Coots v. J. A. Tobin Const. Co., WD

Decision Date18 May 1982
Docket NumberNo. WD,WD
Citation634 S.W.2d 249
PartiesJohn W. COOTS, Jr., et al., Respondents-Plaintiffs, v. J. A. TOBIN CONSTRUCTION CO., Appellant-Defendant. 32806.
CourtMissouri Court of Appeals

Max W. Foust, John Del Perico, John F. Clisbee, Kansas City, for appellant-defendant.

Douglas B. Eskridge, Abe Shafer, Kansas City, for respondents-plaintiffs.

Before CLARK, P. J., and MANFORD and KENNEDY, JJ.

CLARK, Presiding Judge.

J. A. Tobin Construction Company appeals from the judgment of the circuit court permanently enjoining Tobin from operating a rock quarry and crusher plant on land leased by Tobin in rural Platte County. Reversed.

This action commenced on the petition of various private property owners who, under the provisions of § 64.690.2, RSMo 1978, are authorized to sue for restraint, abatement or correction of alleged zoning violations. Although county officers are not parties to the suit and the record suggests the county is in agreement that Tobin is entitled to operate the quarry, the issue is presented, nonetheless, as to whether the zoning classification of the land as established by the Platte County Zoning Order empowers Tobin as a matter of right to use the property for rock quarrying and crushing operations. If the zoning was appropriate for this use, the trial court erred when its injunction was issued.

Tobin first entered into a lease of the subject land, comprising 160 undeveloped acres, in 1968. At that time, Tobin applied for and was granted rezoning of the land from District A, agricultural, to District M-2, heavy industrial. Such classifications were within the schedules of the 1953 Platte County Zoning Order. Although Tobin had intended at the time to commence a quarry operation, none was actually undertaken.

Tobin's interest in obtaining a source of crushed rock was renewed in 1980 because of contemplated construction on Interstate Route 435. A new lease of the land was negotiated for a term of five years, preliminary excavation was completed and the required equipment was moved onto the site. Before actual quarrying could commence, however, the present action was filed and the permanent injunction was issued May 11, 1981. 1

The M-2 District zoning which had been acquired on application by Tobin in 1968 had changed by 1980 through the adoption of the Platte County Amended Comprehensive Zoning Order of 1972. As will hereafter be discussed in more detail, the 1972 zoning order provided a different scheme of zoning classifications which substituted different district designations and different use descriptions. A major difference between the 1953 and 1972 orders was that the former attempted specifically to catalog each use permitted within a district in a "laundry list" manner whereas the latter contained only broad categories or classes of uses. Thus, under the 1953 order, uses permitted in District M-2 included and expressly enumerated quarrying and rock crushing. The 1972 order made no such provision electing instead to employ the general term "Industrial uses."

The 1953 zoning order had provided three districts for manufacturing or industrial type activities, Districts M-1, M-2 and M-3. District M-1 was further identified as "Light Industry," District M-2 was "Heavy Industry" and District M-3 was "Heavy Industry (Residual Uses)." These designations were abandoned in the 1972 order in favor of a single district-PI-Planned Industrial. A part of the 1972 order was a Table of General Use Regulations which, as to each district, listed the following: Uses Permitted by Right, Uses Permitted by Special Permit of the Planning Commission, Permitted Accessory Uses, Permitted Accessory Signs. Relevant to this suit are the uses permitted by right in the PI District stated as follows:

"Industrial uses which may include manufacturing, fabrication, processing, converting, altering, assembling, testing or other handling of products except those specifically prohibited in Sec. 5.1-6."

Suffice it to say here that uses listed in § 5.1-6 do not include rock quarrying or crushing and there is no contention that § 5.1-6 is in any way applicable to this case.

When the 1972 order was adopted, it was necessary to convert existing zoning to the new set of category designations. A zoning map of the county showing revised district designations was prepared and incorporated by reference in the 1972 zoning order. The effect was to rezone the entire county, but accommodating as nearly as possible the new district symbols to the zoning which had prevailed under the 1953 order. In some instances, such as District AG-Agricultural, the change was inconsequential. In others, as for example the industrial districts, M-1, M-2 and M-3, the change was more complex.

The subject property which had been zoned M-2 under the 1953 order was placed in the 1972 category of PI. The evidence disclosed that a number of rock quarries were in actual operation in Platte County when the 1972 zoning order was adopted. Those tracts, in common with the subject property, were all placed in District PI on the 1972 zoning map.

