Eubanks v. Board of Adjustment, Kirkwood

• Decision Date: 28 March 1989
• Docket Number: No. 54567,54567
• Citation: 768 S.W.2d 624
• Parties: Jack O. EUBANKS, Respondent, v. BOARD OF ADJUSTMENT, KIRKWOOD, Missouri, Appellant.
• Court: Missouri Court of Appeals

Page 624

768 S.W.2d 624

Jack O. EUBANKS, Respondent, v. BOARD OF ADJUSTMENT, KIRKWOOD, Missouri, Appellant.

No. 54567.

Missouri Court of Appeals,

Eastern District,

Division Three.

March 28, 1989.

Motion for Rehearing and/or Transfer to Supreme Court

Denied April 25, 1989.

John M. Hessel, Lewis & Rice, Mary B. Schultz, St. Louis, for appellant.

John J. Fitzgibbon, St. Louis, for respondent.

HAMILTON, Judge.

The Board of Adjustment of Kirkwood, Missouri (hereinafter cited as the Board) appeals the judgment of the circuit court reversing the Board's decision that interpreted the Kirkwood zoning ordinance as it applied to the property of Respondent Jack O. Eubanks and ordering the building commissioner to issue a permit. We reverse.

Jack O. Eubanks owned a service station at 301 North Kirkwood Road in the City of Kirkwood, Missouri. The site had been used as a service station continuously for approximately forty years. In 1986, Eubanks began negotiating with Southland Corporation to convert his property into a 7-Eleven convenience store with gasoline pumps in front. Eubanks proposed to remodel the existing building, adding approximately three hundred square feet to the existing twenty-two hundred square feet. In addition, he planned to relocate the gasoline pumps, upgrading them from old to new fiberglass and converting the three gasoline tanks from metal to fiberglass tanks.

On December 3, 1986, Eubanks, through his agent John P. King, applied to the City of Kirkwood for a special use exception, under the category of service station, for his property at 301 North Kirkwood Road.

By letter dated June 2, 1987, Eubanks wrote Rosalind Williams, a Kirkwood city planner, to request a "legal interpretation" of the planning and zoning ordinance. Suggesting that his property at 301 North Kirkwood Road had been erroneously classified as a "legal nonconforming use" rather than a "conforming use," Eubanks wrote that, if the latter classification were correct, he would amend his application accordingly with the City of Kirkwood.

On June 10, 1987, the attorney for the City of Kirkwood responded by letter to Eubanks' request. He advised that under Article IX, Section 1(d) of Appendix A to the Kirkwood Code of Ordinances, certain nonconforming uses were deemed to be "conforming uses," but not permitted uses. The attorney further advised that, because the operation of Eubanks' service station was not a permitted use, any expansion of it required a special use procedure.

By letter dated June 11, 1987, John P. King requested the Planning and Zoning Commission to withdraw the application for special use permit, with respect to the service station at 301 North Kirkwood Road, and to take no further action on the application for special use permit.

On June 30, 1987, Eubanks informed the City of Kirkwood that John P. King was no longer his agent and that he was awaiting a planning and zoning decision on his application. He further advised that, because certain facts indicated his property was a "conforming use," a special use permit might be unnecessary to accomplish his purpose.

Kenneth Yost, the Public Works Director of the City of Kirkwood, on June 30, 1987, informed Eubanks that John King had, on June 11, 1987, formally withdrawn the application for a special use permit and, therefore, the City of Kirkwood would take no further action on it. ¹ Eubanks was further advised that he could submit a new application to the Planning and Zoning Commission for a special use permit at 301 North Kirkwood Road. Frank Young, the building commissioner of the City of Kirkwood, also wrote to Eubanks on June 30 that a building permit could not be issued for 301 North Kirkwood Road because the proposed use was under the "special use category" of the Zoning Code.

Eubanks filed an application to appeal to the Board of Adjustment on August 3, 1987. By letter dated September 9, 1987, acknowledging receipt of the application to appeal, the building commissioner determined that Eubanks' service station, located in a B-2 zoning district, was a legal nonconforming use. As such, any alteration, modification, or change to that business would constitute abandonment of that status and would require a special use permit to continue the service station operation. Moreover, although a food store was a permitted use in a B-2 zoning district, the building commissioner interpreted the zoning ordinance to exclude gasoline pumping facilities as an accessory use to a food store.

Following a hearing on September 17, 1987, the Board unanimously ruled that the building commissioner correctly determined that Eubanks was required "to obtain a special use permit for the purpose of operating a combination food mart and service station or other facility that sells gasoline and related accouterments."

