Himmel v. Leimkuehler

• Decision Date: 17 November 1959
• Docket Number: No. 30354,30354
• Citation: 329 S.W.2d 264
• Parties: Ivan HIMMEL, Kenneth Finn, Marvin Finn and John L. Corley, Inc., a corporation (Plaintiffs-Respondents), v. F. R. LEIMKUEHLER, Clarence H. Ax, M. A. Beffa, John F. Boland, Frank E. Lawrence, comprising Board of Adjustment of the City of St. Louis, Missouri, Albert H. Baum, in capacity as Building Commissioner of St. Louis, Missouri, Bernice P. Laba and June E. Laba (Defendants-Appellants).
• Court: Missouri Court of Appeals

Page 264

329 S.W.2d 264

Ivan HIMMEL, Kenneth Finn, Marvin Finn and John L. Corley Inc., a corporation (Plaintiffs-Respondents), v. F. R. LEIMKUEHLER, Clarence H. Ax, M. A. Beffa, John F Boland, Frank E. Lawrence, comprising Board of Adjustment of the City of St. Louis, Missouri, Albert H. Baum, in capacity as Building Commissioner of St. Louis, Missouri, Bernice P Laba and June E. Laba (Defendants-Appellants).

No. 30354.

St. Louis Court of Appeals, Missouri.

Nov. 17, 1959.

Motion for Rehearing or to Transfer to Supreme Court Denied

Dec. 15, 1959.

Goldstein, Tucker, Chasnoff & Elmer Price, St. Louis, for appellants Bernice P. Laba and June Laba.

James J. Gallagher, Asst. City Counselor, Thomas F. McGuire, Associate City Counselor, St. Louis, for all other appellants.

William Kohn, Louis M. Kohn, St. Louis, for respondents.

BRADY, Commissioner.

This case involves Ordinance No. 45309 as amended by Ordinance No. 47495 of the City of St. Louis, which constitute a part of the Comprehensive Zoning Ordinances of that city. These ordinances will be referred to as 'zoning ordinances' herein.

Bernice P. Laba and June E. Laba, owners of the property at 3828-30-32 Washington Avenue, City of St. Louis, made application to the Building Commissioner of that city for a certificate of occupancy seeking permission to erect a two-story addition to the existing building at that address. The application was denied by the Building Commissioner and upon timely appeal to the Board of Adjustment, on February 20, 1957 the appeal was granted and his decision was reversed. No appeal was taken from the Board's decision within the thirty days allowed by the Board as authorized by Section 19-D-5 of the Zoning Ordinances (No. 45309) of the City of St. Louis following the provisions of Section 89.110 RSMo 1949, V.A.M.S., but in July of that same year the attorney for respondent John L. Corley, Inc. filed a motion with the Board seeking a rehearing of the Laba appeal, and upon the denial of the motion by the Board made a personal appearance before the Board for the purpose of urging his motion. On both occasions the Board advised him that it could not grant his motion as it had lost jurisdiction of the subject matter by the lapse of the thirty-day period allowed for appeal of its decision to the Circuit Court of the City of St. Louis. No other action was taken to halt the proposed construction until respondents filed this action on June 9, 1958 in the circuit court naming the owners of the property, the Building Commissioner, and the members of the Board of Adjustment as defendants, seeking to enjoin the owners from building under the permit, and to have the permit and action of the Board declared null and void. The respondents all claim to be owners of property in the 3800 block of Washington Avenue, although the record is silent as to the ownership of property in that block of Marvin and Kenneth Finn. The circuit court sustained the respondents' position and issued its decree enjoining the Building Commissioner and the Board of Adjustment from issuing any order or orders, permit or permits, permitting the erection of any building or structure in front or to the north of the established building line in the 3800 block of Washington Avenue, and also enjoining the Labas and their agents and contractors from so erecting a building. The decree further declared the order of the Board of Adjustment granting the Labas permission to so build, and the building permit and certificate of occupancy issued in compliance with the Board's decision, null and void. Appellants' after trial motions were overruled, and they filed their appeal with the Supreme Court. Since the zoning ordinances of the City of St. Louis are not attacked as being unconstitutional and only an interpretation of those ordinances is sought, and title to real estate is not involved, upon motion of appellants, with consent of respondents, the cause was transferred to this court.

