State ex rel. Nigro v. Kansas City

• Decision Date: 15 May 1930
• Docket Number: 30075,30216
• Citation: 27 S.W.2d 1030,325 Mo. 95
• Parties: The State ex rel. Charles Carl Nigro v. Kansas City et al
• Court: Missouri Supreme Court

27 S.W.2d 1030

325 Mo. 95

The State ex rel. Charles Carl Nigro v. Kansas City et al

Nos. 30075, 30216

Supreme Court of Missouri

May 15, 1930

Motion for Rehearing Withdrawn by Respondent. May 15, 1930.

Appeal from Jackson Circuit Court; Hon. Clarence A. Burney Judge.

Reversed and remanded (with directions).

John T. Barker and Wm. H. Allen for appellants.

(1) Under the statutes, the Charter of Kansas City, and the zoning ordinances of Kansas City, the Board of Zoning Appeals had the power, authority and duty to hear and determine the application for modification: There is no evidence in the case that it acted beyond its power or abused its discretion and its findings cannot be disturbed or interfered with by the court. Laws 1929, pp. 308-311; charter of Kansas City Feb. 1925, art. 14, sec. 403; Ordinance No. 45608, of the Ordinances of Kansas City sec. 21; State ex rel. v Christopher, 317 Mo. 1179; Memphis v. State, 179 S.W. 633; Spencer-Sturla Co. v. Memphis, 290 S.W. 615; Zahn v. Board of Public Works, 195 Cal 479, 234 P. 388, 274 U.S. 375; Brown v. Los Angeles, 183 Cal. 783, 192 P. 716; Specter v. Building Inspector, 250 Mass. 631, 45 N.E. 265. (2) Under the statutes the court could only "reverse or affirm wholly or partly, or may modify the decision brought up for review." It had no juridiction to grant a building permit, nor enjoin the city from interference with relator in proceeding with the erection of his building, in violation of the ordinances. Laws 1925, pp. 307, 311; State ex rel. v. Johnson, 186 P. 672. (3) The courts will not substitute their judgment for that of the legislative bodies of the city on matters concerning the wisdom, propriety or expedience of the administration of its ordinances. Zahn v. Board of Public Works, 195 Cal. 497, 234 P. 388, 275 U.S. 375; State ex rel. v. Christopher, 317 Mo. 1179, 1195, 298 S.W. 726; Spencer-Sturla Co. v. Memphis, 290 S.W. 615. (4) The petition does not state a cause of action under the statute which requires the petition to set forth that the decision of the board is illegal, and specify the grounds of illegality. Laws 1925, pp. 308, 311; Hodgdon v. Goodspeed, 60 Ore. 1, 118 P. 167; State v. Dist. Court, 26 Mont. 224, 67 P. 114, 68 P. 490; State ex rel. Pedigo v. Robertson, 181 S.W. 987; State ex rel. Hirsch v. Allen, 274 S.W. 354.

James A. Reed, Julius C. Shapiro, Maurice J. O'Sullivan and James E. Taylor for respondent.

(1) The evidence sustains the findings of fact made by the court and the decree rendered herein. Laws 1925, p. 307 et seq.; Ordinance of Kansas City, No. 45608; State ex rel. Cadillac Co. v. Christopher, 317 Mo. 1188. (2) The decree of the court was authorized by the statute and the ordinance, amply and substantially supported by the evidence, and cannot be disturbed. Laws 1925, p. 307 et seq.; Ordinance of Kansas City, No. 45608; State ex rel. Myers v. Shinnick, 19 S.W.2d 678. (3) The petition clearly states a cause of action. Authorities supra. (4) The decree of the court below reversing the finding of the Board of Zoning Appeals was not an unauthorized interference with the judgment and discretion of the municipal authorities, but on the contrary such decree was rendered by virtue of power specifically vested in the court below by the zoning law. Laws 1925, p. 307 et seq.; Ordinance of Kansas City, No. 45608; Cavanaugh v. Gerk, 313 Mo. 375; St. Louis v. Russell, 116 Mo. 248; Boyd v. Kansas City, 291 Mo. 622.

