Cunningham v. Board of Aldermen of City of Overland, 48671

Decision Date14 May 1985
Docket NumberNo. 48671,48671
Citation691 S.W.2d 464
PartiesJon CUNNINGHAM, d/b/a Jag Shop, et al., Respondents, v. BOARD OF ALDERMEN OF The CITY OF OVERLAND, et al., Appellants.
CourtMissouri Court of Appeals

Steven W. Garrett, Brackman, Copeland, Oetting, Copeland, Schmidt & Stock, Clayton, for respondents.

Norman A. Selner, Selner, Glaser & Komen, St. Louis, for appellants.

SIMON, Presiding Judge.

The mayor, clerk, and Board of Aldermen of the City of Overland, appellants, appeal from the judgment of the Circuit Court of St. Louis County entered in favor of respondents, Jon Cunningham, d/b/a Jag Shop, and Seiler Enterprises, Inc., d/b/a Mike & Lou's Auto Body, who had sought review of appellants' action in denying respondents' application for a business license in Overland. We affirm.

On appeal, appellants contend: (1) the denial of the business license to respondents was proper because the applicable zoning ordinance does not permit auto repair shops within the M-1 Industrial District in which the property is located; (2) any decision to approve the license application would be an ultra vires action by them because of the zoning ordinance restrictions; (3) the litigation became moot by the expiration of respondents' contract to buy the real estate precluding any possible remedy; and (4) the court's decision on the merits may, under principles of collateral estoppel, deprive appellants of a full and fair trial on the issue of liability in respondents' civil action for damages against appellants filed in federal court.

Respondents filed a joint application for a business license to operate their businesses, an auto repair shop and an auto body shop at 1901 Brown Road in the City of Overland. Mr. Spetner, d/b/a "Sports Energizers," also applied for a business license at the same address. The Board of Aldermen of Overland reviewed all the applications for business licenses at a hearing on August 8, 1983. At the hearing, appellants learned respondents had a contract to purchase the property at 1901 Brown Road, contingent upon their obtaining business licenses to operate from that address by August 15, 1983. Mr. Spetner had no signed contract. Mr. Spetner had only submitted a purchase offer to the owner of the property on Brown Road. After permitting certain residents at the hearing to voice their strong opposition to approval of respondents' business license application, the Board voted five to three to deny respondents' application.

On August 12, 1983, respondents filed a petition for review seeking in the first count to reverse the Board's decision and to compel the Board, the mayor, and the city clerk to issue the license before August 15, 1983, the date of the expiration of their purchase contract for the premises. Further, the petition contained a second count, a writ of mandamus, also seeking to compel the Board to issue the license. The prayers in both counts asked for payment by Overland of their court costs and attorneys' fees, and for such other orders deemed meet and proper.

The trial court did not rule by August 15, 1983, as the petition originally prayed. The case was not tried until March 22, 1984. During the pendency of the litigation, the Board issued a business license to Mr. Spetner, who then began to, and apparently still does, occupy the premises on Brown Road. On April 4, 1984, the trial court rendered its judgment finding that respondents no longer had an option contract for the purchase of the property and that they could no longer acquire such an option, but that appellants had illegally denied respondents the business license. The court ordered the Board's decision be reversed and found the action of the Board to be arbitrary and capricious, yet did not order a writ of mandamus for the issuance of the business license because of the change in circumstances. All costs of the proceeding were taxed against Overland and no attorneys' fees were awarded after the court stated it had no authority to do so.

In addition to the action in the Circuit Court of St. Louis County, respondents filed a damage action against appellants in federal court. Neither the pleadings nor the status of the federal court action appear in the record on appeal.

Section 536.140 RSMo 1978, the statute governing appeals from decisions of administrative agencies, delineates the scope of review of the trial court. Our review is of the Board of Overland's action and not the judgment of the circuit court. Evangelical Retirement Homes v. State Tax Commission, 669 S.W.2d 548, 552 (Mo. banc 1984). Generally, our review is limited to a determination of whether the Board's action is supported by competent and substantial evidence upon the whole record or whether it is arbitrary, capricious, unreasonable, unlawful, or in excess of its jurisdiction. Id. at 552. Section 536.140.2 RSMo 1978.