The appellants contend that the trial court erred: (1) in not finding that the respondents were estopped from seeking equitable relief by their silence and inaction for more than one year and the subsequent reliance of the Labas on such representation to their great financial loss; (2) in holding the order of the Board of Adjustment void; (3) in not finding the respondents' action void as a collateral attack upon the Board's order, they having failed to exhaust their administrative remedies under the provisions of the zoning ordinances; and (4) in finding (a) that the minutes and order of the Board represented a full and complete record of the proceedings on the Laba appeal; (b) that the adjoining properties would suffer a depreciation in value if the proposed construction was completed; (c) that the proposed construction would disturb the orderly appearance of the block; and (d) that respondent Himmel had no knowledge of the proposed construction until May, 1958.

The authority of the Board to reverse or affirm, wholly or partly, or to modify the decision made in this case by the Building Commissioner is found in Section 19-D of Ordinance No. 45309 of the Zoning Ordinances of the City of St. Louis. That section first sets forth the jurisdiction of the Board 'To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by the Building Commissioner * * * in the enforcement of this ordinance.' The appellant urges that the Board proceeded under this section, and that their order constituted a finding that the established front yard line of the block was to the property line, contrary to the finding of the 31 ft. building line of the Building Commissioner. There is no contention by either party that the second or third subsection of that section applies in any way to the case at bar. Fourth, it gave jurisdiction 'In passing upon appeals, where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of this ordinance, to vary or modify the application of any of the regulations or provisions of this ordinance relating to the use, construction or alteration of buildings or structures or the use of land so that the spirit of the ordinance shall be observed, public safety and welfare secured and substantial justice done.' Respondents urge that the Board proceeded under this subsection and that the Board's order agrees with the Building Commissioner and finds that there was a 31 ft. building line applying to this block. The specific authority given to the Board to reverse or affirm, wholly or partly, or modify any of the requirement, decision, or determination appealed from and to make such order, requirement, decision or determination as ought to be made is found in subparagraph 5 of Section 19-D of the ordinance. The authority therein given to the Board is restricted by the use of the phrase, 'in conformity with the provisions of law.'

This property is located within the 'H' Commercial District and the front yard regulations are the same as those in the 'F' Local Business District which are set out in Section 12-D-1 of Ordinance No. 45309 as amended by Ordinance No. 47495 of the Zoning Ordinances of the City of St. Louis, as follows:

'1. Front Yard. No front yard shall be required, provided:

'(a) Where twenty-five (25%) per cent or more of the front on one (1) side of a street between two (2) intersecting streets is improved with buildings, a majority of which improved frontage has observed an average front yard line with a variation in depth of not more than six (6) feet, no building shall project beyond the average front yard line so established.

'(b) Where any of the frontage on one (1) side of a street between two (2) intersection streets is partially in a dwelling district and partially in a commercial district, the front yard regulations of the dwelling district shall apply.'

The scope of judicial review provided for by Chapter 89 RSMo 1949, V.A.M.S must be read in the light of the provisions of the Constitution of 1945, Article V, Section 22, V.A.M.S. Veal v. Leimkuehler, Mo.App., 249 S.W.2d 491. Moreover, as this court said in Phillips v. Board of Adjustment of City of Bellefontaine Neighbors, Mo.App., 308 S.W.2d 765, at page 767,

'It is true that the reviewing court should not substitute its judgment for that of the board, but it is equally true that an arbitrary or capricious or otherwise illegal ruling by the board should be set aside. Were this not true the appeal accorded would be of no value. Brown v. Gambrel, 358 Mo. 192, 213 S.W.2d 931; Veal v. Leimkuehler, Mo.App., 249 S.W.2d 491; Cunningham v. Leimkuehler, Mo.App., 276 S.W.2d 633; Berard v. Board of Adjustment of City of St. Louis, Mo.App., 138 S.W.2d 731.'

The minutes of the meeting of the Board of Adjustment on Wednesday, February 20, 1957, dealing with the appeal of the Labas are as follows:

'Minutes of the meeting of the Board of Adjustment held at 1:30 P.M., Wednesday, February 20, 1957, Room 208, City Hall

Present: Messrs. Beffa, Boland, Leimkuehler, Lawrence

Absent: Mr. Woermann

Mr. Beffa presided. Appeal No. 1582

'Appeal of Mrs. Bernice Laba and Mrs. June Laba, for permit to construct addition to front of building occupied by Jefferson Printing Company at 3828 Washington, and addition to be constructed at 3830-32 Washington, extending to front property line. Denied by Building Commissioner because of location in 'H' Commercial district in block where established building line is approximately 31 ft.

'Appellants represented by Elmer Price, Attorney and Agent, who testified that the printing company plant was built about twelve years ago, and it has outgrown its quarters. They now propose to build out in front of that building and also construct an addition on the adjoining lots, recently purchased, extending to front property line and conforming with several other building in this block. Off-street parking to be...