Baumer v. City of Jennings

• Decision Date: 11 March 2008
• Docket Number: No. ED 90038.,ED 90038.
• Parties: Robert M. BAUMER, Petitioner/Respondent, v. CITY OF JENNINGS, Missouri, a Municipal Corporation, and Denise McDuffie, Bill Fortner, Dorothy Moore, and Shirley Barnes, as members of the Board of Zoning Adjustment of the City of Jennings, Missouri, Respondents/Appellants.
• Court: Missouri Court of Appeals

247 S.W.3d 105

Robert M. BAUMER, Petitioner/Respondent, v. CITY OF JENNINGS, Missouri, a Municipal Corporation, and Denise McDuffie, Bill Fortner, Dorothy Moore, and Shirley Barnes, as members of the Board of Zoning Adjustment of the City of Jennings, Missouri, Respondents/Appellants.

No. ED 90038.

Missouri Court of Appeals, Eastern District, Division Two.

March 11, 2008.

M. Jamis Kresyman, Lloyd E. Eaker, St. Louis, MO, for appellant.

Steven Koslovsky, Steve Koslovsky, LLC, St. Louis, MO, for respondent.

KURT S. ODENWALD, Judge.

Introduction

The City of Jennings (City) and the members of the City's Board of Adjustment (Board), Denise McDuffie, Bill Fortner, Dorothy Moore, and Shirley Barnes, appeal the trial court's judgment, entered by order on June 7, 2007, reversing Board's denial of Robert M. Baumer's (Petitioner's) application for a variance. Board contends that the trial court erred in reversing its decision because the Board's decision was discretionary and could have been reasonably reached as supported by substantial evidence. We review the decision of Board on appeal. We reverse the judgment of the trial court, and the cause is remanded to the trial court for the entry of judgment affirming Board's decision.

Background

Petitioner owns and occupies the property at 8916 Jennings Station Road (Subject Property) in a residential neighborhood in Jennings, Missouri. Subject Property, a corner lot, is positioned at the intersection of Jennings Station Road and Wedgewood Avenue and is zoned R-1 Single Family Dwelling District. Petitioner's house and existing detached garage are located on Subject Property. According to Petitioner's drawings, the detached garage is 26 feet by 25 feet. The garage sits more than 26 feet from the east edge of the property, which touches Wedgewood Avenue, and approximately 65 feet from the south side of the property, which borders a neighboring property. Petitioner wishes to build a new garage, approximately 30 feet by 30 feet in size, and to position the garage in a new location on his property within approximately 15 feet of the east edge of the property and 30 feet from the south side of the property.

On July 21, 2005, Petitioner submitted to City his initial application for a building permit to build a new garage. City denied the permit due to a violation of City's setback requirement along Wedgewood Avenue. Jennings Zoning Ordinance, chapter 38, Section 4.8.1 provides that front yard setbacks must be a minimum of 30 feet from a building to the front property line, and where lots have double frontages, such as corner lots, front yard setbacks shall be provided on both streets. Where fifty percent or more of the frontage along a street have existing structures that are set back less than 30 feet from the building to the property line, the average frontage of those setbacks shall be used as the required setback. City of Jennings, Mo., Zoning Ordinance ch. 38, Section 4.8.1(a), (b). The amount of encroachment Petitioner originally requested is unclear from the record, but Petitioner's counsel stated during the Board's second hearing that the revised variance request of 10 feet was considerably less than the first: "Originally we asked for a considerably greater setback variance from the right of way on Wedgewood on the first go round."

Petitioner appealed the City's decision to Board, which denied Petitioner's appeal after a hearing on September 14, 2005. Petitioner filed his first writ of certiorari in St. Louis County Circuit Court for review of Board's decision, but because Board had failed to include City's zoning ordinance in the record before it, the case was remanded to Board for further proceedings. Thereafter, Petitioner filed his Appeal for Variance from Zoning on February 7, 2006.

On March 28, 2006, Board conducted a second hearing. During the hearing, Petitioner's counsel explained that Petitioner was requesting a 10-foot variance from the required 25-foot setback so that Petitioner could build his garage within 15 feet from the right-of-way on Wedgewood Avenue. Petitioner's counsel explained that the existence of a sanitary sewer line west of the existing garage prevented Petitioner from positioning the proposed garage further away from Wedgewood Avenue. Petitioner testified that the Metropolitan St. Louis Sewer District (MSD) maintained the sewer line, which was subject to its jurisdiction, but MSD did not have an easement for the sewer line on Subject Property.

