Lorenz v. City of Florissant, Mo., s. 52584

• Decision Date: 19 January 1988
• Docket Number: 52590,Nos. 52584,s. 52584
• Parties: R. Kenneth LORENZ and Carol P. Lorenz, Plaintiffs/Respondents/Cross-Appellants, v. CITY OF FLORISSANT, MISSOURI, et al., Defendants/Appellants/Cross-Respondents.
• Court: Missouri Court of Appeals

Page 222

747 S.W.2d 222

R. Kenneth LORENZ and Carol P. Lorenz, Plaintiffs/Respondents/Cross-Appellants, v. CITY OF FLORISSANT, MISSOURI, et al.,

Defendants/Appellants/Cross-Respondents.

Nos. 52584, 52590.

Missouri Court of Appeals,

Eastern District,

Division Four.

Jan. 19, 1988.

Motion for Rehearing and/or Transfer

to Supreme Court Denied

Feb. 24, 1988.

Application to Transfer Denied

April 19, 1988.

Edward C. Cody, St. Louis, for plaintiffs/respondents/cross-appellants.

Virgil J. Muehlenkamp, Dellwood, for defendants/appellants/cross-respondents.

SIMON, Presiding Judge.

Defendants, the City of Florissant (City) and the members of its City Council (City Council), appeal from a judgment of the Circuit Court of St. Louis County reversing the denial of a variance by the City Council to plaintiffs, R. Kenneth Lorenz and Carol P. Lorenz, regarding the installation of vinyl siding on their home in the City of Florissant. Plaintiffs cross-appeal the judgment of the trial court which affirmed the City Council's denial of five other requested variances.

On appeal, defendants assert that the trial court erred in reversing the decision of the City Council to deny a requested variance for vinyl siding because the trial court: (1) enlarged the record beyond what was before the City Council for review; (2) relied on the additional evidence in reversing the City Council; (3) became a court of original jurisdiction when it allowed the admission of the additional evidence; and, (4) failed to find that the record before the City Council contained sufficient evidence to support the denial of the requested vinyl siding variance. In their cross-appeal, the plaintiffs contend that the trial court erred in finding substantial and competent evidence existed to support the City Council's decision to deny the five other requested variances. We reverse and remand in part and affirm in part.

Plaintiffs' home was designated a landmark building by the Florissant Landmark Commission in 1981, and lies within the "H" Historic District. They purchased the property in January, 1984; the title did not indicate the historic landmark designation. In February, 1984, they filed several applications with the Florissant Planning and Zoning Commission to obtain permits for certain exterior modifications to their home. Some of the alterations were approved but the Commission denied requested variances for certain alterations for: (1) vinyl siding; (2) front porch turned posts; (3) front porch concrete steps; (4) front porch turned spindles (railing); (5) scalloped facia boards; (6) front door with stained and etched glass windows.

The plaintiffs appealed the Commission's decision denying the above requested variances to the Florissant City Council pursuant to § 30.5(9) of the City's Zoning Code. Subsequently, the City Council agreed with the Commission and denied the variances requested by plaintiffs.

Section 3.5 of the Zoning Code of the City of Florissant establishes the Historic District and provides for the regulation thereof. Section 3.5 includes provisions regulating the use, height, and bulk of buildings within the "H" Historic District. Further, said section provides that the purpose of the regulations is to preserve the historic features of the Old Town area and its aesthetic and cultural heritage as reflected in the overall fabric of the area and the historic buildings designated by the Landmarks Commission and contained within the district.

A multitude of evidence was presented to the City Council over a period of two sessions indicating that the building owned by plaintiffs was originally built during a period when concrete steps, scalloped facia boards, front porch turned posts, vinyl siding, front porch constructed spindles (railing), and front doors with stained and etched glass windows were not standard design.

Accordingly, the City Council issued detailed Findings of Facts and Conclusions of Law in refusing to grant a variance for the vinyl siding because to do so would directly oppose the ordinance under which landmark buildings are to be maintained. Sections 3.5 and 30.5 of the Zoning Code and the Old Town Guidelines of the City of Florissant allow vinyl or aluminum siding except on landmark buildings. The City Council denied variances for the other items because allowing the alterations would not preserve the historic features of the Old Town area as is required by § 30.5 of the Zoning Code.

