Berard v. Board of Adjustment of City of St. Louis

• Decision Date: 02 April 1940
• Docket Number: No. 25274.,25274.
• Citation: 138 S.W.2d 731
• Parties: BERARD et al. v. BOARD OF ADJUSTMENT OF CITY OF ST LOUIS et al.
• Court: Missouri Court of Appeals

138 S.W.2d 731

BERARD et al. v. BOARD OF ADJUSTMENT OF CITY OF ST LOUIS et al.

No. 25274.

St. Louis Court of Appeals. Missouri.

April 2, 1940.

Rehearing Denied April 16, 1940.

Appeal from St. Louis Circuit Court; William S. Connor, Judge.

"Not to be reported in State Reports."

Certiorari proceeding by Dr. Louis Berard and another against the Board of Adjustment of the city of St. Louis and others, to reverse an order of the Board of Adjustment respecting the occupancy of buildings on a certain lot in the city of St. Louis. From a judgment reversing the order of the board, the board and others appeal.

Affirmed.

E. H. Wayman, City Counselor, Oliver Senti, Associate City Counselor, and M. W. Feuerbacher, all of St. Louis, for appellants.

Godfrey, Anderson, Schurr & Taylor, of St. Louis, for respondents.

SUTTON, Commissioner.

This is a proceeding by certiorari brought in the Circuit Court seeking a reversal of an order of the Board of Adjustment of the City of St. Louis respecting the occupancy of buildings on lot 11, in block 5706, in the City of St. Louis, designated as 627 Spring Drive.

The lot fronts south 100 feet on Spring Drive, which runs east and west. The west line of the lot is 329 feet in length and the east line is 261 feet in length. The north line is 120 feet in length. On the north line there is a street 25 feet wide, known as East Lookout Court, running northeast and southwest. The southwest end of the street abuts on the north line of lot 11 at the northwest corner of the lot. The rest of the north line, 95 feet, is the line between lot 11 and lot 31 belonging to relators.

Marion Hernreich and Irving A. Hernreich are the owners of lot 11. They purchased the lot in 1935. After the contract for the purchase of the lot was signed, but before the purchase was consummated by the execution of the deed, the grade of the street known as East Lookout Court was raised by a fill of about 6 feet. Mr. Hernreich testified that he had planned to build a garage at the rear of the lot and enter it from East Lookout Court, but that the raising of the grade was such as to make it impracticable for him to enter his garage by that street; that not being able to use that street when the grade was raised he had to use Spring Drive; that he got permits to build a garage on the rear of the lot and a dwelling in front of that about 25 or 30 feet; that he afterwards found that he could not drive into the garage from Spring Drive because of the sharp grade of the lot.

The present grade of the street known as East Lookout Court was established by the Board of Public Service of the City of St. Louis. On September 27, 1935, the Hernreichs filed an application for a permit to build a building to be used as a garage at a cost of $3,000 on the rear of 627 Spring Drive. On September 28, 1935, the Board of Public Service issued to them a permit to build a garage with servant quarters above on the rear of said lot. On September 27, 1935, the Hernreichs filed plans showing the type of structures that were to be built on the lot. On the same day they filed application for a permit for a building at an estimated cost of $9,000, to be used as a residence numbered 627 Spring Drive, and a permit therefor was issued by the Board of Public Service on September 28, 1935, the house to be in the front part of the lot and at least 25 feet from the rear lot line and garage. The plans filed by the Hernreichs on September 27th, showing the type of structures to be built on the lot, show a winding driveway running to the west of the dwelling house from Spring Drive to the garage on the rear of the lot. Pursuant to the plans and permit granted, the Hernreichs began the construction of the garage on the rear of the lot 5 feet from the north line thereof. The garage was constructed according to the plans, with the exception that the ground floor where cars were to be kept according to the plans, was altered so as to be used for dwelling purposes. The building was so completed as a dwelling, and the Hernreichs moved into it and used it as a dwelling and have continued since to so use it. In front of this building, planned to be used as a garage but completed as a dwelling, the Hernreichs constructed a small building, to be used as a garage and servant quarters, where the dwelling was to be erected according to the plans and permits granted. The building constructed on the rear of the lot was converted into a dwelling without a permit so to do and over the protests of the property owners in the neighborhood, who pointedly informed the Hernreichs that they would not be permitted to occupy the building as a dwelling.

Zoning ordinance No. 35003 as amended by ordinance No. 35009 of the City of St. Louis provides, respecting areas of yards and other open spaces surrounding buildings, that, in Class A Height and Area District, in which the Hernreich lot is situate, "there shall be a rear yard having a minimum depth of twenty-five feet."

From the decision of the building commissioner, requiring the Hernreichs to vacate the garage building used as a dwelling, the Hernreichs appealed to the Board of Adjustment. Upon a hearing the board made an order authorizing the building commissioner to issue change of occupancy permits, as follows: "The building on rear of lot, which was originally intended for use as a garage and servant quarters, may be used for residential purposes. The building which was to have been used for residential purposes may be occupied as a garage and servant quarters."

It is this order that is brought up for review in the present proceeding by certiorari.

The trial in the circuit court resulted in the following judgment:

"This Court having duly considered the pleadings and...