Doorack v. Board of Adjustment of City of Town and Country, 50697
| Decision Date | 29 April 1986 |
| Docket Number | No. 50697,50697 |
| Citation | 709 S.W.2d 140 |
| Parties | William DOORACK and Marilyn B. Doorack, Appellants, v. BOARD OF ADJUSTMENT OF the CITY OF TOWN AND COUNTRY, Respondents. |
| Court | Missouri Court of Appeals |
Shifrin, Treiman, Barken, Dempsey, Ulrich & Davis, Bernard A. Barken, Gary S. Heggs, St. Louis, for appellants.
James L. Sullivan, St. Louis, for respondents.
Owners, William and Marilyn B. Doorack, appeal from the judgment of the circuit court affirming the decision of the Board of Adjustment of the City of Town and Country which denied them a permit to construct a second driveway from their residence to an adjacent public street. We affirm.
Owners submitted plans to the Building Commissioner for a new home in a subdivision located in the City of Town and Country (City). The plans depicted two driveways. The first driveway was a circle drive in the front of the residence which exited onto a subdivision street, Todforth Way. The second was a driveway in the back which extended from the garage to Bopp Road, a public street. The Building Commissioner returned the plans with a notation that the rear driveway would not be allowed unless the Board of Aldermen approved it. Owners began construction and requested permission from the Board of Aldermen to build the rear driveway. The Street Commissioner inspected the site along with the City's Consulting Engineer and recommended to the Board of Aldermen that Owners' request be denied. The Board of Aldermen accepted the Street Commissioner's recommendation. Owners petitioned the City's Board of Adjustment (Board) for a variance. 1 The Building Commissioner recommended denial of the variance for the reasons that the proposed driveway would "create an unsafe ingress and egress" onto Bopp Road in violation of § 17.09(I)(1)(a) 2 of the Municipal Code; and that, when the subdivision was developed, no driveways from individual lots onto Bopp Road were approved in accordance with § 17.09(I)(9)(c). 3 Owners appealed to the Board, which conducted a hearing and affirmed the decision of the City officials. The circuit court denied a writ of certiorari and affirmed the decision of the Board.
On appeal, we determine first if the Board's action was authorized by law; and second, whether its decision was supported by competent and substantial evidence upon the whole record. Wolfner v. Board of Adjustment of City of Frontenac, 672 S.W.2d 147, 150 (Mo.App.1984). Neither this court nor the circuit court may substitute its judgment for that of the administrative tribunal. Id. Owners' first two points, in essence, focus on the authority of the Board to act. Their third point deals with whether the Board's decision was supported by substantial evidence upon the whole record.
In their first point, Owners question whether it is within the power of the City to regulate an abutting landowner's access to a public road and whether such regulation was reasonable. Both parties agree that Owners have a right of access to an adjacent public road. See State ex rel. State Highway Comm'n v. Hoffmann, 132 S.W.2d 27, 32 (Mo.App.1939). Both also agree that this right of ingress and egress is subject to the valid exercise of the police power of the City to protect the public and to facilitate traffic. See State ex rel. State Highway Comm'n v. Meier, 388 S.W.2d 855, 857 (Mo. banc 1965). The right of access may be limited to a reasonable access under the existing facts and circumstances of each case. State ex rel. State Highway Comm'n v. Zahn, 633 S.W.2d 185, 190 (Mo.App.1982). "The right does not include the right to travel in any particular direction from one's property or upon any particular part of the public highway right-of-way...." Meier, 388 S.W.2d at 857.
Here, Owners had access to an adjacent public street. The circle driveway in front of Owners' home connected with a subdivision street which in turn led to a public street. For all the other lots in the subdivision this single means of ingress and egress was sufficient. Further, Bopp Road was still accessible to Owners, albeit by a more circuitous route. Restriction of the Owners' access to Bopp Road was a reasonable exercise of the Board's police power. Owners' first point is denied.
Owners' second point is that the City's ordinances do not vest City officials with the authority to deny a request for a driveway.
Section 21.04(B)(2)(a)(9) of the City's Code states in pertinent part:
The extent and placement of curb cuts onto collector, service, or arterial streets shall require the City's approval and the approval of the party having jurisdiction over said street....
Section 8.03(F)(1) provides in pertinent part:
Any person, firm or corporation, before disturbing, encroaching, cutting or excavating to any depth of any area in, upon or across any street, right-of-way or public easement shall first apply to the Street Commissioner for permission....
Section 8.03(A) states:
The Board of Aldermen shall have the exclusive authority: to establish streets; to plan and approve specifications therefor; to establish or change the grade of streets; to build, alter, name, rename, widen, repair, maintain and clean all streets; to prohibit and prevent all encroachment into and upon streets; and to pay for such improvements from the general revenue, special benefit districts as shall be deemed appropriate by the Board of Aldermen.
These provisions of the municipal code clearly give the City officials and the Board of Aldermen the authority to grant or to deny permits to an applicant seeking an encroachment into a public street. A driveway clearly is an encroachment into a street within the meaning of the ordinance. The City has the...
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