Landau v. Levin

• Decision Date: 12 July 1948
• Docket Number: 40449
• Parties: Argo E. Landau, James Spencer, William Schield, W. P. Chrisler, Fred C. Lake, Jr., J. J. Schlafly, and City of St. Louis, a Municipal Corporation, Intervenor, Respondents (Plaintiffs), v. Sidney Levin, Appellant (Defendant)
• Court: Missouri Supreme Court

213 S.W.2d 483

358 Mo. 77

Argo E. Landau, James Spencer, William Schield, W. P. Chrisler, Fred C. Lake, Jr., J. J. Schlafly, and City of St. Louis, a Municipal Corporation, Intervenor, Respondents (Plaintiffs), v. Sidney Levin, Appellant (Defendant)

No. 40449

Supreme Court of Missouri

July 12, 1948

Rehearing Denied September 13, 1948.

Appeal from Circuit Court of City of St. Louis; Hon. Eugene P Sartorius, Judge.

Affirmed.

John Grossman for appellant.

(1) The constitutional validity of the zoning ordinances of the City of St. Louis depends upon the facts applicable to each case each case must be ruled on its own particular facts even though the ordinance may be valid in its general scope. Glencoe Lime & Cement Co. v. St. Louis, 108 S.W.2d 143; Taylor v. Schlemmer, 183 S.W.2d 913; Village of Euclid v. Ambler Realty Co., 272 U.S. 365; Women's Kansas City St. Andrew Society v. Kansas City, 58 F.2d 593. (2) The fact that one purchases property after the passage of a zoning ordinance does not estop him from attacking the validity of the ordinance. Forbes v. Hubbard, 348 Ill. 166; Women's Kansas City St. Andrew Society v. Kansas City, 58 F.2d 593; Continental Oil Co. v. City of Twin Falls, 286 P. 353. (3) The zoning ordinances upon which the decree was based, under the conditions existing in the case at bar, deprive appellant of the right of dominion over his property in an unreasonable manner, and are therefore unconstitutional, because the ordinances do not promote the public health, the public safety or the public welfare. 43 C.J. 335; St. Louis v. Evraiff, 301 Mo. 231, 256 S.W. 489; State v. McKelvey, 301 Mo. 1, 256 S.W. 474; Glencoe Lime & Cement Co. v. St. Louis, 108 S.W.2d 143; Forbes v. Hubbard, 348 Ill. 166; Women's Kansas City St. Andrew Society v. Kansas City, 58 F.2d 593; St. Louis v. Dorr, 145 Mo. 46, 46 S.W. 976. (4) Ordinance No. 43441, approved Feb. 5, 1946, and which was in effect at the time of the institution of this suit, by implication repeals the zoning ordinances; where two ordinances are plainly inconsistant, as the zoning ordinances on the one part and Ordinance No. 43441 on the other part are, then the latter will repeal the former by implication. Smith v. Republic, 139 S.W. (2) 929; Young v. Greene County, 119 S.W.2d 369. (5) If by what is said in Point (4), Ordinance No. 43441 places appellant's property in the multiple family classification, then a fortiori said ordinance as applied to appellant's property is unreasonable, oppressive and discriminatory. Cases, Point (3), supra.

Sylvan Agatstein for respondents (Plaintiffs); George L. Stemmler, City Counselor, and Albert Miller, Associate City Counselor, for respondent (Intervenor).

(1) A municipality has the right, pursuant to its police power, to enact a comprehensive zoning plan having a substantial relationship to public health, morals, safety and the general welfare, although a particular property is adversely affected. Such law must only rest upon some rational basis of classification and apply uniformly to all property falling within a designated class. If through its universality an individual suffers hardship, that fact does not render the ordinance void as to him. Private interest is subordinate to the public good. Taylor v. Schlemmer, 183 S.W.2d 913; State ex rel. Oliver Cadillac v. Christopher, 317 Mo. 1179, 298 S.W. 720; Euclid v. Ambler Realty Co., 47 S.Ct. 114; Pritz v. Messer, 112 Ohio St. 628; Geneva Inv. Co. v. St. Louis, 87 F.2d 83, certiorari denied, 301 U.S. 692, 57 S.Ct. 795; Miller v. Los Angeles Board of Pub. Works, 195 Cal. 477, 234 P. 381; Mueller v. Hoffmeister Und. Co., 121 S.W.2d 775, 334 Mo. 430. (2) A zoning ordinance is presumptively valid as against a contention directed at its constitutionality, and the burden of proving that it is unconstitutional must be met by the person attacking it. This burden is not met unless the court is convinced that the particular ordinance is clearly arbitrary and unreasonable and has no substantial relation to the general welfare. Such burden is not met by proof that a particular property is disadvantageously affected, provided that the area in which it is located is comprehensively zoned. The courts will not substitute their judgment for that of a legislative body in the absence of palpable abuse. Village of Euclid v. Ambler, supra; Geneva Inv. Co. v. St. Louis, supra; Zahn v. Board of Public Works, 274 U.S. 325, 45 S.Ct. 594; Mueller v. C. Hoffmeister Und. Co., supra; Wippler v. Hohn, 341 Mo. 780, 110 S.W.2d 409; Taylor v. Schlemmer, supra. (3) The temporary amendment passed under emergency conditions extending the right to lodge other persons in dwelling districts, did not repeal the Zoning Law. State ex rel. City of Republic v. Smith, 139 S.W.2d 929; City of St. Louis v. Kellman, 139 S.W. 443, 235 Mo. 687.

