McKinney v. Board of Zoning Adjustment of Kansas City

Decision Date02 December 1957
Docket Number22682,Nos. 22681,s. 22681
Citation308 S.W.2d 320
PartiesE. C. McKINNEY, Rollie B. Hall, A. H. Myers, R. H. Collins, C. S. Gillmor and Evelyn Gillmor, Plaintiffs-Appellants, v. BOARD OF ZONING ADJUSTMENT OF KANSAS CITY, Missouri, Hugh R. Ennis, Thomas C. Bourke, David W. Childs, Clair H. Schroeder, and Luther Willis, as Members of said Board, Defendants-Respondents, Catholic Diocese of Kansas City, Inc., Intervenor. E. C. McKINNEY, Marie K. Hall, Rollie B. Hall, A. H. Myers, Gladys Collins, and R. H. Collins, Plaintiffs-Appellants, v. BOARD OF ZONING ADJUSTMENT OF KANSAS CITY, Missouri, et al., Defendants-Respondents, Catholic Diocese of Kansas City, Inc., Intervenor.
CourtMissouri Court of Appeals

Albert Thomson, Harold T. Van Dyke, Kansas City, Davis, Thomson, Van Dyke & Fairchild, Kansas City, of counsel, for plaintiffs-appellants.

Benjamin M. Powers, City Counsellor, Guy W. Rice, Asst. City Counsellor, Kansas City for defendants-respondents.

Gordon & Cochrane, Norman P. Gordon, William W. Cochrane, Jr., Kansas City, for intervenor.

MAUGHMER, Commissioner.

This is an appeal from a circuit court judgment which affirmed, as modified by the circuit court, a decision of the Board of Zoning Adjustment of Kansas City, Missouri. This Board decision approved the granting of a building permit for construction of a Catholic Church and elementary school at 1205 West 62nd Street, Kansas City, Missouri. Appellants here include the plaintiffs in two cases below, which involved this same controversy. Catholic Diocese of Kansas City, Inc., the real recipient of the building permit intervened in each case. By agreement both were consolidated in the circuit court and for this appeal. The Board of Zoning Adjustment, the members of the board individually, and respondent-intervenor Catholic Diocese of Kansas City, Inc. jointly presented their case on appeal. This group will be referred to as respondents. Catholic Diocese, on the day of the hearing before the Board, offered to provide and was able to provide 59 off-street parking spaces compared to 43 as originally contemplated. The circuit court judgment, as entered and as appealed from, required that 59 parking spaces be provided. When reference is made to ordinances, we refer to the zoning ordinances of Kansas City, Missouri.

Appellants present three points in their appeal. (1) The building plan providing for 59 parking spaces in a lot area of 55,000 square feet violates Section 58-4 of the ordinances; (2) The plan is in violation of Section 58-23 of the ordinances because the maximum capacity of the church exceeds 413 persons (maximum capacity for 59 parking spaces); (3) The two sections of the ordinances just mentioned are not in conflict. In order to determine if appellants' contentions, or either of them, are valid, we first examine the evidence to learn the exact physical proportions of the proposed building and, second, decide whether or not such a building can be fitted into the ordinance requirements. If the answers are still not clear and definite, then we shall look to explanatory and expert testimony as an aid in resolving these questions. All of this is done as an appellate and judicial review of an administrative decision. We have the duty and responsibility to decide (1) was the result reached illegal and not in compliance with the ordinance, and (2) was it supported by 'competent and substantial evidence'. As to the legality question this court, in Adams v. Board of Zoning Adjustment of Kansas City, Mo.App., 241 S.W.2d 35, loc. cit. 38, adopted and approved the following statement found in State ex rel. Nigro v. Kansas City, 325 Mo. 95, 27 S.W.2d 1030, 1033. 'The review of a decision of a board of zoning appeals by the circuit court being purely statutory, the court's jurisdiction in such proceeding does not extend beyond that conferred by the statute. Looking to the statute it is apparent that the court is not vested with the power to supervise the discretion lodged with a board of zoning appeals; it is not authorized to entertain a hearing de novo and then make such order as in its opinion the board should have made. The court's authority is plainly limited to correcting illegality. If the court finds the order under review illegal, in whole or in part, it may reverse or affirm, wholly or partly, or may modify, the order, as may be necessary in order to correct the illegality.'

