Fleming v. Moore Bros. Realty Co.

• Decision Date: 16 July 1952
• Docket Number: No. 1,No. 42684,42684,1
• Citation: 251 S.W.2d 8,363 Mo. 305
• Parties: FLEMING et al. v. MOORE BROTHERS REALTY CO., Inc. et al
• Court: Missouri Supreme Court

Page 8

251 S.W.2d 8

363 Mo. 305

FLEMING et al. v. MOORE BROTHERS REALTY CO., Inc. et al.

No. 42684.

Supreme Court of Missouri, Division No. 1.

July 16, 1952.

Motion for Rehearing or to Transfer to Court en Banc Denied

Sept. 8, 1952.

Shifrin & Shifrin, St. Louis, Levin & Hertzman, St. Louis (Gideon H. Schiller, Melvin L. Hertzman, of counsel), St. Louis, for appellants.

John C. Casey, St. Louis, for respondents.

DALTON, Judge.

Action by certain lot owners in Block No. 6198 in the city of St. Louis to enjoin the erection of a 36-family, 3-story apartment building on lots 4, 5, 6, 7, and 8 in said block, on the ground (1) that the proposed building and the use thereof was in violation of the new St. Louis Zoning Ordinance No. 45309 with respect to density, parking, height and front and rear yard lines; and (2) that construction had been commenced subsequent to the effective date of said ordinance. Defendants have appealed from the final judgment which enjoined them from further proceeding with the erection of the building and required the removal of all construction from defendants' premises.

This court has jurisdiction of the appeal since the record affirmatively shows that the amount in dispute exceeds $7500 and, in this case, that means 'the money value of the relief to plaintiff, or of the loss to defendant, should the relief be granted, or vice versa, should the relief be denied.' Frank Schmidt Planing Mill Co. v. Mueller, 347 Mo. 466, 147 S.W.2d 670, 671; Juden v. Houch, Mo.Sup., 228 S.W.2d 668, 669; Sec. 3, Art. V, Constitution of Missouri 1945, V.A.M.S.

There is little dispute concerning the essential facts. While many issues are raised, the case turns upon a construction of the zoning and building codes of the city of St. Louis. Appellants contend that they were proceeding under a lawfully issued building permit, which was in full force and effect; and that Zoning Ordinance No. 45309 had no application to appellants' project.

Respondents and appellant Moore Brothers Realty Company, Inc., are the owners of lots in St. Louis City Block No. 6198, also known as Block 10 of the St. Louis Hills Subdivision. The Realty Company's lots are located on the east side of Jamieson Avenue at the corner of Jamieson and Neosho. Appellants Robert W. Graham, Robert W. Graham, Inc., and Emerson Park Development Company, Inc., are directly connected with the construction and are parties in interest. Terry Moore contracted for three of the lots in 1935 and obtained deeds in 1941. Frank Moore acquired a fourth lot (the corner lot) in 1949 and subsequently the Realty Company acquired a fifth lot. Plans for an apartment house were first suggested in the fall of 1949 and plans were drawn. The property at that time was zoned for commercial uses and Jamieson Avenue had been designated for a major highway. In addition, the plat of the subdivision and the restrictions in the deeds authorized commercial and business uses and provided that the frontage on Jamieson Avenue (Lots 1-8, Block 10) could be used for commercial and business purposes; and that the right to use for such purposes 'shall never be abridged by imposing any new restrictions or amended restrictions.'

After the plans for an apartment building were drafted, it was decided to attempt to obtain a Federal Housing Administration (F. H. A.) loan. On December 15, 1949, a formal application was submitted to the F. H. A. for title 608 financing. Due to suggested changes in the plans the additional lot was purchased. On February 28, 1950, an F. H. A. commitment in the amount of $211,800 was issued to the Mutual Bank and Trust Company, then a construction lender. To meet other F. H. A. requirements the appellant, Moore Brothers Realty Company, Inc., was formed and later took title to all of the said lots. Thereafter, bids were received for steel requirements, plumbing, etc., and certain contracts were entered into. Various required city permits were applied for on March 1, 2 and 3, 1950. Much difficulty and delay was experienced in meeting F. H. A. requirements and in obtaining approval of all necessary documents and papers, but there was no evidence of lack of diligence or good faith in meeting requirements.

