Berberich v. Concordia Gymnastic Soc.
| Citation | 402 S.W.2d 582 |
| Decision Date | 19 April 1966 |
| Docket Number | No. 32272,32272 |
| Parties | W. BERBERICH, Rod Tiemann, A. J. Gubser, George Stocker, G. C. Biesinger, Nelson H. Buss, and William Hennerich, Plaintiffs-Appellants, v. CONCORDIA GYMNASTIC SOCIETY, Defendant-Respondent, City of Saint Louis, Intervenor-Respondent. |
| Court | Missouri Court of Appeals |
Herman M. Katcher, Walter S. Berkman, St. Louis, for appellant.
Stemmler & Stemmler, St. Louis, for defendant-respondent.
Thomas F. McGuire, City Counselor, Thomas J. Neenan, John J. Fitzgibbon, Associate City Counselors, St. Louis, for intervenor-respondent.
TOWNSEND, Commissioner.
This is an action for a declaratory judgment seeking a declaration as to the rights and duties of the parties with respect to certain real estate acquired by defendant in 1961 and for an injunction restraining defendant from the use of that real estate in alleged violation of the Zoning Ordinances of the City of St. Louis. The city has intervened. From an adverse judgment, plaintiffs appeal.
Plaintiffs charge that the allegedly unauthorized and illegal use of defendant's property is continuous and recurrent, that the damage to plaintiffs flowing therefrom is irreparable, that plaintiffs will suffer further deterioration in the value of the property of each unless such use is enjoined, that the damage is not susceptible of precise determination, and that plaintiffs are without adequate remedies at law. Defendant denies any violation of the ordinances and on the contrary maintains that present and contemplated uses of the property in question are specifically permitted thereunder. Defendant also denies that either its present or intended use of that property has caused or will cause plaintiffs to suffer any damages or deterioration of their property whatsoever.
Defendant has filed a motion to dismiss the appeal on the ground that the questions presented have become moot. We find otherwise and deny the motion.
Defendant's tract lies in part in 'F' zoning district (commercial) and in part in 'A' district (single-family dwelling). The westerly or F part of the tract faces on Gravois Avenue and is occupied in part by defendant's buildings, housing dining rooms, bar, handball court and gymnasium. The A part of the tract lies in general back of such buildings and hence is in the easterly part of defendant's real estate. Maps introduced by the parties indicate that the defendant's real estate has a depth from Gravois Avenue of approximately 350 feet and that the F portion of the tract is approximately 125 feet in depth. Plaintiffs are the owners of single-family dwellings on lots contiguous with or in the immediate vicinity of Part A.
The relevant zoning ordinance of the City of St. Louis was adopted in 1950 (Ord. 45309). The pertinent parts are found in Chapters 904 and 903 of the city code and are as follows:
'904 'A' SINGLE-FAMILY DWELLING DISTRICT
904.010 District Regulations.--The regulations set forth in this Chapter or set forth elsewhere in the zoning code when referred to in this Chapter are the district regulations in the 'A' Single-Family Dwelling District.
904.020. Use Regulations.--A building or premises shall be used only for the following purposes:
(1) Single-Family Dwellings.
(5) Churches.
(6) Schools offering not less than two years of complete courses of instruction equivalent to those given in public primary, secondary and high schools or state universities.
(9) Publicly owned museums, art galleries, parks and playgrounds, and libraries; and privately owned parks and playgrounds wherein no service is rendered, or activity conducted, as a business. 1
(10) Accessory building and uses customarily incidental to any of the above uses * * *
* * *'
Section 903.010 of the Code provides: 'Uses Prohibited.--No building or land shall be used for a use other than those permitted in the district in which such premises are located unless * * * (b) such use existed prior to the effective date of this ordinance.' 2 The ordinance was approved April 25, 1950.
We note that the parties have stipulated that a Certificate of Occupancy was issued by the city's Department of Public Safety, Division of Building and Inspection, on June 8, 1962, and that it certifies that the property at 6432 Gravois is in the ' This certificate is of no moment in the present case since, insofar as the real estate here in controversy is concerned, it simply recites the terms of the ordinance and so aids in determining nothing. And see Evans v. Roth, 356 Mo. 237, 201 S.W.2d 357.
