1985 proposal makes in the PIEA plan.
. The dismissal of the petition for declaratory judgment was affirmed in Tierney v. Planned Industrial Expansion Authority, WD38208 (Mo.App. Feb. 10, 1987).