Royal Meat Products Co. v. Kansas City, Mo.
| Citation | 214 S.W.2d 713,240 Mo.App. 688 |
| Parties | Royal Meat Products Company, et al., Respondents, v. Kansas City, Missouri, et al., Appellants |
| Decision Date | 08 November 1948 |
| Court | Court of Appeals of Kansas |
Delivered
Appeal from Circuit Court of Jackson County; Hon. John F. Cook Judge.
Reversed and remanded with directions.
David M. Proctor and Benj. M. Powers for appellants.
(1) The court erred in holding that plaintiffs had an unrestricted nonconforming use under the zoning ordinance. Revised Ordinances of Kansas City, Missouri, Section 55-3.13; Ordinance No. 45608, Section 6(b); Klein v. Hughes, 351 Mo. 651, 173 S.W. 2d 877; Kennedy v. Evanston, 348 Ill. 426, 181 N.E. 312; Wippler v. Hohn, 341 Mo 780, 110 S.W. 2d 409; Mueller v. C. Hoffmeister Undertaking & Livery Co., 336 Mo. 932, 121 S.W. 2d 775; In re Botz, 159 S.W. 2d 367; Crump v Guyer, 137 P. 321. (2) The ruling of the Board of Zoning Adjustment cannot be disturbed in the absence of arbitrary conduct. In re Botz, 159 S.W. 2d 367. (3) The court erred in holding that plaintiffs have the right to use the property for any other use or uses described in Class U-4 uses in the zoning ordinance, as amended, as a nonconforming use. Revised Ordinances of Kansas City, Missouri, Section 55-3.13 and Section 55-3.7; Ordinance No. 45608. (4) Kansas City Court of Appeals has jurisdiction of this appeal, since the record does not show that the amount in dispute exceeds the amount of $ 7,500.00. Ewing v. Kansas City, 350 Mo. 1071, 169 S.W. 2d 897; Wagner v. Mederacke, 354 Mo. 977, 192 S.W. 2d 865; State ex rel. Lamm v. Mid-State Serum Co., 264 S.W. 878. (5) The court erred in holding that plaintiffs have the right to use the property for any other use or uses described in U-4 uses in the zoning ordinances, as amended, as a conforming use. Ordinance No. 45608, as amended (Section 55-3.13 and Section 55-3.07). (6) Respondents have argued themselves out of court in urging that Section 6 (b) of Ordinance No. 45608 was unconstitutional and invalid. State ex rel. Haley v. Missouri Pacific Railroad Co., 323 Mo. 653, 19 S.W. 2d 879; State ex rel. Shartel v. Brunk, 326 Mo. 1181, 34 S.W. 2d 94; State ex inf. McKittrick v. Cameron, 342 Mo. 830, 117 S.W. 2d 1078; Ordinance No. 45608, Section 6 (b).
William G. Boatright, Jules E. Kohn and Ralph J. Tucker for respondents.
(1) The Kansas City Court of Appeals has no jurisdiction of this appeal since the amount in dispute is in excess of $ 7,500.00. Sec. 2078, R. S. Mo., 1939; Article V, Section 3 of the Constitution of Missouri, 1945; August Gast Bank Note & Lithographing Co. v. Fennimore Ass'n, 147 Mo. 557, 49 S.W. 511; Rombauer et al. v. Compton Heights, 328 Mo. 1, 40 S.W. 2d 545; Sec. 2079, R. S. Mo., 1939; Article V, Section 11 of Constitution of Missouri. (2) Respondent Royal Meat Products Company's plant is a lawful nonconforming use under the Kansas City Zoning Ordinance, as amended July 14, 1941. Zoning Ordinance of Kansas City, Missouri, No. 45608, as amended 1941, Section 55-3.13; Zoning Ordinance of Kansas City, Missouri, No. 45608, 1923, Section 6(b); Zoning Ordinance of Kansas City, Missouri, No. 45608, as amended, 1941, Section 1 (pamphlet); State ex rel. Klein v. Hughes, 351 Mo. 651, 173 S.W. 2d 877; Voorhees v. Faust, 220 Mich. 155, 189 N.W. 1006. (3) The repealed portion of the 1923 Zoning Ordinance, even if still effective for the purpose claimed by the Board of Zoning Adjustment, is an invalid and unconstitutional provision. Lux v. Milwaukee Mechanics' Ins. Co., 322 Mo. 342, 15 S.W. 2d 343; State ex rel. Triangle Fuel Co. v. Caulfield, (Mo.) 196 S.W. 2d 296. (4) The ruling of the Board of Zoning Adjustment can be reversed if the determination or ruling was illegal or based upon application of an incorrect principle of law to the facts. In re Botz, 236 Mo.App. 566, 159 S.W. 2d 367; Zoning Ordinance of Kansas City, Missouri, No. 45608, as amended, 1941, Section 55-11; Howlett v. Social Security Comm., 347 Mo. 784, 149 S.W. 2d 806, 810; Kristanik v. Chevrolet Motor Co., 335 Mo. 60, 70 S.W. 2d 890, 894; Lee v. Board of Adjustment, 226 N.C. 107, 37 S.E.2d 128, 168 A. L. R. 1, 4, 13. (5) The court did not hold that respondents might use their land and improvements for uses in a Class U-4 district of a lower classification than the existing use. Zoning Ordinance of Kansas City, Missouri, No. 45608, as amended, 1941, Section 55-3.13; Zoning Ordinance of Kansas City, Missouri, No. 45608, 1923, Section 6(b).
