Brown v. Montgomery

• Decision Date: 11 March 1946
• Docket Number: 39630
• Parties: Victor Brown and Sadie Brown, Appellants, v. George S. Montgomery, Fred W. Klaber and Walter L. Yost, Members of and Constituting Jackson County Board of Zoning Adjustment, Defendants, Women's Christian Association of Kansas City, Missouri, et al., Intervenors
• Court: Missouri Supreme Court

193 S.W.2d 23

354 Mo. 1041

Victor Brown and Sadie Brown, Appellants, v. George S. Montgomery, Fred W. Klaber and Walter L. Yost, Members of and Constituting Jackson County Board of Zoning Adjustment, Defendants, Women's Christian Association of Kansas City, Missouri, et al., Intervenors

No. 39630

Supreme Court of Missouri

March 11, 1946

Appeal from Jackson Circuit Court; Hon. Paul A. Buzard Judge.

Affirmed.

William G. Boatright for appellants.

(1) The appeals of intervenors to the Board of Zoning Adjustment invoked consideration of errors of law only committed by the Zoning Engineer. Neither the Board of Zoning Adjustment nor the court is authorized to substitute their judgment and opinion on the facts nor to substitute their discretion for the administrative discretion vested in and exercised by the Zoning Engineer. If the Zoning Engineer is shown to have acted on substantial evidence touching all the elements properly to be considered and is shown to have given real and genuine consideration to all facts and elements involved and if his conclusion is a legally permissible one on the facts it is final, and cannot be set aside or disregarded either by the Board of Zoning Adjustment or the court on certiorari. Sec. 12, Enabling Act, Laws 1941, p. 487; In re Botz, 159 S.W.2d 367. (2) It was affirmatively shown that the Zoning Engineer, in issuing the permit, had before him all of the facts necessary to be considered on each of the elements involved in a proper determination of whether or not a permit should issue and that the facts were substantial in support of the decision reached by him and that his decision embraced a comprehensive consideration and understanding of all facts and elements and is a legally permissible decision on the facts and under the law properly applied. It is, therefore, final. (3) There is no provision in the Enabling Act or the Zoning Order authorizing denial of a permit because the applicant therefore has committed a violation of the Zoning Order. Both the Act and the Order fix the penalty for violation thereof. Such penalty is exclusive. Neither the Board of Zoning Adjustment nor the court has any power to assess or to direct the assessment of any other or further penalty. (4) Under this Zoning Order and under the facts in this case denial of a permit on a proper application therefor to change the existing non-conforming use to another of the same classification and to make interior alterations necessary to accommodate such changed use constitutes an unconstitutional deprivation of appellants' property and rights without due process of law and the taking of appellants' property for public use and the depriving of appellants of the use thereof without just compensation. Fifth and Fourteenth Amendments U.S. Constitution; Art. II Secs. 20, 21, and 30, Mo. Constitution, 1875; Art. I, Secs. 10, 26, 28, Mo. Constitution, 1945.

Floyd R. Gibson for defendants.

(1) Decision of Board of Zoning Adjustment in denying permit is correct in result, even though erroneous reason was stated for decision, since the evidence conclusively shows as a matter of law that appellants did expand their non-conforming use and that alterations were made which prolonged the life of their non-conforming structure, all in violation of the Enabling Act and the Zoning Order. Women's Christian Assn. of Kansas City v. Brown, 354 Mo. 700, 190 S.W.2d 900; In re Botz, 159 S.W.2d 367; Sec. 140, General Code of Civil Procedure, 1943, Laws, p. 358; Natl. Lumber Products Co. v. Ponzio, 133 N.J.L. 95, 42 A.2d 753; 147 A.L.R. 161. (2) Decision of Board of Zoning Adjustment should be sustained outright as evidence conclusively shows that appellants had intentionally and deliberately abandoned their lawful non-conforming use as a stable and then later commenced operation of a use not permitted in District "A," wherein they were located. Section 11, Enabling Act, Laws 1941, p. 487; Wood v. District of Columbia, 39 A.2d 67. (3) Board of Zoning Adjustment is an administrative tribunal charged with general supervision and enforcement of Zoning Order with broad appellate jurisdiction of appeals from zoning enforcement officials; and its decision, when supported by substantial evidence, will be affirmed on appeal. Sec. 12, Enabling Act, Laws 1941, p. 487; In re Botz, 159 S.W.2d 367; Berard v. Board of Adjustment, 138 S.W.2d 731; State ex rel. Nigro v. Kansas City, 27 S.W.2d 1030; Women's Christian Assn. of Kansas City v. Brown, 354 Mo. 700, 190 S.W.2d 900. (4) The Enabling Act and the Zoning Order adopted thereunder are reasonable and constitutional, providing adequate methods of hearing and appeal for all controversies arising under the zoning regulations and the appellants have not suffered any deprivation of their property rights: and such procedure as is provided under the Enabling Act and the Zoning Order constitutes due process of law. Women's Christian Assn. of Kansas City v. Brown, supra; State ex rel. Cadillac v. Christopher, 298 S.W. 720.

