Hoffmann v. Kinealy

Decision Date10 May 1965
Docket NumberNo. 50381,50381
Citation389 S.W.2d 745
PartiesCarl O. HOFFMANN, Jr., and Mrs. Geraldine St. Denis, Appellants, v. Robert KINEALY, Martin Beffa, Clarence Ax, Rudolph Beuc and Leo Maginn, constituting the Board of Adjustment of the City of St. Louis, Missouri, Respondents.
CourtMissouri Supreme Court

Claude W. McElwee, St. Louis, for appellants.

Thos. J. Neenan, City Counselor, John J. Fitzgibbon, Thomas F. McGuire, Assoc. City Counselors, St. Louis, for respondents.

A. P. STONE, Jr., Special Judge.

This is an appeal by Carl O. Hoffmann, Jr., and Mrs. Geraldine St. Denis (herein called relators), the owners of two adjoining lots (frequently referred to as the lots) in the 3100 block of Pennsylvania in the City of St. Louis, from the judgment of the Circuit Court of the City of St. Louis affirming, upon review by certiorari [V.A.M.S. Sec. 89.110], a decision of the board of adjustment sustaining a decision of the building commissioner which denied relators' application for a certificate of occupancy of the lots for a pre-existing lawful nonconforming use, to wit, for the open storage of lumber, building materials and construction equipment.

The lots have an aggregate width of 52 1/2 feet, north and south, are 125 feet deep, east and west, and front on the west side of Pennsylvania, a north-south street, in a block bounded on the east by Pennsylvania, on the north by Juniata, on the west by Minnesota, and on the south by Wyoming. An east-west alley runs along the south side of the lots, and a north-south alley runs along their rear. Portions of the block, i. e., (1) that portion in which the lots are located, which is east of the north-south alley and fronts on Pennsylvania, and (2) that portion south of the east-west alley and fronting on Wyoming, are in a 'B' two-family dwelling district, while the remainder of the block, i. e., that portion which is west of the north-south alley (and thus on the opposite side of the alley behind the lots) and fronts on Minnesota is in a 'J' industrial district and is used for the operation of a planing mill and for open storage of lumber. A small building housing the general offices of Hoffmann Construction Company, relators' business in connection with which the lots have been used, is located in the 'B' two-family dwelling district on the south side of the east-west alley and just across the alley from the lots.

The exhibits presented at the hearing before the board of adjustment, and brought to us with the transcript on appeal, indicate that there are fourteen buildings in the same portion of the block in which the lots are situate, including a tavern on the southwest corner of Pennsylvania and Juniata, one three-family residence, eleven other residences, and at the rear of one residence a building identified on a plat as used for 'tractor parts'; ten buildings in that portion of the block south of the east-west alley, including a grocery store on the northwest corner of Pennsylvania and Wyoming, eight residences (all owned by relators), and at the rear of one residence the above-mentioned office building of Hoffmann Construction Company; and that, on the other three corners of the intersection of Pennsylvania and Wyoming, there are two taverns and a cleaning and pressing shop.

Counsel for the city conceded at the hearing before the board of adjustment, and the subsequent finding of the board (not here disputed) was, that the lots were being used at the time of hearing for the open storage of lumber, building materials and construction equipment and that (in the language of the board's finding) 'these premises have been used for this same purpose continuously since the year 1910.' The front end of the lots is 'landscaped' with a hedge and shrubbery, and the area used for open storage is enclosed with a high fence.

The first comprehensive zoning ordinance of the City of St. Louis became effective in 1926. On April 25, 1950, numerous sections of the zoning code were amended by Ordinance 45309. Section 5 A 1 of that ordinance 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.' Section 5 B of the same ordinance, insofar as here material, provided that 'The use of land within any dwelling district . . . for purposes of open storage . . . which do not conform to the provisions of this ordinance shall be discontinued within six (6) years from the effective date of this ordinance.'

About six years and three months later, to wit, on July 24, 1956, Ordinance 48007 was enacted, amending that portion of Section 5 B of Ordinance 45309, with which we are here concerned, to read as follows: 'The use of land within any dwelling district for the purpose of open storage is hereby prohibited.'

On April 12, 1961, Ordinance 50547 was approved amending Ordinance 45309, as amended, by repealing several sections, including Section 5 thereof, and enacting in lieu thereof several new sections. However, Section 5 A 1 as it appeared in Ordinance 45309 and Section 5 B as it appeared in Ordinance 48007 were carried forward verbatim in Ordinance 50547.