This is an appeal from the judgment of the circuit court of Jackson County, in a certiorari proceeding to review the action of the board of zoning adjustment of Kansas City, in which said board ordered the respondent, Royal Meat Products Company, to cease and desist from the manufacture of sausage and meat products on the property now occupied by it. The judgment was for respondents and set aside the order of the board of zoning adjustment, and permanently enjoined the city and its named officials, appellants, from interfering with the use of the property for such purposes.
From this judgment Kansas City and its officials have appealed.
The property in question is referred to as 707 and 709 Linwood Boulevard. In October, 1923, the Feinberg Kosher Sausage Company acquired a three year lease, with option to purchase, on 709 Linwood Boulevard, and in November, 1926, the fee title was acquired by A. G. Feinberg. In 1931 the Feinberg Kosher Sausage Company, a Missouri corporation, was organized, having acquired the assets and business of the first Feinberg Kosher Sausage Company, a Kansas corporation, and continued business at 709 Linwood Boulevard. In April, 1934, Anna Feinberg acquired 707 Linwood Boulevard, and the Feinberg Kosher Sausage Company used this property in connection with 709 Linwood Boulevard. In March, 1937, Feinberg Kosher Sausage Company of Missouri, Inc., was organized and acquired the business of the former Feinberg Kosher Sausage Company, a Missouri corporation, but in April, 1937, the predecessor, Feinberg Kosher Sausage Company, a Missouri corporation, acquired the title to 707 and 709 Linwood Boulevard. In July, 1942, Feinberg Kosher Sausage Company of Missouri, Inc., changed its name to Royal Meat Products Company, which now holds a lease upon the property at 707-709 Linwood Boulevard and is and has been in exclusive possession and use of the said property, manufacturing sausage and meat products, and pays as rental thereon the sum of $ 6000 per year.
In October, 1923, immediately after the execution of the original lease, the manufacture of sausage was commenced in the property at 709 Linwood Boulevard. A delicatessen store was conducted in the front part of the property, in which store some of the sausage manufactured was sold and the remainder was sold to dealers. When the property at 707 Linwood Boulevard was acquired, the manufacture of sausage was conducted in that property also. The said property has been designed and arranged for the manufacture of sausage and meat products; it is a government inspected plant; the beef brought into the said plant is purchased from government inspected slaughter and packing houses; and no animals are or ever have been slaughtered by respondents.
From June 4, 1923 to July 14, 1941, Kansas City Zoning Ordinance No. 45608 was in full force and effect. The property in question was zoned for a U-3(b) use district, known generally as a retail business district, but said ordinance further provided that property in a U-3(b) district could be used for any use described in a Class U-4 district under certain conditions. The text of Section (b) of said Zoning Ordinance was as follows:
"(b) In a class U-3-B district no building or premises shall be used and no building shall be erected, altered or enlarged which is arranged, intended or designed to be used except for a Class U-1, class U-2 or class U-3, use, provided, however, that in a class U-3-B district a building or premises may be used for any use included in class U-4 uses, provided such use or operation is carried on entirely within a substantial building completely enclosed with walls and roof, and provided further that such use is not of such nature as to become offensive or noxious or adversely affect the appropriate use of neighboring property ." (Emphasis ours).
Among the uses permitted in a U-4 district were sausage manufacture and manufacture of food products.
In 1924 a complaint was made by neighbors regarding the use of this property as a violation of the said 1923 zoning ordinance. A hearing and investigation by and before the board of zoning adjustment resulted in a finding against complainants. No appeal was taken.
On July 14, 1941, the 1923 zoning ordinance was repealed and sixteen new sections were enacted in lieu thereof. Under the 1941 ordinance property located in a class U-3(b) district could be used for a class U-4 purpose provided said property had been and was being lawfully so used at the time said ordinance was enacted, and that such use could be changed to another nonconforming use of the same or higher classification.
The 1941 zoning ordinance further provided, in Section 55-3.6 (c), that in connection with every building or structure used for manufacturing there should be provided and maintained adequate space for loading and unloading so as to avoid undue interference with public streets and alleys.
In 1943, two vacant lots adjoining the property at 707 Linwood Boulevard were acquired for the purpose of loading and unloading and to relieve congestion in the alley behind the plant, which property has been so used since the date of acquisition.
On November 29, 1944, respondent received written notice from the board of zoning adjustment that a ...
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