Beckmeyer v. Beuc, 31148

• Decision Date: 16 April 1963
• Docket Number: No. 31148,31148
• Citation: 367 S.W.2d 9
• Parties: Mina BECKMEYER et al., Plaintiffs-Appellants, v. Rudolph BEUC et al., Defendants-Respondents, The Principia Corporation, Intervenor-Respondent.
• Court: Missouri Court of Appeals

Page 9

367 S.W.2d 9

Mina BECKMEYER et al., Plaintiffs-Appellants, v. Rudolph BEUC et al., Defendants-Respondents, The Principia Corporation, Intervenor-Respondent.

No. 31148.

St. Louis Court of Appeals, Missouri.

April 16, 1963.

Tenney, Dahman & Mathewson, Edward H. Tenney, Jr., St. Louis, for appellant.

Husch, Eppenberger, Donohue, Elson & Jones, Shulamith Simon, St. Louis, for respondent, The Principia Corp.

Thomas Neenan, City Counselor, Thomas F. McGuire, Assoc. City Counselor, for defendants-respondents, Members of Bd. of Adjustment.

BRADY, Commissioner.

This is an appeal from a judgment of the Circuit Court of the City of St. Louis affirming a decision of the Board of Adjustment granting an occupancy permit and thus permitting hotel usage of premises formerly used by the Principia Corporation, hereinafter referred to as respondent, as a dormitory for a school. The decision of the Board of Adjustment and of the Circuit Court constituted a reversal of the Building Commissioner of the City of St. Louis who denied the occupancy permit. The appellants are owners of property located near the building here involved.

The factual situation shown is that the three-story brick building of forty-seven rooms and twenty-six baths here in question was constructed in 1911 as a hotel under a permit authorizing such construction and was used as a hotel until 1920 when it was purchased by the respondent who used it as a dormitory until 1960. The students paid a regular fee for the lodging they received. The rooms are arranged to have a bath between two bedrooms.

At the proceeding before the Board, the only property owner who objected and appeared was one Airel King who testified that a hotel would hurt the neighborhood. When he was asked if there was any difference in the occupancy between a school dormitory and a hotel, he stated 'Just a different atmosphere.'

Daniel I. Offner, deputy building commissioner, also appeared in opposition and testified that the use of these premises as a hotel ceased in 1920 and that under the zoning ordinance a non-conforming use loses its standing if discontinued for a period of ten years. That under the ordinance now in effect this type of building would be permitted to be used as a dormitory by his office even in an 'A' zoned or single-family district and so would not now constitute a non-conforming use. When asked for what other purpose the building could be used, the witness answered 'Well, I don't know.'

Mr. Geisel, plan examiner for the building division, appeared in opposition and testified that the certificate of occupancy was denied because it would authorize a multiple-family use not permitted in a 'B' zone, a violation of Section 8-A of Ordinance 45309; and that there is no record of a non-conforming use for any other than an 'A' or 'B' zone. He testified that 'A dormitory comes under an accessory type building for a school. A hotel is a commercial type building used for living purposes for a short time.'

On behalf of respondent, Burtran T. Clark, secretary of respondent corporation, testified as to the original use of the building and the length of use as a dormitory. He further testified that the respondent was interested in selling the property and that hotel usage is the only 'logical' use for the premises; that if the building cannot be used for that purpose '* * * we would have to tear it down--it would be of no value unless it can be used for the purpose for which it was originally intended.'

The witness Remsbecker, a real estate dealer and sales representative for the property, testified that the building is in a two-family dwelling area and that '* * * we can't sell the property unless we get an occupancy permit.'

The Board reversed the building commissioner: '* * * on the grounds that the testimony revealed that this building was built in 1911 as a hotel under Building Permit H-610. The building was used as a hotel until 1920 when the use started as a dormitory for students at Principia College, and it was occupied from 1920 to 1960 as a dormitory for students who paid dormitory fees for a fully furnished room. The evidence reveals that the use of the building has been continuous, and having started prior to the 1926 zoning law, the Board is of the opinion that this is a non-conforming use. To deny the permit would be a hardship and that the use of the property in this manner is in the spirit of the zoning ordinance.'

The scope of our review in the instant case is to be distinguished from that in those cases where no additional evidence is offered at the hearing on the petition for review before the Circuit Court. In such cases, the record of the proceedings before the Board are all the Circuit Court has before it and thus is all that appears when the case reaches this court. In this event, our review is the same as that of the Circuit Court and is limited to whether or not, in the proceedings before the Board, there was competent and substantial evidence to support the Board's findings. Veal v. Leimkuehler, Mo.App., 249 S.W.2d 491, certiorari denied, 344 U.S. 913, 73 S.Ct. 336, 97 L.Ed. 704; Carlyle-Lowell, Inc. v. Ennis, Mo.App., 330 S.W.2d 164. In the instant case, the trial court received additional evidence in the form of both exhibits and testimony. Authority to do so is found in Section 19-D-5 of Ordinance 45309 which is practically identical to the language used in Ordinance 35003 (amended by Ordinance 35009), effective 1926, the first zoning ordinance concerning this building and the same section was left unamended in Ordinance 50547, effective 1961, which amended other sections of Ordinance 45309. This provision reads:

'* * * If, upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take additional evidence or appoint a referee to take such evidence as it may direct and report the same to the court with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review.'

Section 89.100 RSMo 1959, V.A.M.S., is in identical language. In Cunningham v. Leimkuehler, Mo.App., 276 S.W.2d 633, a 1955 decision of this court, it was held that the above provisions of the ordinance do not make the review by the Circuit Court de novo. The additional evidence and testimony before the Circuit Court is therefore available to this court so that our inquiry encompasses both the proceedings before the Circuit Court and those before the Board. If therein is found competent and substantial evidence to support the Board's decision, that decision must be affirmed.

In the proceedings in the Circuit Court, the appellants' case consisted of the transcript of the proceedings before the Board and the introduction of three ordinances. Exhibit 1 was Ordinance 45309 with amendments comprising the zoning ordinances of the City of St. Louis effective May 26, 1950. Exhibit 2 was Ordinance 35003 as amended by Ordinance 35009, as to which it was stipulated that this was the first zoning ordinance covering this building and effective May 26, 1926. Exhibit 3 was Ordinance 50547, effective May 13, 1961 which amended the ordinance introduced as Exhibit 1. It was also stipulated that this building is in a Type 'B' or two-family zoned district.

The respondent corporation produced Lee McCandless, secretary of the respondent, who testified that he had been a student at the school and knew this building had been used as a hotel prior to its purchase by the respondent; that until 1926 some 'wage earners,' respondent's employees, rented quarters in the basement of the building; that 'supervisory personnel' have rented quarters in the building from its purchase in 1920 until the respondent vacated it; that until 1926, food was served in the building but this has not been done since that time; that charge for room and board was made against and students who lived in the building and the respondent furnished everything in the rooms except blankets; and that some parents stayed in the building at commencement and at other times. The witness also testified that in 1958 respondent applied for and received a...