In May 1961 the provisions of Sections 5 A 1 and 5 B were codified in Sections 903.010 and 903.030 of 'The Zoning Code' as a part of 'The Revised Code of the City of St. Louis, 1960,' in the following language:

Section 903.010. 'No building or land shall be used for a use other than those permitted in the district in which such premises are located unless (a) such use is permitted by other provisions of this Chapter or by Chapter 915 (Use, Height, and Area Exceptions) or Chapter 916 (Board of Adjustment); or (b) such use existed prior to April 25, 1950.'

Section 903.030. 'The use of land within any dwelling district for the purpose of open storage is prohibited.'

After relators had been notified on December 7, 1962, to cease the use of the lots for open storage, they filed with the building commissioner on December 21, 1962, an application for a certificate of occupancy of the lots for a pre-existing lawful nonconforming use, to wit, for the open storage of lumber, building materials and construction equipment. From the decision of the building commissioner denying that application, relators appealed to the board of adjustment which, after a public hearing and the taking of evidence, sustained the decision of the building commissioner. Upon review by certiorari, the circuit court accorded the parties a trial on the merits, considered the full record of prior proceedings including exhibits, and affirmed the findings and decision of the board of adjustment.

Relators' petition in the circuit court, upon which the writ of certiorari was issued, charged that Section 903.030 of the zoning code was unconstitutional, null and void and was of no effect as to relators' lots because, by prohibiting continuance of the pre-existing lawful nonconforming use of the lots, said section would impair, restrict and deprive relators of vested property rights and thereby would take and damage relators' private property for public use without just compensation in violation of Article 1, Section 26, Missouri Constitution of 1945, V.A.M.S. Likewise, that is the essence of relators' complaint upon this appeal.

Respondants' position is that, under the statutory grant of police power in municipal zoning and planning [V.A.M.S. Secs. 89.020 and 89.040], the city was empowered to enact on April 25, 1950, Section 5 B of Ordinance 45309, a so-called 'amortization' or 'toleration' provision which required discontinuance within six years thereafter of the nonconforming use of land within any dwelling district for purposes of open storage, and that, such six-year 'amortization' or 'toleration' period having run in April 1956, the subsequent absolute prohibition of said nonconforming use of land by Ordinance 48007 enacted on July 24, 1956, thereafter reenacted by Ordinance 50547 on April 12, 1961, and codified in Section 903.030, was valid.

Relators reply that their right to continue their pre-existing lawful nonconforming use actually was taken, notwithstanding the fact that such taking was delayed, and that the constitutional interdiction against the taking of private property for public use without just compensation [Art. 1, Sec. 26, Mo.Const. of 1945] is absolute and subject to no exception as to a delayed or postponed taking. There has been and is no suggestion that relators' use of their lots constituted a nuisance.

The parties thus present, as a matter of first impression in the appellate courts of this state, the constitutionality of the 'amortization' or 'toleration' technique of eliminating pre-existing lawful nonconforming uses. It may be observed preliminarily that, although the six-year amortization provision in Section 5 B of Ordinance 45309 enacted in 1950 was not carried forward in Ordinance 48007 enacted in 1956 after the six-year term had run or in the 1960 codification in effect when this proceeding was instituted, we are of the opinion that the validity of Section 903.030 of the 1960 codification should be determined in the light of the 1950 ordinance. 82 C.J.S. Statutes Sec. 386, p. 914; Powell v. Utz, D.C.W.ash., 87 F.Supp. 811, 815(6). See State v. Ward, 328 Mo. 658, 668-669, 40 S.W.2d 1074, 1078(10, 11); Bear Lake & River Waterworks & Irrigation Co. v. Garland, 164 U.S. 1, 4, 11-13, 17 S.Ct. 7, 8, 9, 41 L.Ed. 327, 328, 332. So holding, we proceed to the basic question of constitutionality.

Of course, it has long been settled that a comprehensive zoning ordinance operating prospectively, which has a substantial relationship to the public health, safety, morals or general welfare and is not unreasonable or discriminatory, is valid as a proper exercise of the police power. State ex rel. Oliver Cadillac Co. v. Christopher, 317 Mo. 1179, 298 S.W. 720, error dismissed 278 U.S....

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