Cyrus Crane and Rudolph Heitz for intervenors.

(1) The decision of the Zoning Engineer granting a permit is contrary to the evidence in that the evidence conclusively shows that appellants are not entitled to a permit for the reason they violated Section 16 of the Zoning Order which expressly prohibits the "expansion" of a non-conforming use and they made alterations in their building which prolonged the life of their non-conforming building in violation of both the Enabling Act and Zoning Order. Women's Christian Assn. of Kansas City v. Brown, 354 Mo. 700, 190 S.W.2d 900. (2) The evidence shows the alterations made in the building constitute a prolongation of the life of a non-conforming building. Rice v. Zoning Board of Appeals, 122 Conn. 435, 190 A. 257. (3) The evidence shows the change of non-conforming use contemplated was an expansion of a non-conforming use in violation of the express provisions of Section 16 of the Zoning Order. Women's Christian Assn. of Kansas City v. Brown, supra; In re Botz, 236 Mo.App. 566, 159 S.W.2d 367; De Felice v. Zoning Board of Appeals, 130 Conn. 156, 32 A.2d 635. (4) If the decision of the Board of Zoning Adjustment denying appellants a permit is supported by substantial evidence its decision will be affirmed on appeal. Laws 1941, pp. 487, 488, secs. 11, 12; Berard v. Board of Adjustment of City of St. Louis, 138 S.W.2d 731; State ex rel. Nigro v. Kansas City, 325 Mo. 95, 27 S.W.2d 1030; Reaves v. Pierce, 26 S.W.2d 611; Women's Christian Association of Kansas City v. Brown, supra. (5) The Zoning Order does not give an arbitrary discretion to deny or grant permits and, therefore, due process is not lacking. Women's Christian Assn. of Kansas City v. Brown, supra.

Dalton, C. Bradley and Van Osdol, CC., concur.

OPINION

DALTON

This is an appeal from a judgment entered in a certiorari proceeding instituted to review a decision of the County Board of Zoning Adjustment of Jackson County denying appellants' application for a permit to change the use of their property and make alterations. The court found that the Board had erred in its determination of the use made of appellants' property on the effective date of the Zoning Order and remanded the cause for correction of the error and a redetermination of appellants' application in conformity with the court's opinion.

On December 19, 1944, the circuit court of Jackson County permanently enjoined appellants from using the property in question as a dance hall until they should apply for and obtain from the Zoning Engineer of said county a permit authorizing such use and such alterations as were necessary or desired. On appeal the injunction decree was affirmed by this court. Women's Christian Association of Kansas City v. Brown et al., 354 Mo. 700, 190 S.W.2d 900. Substantially all of the record and evidence in that case was offered and received in evidence in this cause at the hearing before the circuit court. The facts stated in the opinion of this court in that case are essential to an understanding of the issues presented here and reference is had to that opinion for said facts.

Pending the appeal of the injunction suit, appellants applied to the Zoning Engineer of said county for a permit to change the use of their property from a lawful non-conforming use to what they alleged to be another non-conforming use of the same classification, towit, from use as a "public stable" to use as a "dance hall", and to effect necessary alterations. A hearing was had before the Zoning Engineer. The hearing related particularly to the character of the use being made of appellants' property on and prior to April 26, 1943, the date of the adoption of the Zoning Order by the County Court of said county. The Zoning Engineer found that appellants' operation of their premises on that date was "such as would commonly and ordinarily be classified as a public stable"; that dance halls were in the same classification; and that the Zoning Order permitted a change of use from one non-conforming use to another non-conforming use of the same or a higher classification. He authorized the change of use and proper interior alterations of the building thereon, but ordered that the changed use be not expanded or enlarged from the former use; and that the physical properties located on the premises be not structurally altered without the consent of the proper authorities.

The Women's Christian Association and other interested property owners appealed from the finding and decision of the Zoning Engineer. On the appeal, evidence was heard by the County Board of Zoning Adjustment and the Board found that appellants' use of the property was that of a "commercial and riding stable and tracks"; that such use was in District "D" of the Zoning Order...