Donelson v. Board of Zoning Adjustment of City of St. Joseph

• Citation: 368 S.W.2d 728
• Decision Date: 03 June 1963
• Docket Number: No. 23788,23788
• Parties: Vivian DONELSON, Plaintiff-Appellant Cross-Respondent, v. The BOARD OF ZONING ADJUSTMENT OF the CITY OF ST. JOSEPH, Missouri, and Milton Litvak, Elton Klamm, Daniel J. Patton, J. Doyle Norris and Chris Marolis, the members thereof, Defendants-Respondents Cross-Appellants.
• Court: Court of Appeal of Missouri (US)

Page 728

368 S.W.2d 728

Vivian DONELSON, Plaintiff-Appellant Cross-Respondent, v. The BOARD OF ZONING ADJUSTMENT OF the CITY OF ST. JOSEPH Missouri, and Milton Litvak, Elton Klamm, Daniel J. Patton J. Doyle Norris and Chris Marolis, the members thereof Defendants-Respondents Cross-Appellants.

No. 23788.

Kansas City Court of Appeals, Missouri.

June 3, 1963.

Brown, Douglas & Brown, St. Joseph, for appellant.

J. W. Roberts, St. Joseph, for respondents.

CROSS, Judge.

This is an appeal from the judgment of the circuit court rendered in review proceedings affirming an order of the Board of Zoning Adjustment of the City of St. Joseph. Cross appeals have been taken both by plaintiff, an owner of a residence property in St. Joseph, and by the defendants--the board and its members. Plaintiff has made no appearance and has filed no brief. The only putative appeal issues before us have been presented by defendants, hereinafter sometimes referred to as 'the board'.

The controversy arose in October, 1961, at which time plaintiff undertook to establish and operate a beauty shop in her dwelling house located in a district zoned by ordinance for one-family dwellings, and classified as an "A' One-Family Dwelling District'. Applicable zoning ordinances restricted the use of buildings located in that district to one-family dwelling purposes and to '* * * customary home occupations such as music or dancing lessons, laundry work or dressmaking situated in the dwelling and carried on only by members of the household of the person occupying such dwelling as his or her private residence, provided no window or other display or sign is used to advertise such occupation; provided no commodity is sold upon the premises; provided no mechanical equipment is installed or used except such that is normally used for domestic or household purposes * * *.'. (Our italics.)

In order to obtain an occupation license to operate the contemplated business in her home it was required by ordinance that plaintiff first secure a 'use permit' from the city's superintendent of buildings in the form of a certificate that the proposed business or use is not prohibited by the zoning ordinances. On October 5, 1961, plaintiff applied to the building superintendent for the desired use permit to operate a beauty shop in her home as a 'customary home occupation'. Her application was denied by the official. Thereafter she duly appealed to the defendant Board of Zoning Adjustment.

Following the first of two hearings by the board, that administrative body affirmed the action of the building superintendent and denied plaintiff's application for a use permit. Thereupon she filed her petition for certiorari in the circuit court, pursuant to which that court issued its writ of certiorari directing the board to certify and return its transcript of the hearing proceedings. Upon reviewing the transcript the circuit court made no order except to remand the cause to the board for further hearing and consideration. A second hearing was held by the board, and additional testimony was heard. Again, the board sustained the action of the building superintendent in refusing plaintiff the use permit and 'denied' the appeal. The transcript of the second hearing was duly forwarded to the circuit court for its further consideration of the issues raised by the petition for certiorari.

The evidence heard by the board and reflected by the two transcript establishes the following material facts: Plaintiff, who as a 'beautician' had operated a downtown shop over fifteen years, planned to install the proposed beauty shop in her home basement with a private rest room for patrons, a separate entrance, private sidewalk, and parking space for five cars. Her hours of operation would be from 9:30 A.M. to 3:30 P.M. She would sell no merchandise. There would be a sign placed on a lamp post next to the house to comply with the rules of the State Board of Cosmetology. The shop would be equipped with two electric chair-type hair dryers costing $200.00 apiece. Other equipment would include a hydraulic chair and a reclining shampoo chair costing together $500.00. Plaintiff had actually remodeled the basement into a finished room approximately twelve by fifteen feet in size, with mahogany wall paneling, counter space, sink, mirrors, a supply room and rest room. The room ceiling was covered with acoustical tile and had recessed lighting. The floor was to be tiled. A separate entrance was constructed, connected to the driveway by a new sidewalk. Necessary plumbing, concrete and electrical work was done. The remodeling above noted was done at a cost of $2808.00 and the beauty shop equipment cost was estimated at between $1000.00 and $1500.00. An inspector for the State Board of Cosmetology testified that there were 56 commercial beauty shops in St. Joseph and 75 'one woman operated residence beauty shops'. The witness further testified plaintiff's proposed shop would be far better than the average home shop and would be about the same as a commercial shop. He also stated that it was necessary for plaintiff to display a sign in order to operate her shop as planned. Section 15, Rules and Regulations of the State Board of Cosmetology provides: 'Signs--Every beauty shop * * * shall be provided with a sign designating the services offered and located so as to be clearly visible to the passerby'. Various residents of the plaintiff's neighborhood testified in...