Barr v. City Council of City of Chesterfield, 66271

• Decision Date: 23 May 1995
• Docket Number: No. 66271,66271
• Citation: 904 S.W.2d 27
• Parties: Donald F. BARR, et al., Plaintiffs-Appellants, v. The CITY COUNCIL OF the CITY OF CHESTERFIELD, et al., Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 27

904 S.W.2d 27

Donald F. BARR, et al., Plaintiffs-Appellants, v. The CITY COUNCIL OF the CITY OF CHESTERFIELD, et al Defendants-Respondents.

No. 66271.

Missouri Court of Appeals,

Eastern District,

Division Three.

May 23, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied June 26, 1995.

Application to Transfer Denied

Sept. 19, 1995.

Albert A. Michenfelder, Jr., Clayton, for appellants.

Douglas R. Beach, Clayton, Stuart J. Vogelsmeier, James J. Hennelly, Richard D. Watters, St. Louis, for respondents.

DOWD, Judge.

Donald F. Barr, et. al., Plaintiffs, appeal from the trial court's judgment affirming the City of Chesterfield's approval of a petition for an amended Conditional Use Permit (CUP) authorizing the construction and operation of a medical office and parking garage on the premises of St. Luke's Episcopal-Presbyterian Hospital (Hospital). We affirm.

Hospital is located on a tract of land zoned Non-Urban. Although hospitals are not a permitted Non-Urban use, they may be approved as a conditional use. Hospital has operated under a CUP granted by St. Louis County since 1978. The CUP allows the following uses for Hospital's property:

The use allowed by this permit shall be that of a 500 bed (maximum) general acute hospital, including any accessory facilities customarily associated with said hospital, such as medical offices, research and education centers, specialized treatment centers, (i.e., a radiation-oncology center), etc. Associated parking and service areas shall also be permitted.

On February 14, 1992, Hospital filed a Petition to Amend Conditional Use Permit with the St. Louis County Planning Commission stating: ¹

No new uses are requested. Petitioner requests appropriate changes to its Conditional Use Permit ("CUP") as necessary to authorize construction of an eight-story building which is connected to the Hospital at the first, second and sixth levels. This building will house the Hospital's Admitting Department, Rehabilitation, Sports and Physical Medicine Department, Outpatient Surgical Services, Laboratory Services, Department of Pediatrics, Cytology Lab Office and Department of OB/GYN and offices for employees and physicians on the Hospital's medical staff. In addition, Petitioner requests appropriate changes to the CUP for construction of a parking garage.

At the time this request was filed, the medical building and parking garage had already been partially completed.

The St. Louis County Planning Commission approved Hospital's petition and sent a report to the St. Louis County Council. On May 4, 1992, Plaintiffs filed a Notice of Protest with the Council. On May 15, 1992, the City of Chesterfield annexed the tract of land where the Hospital is located, ² so the protest proceedings were held before the City of Chesterfield Planning Commission. The Chesterfield Zoning Ordinance provides for the following accessory uses:

Accessory land uses and developments. Subject to compliance with the procedures of this section, accessory buildings, structures, and uses are permitted in conjunction with a permitted land use or development or (unless restricted by applicable condition) a conditional land use or development when such accessory building, structure or use is customarily found in conjunction with the primary use, is a reasonably necessary incident to the primary use, is clearly subordinate to the primary use, and serves only to further the successful utilization of the primary use. Accessory uses include the following:

(1) Devices for the generation of energy, such as solar panels, wind generators, and similar devices.

(2) Individual sewage treatment facilities serving an individual dwelling, farm, or nonresidential use, as approved by the appropriate regulatory agency. The sewage treatment facilities shall not exceed five thousand (5,000) gallons per day flow.

(3) Private stables.

(4) Signs (business, directional, and information).

On July 27, 1992, the Chesterfield Planning Commission approved Hospital's petition. On September 9, 1992, a public hearing was held on Hospital's petition. At the hearing, Paul Wunderlich, Hospital's President, testified that hospital care is changing from primarily in-patient care to primarily out-patient care; therefore, Hospital is required to have medical offices available on its campus in order to provide the best possible care for patients.

Gary Olson, Hospital's Executive Vice President, testified about the physical characteristics of the medical building. He stated that the medical building is not a free-standing building. Rather, it is physically connected to Hospital at the second and sixth floors, and it is totally dependent on Hospital for all of its power and utilities. He also testified the first, second and sixth floors of the building are used solely by Hospital to provide services such as physical therapy, cardiac and pulmonary rehabilitation, and pre-surgery admitting. The third floor of the medical building will also house women's health referral services and an expansion of Hospital's laboratory facilities. He stated a physician must be on Hospital's staff in order to have an office in the new medical building. Further, the parking facility attached to the new medical building serves hospital patients and visitors as well as those visiting the medical offices.

Dr. George Tucker, Chief of Surgery at Hospital, testified that due to recent changes in the practice of medicine, medical office buildings are associated with many of the hospitals in the area. Further, doctors who have offices on Hospital's campus do a larger quantity of their work at Hospital, check on patients more often, serve on more committees and participate in more educational conferences and meetings.

On October 5, 1992, the City Council of the City of Chesterfield (Council) approved Hospital's petition. On November 4, 1992, a Petition for Administrative Review was filed in the St. Louis County Circuit Court pursuant to § 536.130, RSMo 1986. The trial court entered an order affirming the Council's decision. Plaintiffs appealed.

As this is an appeal from a contested administrative case, we review the findings and decision of the Council and not that of the trial court. Village of Westwood v. Board of Adj., 811 S.W.2d 437, 440 (Mo.App.1991). We will affirm the Council's decision if it is supported by competent and substantial evidence upon the whole record. State ex rel. Columbia Tower v. Boone County, 829 S.W.2d 534, 535-36 (Mo.App.1992).

Although the original CUP granted by St. Louis County in 1978 allows for a medical office building such as this one, we address whether the medical office building and parking facility at issue here, with the additional height and square footage they add to the Hospital complex, are allowable accessory uses under the Chesterfield zoning ordinance, the ordinance which is applicable in this case.

In determining whether a particular use is a permitted accessory use, the decision must be based on "the particular zoning ordinance and the context in which it occurs." St. Louis County v. Taggert, 866 S.W.2d 181, 183 (Mo.App.1993). The words of the zoning ordinance are to be given their plain, ordinary meaning. Richmond Heights v. Richmond Heights Presbyterian Church, 764 S.W.2d 647, 647-48[1, 2] (Mo. banc 1989).

According to § 1003.107 of the Chesterfield Zoning Ordinance, a building or use is considered a permitted accessory use if it: (1) is customarily found in conjunction with the primary use; (2) is a reasonably necessary incident to the primary use; (3) is clearly subordinate to the primary use; and (4) serves only to further the successful utilization of the primary use.

First, Plaintiffs allege that a third medical office building is not a use...