On April 25, 1950, a new comprehensive zoning ordinance (No. 45309) was adopted and the lots in question were zoned in the 'C-4 family Dwelling District,' effective May 26, 1950. In such 'C-4 family Dwelling District,' said ordinance among other provisions, prohibited the use of any multiple dwelings for more than four families; provided for a front yard having a depth of not less than 25 feet; provided for a rear yard of not less than 25 feet in depth; and, in the 'density of population' requirements thereof, provided for 'a lot area of not less than eleven hundred (1100) square feet per family.' The improvement, as contemplated, would not comply with the above provisions of the new zoning ordinance. Conferences were then held with the City Counselor's office and the appellants obtained a copy of an opinion which had been prepared in that office in 1949 with reference to zoning ordinance changes after permits had been issued. The opinion had been furnished to the City Building Commissioner on January 4, 1949, by Assistant City Counselor Frank Neun. The pertinent part of that opinion reads, as follows: '* * * In conclusion, therefore, all permits expire within one year after issuance unless the work has begun or the permit is extended. And it is obvious that all applications for permits for buildings prohibited by the proposed Zoning Ordinance must be denied after the effective date thereof. Likewise all permits previously issued for prohibited buildings, signs or fixtures, where neither a substantial amount of work has been begun nor binding contractual obligations or substantial expenses incurred, become a nullity and should be revoked by the Building Commissioner. However, permits previously issued would not be automatically revoked by the mere passage of the Zoning Ordinance, but should be revoked by the Building Commissioner according to conditions existing on the effective date of the Zoning Ordinance.

'To do this, it is suggested that upon passage of the proposed Zoning Ordinance, the Building Commissioner check all applications and permits to determine those where the building, sign or fixture would be prohibited by the new Ordinance. He should deny all such applications. As to permits where the work has begun, it may be continued to the full amount contemplated by the permit. Where the work has not begun, he should send written notice to the permit holder giving a time and place when he might be heard and might show cause why his permit should not be revoked because the contemplated structure is prohibited by the new Zoning Ordinance. At such hearing the Building Commissioner must be satisfied that either substantial work was begun as of the effective date of the Zoning Ordinance, or that at that time permittee was legally bound under contracts and had incurred substantial expenses in reliance on the permit. Unless he is satisfied as to the above, it is his duty to revoke the permit. There is no rule as to what constitutes 'substantial work or expenses,' and so each case must be judged on its particular facts.'

Other facts are as follows: On May 3, 1950, the building site was surveyed and staked out by the Pitzman Surveying Company. On May 9, 10 and 11, a Smoke Permit and various assurances of utilities services were received. On May 11, 1950, a building permit for this specific improvement was issued by the Building Commissioner of the city of St. Louis, and, so far as this record shows, this permit was never canceled by any action of the Building Commissioner, or otherwise. On May 11, 1950, an interim title binder was issued by the Title Insurance Company on the property in question. On May 12, 1950, permanent loan arrangements were secured with the Bank of St. Louis. On or about May 15, 1950, some sod was salvaged from the building site. On June 15, 1950, a note in the sum of $211,800 was executed by the new corporation to the First National Bank in St. Louis, payable one year from date. This note was secured by an F. H. A. Deed of Trust encumbering the property in the amount of $211,800 in favor of the bank. On June 16, 1950, the deed of trust was recorded in the office of the Recorder of Deeds of St. Louis, at which time the note was identified as being secured by the deed of trust. F. H. A. closing was commenced on June 26, and completed on July 10, 1950, at which time the note in the sum of $211,800 was endorsed by the F. H. A. district manager, on behalf of the Federal Housing Commissioner and the note turned over to the First National Bank. After endorsement of the note by the F. H. A. on July 11, 1950, bulldozers and other excavating equipment were moved to the construction site and excavation commenced on July 13, 1950. On July 24, 1950, the respondents demanded that appellants cease work on the project. On August 2, 1950, the present action was instituted. At that time excavation work had been practically completed and concrete pilings and foundation footings had been poured on about one-third of the site. After respondents failed to give a $7500 bond to support a temporary injunction, the construction work was carried on and, by September 20, 1950, one-third of the foundation was completed and the joists and subfloor laid. The construction work continued until appellants were permanently enjoined from proceeding with the project on January 24, 1951.

As stated, the new ordinance zoned the real estate in question in the 'C-4 family Dwelling District' and provided that 'no building or land shall be used for a use other than those permitted in the district in which such premises are located, unless * * * such use existed prior to the effective date of this ordinance. * * * No building shall be erected * * * unless such action shall...