Appellant Tobin contends it is entitled as a matter of right under the 1972 zoning order to use the subject property for operation of a rock quarry and crusher in District PI, particularly here where the land had formerly been zoned for that use, and elsewhere in the county actual quarries were being operated in PI zoned areas. The answer to the question depends on the interpretation given the language used in the table appearing in the 1972 zoning order, particularly the definition of industrial uses as quoted above. Also bearing on the issue is the construction which county authorities have placed on the zoning order and its application to similar uses.

The determination of what uses are permitted under a zoning ordinance "must be made on the basis of the wording of th(e) particular ordinance and the context in which it occurs." Suburbia Gardens Nursery, Inc. v. County of St. Louis, 377 S.W.2d 266, 272(5) (Mo. banc 1964). Among the uses permitted by right in PI districts are "(i)ndustrial uses which may include manufacturing, fabrication, processing, converting, altering, assembling, testing or other handling of products, except those specifically prohibited in Sec. 5.1-6."

"The basic rule of statutory construction is to seek the intention of the legislators and, if possible, to effectuate that intention." Schimmer v. H. W. Freeman Construction Co., Inc., 607 S.W.2d 767, 769(2) (Mo.App.1980). Since the ordinance does not offer a definition of "industrial uses", "products", or the processes described in the ordinance, legislative intent must be ascertained by giving the words an ordinary, plain, and natural meaning, by considering the entire act and its purposes, and by seeking to avoid an unjust, absurd, unreasonable, or oppressive result. State ex rel. C.C.G. Management Corp. v. City of Overland, 624 S.W.2d 50, 53(4) (Mo.App.1981); Hasekamp v. Superior Equipment Company, Inc., 490 S.W.2d 385, 388(3) (Mo.App.1973).

It is widely accepted that zoning ordinances, being in derogation of common law property rights, are to be strictly construed in favor of the property owner against the zoning authority. 3 Anderson, American Law of Zoning § 16.02 (2d ed. 1977); 1 Rathkopf, The Law of Zoning and Planning ch. 9 (4th ed. 1977); e.g., County of Lake v. First National Bank of Lake Forest, 68 Ill.App.3d 693, 25 Ill.Dec. 123, 126(1), 386 N.E.2d 394, 397(1) (1979); Keller v. City of Bellingham, 20 Wash.App. 1, 578 P.2d 881, 887(9) (1978). Where a term in a zoning ordinance is susceptible of more than one interpretation, the courts are to "give weight to the interpretation that, while still within the confines of the term, is least restrictive upon the rights of the property owner to use his land as he wishes." Frank's Nursery Sales v. City of Roseville, 295 N.W.2d 604, 608-609(4) (Minn.1980).

Tobin has contended that quarrying and crushing of limestone for use in highway construction falls within the industrial use of manufacturing as set out in the Platte County Zoning Order and that its business may therefore be conducted as a matter of right in District PI. Manufacturing has been defined as "the processing and converting of raw, unfinished, or finished materials or products, or any of these into an article or substance of different character, or for use for a different character, or for use for a different purpose." 3 Anderson, American Law of Zoning § 16.11 (2d ed. 1977). The terms used in the zoning order, "manufacturing", "processing", and "converting", are defined in Webster's Third New International Dictionary (1971) as follows:

"manufacturing-to make ... into a product suitable for use, ... to make from raw materials by hand or by machinery ...; processing-to prepare for market, manufacture, or other commercial use by subjecting to some process ... to make useable by special treatment ...; converting-to change or turn from one state to another; alter in form, substance, or quality ...."

We are obliged to conclude that rock quarrying and crushing, by application of reasonable and settled definitions of the term "manufacturing" are industrial uses which the zoning order authorizes in Planned Industrial Districts.

This conclusion is reinforced by examination of the history of zoning regulation in Platte County and the apparent interpretation placed on the zoning orders by the regulatory body.

As was noted above, the 1953 zoning order created three industrial use zones which described with great particularity the uses permitted in each zone. The M-2 Zone, for example, listed operations such as blast furnaces, rolling mills, coke ovens and steel foundries. Also listed were the particular products which could be manufactured in each zone. From the prefatory language (e.g., "In District M-2 no building or land shall be used * * * for any purpose other than one of the following * * * "), it...

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