Cohen v. Ennis

• Court: Missouri Supreme Court
• Writing for the Court: HOLLINGSWORTH
• Citation: Cohen v. Ennis, 318 S.W.2d 310 (Mo. 1958)
• Decision Date: 08 December 1958
• Docket Number: No. 47068,47068
• Parties: Joseph COHEN, Margaret Cohen, Louis Cohen, Bella Cohen, Harry Sircus, Ann Sircus, Leo Pollock, Adele Pollock, E. R. Klein, Fay Klein, and Josephine M. Goldberg and Commerce Trust Company, Co-Trustees of Charles E. Milens Trust, Appellants, v. Hugh R. ENNIS, Thomas C. Bourke, David W. Childs, Clair H. Schroeder, and Luther Willis, members of and constituting the Board of Zoning Adjustment of Kansas City, Missouri, Kansas City, Missouri, a municipal corporation, and Continental Baking Company, Inc., Respondents.

Page 310

318 S.W.2d 310

Joseph COHEN, Margaret Cohen, Louis Cohen, Bella Cohen Harry Sircus, Ann Sircus, Leo Pollock, Adele Pollock, E. R Klein, Fay Klein, and Josephine M. Goldberg and Commerce Trust Company, Co-Trustees of Charles E. Milens Trust, Appellants, v. Hugh R. ENNIS, Thomas C. Bourke, David W. Childs, Clair H Schroeder, and Luther Willis, members of and constituting the Board of Zoning Adjustment of Kansas City, Missouri Kansas City, Missouri, a municipal corporation, and Continental Baking Company, Inc., Respondents.

No. 47068.

Supreme Court of Missouri, En Banc.

Dec. 8, 1958.

Philip L. Levi, Solbert M. Wasserstrom, Kansas City, for appellants.

Benj. M. Powers, City Counselor, Guy W. Rice, Asst. City Counselor, Kansas City, for respondents, Kansas City, Mo. and Bd. of Zoning Adjustment.

Fred Bellemere, Sr., Fred Bellemere, Jr., Kansas City, for respondent, Continental Baking Co., Inc.

HOLLINGSWORTH, Chief Justice.

The Board of Zoning Adjustment of Kansas City, Missouri, hereafter referred to as the 'board,' granted to Continental baking Company, hereafter referred to as 'Continental,' a permit to construct and use a driveway over two lots owned by Continental in order to obtain an entrance to the rear of its bakery. Section 58-17 of the Kansas City zoning ordinances authorized the granting of such authority 'after a public hearing, when an undue hardship can be shown and the driveway will not adversely affect the use of neighboring property.' The appellants are owners of neighboring property who claim to be adversely affected.

On December 27, 1955, a public hearing was held by the board, at which Continental and appellants appeared. During the course of that hearing, Continental agreed to amend its application (in a manner not here material) in accord with a suggestion made by the board. The evidence and respective contentions of the parties were fully heard and the board adjourned to January 10, 1956. On January 4, 1956, Continental filed its amended application, in the form suggested by the board, and on January 10, 1956, the board approved it. On January 24, 1956, the board clarified its order of approval by declaring, that the area in question was not to be used by Continental for any purpose other than the maneuvering of its trucks. The aforesaid orders were duly entered of record on the dates they were made. On March 21, 1956, (70 days after the order of January 10 and 56 days after the clarifying order of January 24) appellants filed their petition in the Circuit Court seeking judicial review of the board's decision. A complete transcript of the record, including all of the evidence adduced by the respondents and appellants, was certified to the trial court for review.

Appellants' petition alleged that they were advised at the hearing on December 27, 1955, that they would be notified of the board's decision, that in fact they were not, and invoked the jurisdiction of the circuit court to review the action of the board pursuant to the review provisions of the administrative procedure act, Section 536.110 RSMo 1949, V.A.M.S., which permits the filing of a petition for review 'within thirty days after the mailing or delivery of the notice of the agency's final decision.' (All statutory references herein, unless otherwise indicated, are to RSMo 1949, V.A.M.S.) Continental and the board filed separate motions to dismiss the petition, alleging that it was not presented to the court 'within thirty days after the filing of the decision in the office of the board,' as required by the review provisions of the zoning statutes, Section 89.110 RSMo 1949, V.A.M.S., and Section 58-27 of the zoning ordinances of Kansas City. (Emphasis ours.) These motions were overruled, but respondents again pleaded them in their answer and at the trial again presented them to the court. The cause on the merits was submitted to the court upon the record filed by the board. The court, without mention of the motions to dismiss, determined the merits in favor of Continental and so rendered judgment. It is from that judgment that the protesting property owners have appealed.

