Dunbar v. Board of Zoning Adjustment

• Decision Date: 08 June 1964
• Docket Number: No. 1,No. 50429,50429,1
• Citation: 380 S.W.2d 442
• Court: Missouri Supreme Court
• Parties: Edward L. DUNBAR et al., Appellants, v. BOARD OF ZONING ADJUSTMENT et al., Respondents

Page 442

380 S.W.2d 442

Edward L. DUNBAR et al., Appellants, v. BOARD OF ZONING ADJUSTMENT et al., Respondents.

No. 50429.

Supreme Court of Missouri, Division No. 1.

June 8, 1964.

Motion for Rehearing or for Transfer to Court En Banc Denied

July 13, 1964.

Walter A. Raymond and William W. Cochrane, Kansas City (Raymond, West & Cochrane, Kansas City, of counsel), for appellants.

Herbert C. Hoffman, City Counselor, Guy W. Rice, Associate City Counselor, Kansas

City, for respondent, Bd. of Zoning Adjustment.

William E. Kemp, James P. Tierney, Kansas City (Kemp, Koontz, Clagett & Norquist, Kansas City, of counsel), for respondent, Franklin J. Stowell, Receiver of Arizona Sav. and Loan Asso.

COIL, Commissioner.

In April 1962 the receiver of the Arizona Savings and Loan Association applied to the Board of Zoning Adjustment in Kansas City for the zoning of a site in Platte County for the construction of a waste stabilization lagoon. At a rehearing in October 1962 (granted after the application had been denied at the first hearing), the board approved the application for the facility subject to certain specified conditions pertaining to its construction.

Appellants here, who opposed the application below, were granted a writ of certiorari by the Circuit Court of Platte County to review the record upon which the Board of Zoning Adjustment approved the receiver's application. Following separate returns and answers by the board and receiver and after arguments of counsel, the circuit court affirmed the action of the board. Opponents, plaintiffs below, have appealed and contend that jurisdiction is in this court on the ground that the construction of the constitutions of the United States and of this state is involved within the meaning of Article V, Section 3, Missouri Constitution, V.A.M.S. Respondents contend that this court has no jurisdiction either on the assigned ground or for any other reason.

In our view, respondents are correct and jurisdiction of this case is properly in a court of appeals.

The zoning application was filed pursuant to Section 65.210, Revised Ordinances of Kansas City, Missouri, as amended, and sought a permit to construct in stages two lagoons or cells, each comprising two acres, on either eight acres or eleven acres of land, located about 2,500 feet north of Missouri Highway T and 2,800 feet west of United States Highway 71 in an R-A (agriculture) district. The land on which the lagoon was to be built was owned by the receiver of Arizona Savings and Loan Association, who sought to construct the facility to serve five existing houses and other proposed houses in subdivisions known as 'Prairie Point Manor' and 'Bel Manor.' The proposed lagoon site is 13/8 miles north of the north end of the City of Weatherby Lake, a city of the fourth class, located on Weatherby Lake. Title to the lake waters and lake bed are vested in Weatherby Lake Improvement Company as trustee for all the property owners in the City of Weatherby Lake. The evidence showed there were about 134 houses in the city, 363 residents, and about 600 lot owners.

The essential controversy, as disclosed by the record made before the Board of Zoning Adjustment, was whether effluent from the lagoon will drain into the lake at all or in such kind and quantity as to detrimentally contaminate or pollute the waters thereof.

Neither in appellants' 'Points Relied On' nor in the argument portion of their brief is there any contention that the zoning ordinance in question or any pertinent state statute is unconstitutional or invalid. The 'Points Relied On' briefly summarized are: that the board and the court below misconstrued and failed to apply the controlling law; that the application to the board was insufficient in that it did not contain detailed plans as required by law; that the board's order was illegal and void because a public private nuisance would be the result of the operation permitted by the order; that the board's order was not supported by substantial evidence on the whole record but was unlawful and unreasonable; that the board's order is illegal because is fails to protect the appropriate use of plaintiffs' neighboring property in that it will depress the value of plaintiffs' properties in Weatherby Lake and in that it deprives plaintiffs of prior vested property rights in Weatherby Lake and in their property in violation of specified constitutional provisions; that the order of the board fails to take into account the equities involved and makes no attempt to effect a balancing of the general public's interest in the proposed zoning with plaintiffs' (who constitute an important segment of the public in the effected area) private property interests; and that the order is thereby in violation of Section 89.040, RSMo 1959 and V.A.M.S. and is unconstitutional because it would thereby deprive plaintiffs of due process and equal protection of the law under the federal and state constitutions. The only references in the argument portion of the brief to the 'constitutional points' in the 'Points Relied On' are conclusionary statements to the effect that the order of the Board of...