OPINION

Ragland, C. J.

An appeal was allowed by the trial court in the above entitled cause, but as that court refused a stay of the judgment pending such appeal, the defendants applied for, and were granted, a special appeal by this court with supersedeas. The two appeals were subsequently consolidated and were argued and submitted as one cause. The judgment appealed from was one rendered by the Circuit Court of Jackson County, annulling an order of the Kansas City Board of Zoning Appeals, and directing the issuance of a building permit in contravention of such order The facts so far as need be stated are few and simple.

Respondent, Nigro, owned a parcel of ground at the northeast corner of the intersection of 71st and Oak Streets in Kansas City: it had a frontage of 400 feet on the north side of 71st Street and extended back north along the east side of Oak Street a distance of 127.67 feet. There were no buildings on the lands immediately adjacent to respondent's holding, and the territory generally in its vicinity was undeveloped and but sparsely settled, though it had been zoned. Respondent's ground was in a use district in which no building could be erected or used for business purposes under the Kansas City Zoning Ordinance: it was in a district in which the uses of buildings were restricted, generally speaking, to residential purposes. The northwest and southwest corners of the intersection of 71st and Oak Streets were in a retail business district; respondent purchased his ground after the territory had been zoned and at the time he purchased he knew that it was in a residential district, and that the erection of buildings thereon for business purposes was prohibited. However, he had observed, so he says, that other "corners" in residential districts had frequently been "rezoned" so as to permit the erection of buildings for business uses, and he assumed that he could have the corner where the ground which he purchased lay so rezoned; but he did not take the precaution to ascertain whether the rezoning could be effected before purchasing. He took the chance.

Shortly after purchasing the ground hereinbefore described, respondent, on April 19, 1929, applied to the Building Commissioner of Kansas City for a permit to erect thereon a one-story building to be used for business purposes. The application was denied on the ground that the site on which he purposed to erect such building was within a district restricted by the Zoning Ordinance to exclusively residential uses. He thereupon appealed from the order of the Commissioner refusing him a permit to the board of Zoning Appeals, and that body after a public hearing affirmed the order of the Commissioner. Respondent then procured a review of the action of the Board of Zoning Appeals by the Circuit Court on certiorari; that court after an extended hearing rendered the judgment appealed from.

At the time respondent applied for the building permit in question plans had been inaugurated, and were beginning to be put into execution, for developing the territory in the immediate vicinity of his holding into residential districts; it was respondent's idea that those districts would be served by what he termed a "civic center" at the intersection of 71st and Oak Streets, the northwest and southwest corners being in a business district; for that reason he thought his property would be more valuable for business than residential purposes; and he averred that, if refused a permit to erect a store building thereon, he would sustain a loss of $ 15,000, that is, in the way of profit. Fifteen thousand dollars may therefore be said to be the amount in dispute; hence our jurisdiction of this appeal.

The Zoning Ordinance of Kansas City is typical: it divides the city into use, height and area districts, and imposes in connection therewith regulations, restrictions and prohibitions "for the promotion of the public health, safety, comfort, convenience, prosperity and general welfare," in respect to the erection of buildings and other structures. Section 21 of the ordinance provides:

"This ordinance shall be enforced by the Superintendent of Buildings under the rules and regulations of the Board of Zoning Appeals. . . . Any decision of the Superintendent of Buildings made in the enforcement of this Ordinance may be appealed to the Board of Zoning Appeals by any interested person or by any officer of the city. The various requirements hereinbefore provided shall be held to be general rules and regulations for the promotion of the health, safety, comfort, convenience, prosperity and general welfare. Whenever, in any specific case, the Board of Zoning Appeals after public notice and hearing thereon, shall find and determine that the application of a general rule or regulation to the particular case under consideration will by reason of exceptional circumstances or surroundings constitute a practical difficulty or unnecessary hardship, and that the general purpose and intent of such rule or regulation may be preserved and that the public health, safety, comfort, convenience, prosperity and general welfare may, in so far as provided in this ordinance, be secured by a specific modification or partial suspension of the application of such rule or regulation to the specific case under consideration, the Board may upon affirmative vote of five members make an...