Eubanks thereafter filed a petition for a writ of certiorari pursuant to Section 89.110 RS Mo. (1986). The circuit court reversed the Board's decision that had sustained the decision of the building commissioner and ordered the building commissioner to issue a permit to Eubanks.

Shortly after the trial court issued its ruling, the Kirkwood City Council enacted Ordinance 7768 that prohibits gasoline/convenience stores in the B-2 zoning district. The Board thereafter filed a Motion for Relief from Judgment in the trial court asserting that Ordinance 7768 applied to Eubanks' property and nullified the judgment of the trial court. That motion remains pending before the trial court.

The Board asserts several grounds for this appeal: (1) Kirkwood Ordinance 7768 prohibiting gasoline/convenience stores in the B-2 (or general business) zoning district renders the decision of the trial court moot; (2) the trial court erred in making a de novo review of the record before the Board and in failing to defer to the Board's interpretation of the Kirkwood zoning ordinance; (3) the trial court erred in holding that the proposed convenience market with gasoline pumps is a "food store," not a "service station," under the Kirkwood zoning ordinance; (4) the trial court erred in holding that, as a matter of law, self-service gasoline pumps are an "accessory use" to a "food store"; (5) the trial court erred in holding Eubanks' service station is a conforming use, not a legal nonconforming use; and (6) the trial court erred in taxing costs against the Board.

Initially, the Board contends that Ordinance 7768, enacted after the trial court issued its ruling, renders the decision of the trial court moot. We disagree. The scope of appellate review in this case is first, whether the decision of the Board of Adjustment was legal in the sense of being authorized by law, and second, whether the decision of the Board is supported by competent and substantial evidence upon the whole record. Huff v. Board of Adjustment of City of Independence, 695 S.W.2d 166, 167 (Mo.App.1985). Where, as here, no additional evidence was heard in the circuit court and its decision was based solely upon the transcript of the proceedings before the Board, our jurisdiction is limited to review of the record of those proceedings. See Mullen v. City of Kansas City, 557 S.W.2d 652, 654 (Mo.App.1977). Neither the Board nor the trial court had jurisdiction to consider an ordinance not yet enacted by the City Council. Because the jurisdiction of this court to entertain an appeal is derived from that of the trial court, and because the trial court lacked jurisdiction, this court therefore acquires no jurisdiction over this issue on appeal. Wandfluh v. Wandfluh, 716 S.W.2d 420, 422 (Mo.App.1986). Similarly, the Board's Motion for Relief from Judgment, having never been ruled upon by the trial court, is not properly before this court. See National Cypress Pole & Piling Co. v. Hemphill Lumber Co., 325 Mo. 807, 31 S.W.2d 1059, 1065 (1930).

The Board next asserts the trial court failed to apply the appropriate standard of review and, consequently, it erred with respect to each provision of the Kirkwood zoning ordinance at issue as it applied to Eubanks' proposed use of his property.

The purpose of a writ of certiorari pursuant to Section 89.110 RS Mo.1986 is to test the legality of the Board's order. State ex rel. Weinhardt v. Ladue Professional Bldg., Inc., 395 S.W.2d 316, 320 (Mo.App.1965). Neither this court nor the circuit court can try this case de novo or substitute its judgment for that of the Board. State ex rel. Ellis v. Liddle, 520 S.W.2d 644, 646 (Mo.App.1965). Judicial review is limited to whether the decision of the Board was authorized by law and was supported by competent and substantial evidence upon the whole record. Article V, Section 18, Constitution of Missouri, RS Mo. (1986). To determine whether substantial evidence supports that decision, a court must view the evidence "in the light most favorable to the findings of the Board giving it the benefit of reasonable inferences that may be drawn from the record." Volkman v. City of Kirkwood, 624 S.W.2d 58, 59-60 (Mo.App.1981). If substantial credible evidence supports the Board's decision, and if the result reached is reasonable, the courts have no authority to disturb the decision unless it was clearly contrary to the overwhelming weight of the evidence. Wolfner v. Board of Adjustment of City of Frontenanc, 672 S.W.2d 147, 150 (Mo.App.1984), (quoting Stockwell v. Board of Zoning Adjustment of Kansas City, 434 S.W.2d 785, 789 (Mo.App.1968)).

The Board contends the trial court, having failed to apply the proper standard of review, erred in holding Eubanks' proposed convenience market with gasoline pumps constituted a "food store," not a "service station," under the Kirkwood zoning ordinance. Article II, Section 1, paragraph 71 of that ordinance defines "service station" as:

[a] building, buildings, premises or portions thereof, which are used or arranged, designed or intended, to be used for the retail sale of gasoline or other motor vehicle, motor boat or...