Downing v. City of Joplin

• Decision Date: 14 April 1958
• Docket Number: No. 2,No. 46409,46409,2
• Citation: 312 S.W.2d 81
• Parties: George W. DOWNING and Frances Downing, Respondents, v. The CITY OF JOPLIN, Missouri, Appellant
• Court: Missouri Supreme Court

Page 81

312 S.W.2d 81

George W. DOWNING and Frances Downing, Respondents, v. The CITY OF JOPLIN, Missouri, Appellant.

No. 46409.

Supreme Court of Missouri, Division No. 2.

April 14, 1958.

Loyd E. Roberts, Joplin, for appellant.

Roy Coyne, Jack Fleischaker, Joplin, for respondents.

STOCKARD, Commissioner.

The City of Joplin, Missouri, has appealed from the judgment of the circuit court, rendered in respondents' suit for a declaratory judgment, which held inapplicable to respondents' property the classification of District 'D' (Local Business District), as provided by the comprehensive zoning ordinance of the city, said judgment being based on the determination that 'such restriction is unreasonable and constitutes a violation of the 14th Amendment of the Constitution of the United States and of Section 10, Article I of the Constitution of the State of Missouri.'

The property in question, known as 2331 East Seventh Street, was acquired by respondents on January 26, 1955. The city's zoning ordinance was enacted in 1949, and the area in which the property is located was zoned as District 'D', or as a local business area. An amendment to the zoning ordinance was adopted in 1954, but the classification of what is now respondents' property was not changed. In 1949 the property was being used as a bus garage, which was a nonconforming use, but such use was permissible subsequent to the enactment of the ordinance because the property was lawfully being used for that purpose prior thereto. In the early part of 1952 the use of the property as a bus garage was discontinued, and the property remained vacant for more than two years. After respondents acquired the property they requested the city council to rezone it to permit them to use it for the operation of a supper club at which dancing and entertainment would be provided and at which intoxicating liquor by the drink could be sold. This request was denied. It is conceded that such use is not authorized in an area zoned as District 'D', but that such a use would be permitted in an area zoned as District 'E' for general business.

The area in which respondents' property is located, and which is zoned as District 'D', is approximately twelve blocks long extending east and west along East Seventh Street. The area is approximately one block wide and extends one-half block to the north and one-half block to the south of the street. East Seventh Street is approximately twenty-six blocks in length and extends eastward from Main Street to the city limits. The present zoning indicates a varied use of the property facing on this street because it is zoned to include separate areas for 'general business', 'light industrial', 'heavy industrial', 'apartment', 'local business', and 'first dwelling house'.

Mr. Harold Boyd, identified as the 'Building Official' of the City of Joplin, made a survey of the uses of the property facing on East Seventh Street. This survey is shown by an exhibit consisting of twenty-six pages, each page representing one block. For example, by page one it appears that between Main and Virginia Streets on the south side of East Seventh Street there are located the Rex Cafe and Cities Service Station. On the north side there are located the Acme Radiator Service, Joplin Music Co. and Ace Bar. This block is in an area zoned for general business. In this manner the businesses are shown throughout the entire length of East Seventh Street, but there is no further explanation of the activities carried on by the various businesses except as to whether they constitute conforming or nonconforming uses as to the zoning classification of the area in which they are located. All of the businesses so shown on pages one through nineteen of the exhibit are conforming uses unless 'there is outside repair work' done at what is designated as 'Joe Burtrum Automobiles.' All of the businesses shown on the remaining pages of the exhibit are conforming uses except what is designated as 'New & Used Tractor Equipment', 'O. K. Auto Salvage' and 'Wagoner Mattress Co.' These three businesses were in operation prior to the adoption of the zoning ordinance, and although they now constitute nonconforming uses, their continuance is authorized.

Based upon this evidence the trial court held that 'the classification of the area in which plaintiffs' property [is located] * * * as a District 'D', or local business area, is so unreasonable and arbitrary as to deprive the plaintiffs of the proper use of their property without due process of law, in violation of the Constitution of the United States and of the State of Missouri.' The trial court made findings of fact and conclusions of law which we need not set out except to mention that the judgment of the court apparently was based, at least in part, on findings that in the neighborhood of respondents' property there are three nonconforming uses, and that East Seventh Street 'is basically a business street' upon which there are 'only thirty-nine residences,' and that 'the nature of the businesses' is such 'which serve not only a particular area but are general in their nature, serving the entire community.'

We review this nonjury case upon both the law and the evidence, and in doing so we make our own independent findings of fact. While we ordinarily give due regard to the opportunity of the trial court to judge the credibility of the witnesses, there is no occasion to do so in this case. We note that the one witness who testified did not testify to anything about which there is a dispute, and in addition the trial judge who rendered the judgment was not the trial judge who presided at the trial.

Several basic principles pertaining to zoning by cities are material and important to the determination of this case. The matter of 'zoning and planning' by incorporated cities in counties which have 10,000 or more inhabitants is controlled by legislative enactment. Chapter 89, Sections 89.010-89.140, RSMo 1949, V.A.M.S.; Flora Realty & Investment Co. v. City of Ladue, 362 Mo. 1025, 246 S.W.2d 771. The act of a city in enacting zoning ordinances and thereby imposing restrictions on the use of property located within its limits is a legislative function, and the city legislative body has the right and duty 'to determine the use classification to be given any particular area.' Landau v. Levin, 358 Mo. 77, 213 S.W.2d 483, 485. However, 'The governmental power to interfere by zoning regulations with the general rights of the landowner by restricting the character of his use, is not unlimited, and, other questions aside, such restriction cannot be imposed if it does not bear a substantial relation to the public health, safety morals, or general welfare.' Nectow v. City of Cambridge, 277...