Lafayette Park Baptist Church v. Board of Adjustment of City of St. Louis, 41816

• Decision Date: 29 April 1980
• Docket Number: No. 41816,41816
• Citation: 599 S.W.2d 61
• Parties: LAFAYETTE PARK BAPTIST CHURCH, Appellant, v. BOARD OF ADJUSTMENT OF the CITY OF ST. LOUIS et al., Respondents.
• Court: Missouri Court of Appeals

Page 61

599 S.W.2d 61

LAFAYETTE PARK BAPTIST CHURCH, Appellant, v. BOARD OF ADJUSTMENT OF the CITY OF ST. LOUIS et al., Respondents.

No. 41816.

Missouri Court of Appeals, Eastern District, Division One.

April 29, 1980.

Albert E. Schoenbeck, Stephen M. Schoenbeck, St. Louis, for appellant.

Michael E. Hughes, Asst. City Counselor, Jack L. Koehr, City Counselor, St. Louis, for respondents.

WEIER, Judge.

Landowner, the Lafayette Park Baptist Church, brings this appeal to review a judgment of the circuit court sustaining the denial of its application for a permit to demolish a building. The building is a two and one-half story structure described as a "double entry town house." It sits on a town lot located at the southeast corner of Lafayette and Mississippi Avenues in the City of St. Louis and was acquired by the church for approximately $3600 at a foreclosure sale in September of 1973. The church acquired the property to convert it into a parking lot for use by members attending services and meetings, for additional recreation space and for use in conjunction with a day-care center. After purchase the church discovered the land and building was located within the boundaries of the Lafayette Square Historic District. It filed an application for a demolition permit to remove the building. Following a hearing before the Landmarks and Urban Design Commission of the city, the building commissioner denied the application for the permit. An appeal was then taken to the Board of Adjustment. This in turn resulted in an appeal from their unfavorable determination, first to the circuit court and then to this court. The facts as determined at that initial hearing and the law applicable to those facts are fully reported and discussed in Lafayette Park Baptist Church v. Scott, 553 S.W.2d 856 (Mo.App.1977). We ruled favorably to the church on that appeal and directed that the case be reheard by the Board of Adjustment because the determination by the board was made without taking into account economic considerations of rehabilitation contrary to the standards established by the ordinance creating the historic district.

We now have before us the appeal from the adverse findings and determination by the Board of Adjustment after the rehearing and as such it is a sequent to Lafayette Park Baptist Church v. Scott, supra. For the sake of judicial economy, we will not recite all of the facts and the legislative acts which form the background to this litigation. This has previously been done in exact detail in the above-referenced case. We will confine ourselves to the contentions of appellant on this second appeal and the reasons we feel are determinative in its disposition.

In the first appeal we decided that the Board of Adjustment had applied standards improperly in determining whether a permit should have been granted to demolish the building in that the board had considered the feasibility of restoration solely from a technological standpoint and did not consider economic factors of rehabilitation. This was based upon the contention by the church on that appeal that the standards established by the historic district ordinances were applied in an unconstitutional manner to the property rights involved. There was no attack at that time on the constitutionality of the ordinances themselves.

Now the church attacks the ordinances as being unconstitutional per se because they did not contain standards for demolition placed therein by the legislative body of the municipality. The thrust of this argument is directed principally toward Ordinance 56248, which established the Lafayette Square Historic District. This ordinance refers to standards set out in the development plan for Lafayette Square Historic District and the development plan in turn incorporates by reference portions of a document known as the "Lafayette Square Restoration Plan." In its attack upon this ordinance, the church relies for support upon the case of Fairmont Inv. Co., Inc. v. Woermann, 357 Mo. 625, 210 S.W.2d 26, 31 (1948) wherein it was stated: "The courts uniformly hold that proper restrictions upon the exercise of a police power are that such power be reasonably exercised, that it be certain, that it have uniformity of application in accordance with some standard contained within the ordinance itself, placed there by the legislative body of the municipality." Reliance is particularly placed upon the literal meaning of the words to the effect that the standard must be contained "within the ordinance itself." The church points out that instead of being within the ordinance the standards here applicable are incorporated by double reference to another instrument.

Although the use of incorporation by reference in a legislative enactment has been attacked before, it is recognized to constitute a valid method of legislation. General Installation Company v. University City, 379 S.W.2d 601, 604(5) (Mo. banc 1964); State ex rel. Cairo Bridge Commission v. Mitchell, 352 Mo. 1136, 181 S.W.2d 496, 498-499 (banc 1944). Not only has the method been approved in the cases just cited but adoption by reference in a legislative ordinance has been frequently used in Missouri unchallenged as is shown by opinions of our appellate courts. For instance in R. A. Vorhof Construction Company v. Black Jack Fire Protection District, 454 S.W.2d 588, 593 (Mo.App.1970) it is noted that the Abridged Building Code, Fourth Edition 1965 and the Basic Building Code of the Building Officials Conference of America, Inc., Fourth Edition 1965 and supplements thereto and various standards published by the National Board of Fire Underwriters and the National Fire Protection Association were required by an ordinance to be deemed generally accepted good practices for construction and the rules and regulations of the two codes named and the National Fire Code were adopted to supplement the rules and regulations set forth in the ordinance and by reference were made a part of the rules and regulations of the district. In General Installation Company v. University City, supra, the city had incorporated by reference into an ordinance the terms and provisions of a statute of the State of Missouri dealing with the same general subject. City of Warrensburg v. Board of Regents, 562 S.W.2d 340 (Mo. banc 1978) dealt with the problem of a subsequent change in the statute which referred to the original statute in regard to certain exceptions on sales tax. The court held that the adopting statute took the statute to which it referred as it existed at the time of adoption and subsequent additions or modifications were not included.

Legislative reference may be seen in many statutes. It is a practice particularly common in describing the manner in which the power of eminent domain may be exercised. For example, the Urban Redevelopment Corporation is authorized to exercise that power in the manner provided for corporations in Chapter 523 by § 353.130, RSMo 1978. In § 227.120, RSMo 1978, the State Highway Commission is authorized to exercise the right of eminent domain in accordance with the same chapter. Other reference statutes are too numerous to mention.

The historic district ordinance here in question made reference to a document that in turn referred to parts of another and they were both on public record. We do not believe that this method as used gives rise to a constitutional violation and so rule this point against the appellant-church.

The church next contends that the historic district ordinance denied it due process and equal protection of the law in violation of the United States Constitution, Amendments V and XIV, Section 1, and the Constitution of the State of Missouri, Article I, Sections 2 and 10. This is based upon the charge that the standards for demolition and the court's interpretation of the standards in the prior case, Lafayette Park Baptist Church v. Scott, supra, did not define the terms and therefore left the issuance of a permit to demolish up to the uncontrolled discretion of the city officials. The answer to this of course lies in the fact that this court in the first case and in a subsequent case of Dempsey v. Boys' Club of the City of St. Louis, Inc., 558 S.W.2d 262 (Mo.App.1977) has interpreted the standards which, although loosely written, were fashioned by this interpretation into a cohesive and understandable set of rules. Specifically by judicial interpretation in Lafayette Park Baptist Church v. Scott, supra, the words "degenerated beyond the feasible limits for rehabilitation" has been interpreted to authorize demolition when the conditions of the structure are such that the economics of restoration preclude the landowner from...