Defendant put into evidence a plat showing proposed developments in the A area including swimming pool, parking area, children's area with a wading pool, a horseshoe pitching plot, fences and shrubbery. At the rear of the lot the plat shows an area designated as 'Outdoor Activities (Running, Shot Put, etc.)'. The latter area runs across almost the full width of the tract and ends at one corner with 'Sand Pit for Jumping'. The north side of the proposed parking area to its full length and a small part of the 'Outdoor Activities' area are those portions of the A area that lie nearest to the residences of plaintiffs. Defendant's president testified concerning the various intended uses. About one and one-half acres lie within the A zoned area; approximately two-thirds of such A part is to be available as a parking lot. He suggested the possibility that the paved part of such two-thirds would be used for variant purposes--handball courts, tennis courts, barbecues and picnicking, and square dances--'by any part of our program that it would be best suited for'.
By the evidence and the arguments, pro and con, emphasis has been placed principally upon the matter of building and operating a swimming pool.
We proceed to consider the following numbered specifications of violations alleged by plaintiffs in their petition:
That defendant 'has permitted, and will permit, large assemblies of persons for playground and picnics in said area designated as Zoned 'A' single family dwelling'. The record is barren of any evidence relating to the size of the groups which assemble on part A for playground purposes. Nor could such size seem to be material if part A is being utilized for one of the purposes specifically comprehended within 'A' Single-Family Dwelling District, namely, use as a privately owned park and playground. As far as use as a park and playground simpliciter are concerned there is nothing to indicate that service is rendered or an activity conducted in connection therewith as a business. As for picnics, we have no difficulty in recognizing picnicking as an 'accessory use customarily incidental' to the use of a park and playground. The habits and customs of our fellow citizens are not so unknown to us as to leave us in any doubts on that score. We find no ordinance violation under this head.
That defendant 'plans to, and proposes to, use its said property for the purpose of constructing a swimming pool and cabanna area in an area Zoned 'A' single family dwelling, to be available to restricted public membership'. Does the construction and operation of a swimming pool fall outside the scope of use of the premises as a park and playground? To this question plaintiffs have vigorously devoted a large part of their argument. We disagree with their contentions. It needs no buttressing by the citation of precedents to say that parks and playgrounds are generally conceived to be areas devoted to recreation and in this day and age it would be a little late to embrace the concept of a park and playground as necessarily excluding facilities for physical exercise, for recreational sports and for competitive games. There can be no doubt that swimming is a healthful and popular form of recreation and relaxation. The presence of swimming pools in parks and playgrounds is a matter of such common knowledge that the practice of so installing and maintaining them cannot be ignored.
Counsel have presented no precedents in this respect relating to private parks and playgrounds and investigation has brought none to our attention. However Section 904.020 includes publicly owned parks and playgrounds in the same subsection (9) with privately owned parks and playgrounds and, while it would be pure dictum to say that the criteria for determining the permissive uses of one are always the same as for the other, the juxtaposition of the two terms in the same subsection justifies an examination of some of the available precedents relating to permissive uses of public parks and playgrounds.
In Bailey v. City of Topeka, 97 Kan. 327, 154 P. 1014, L.R.A.1916D, 491, there was a private gift of land to the City to be used as a public park 'for the benefit of the health, comfort and recreation of the citizens * * *.' The Court said: 'Clearly it is not inconsistent with the conditions imposed by the donor of the property that visitors to the park should be afforded facilities * * * for boating, and bathing * * * the facilities undertaken to be supplied are appropriate to the conduct of a public park.'
'A public park is ground used for public recreation * * * swimming is a popular and healthful recreation, so we are of the opinion that a public swimming pool is within the definition of a public park and the City had charter power to operate such pool.' Ashworth v. City of Clarksburg, 118 W.Va. 476, 190 S.E. 763.
'The swimming pool * * * was a feature of the park tending to promote public health, happiness, and welfare.' Gilliland v. City of Topeka, 124 Kan. 726, 262 P. 493.
The Supreme Court of Colorado in an opinion put the question: 'Is the installation of a swimming pool and bathhouse in a public park, for the use of the public, a park purpose? The answer is 'Yes ". McLauthlin v. City and...
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