Their appeal was originally directed to this court. But, in Cohen v. Ennis, Mo.Sup., 308 S.W.2d 669, we transferred the appeal to the Kansas City Court of Appeals because there was not present a constitutional question in the sense necessary to vest this court with appellate jurisdiction. Reference is made to that opinion for the reasons advanced. The Kansas City Court of Appeals proceeded to examine the merits of the appeal, and in doing so concluded that 'there was no competent and substantial evidence in the record to support the board's order and the circuit court's affirmance of that order.' See Cohen v. Ennis, Mo.App., 314 S.W.2d 239, 244. Having reached this conclusion on the merits, it then became necessary for the court to consider the contention of respondents that since appellants had not filed their petition for review in the circuit court within thirty days after the filing of the decision in the office of the board, as required by Sec. 89.110, they were not entitled to a review on the merits, and that the trial court had erred in overruling their motions to dismiss. Appellants, on the other hand, contended that the petition was timely filed because Sec. 89.110 is violative of Article V, Sec. 22, of the Constitution, V.A.M.S. Since the Kansas City Court of Appeals is without jurisdiction to determine whether Sec. 89.110 is unconstitutional, it retransferred the case to this court.

It is true that no witness testified at the hearing before the board that the use of appellants' property would not be adversely affected, and that appellants, or some of them, testified that the use would be adversely affected. However, continental did introduce testimony to show the use it desired to make of the two lots and of the use of the property in the general neighborhood and established beyond question the need for an entrance-way into its bakery other than from the street on which it faced, both for its advantage in maneuvering its trucks and for the advantage to the public in reducing a traffic problem. Appellants' evidence consisted principally of the testimony of witnesses in the form of conclusions that the use of neighboring property would be adversely affected by the use of the driveway. Apparently, the board gave little credence to that testimony. The view we take of the case, however, makes it unnecessary to review the evidence in that respect.

Section 536.100 (the Administrative Procedure Act) allows judicial review to any person who has exhausted all administrative remedies and who is aggrieved by a final decision in a contested case 'unless some other provision for judicial review is provided by statute.' (Emphasis ours.) Section 89.110 of the statutes relating to zoning in cities of over 10,000 inhabitants specifically provides the procedure for judicial review of the instant case. The pertient provisions are: 'Any person or persons jointly or severally aggrieved by any decision of the board of adjustment, or any officer, department, board or bureau of the municipality, may present to the circuit court of the county or city in which the property affected is located a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality. Such petition shall be presented to the court within thrity days after the filing of the decision in the office of the board. Upon the presentation of such petition the court may allow a writ of certiorari directed to the board of adjustment to review such decision of the board of adjustment * * *. 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 finding of fact and conclusions of law, which shall constitute a part of the proceedings upon which a 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.' (Emphasis ours.)

Obviously, Section 89.110 is controlling and, by virtue of the express provisions of Section 536.100, is determinative of the method of review of the decision here in question, unless, as appellants contend, it 'has been abrogated by Article V, Section 22, of the Missouri Constitution.' The latter provision is as follows: 'All final decisions, findings, rules and orders of any administrative officer or body existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights, shall be subject to direct review by the courts as provided by law; and such review shall include the determination whether the same are authorized by law, and in cases in which a hearing is required by law, whether the same are supported by competent and substantial evidence upon the whole record.' (Emphasis ours.)

In support of their contention that the provisions of Section 89.110 were 'abrogated' by Article V, Section 22, of the Constitution, appellants cite: State ex rel. Police Retirement System of City of St. Louis v. Murphy, 359 Mo. 854, 224 S.W.2d 68; Disabled Police Veterans Club v. Long, Mo.App., 279 S.W.2d 220, and Ruedlinger v. Long, Mo.App., 283 S.W.2d 889. All of those cases dealt with the scope of review provisions of the police retirement act of the City of St. Louis. That act (Section 86.037) limits review of the decisions of its administrative board to 'the common law writ of certiorari, only.' In the Murphy case, supra, it was held that the act was inconsistent with Article V, Section 22, of the Constitution and was, therefore, supplanted by the scope of review provisions set forth in Section 536.140 of the administrative procedure act. In so holding, it was said, 224 S.W.2d loc. cit. 73: ...