The rule that 'competent and substantial evidence' must be found was well stated in Veal v. Leimkuehler, Mo.App., 249 S.W.2d 491, 495-496: 'This narrow scope of review, however, must be read in the light of the minimum standard for review provided by Constitution of 1945, art. V, Sec. 22 [V.A.M.S.], requiring that the review of all final decisions of any administrative body in which a hearing is required shall include the determination whether the same are 'supported by competent and substantial evidence upon the whole record.' Wood v. Wagner Elec. Corp., 355 Mo. 670, 197 S.W.2d 647. The circuit court may not substitute its own judgment on the evidence for that of the board, Wood v. Wagner Elec. Corp., supra; In re Botz, 236 Mo.App. 566, 159 S.W.2d 367, loc. cit. 373, but the circuit court is authorized to decide whether the board of adjustment reasonably could have made its findings and reached its result upon consideration of all of the evidence before it, and to set aside decisions clearly contrary to the overwhelming weight of the evidence. Mann v. Mann, Mo.App., 239 S.W.2d 543'.

A great number of witnesses, including a chief expert for each side, testified at the board hearing. The exhibits offered and received were numerous and voluminous, including one 22-sheet blueprint. Considering the factual and legal issues involved, we believe the evidence can be tremendously condensed and still be fair to both sides.

The situs of the combination church and school building is within a high grade residential area. It is zoned R-1 for one family dwellings and is fully developed. To prepare this spot for the proposed construction necessitated moving some houses and destruction of a few fully developed trees. No schools are in the immediate vicinity and there are no businesses close by. There was widespread and energetic opposition to the granting of this building permit. This opposition was demonstrated by the number of witnesses appearing, by the size of the protest petitions and by the vigor with which the appeal in all its stages has been prosecuted. The chief complaints voiced by those giving oral testimony, included: added traffic hazards, destruction of trees and beauty, generally, and the dilution of a pure and exclusive residential area by placing in its midst a public gathering place which these witnesses claimed would lessen all surrounding property values.

The testimony established that the proposed school use--that is, the time when children would be present--would be from 8:40 a. m. to 3:30 p. m. on Mondays through Fridays. There would be no school on Sundays, holidays or holy days. The church and school functions would not be simultaneously in operation. The original plan for which a preliminary permit was granted provided a lot area of approximately 42,000 square feet, 43 off-street parking spaces and a recreation room. Under the plans, as modified, an additional tract was included, which increased the lot area to 55,000 square feet. The number of parking spaces was increased to 59, and the recreation area was transformed into one for storage.

We believe it might be helpful to set forth the exact physical proportions of the various rooms since the parties are contesting as to how many persons can reasonably occupy each room at a time of its maximum functional use. We cannot, of course, substitute our judgment, based on these areas, for that of the Board on this critical question. We give these measurements (1) with the hope of increasing the clarity of this opinion and, (2) to aid us in determining if the board's decision was one that might be reached by reasonable minds and if it was supported by 'competent and substantial evidence'. In the basement, there is located the cafeteria. Its approximate measurements are 64 feet by 20 feet. There are five classrooms on the first floor. Two of these are 33 by 20 feet, and three are 32 by 20 feet. The nave is 64 feet in length by 48 feet in width, but not all of this space is occupied by seats.

Appellants' chief expert, Mr. Erling Helland, resides in Tulsa, Oklahoma and by profession is a city planning consultant. He gave it as his opinion that the ordinances required 2,000 square feet of lot area for each parking space, and that, therefore, for this 55,000 square feet, 27 parking spaces would be the maximum legally permitted. There was and is an earnest difference of opinion between the parties as to (1) should the seating capacity of the storage (recreation) area and of the cafeteria be included in determining the over-all capacity and, (2) what is the correct maximum capacity as determined by the requirements of the ordinances as to three component parts of the building, namely, the nave, the classrooms and the cry...

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    ...of Menlo Park, 167 Cal.App.2d 686, 335 P.2d 195 (1959); Reiser v. Meyer, 323 S.W.2d 514 (Mo.App.1959); McKinney v. Board of Zoning Adjustment of Kansas City, 308 S.W.2d 320 (Mo.App.1957); Congregation Committee, North Fort Worth Congregation, Jehovah's Witnesses v. City Council of Haltom Ci......
  • State ex rel. Columbus Park Community Council v. Board of Zoning Adjustment of Kansas City, WD
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