OPINION

Conkling, J.

This action sought to enjoin an alleged violation of the St. Louis zoning ordinance. Defendant-appellant was enjoined and thereupon perfected his appeal. The action was instituted by some of the property owners claimed to be affected. The City of St. Louis was permitted to intervene. Defendant raised certain constitutional questions. Hence our jurisdiction. For reasons hereinafter stated we have concluded that the judgment below must be affirmed.

The individual plaintiffs reside in and own their single family dwelling houses at 4466, 4463, 4434, 4441, 4360 and 4474 Westminster Place. Defendant owns the property known and designated as 4487 Westminster Place, located at the northeast corner of the intersection of Taylor Avenue and Westminster Place. Defendant, a physician, lives and has his office in number 4487, and rents office space in his house to eleven other physicians.

The different lots in the 4300 and 4400 blocks in Westminster Place were once restricted by deed to one family dwellings. Those deed restrictions expired in 1941. Defendant acquired his property, number 4487, in 1940. By the general zoning ordinance 35003, approved April 26, 1926, five use districts were established as (1) residence, (2) multiple dwelling, (3) commercial, (4) industrial, and (5) unrestricted.

By the original zoning ordinance in question here, No. 35003, the 4300 and 4400 blocks on Westminster Place were placed in the multiple dwelling classification, but by ordinance 36797, passed and approved in April, 1928, original ordinance 35003 was amended to classify the property in the above numbered blocks on Westminster Place as in the residence use district, i.e. single family dwellings. The two blocks, extending east and west, are bounded on the west by Taylor Avenue, and on the east by Boyle Avenue. The north and south boundaries are the east and west alleys lying north and south of the lots fronting Westminster Place. In his answer and in his testimony defendant conceded he rented office space in his house to the eleven doctors, contending that as no other office space was available in St. Louis for those physician tenants, he had, at great expense, remodeled his house and made office space thereby available to those members of his profession. Although warned by the city authorities not to convert his house into a commercial use office building defendant nevertheless proceeded to do so. The city denied his application for such an occupancy permit.

While there can no longer be any question of the constitutionality, in its general scope and purposes, of the St. Louis zoning ordinances (State ex rel. Oliver Cadillac Company v. Christopher, 317 Mo. 1179, 298 S.W. 720; Taylor v. Schlemmer, 353 Mo. 687, 183 S.W.2d 913), defendant contends that as to the applicability of the zoning ordinances to particular property, the constitutionality of the ordinances must further depend upon the facts of the particular case being considered. That contention we concede. Fairmont Investment Co. v. Woermann, 357 Mo. 625, 210 S.W.2d 36. Defendant points to facts we hereinafter state and contends that such facts compel the ruling that the ordinances are unreasonable, oppressive, discriminatory and violative of due process as to his property. (Const. U.S. Amend. 14; Const. Mo. Art. I, Sec. 10).

In the two Westminster Place blocks in question there are 54 quite large residences, the last of which was constructed about 1912. All were erected or purchased for single family residence purposes. For years many of the homes have been occupied by but a single family, or their descendants. Many of the houses have recently been modernized and reconstructed inside.

But defendant contends his property, at the corner of Taylor Avenue, essentially partakes of the commercial aspect of its immediate neighborhood on Taylor Avenue and Olive Street; that Taylor Avenue is one of the principal commercial north and south arteries of trade; that immediately to the north of his home is the multiple floor Pasteur Building with many doctors and commercial offices, to which hundreds of patients come daily; that immediately east of the Pasteur Building is a public school; that the Lister Building, used for offices, is at Taylor and Olive Streets; that directly across Taylor Avenue is a large church extensively used by a large congregation for worship; that diagonally across Taylor Avenue is the Wednesday Club, much used by many people for social and civic meetings; that both Taylor Avenue and Olive Street (next north of Westminster) are commercial streets, upon which, in the adjoining blocks, are many businesses; that those streets carry heavy cross-city traffic of every kind; and that the Taylor Avenue entrance to his house is used exclusively. The exhibits filed here and the record testimony show the general neighborhood situation.

The record before us establishes the operation of defendant's property...