Appellants' first point is that the trial court erred in ruling that the use for the automobile repair shop was within a properly zoned area and that the zoning was proper for the business license requested because the Overland zoning ordinance, particularly the M-1 Industrial District provision, does not permit automobile repair shops as either a permissive, permitted, or conditional use within that area. Section 4, captioned "Use Regulations," of the zoning ordinance of the City of Overland establishes districts setting forth the purpose for which a building or premise shall be used within the respective districts.

The first category under § 4(A)(9), the M-1 Industrial District, is "Permissive Uses" which begins: "(a) Any nonresidential use permitted in the C-2 Commercial District." The next six permissive uses delineate a variety of manufacturing activities including the manufacturing or assembly of electrical or electronic apparatus, boats, bolts, nuts, screws and rivets, firearms, tools, dies, machinery and hardware products, and sheet metal products. The final permissive use specifies "Generally those light manufacturing uses similar to those listed in items above which do not create any more danger to health and safety in surrounding areas and which do not create any more offensive noise, vibration, smoke, dust, lint, odors, heat, or glare than that which is generally associated with light industries of the type specifically permitted." Section 4(A)(9)(h). The M-1 Industrial District then lists "Conditional Uses" under which "None" appears.

Section 4(A)(7), C-2 General Commercial District, lists permissive uses and provides: "Any permissive use of the C-1 District," followed by a litany of other permissive uses. The C-2 Commercial District also contains "Conditional Uses" which includes public garage, filling station, or automobile repair shop.

Appellants state that, where the M-1 Industrial District "Permissive Uses" lists "any nonresidential use permitted in the C-2 Commercial District," the ordinance means only those uses specified under C-2 "Permissive Uses," and not the C-2 "Conditional Uses." Appellants argue that, although the use of the terms "permitted" and "permissive" are used loosely in an interchangeable fashion throughout the ordinances, the clear intent was to maintain discretionary power over all of the conditional uses mentioned in the various zoning districts. Respondents answer that "any nonresidential use permitted in C-2" properly includes both C-2 Permissive Uses and C-2 Conditional Uses as "Permissive Uses" in the M-1 Industrial District.

In support of its view, respondents highlight evidence in the record that appellants issued licenses to automobile repair shops in districts zoned M-1 Industrial under the same ordinance on prior occasions, and that at the time of respondents' hearing in Overland before the Board on the business license request, the mayor, Board, Building Commissioner, and city attorney were under the impression that the property was appropriately zoned for the use requested. Relying on Walmer Investment Co. v. Mueller, 512 S.W.2d 180, 184 (Mo.App.1974), appellants reply that regardless of how many occupancy permits or business licenses were improperly issued to auto body shops in the M-1 Industrial District or of how many times the Board had improperly assumed auto body shops were properly allowable within the M-1 District, these two factors do not prevent the proper application of the ordinance. Thus, the issue is whether the language of M-1 "Permissive Uses" which states "any nonresidential use permitted in the C-2 Commercial District" encompasses both Permissive Uses and Conditional Uses in C-2 or just C-2 Permissive Uses.

The ordinance does not define either "permitted use" or "permissive use." In Coots v. J. A. Tobin Construction Co., 634 S.W.2d 249 (Mo.App.1982), the court sets out the following principles of construction for interpretation of zoning ordinances:

(1) The determination of what uses are permitted under a zoning ordinance must be made on the basis of the wording of the particular ordinance and the context in which it occurs;

(2) The basic rule of statutory construction is to seek the intention of the legislators and, if possible, to effectuate that intention;

(3) Legislative intent must be ascertained by giving the word 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;

(4) 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;

(5) 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;

(6) The interpretation placed upon a zoning ordinance by the body in charge of its enactment and application is...

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    ...ordinances are strictly construed against the zoning authority and in favor of the property owner. Cunningham v. Bd. of Aldermen of the City of Overland, 691 S.W.2d 464, 469 (Mo.App.1985); Fairmont Inv. Co. v. Woermann, 357 Mo. 625, 210 S.W.2d 26, 29 Also, Missouri law provides that, upon c......
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