In re Botz

• Decision Date: 03 March 1942
• Citation: 159 S.W.2d 367,236 Mo.App. 566
• Parties: IN THE MATTER OF LILLIAN BOTZ, LILLIAN BOTZ, RESPONDENT, v. R. P. GARRETT, F. E. LAWRENCE, JR., A. B. M. CARRUBA, H. B. DEAL, AND GERALD B. O'REILLY, AS MEMBERS OF AND CONSTITUTING THE BOARD OF ADJUSTMENT OF THE CITY OF ST. LOUIS, AND THE CITY OF ST. LOUIS, A MUNICIPAL CORPORATION, INTERVENOR, APPELLANTS
• Court: Missouri Court of Appeals

159 S.W.2d 367

236 Mo.App. 566

IN THE MATTER OF LILLIAN BOTZ, LILLIAN BOTZ, RESPONDENT, v. R. P. GARRETT, F. E. LAWRENCE, JR., A. B. M. CARRUBA, H. B. DEAL, AND GERALD B. O'REILLY, AS MEMBERS OF AND CONSTITUTING THE BOARD OF ADJUSTMENT OF THE CITY OF ST. LOUIS, AND THE CITY OF ST. LOUIS, A MUNICIPAL CORPORATION, INTERVENOR, APPELLANTS

Court of Appeals of Missouri, St. Louis

March 3, 1942

Appeal from Circuit Court of City of St. Louis.--Hon. David J Murphy, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

D Calhoun Jones for respondent.

(1) The circuit court may reverse or affirm, wholly or partly, or may modify the decision of the board of adjustment brought up for review. R. S. Mo. 1939, Sec. 7418. (a) The circuit court is not bound by the action of the board of adjustment where there has been a manifest abuse of discretion. Berard v Board of Adjustment, 138 S.W.2d 731, 734 (3); A. L. Carruthers & Son v. Louisville, 63 S.W.2d 493. (2) The lawful use of land existing at the time of the adoption of this ordinance, although such use does not conform to the provisions hereof, may continue. Revised Code of St. Louis, 1936, sec. 168; Lamb v. A. D. McKee et al., 160 A. 563. (a) Nonuser, alone, without any intention to abandon, does not constitute abandonment. Riedman v. Barkwill, 34 P.2d 744; City of New York v. Realty Associates, 176 N.E. 171; N. P. Ry. Co. v. Tacoma Junk Co., 244 P. 117.

Joseph F. Holland, Oliver Senti and Orville Richardson for appellants.

(1) The circuit court on certiorari had no power to substitute its discretion for that of the fact-finding board of adjustment, since that discretion was based upon substantial evidence, personal observation and experience. A hearing on certiorari is limited to determining whether the board acted illegally or arbitrarily. R. S. Mo. 1939, sec. 7418; Rev. Code St. Louis 1936, sec. 176; Berard v. Board of Adjustment (Mo. App.), 138 S.W.2d 731, 734; State ex rel. Nigro v. Kansas City, 325 Mo. 95, 27 S.W.2d 1030, 1035; State ex rel. Kaegel v. Holekamp (Mo. App.), 151 S.W.2d 685, 690; Brandon v. Board of Commissioners, 124 N.J. L. 135, 11 A.2d 304; Bassett, Zoning, pp. 113, 115, 124, 127, 128, 156; Smith, Zoning Law and Practices, secs. 109, 110, 115, 116; Fordham Manor R. Church v. Walsh, 244 N.Y. 280; Young Women's Hebrew Ass'n v. Board, 266 N.Y. 270; Levy v. Board, 267 N.Y. 347; Brandon v. Board of Commissioners, 124 N.J. L. 135, 11 A.2d 304. Werner v. Walsh, 212 A. D. 635, 209 N.Y.S. 45, affirmed in 240 N.Y. 689; Brandon v. Board of Commissioners, 124 N.J. L. 135, 11 A.2d 304; Matter of Stillman v. Bd. of Standards, 222 A. D. 19, 225 N.Y.S. 402; Falvo v. Kerner, 222 A. D. 289, 225 N.Y.S. 747; Chizner v. Walsh, 236 A. D. 731, 257 N.Y.S. 1076, affirmed in 261 N.Y. 707; City of Mt. Vernon v. Travis Realty Corp., 246 A. D. 727, 284 N.Y.S. 1015; Monument Garage Corp. v. Levy, 266 N.Y. 338, modifying 149 Misc. 791, 268 N.Y.S. 213, which has been affirmed in 241 A. D. 856, 271 N.Y.S. 966; Burmore Co. v. Smith, 124 N.J. L. 541, 12 A.2d 353; Burmore Co. v. Champion, 124 N.J. L. 548, 12 A.2d 713; Town of Lexington v. Bean, 272 Mass. 547, 172 N.E. 867, 870; Appeal of Krinks, 332 Pa. 236, 2 A.2d 700; Appeal of Yocom, 142 Pa.Super. 165, 15 A.2d 687; Kiddy's Appeal, 294 Pa. 208, 143 A. 909; Potter v. Zoning Board of Review (R. I.), 14 A.2d 669; Austin v. Older, 283 Mich. 667, 278 N.W. 727; Collins v. Moore, 125 Misc. 777, 211 N.Y.S. 437; State v. Miller (Minn.), 288 N.W. 713, 715; Kensington Realty Holding Corp. v. Jersey City, 118 N.J. L. 114, 191 A. 787, affirmed in 119 N.J. L. 338, 196 A. 691; Keenly v. McCarty, 137 Misc. 524, 244 N.Y.S. 63; Chayte v. Bd. of Zoning Appeals (Md.), 9 A.2d 747, 750, and cases cited. All nonconforming uses of relator's lot were abandoned when the Mission Inn and its accessory buildings were demolished in 1937 and the land let lie vacant ever since. Knickerbocker v. Sprague, 4 F.Supp. 499; Van Horn v. City of New Orleans, 161 La. 767, 109 So. 484; Darien v. Webb, 115 Conn. 581, 162 A. 690, 692; People v. Sheil, 26 N.Y.S. (2d) 188; St. Louis v. Fischer. 167 Mo. 654, 67 S.W. 872; State ex rel. Turner v. Baumhauer. 234 Ala. 286, 174 So. 514.