Although there was evidence that Petitioner had conversations with MSD representatives about the location of his garage, the verification letter from MSD offered into evidence was written in general terms. The letter stated:

MSD will not approve the construction of a structure in close proximity to an existing pipe if such structure will impose an additional load on the sewer line. The only way such approval could be obtained is to prove, to MSD's satisfaction, that the additional load of the structure will be directed below the elevation of the sewer line. In other words, each such request would have to be considered on its own facts and engineering drawings.

Petitioner verified the location of the sewer line through the services of AA Quick Electric Sewer Service, a survey firm that determined the sewer line followed a straight line back toward the rear of the property. The firm merely located the sewer in the field, however, and Petitioner himself transferred the information into a drawing. Petitioner presented copy of the check he paid and a receipt from AA Quick to prove that the firm indeed performed the work.

City's Public Works Director Richard Perry (Public Works Director) testified that Board should not consider the sewer line to be a problem and that Petitioner's counselor was incorrect in his assertion that the garage could not be built upon the sewer line. Public Works Director testified that Petitioner could replace a portion of the sewer pipe with a stronger pipe and then build on top of the line. Public Works Director also questioned whether the sewer line in question was a public sewer, stating that MSD would have surveyed Subject Property and established exact locations of the sewer line and the easement were it a public sewer. Public Works Director said that in his 28 years' experience as a master drain layer and plumber for St. Louis County, he had never seen MSD accept maintenance of a private sewer line used by only one user, and had never seen a sewer line measuring only 6 inches in diameter, as was the case here.

When asked whether a Missouri Registered Land Surveyor performed a survey, Petitioner's counsel stated no, but pointed out that City's ordinance did not require a survey with this application. Board noted that it had asked Petitioner for a certified survey during its last meeting so that it could understand the construction plans and accurate measurements of the proposed garage and its location. Petitioner's counsel responded that Board had his and Petitioner's testimony, and that no contrary testimony was before Board.

During the hearing, in response to a Board member's comments about using the average setback of 25 feet, Petitioner's counsel stated, "But if you have 20 feet back you are still 5 feet within the setback according to your calculations. If you wanted to approve a 5 foot variance instead of a 10 foot variance I guess we can go back and see what we can do, but it's still a variance. I guess my question is if you are going to approve a 5 foot variance, is a 10 foot variance that much more excessive or that much more of a problem."

Later, a Board member questioned whether a hardship existed in moving the garage "the 5 feet that we talked about?" Petitioner's counsel answered, "Let me try and address that. If the Board sees fit to grant us instead of a 10 foot variance, what we are asking for, a 5 foot variance we would obviously be happy to have that. And we would be glad to see if we could make this garage fit within that 5 foot variance and also where the sewer line is, so we might be able to do the garage that is 5 feet off the sewer line as has been suggested. . . . It does reduce the amount of variance requested. If you are inclined to do that, obviously the plan now — we can go back to the drawing board perhaps we will be able to make it work. I don't know if that was a response to your question or not." When the City Attorney pointed out the city ordinance requiring Board to grant the "minimum variance necessary" if an appeal for a variance is granted, one Board member stated that Board did not know what the minimum was.

Petitioner presented exhibits that included an aerial photograph of Subject Property and some of the surrounding properties; an aerial photograph showing the area near Subject Property along Jennings Station Road; a hand-drawn plan depicting Subject Property with the current and proposed garages; a copy of the assessor's plat from St. Louis County showing the Sunnydale subdivision, which includes Subject Property, neighboring properties and some improvements made on those properties; and a section of the assessor's plat with Petitioner's hand-marked locations of buildings and other setback violations in Subject Property's neighborhood. Petitioner also presented several photographs of neighboring structures that he believed violated setback requirements. Public Works Director testified that the exhibits could not be qualified because they were not taken from a fixed reference point on the ground, which could be legally established only by a registered land surveyor. Public Works Director stated that the measurements on Petitioner's drawing would be accurate only if there was a legitimately fixed reference point placed on the ground.

Petitioner's counsel discussed with Board the required setback for Wedgewood Avenue during the hearing. Petitioner submitted that City ordinance, Chapter 38 of the Municipal Code, City...