Thereafter, plaintiffs filed their petition for Administrative Review pursuant to Chapter 536 RSMo (1978). (All further references herein shall be to RSMo (1978) unless otherwise noted). Section 536.100 RSMo provides as follows:

536.100. Party aggrieved entitled to judicial review.--Any person who has exhausted all administrative remedies provided by law and who is aggrieved by a final decision in a contested case, whether such decision is affirmative or negative in form, shall be entitled to judicial review thereof, as provided in sections 536.100 to 536.140, unless some other provision for judicial review is provided by statute; provided, however, that nothing in this chapter contained shall prevent any person from attacking any void order of an agency at any time or in any manner that would be proper in the absence of this section. Unreasonable delay on the part of any agency in deciding any contested case shall be grounds for an order of the court either compelling action by the agency or removing the case to the court for decision.

(Emphasis ours). We note that Chapter 89 RSMo, entitled, "Zoning and Planning," provides for judicial review in zoning cases involving decisions from the boards of zoning adjustment of cities, towns, and villages. See: § 89.110 RSMo. It would appear that § 89.110 RSMo is the "other provision for judicial review" contemplated in § 536.100 RSMo. See: Cohen v. Ennis, 318 S.W.2d 310, 312 (Mo. banc 1958). Zoning cases ought to be filed pursuant to their special statutes. See, e.g., § 64.120.3 RSMo (1986) (appeals from first class charter counties' boards of zoning adjustment); § 64.281.4 RSMo (1986) (appeals from non-charter first class counties' boards of zoning adjustment); § 64.660.2 RSMo (1986) (appeals from second and third class counties' boards of zoning adjustment); § 64.870.2 RSMo (1986) (appeals from all other counties' boards of zoning adjustment); § 89.110 RSMo (1986) (appeals from all cities', towns', and villages' boards of zoning adjustment).

Many zoning type cases have been reviewed pursuant to Chapter 536 RSMo. These cases involve the administrative review of decisions regarding special use permits, conditional use permits, or building permits. See, e.g., McClain v. Board of Adjustment of the City of St. Louis, 508 S.W.2d 301 (Mo.App.1974); Standard Oil Division of Amoco Oil Co. v. City of Florissant, 607 S.W.2d 854 (Mo.App.1980); Alpha Portland Cement Co. v. Missouri Department of Natural Resources, 608 S.W.2d 451 (Mo.App.1980); City of Eureka v. Litz, 658 S.W.2d 519 (Mo.App.1983); State ex rel. Crouse v. City of Savannah, 696 S.W.2d 346 (Mo.App.1985). Since this case arises from the denial of a permit for exterior modifications, we review pursuant to Chapter § 536 RSMo.

Pursuant to § 536.140 RSMo, plaintiffs submitted a Motion to Consider Additional Evidence which was sustained by the trial court. This evidence consisted of a stipulation of facts pertaining to a prior grant by the City Council of a variance for aluminum siding on a landmark building. The plaintiffs contend that the prior variance grant was to similarly situated homeowners, and therefore the denial in their case was arbitrary and capricious.

According to the stipulation of facts, William and Bernadine Wesling owned a home in Florissant. On October 1, 1979, the property was designated a Landmark House. The Weslings were notified that this designation was placed on their property and that they had 30 days to file a request that such a designation was not acceptable to them. The City Council granted a variance based upon the following evidence: (1) the Weslings were an elderly couple; (2) they did not understand that their failure to act would be deemed an acceptance of the Landmark Designation; (3) they did not want their home to be designated a landmark structure; and, (4) they had purchased aluminum siding, had contracted to have it installed, and had begun to do so before being informed that they could not proceed without the approval of the Planning and Zoning Commission or the Florissant City Council. The City Council found these facts established a hardship and granted the variance allowing for the installation of the aluminum siding.

In its Order and Judgment, the trial court submitted written findings which stated, in pertinent part:

After reading the transcript of the appeal hearing, the Old Town Development Plan and Guidelines, and Plaintiffs' and Defendant's (sic) memoranda of facts and law, the Court has concluded that the City Council's decision to deny the alterations is supported by substantial and competent evidence. The Council was presented with much evidence about the historic and architectural character of the Lorenzs' (sic) house and concluded that the alterations made did not preserve, protect or enhance the historic property. While the Court believes there is substantial and competent evidence to support the City Council's decision to deny all six alterations, the Council's decision to deny one particular alteration, vinyl siding, was arbitrary and capricious.

* * *

However, additional evidence has been presented to the Court to supplement the appeal hearing transcript which shows that in 1982, in a case similar to the Lorenzs' (sic), the City Council did allow the owners of a landmark structure to install aluminum siding on their home. Those landmark homeowners, William and Bernadine Wesling, began installing aluminum siding on their home in 1982. They were informed they were...