Bormann v. City of Richmond Heights

• Court: Missouri Court of Appeals
• Writing for the Court: Hughes
• Citation: Bormann v. City of Richmond Heights, 213 S.W.2d 249 (Mo. App. 1948)
• Decision Date: 15 June 1948
• Docket Number: No. 27448.,27448.
• Parties: BORMANN v. CITY OF RICHMOND HEIGHTS et al.

213 S.W.2d 249

BORMANN v. CITY OF RICHMOND HEIGHTS et al.

No. 27448.

St. Louis Court of Appeals. Missouri.

June 15, 1948.

Rehearing Denied September 3, 1948.

Appeal from Circuit Court, St. Louis County; Raymond E. LaDriere, Judge.

"Not to be reported in State Reports."

Action by John H. Bormann against City of Richmond Heights, Missouri, a municipal corporation and others, to enjoin enforcement of a zoning ordinance as to plaintiff and his property. From a judgment of dismissal, plaintiff appeals.

Judgment affirmed.

Gustave A. Stamm and Willard E. Stamm, both of St. Louis, for appellant.

Alexander & Robertson and Louis A. Robertson, all of St. Louis, for respondents.

HUGHES, Judge.

This is an action whereby plaintiff-appellant seeks to enjoin the City of Richmond Heights and its officers from enforcing, as to him and his property, zoning ordinance No. 1685 of the City of Richmond Heights, a municipality in St. Louis County, with respect to the right of plaintiff-appellant to continue a non-conforming use of property he owns which is located in a district classified by the ordinance as a single family dwelling district, and is designated as No. 7714 Weston Place. On plaintiff's property is a two-story frame building erected in 1927 by plaintiff's predecessor in title, Hiram Lloyd Construction Company, pursuant to a permit issued by the city officials on June 22, 1927, to build a frame garage thereon. After its erection in 1927 the building was used as a place of storage for trucks, an automobile, and building material and equipment. After 1939 when the trucks and automobile had been sold, the building was used as a place of storage for such things as concrete mixers, boxes of tools, lumber and similar building equipment, including shovels and picks. The plaintiff, who is a contractor, and who does not reside in Richmond Heights, first began to use the premises in question as a tenant on March 1, 1943, and has since stored in the building such things as dimension lumber, wooden tables, wooden platforms, and a number of outdoor electric floodlights. Plaintiff purchased the property on December 15, 1946, and since then has continued to use the building for the same purpose.

The zoning ordinance was adopted May 5, 1941, and under its terms plaintiff's property was located in and classified as being in a single family dwelling district. The ordinance provided that non-conforming commercial or industrial buildings located within any dwelling district for which a building permit was issued after January 1, 1920, shall be removed or reconverted and the building thereafter devoted to a use permitted in the district in which such building is located, within 40 years from the date of the issuance of the building permit. A further clause provided that a certificate of occupancy be required of all non-conforming uses, and that an application for certificate of occupancy for non-conforming uses be filed within 12 months from the effective date of the ordinance. Neither plaintiff nor his predecessor in title have ever applied for or had issued to them a certificate of occupancy for a non-conforming use.

Prior to the institution of this suit officers of the city, at the complaint of neighboring property owners, inspected plaintiff's building and the use to which it was being put, and plaintiff was advised by the city counselor that the use he was making of the building was in violation of the zoning ordinance, and unless such use was discontinued steps would be taken through the courts for a violation of the ordinance. This suit was instituted by plaintiff to enjoin the city and its officers from enforcing the zoning ordinance as to the plaintiff and his property. The petition is based on three claims of the plaintiff (1) immunity because the non-conforming use of the building existed before and after the enactment of the zoning ordinance; (2) that to deny plaintiff the right to continue a non-conforming use of his property would violate his vested rights as preserved by the Constitution; and (3) prosecutions for repeated violations of the zoning ordinance would result in a multiplicity of suits. Both by motion and by answer the defendants contended that the relief provided by ordinance 1685 is full, complete and adequate, and that the plaintiff must exhaust his remedies at law before applying to a court of equity for relief. The trial court, after hearing the evidence, so held, and dismissed plaintiff's bill in equity, and this appeal by plaintiff followed in due course.

Ordinance No. 1685 is comprehensive, and follows closely the enabling statute, Article 12, Chapter 38, R.S.1939, Mo. R.S. A. By its terms the city was divided into eight districts in order to classify, regulate and restrict the location and use of property within the city. A board of adjustment is established to which an appeal may be taken by any person aggrieved by any decision of the building commissioner or other officer of the city. Such board has wide authority in reviewing any order, requirement, decision or determination made by the building commissioner or other officer in the enforcement of the ordinance, and with a right of review by the circuit court on certiorari.

It is conceded that plaintiff, under the terms of the ordinance, is using his property for industrial purposes, which does not conform to the zoning ordinance with reference to a residential district, to wit, as a storage warehouse for the purpose of storing lumber, building materials and construction equipment; it is further conceded that neither plaintiff nor his predecessor in title have ever applied for or had issued to them or been refused a certificate of occupancy for a non-conforming use, such as plaintiff is making of the property. Under such circumstances can plaintiff ignore the requirements of the zoning ordinance and by injunction enforce his right, if he has such right, to put his property to a non-conforming use for 40 years from June 22, 1927, the date of the permit to erect the building, without first pursuing the method provided by the ordinance?

Section 2 of Article XI of the zoning ordinance provides that the lawful use of a building existing at the time of the effective date of the ordinance may be continued for a term although such use does not conform to the provisions of the ordinance. However, the permissive use so provided by Section 2 of Article XI must be read in connection with Section 5 of Article XV, which provides that a certificate of occupancy is required for all nonconforming uses. In this case plaintiff seeks the benefit of Article XI and at the same time repudiates the requirement of Article XV.

The view we take of the case makes it unnecessary to recite the lengthy evidence touching the use that has been made of the property since the building was erected. Plaintiff does not contend that his use of the building conformed to the ordinance, or that he did not have the right to apply to the building commissioner for a certificate of occupancy, and if refused such certificate to appeal to the board of...