BENNICK, C. Hughes, P. J., and McCullen Anderson, JJ., concur.

OPINION

BENNICK, C.

This is an appeal from the judgment of the Circuit Court of the City of St. Louis reversing the decision of the Board of Adjustment of the City of St. Louis denying the application of respondent, Lillian Botz, for a permit to operate a parking lot for automobiles on certain land she owns which is located in a multiple dwelling district as established by the zoning ordinance of the City of St. Louis. [Secs. 160-185, Revised Code of St. Louis 1936.]

The entire parcel of land which respondent owns is located on the northeast corner of Grand Boulevard and Magnolia Avenue, fronting 135 feet on Grand Boulevard, and extending eastwardly between parallel lines for 270 feet to Alhambra Court, a street primarily devoted to residential purposes, which lies one block to the east of Grand Boulevard. The land is bounded on the south by Magnolia Avenue, and on the north by a lot of equal depth, which is occupied by a tenstory apartment building known as the Marmaduke Apartments, which faces on Grand Boulevard, and in the rear of which is a private garage for tenants only, fronting on Alhambra Court.

Under the provisions of the zoning ordinance with respect to use districts, the west half of respondent's land, that is, the portion fronting on Grand Boulevard and extending back to a depth of 135 feet on Magnolia Avenue, is located in a commercial district, while the east or rear half, comprising the remaining 135 feet on Magnolia Avenue and extending back to Alhambra Court, is placed in a multiple dwelling district.

As will presently appear, it is such east or rear half of her land that respondent desires to make use of as a parking lot, which character of use, though permitted in a commercial district, is not authorized by the ordinance in the case of land lying in a multiple dwelling district. Consequently, if respondent is to have a permit for the operation of a parking lot upon that portion of her land which lies in a multiple dwelling district, it must either be upon the theory of a nonconforming use of such land at the time of the adoption of the ordinance in 1926, or else upon the theory that because of practical difficulties or unnecessary hardship to be encountered in a compliance with the strict letter of the ordinance, the board of adjustment, in the exercise of a sound and proper discretion in the discharge of the special function conferred upon it, should have varied or modified the application of the ordinance with respect to the use of such portion of her land so as to have permitted the operation of a parking lot upon it, notwithstanding the lack of specific authorization--and therefore the effectual prohibition against such use--in that section of the ordinance (Sec. 164) defining the character of use to which premises situated in a multiple dwelling district may be lawfully subjected.

The property in question was formerly occupied by Mission Inn, a well-known landmark of the preprohibition days, which fronted the full width of the lot on Grand Boulevard and extended eastwardly for some 120 feet. To the rear of the Mission Inn was a beer garden; and in the rear portion of the lot, on the Magnolia Avenue side, was a garage which was used for the repair, but not the storage, of automobiles, and at which, at least in the latter days of its existence, gasoline and automobile supplies were sold. At one time during the prohibition period a miniature golf course was conducted on the rear portion of the premises. As for the use of such rear portion of the premises for parking purposes, it would appear that during the heyday of Mission Inn, certain of its patrons may have sporadically parked their automobiles upon the lot; and, as a matter of fact, during the course of the hearing on respondent's application for a permit, one of the members of the board recalled that he himself had followed the practice of parking his own automobile there when he would have occasion to visit Mission Inn. It seems clear, however, that such rear portion of the premises was never at any time specifically set apart or utilized as a parking lot; and indeed respondent's counsel himself expressly stated at the hearing before the board that regardless of the fact that automobiles had formerly been parked upon the lot by patrons of the Inn, "apparently it was not used for parking as we wish to use it."

In 1937 the building which had housed the Mission Inn was torn down, and shortly thereafter a building was erected in its place for occupancy by an A. & P. market. This building, which faces on Grand Boulevard, extends to the rear for the full distance of 120 feet that the Mission Inn had occupied, but only extends northwardly along Grand Boulevard for a distance of 60 feet in width, leaving a space of 75 feet in width between the store building and the Marmaduke Apartments which at present is utilized as a parking space for the automobiles of customers of the store. This, of course, is in the front portion of respondent's land which is zoned in a commercial district, so that the use of such portion of the premises for parking purposes is entirely permissible under the ordinance, but quite unsatisfactory to respondent herself, who insists that an unnecessary hardship is thereby imposed upon her by being compelled to use her valuable Grand Boulevard frontage for a parking space rather than the relatively much less valuable portion of her premises which fronts on Alhambra Court to the rear.

Being desirous of putting her Grand Boulevard...