Miller v. Kansas City, 23486

• Decision Date: 04 June 1962
• Docket Number: No. 23486,23486
• Citation: 358 S.W.2d 100
• Parties: Walter F. MILLER et al., Plaintiffs-Respondents, v. KANSAS CITY, Missouri, Defendant-Appellant, King Louie Bowl, Inc., Intervenor-Appellant.
• Court: Missouri Court of Appeals

Page 100

358 S.W.2d 100

Walter F. MILLER et al., Plaintiffs-Respondents, v. KANSAS CITY, Missouri, Defendant-Appellant, King Louie Bowl Inc., Intervenor-Appellant.

No. 23486.

Kansas City Court of Appeals, Missouri.

June 4, 1962.

Tucker, Charno, Willens & Jouras, Kansas City, for appellant.

Clem W. Fairchild, Thomas J. Daly, Linde, Thomson, VanDyke, Fairchild & Langworthy, Kansas City, for respondents.

SPERRY, Commissioner.

This suit was instituted by owners of residential property located near the intersection of Troost with 79th Street and 79th Steet Terrace, in Kansas City, Missouri. Plaintiffs prayed that an ordinance which rezoned certain property, near those intersections from residential to commercial usage, be declared invalid and that defendant be enjoined from issuing a building permit to King Louie Bowl, Inc., the owner of the property so rezoned. The city of Kansas City, Missouri, will be referred to as defendant, and King Louie Bowl, Inc., will be referred to as intervenor. From a decree granting plaintiffs the relief prayed, defendant and intervenor appeal.

In 1947 this property was annexed to the city and was zoned in accordance with a comprehensive plan then in effect in the area along Troost which was, at that time, a part of the city. A strip 150 feet wide, east and west of Troost, was zoned for commercial purposes and the areas beyond were zoned for residences. Until 1955, the only commercial improvement on the west side of Troost, between 79th and 79th Terrace, was a relatively small building at 79th Terrace, used as a garage. The remainder of the commercial strip, 200 feet wide from east of west, and extending from 79th Street Terrace to 79th Street was also unimproved, except for a plot upon which was a residence, facing 50 feet on 79th, and running south 106 feet. At that time intervenor, who was the owner of the commercially zoned strip lying south of 79th for a distance of 312 feet, constructed a building on the south portion of it, which houses 24 bowling lanes, a restaurant and a bar. It also acquired and procured the rezoning (with restrictions) from residential to commercial, of a strip lying west of the commercial zone, improved a portion of it as a parking lot and has been so using it since then. It provides facilities for parking 145 cars. Intervenor's total investment is $700,000.00.

Intervenor now seeks authority to construct an addition to its building, on the north, to provide for 20 additional bowling lanes. It owns the remainder of the plot of ground mentioned and seeks its rezoning to commercial purposes, and authorization to improve and use it for parking cars in connection with its business. The total cost of this improvement, including the building, will be $225,000.00. The lot, when completed, will accommodate 156 cars. The ordinance was referred to the City Plans Commission where evidence was heard and it was recommended it be disapproved; but the council enacted the ordinance rezoning the property, over plaintiffs' protest. Intervenor proceeded to grade the property, removing some trees and plantings along the outer edges of the parking lot, as formerly constructed, and gravelled the newly added area. This suit was filed and nothing further has been done.

The area of the parking lot, as it has existed, is paved with asphalt and was surrounded on the south, west, and north by a louvered board fence forty inches high, and also, on the west and north by plantings. It is required, and planned, that the south, west, and north sides of the lot, if the addition is authorized, will be surrounded with a 40 inch board fence and with trees and shrubbery, but it will take five years or more before the plantings are fully effective. There was testimony from qualified planners and architects that such screening would, eventually, effectively screen the lot from the view of residents of the area and greatly reduce the effect of noise and lights emanating therefrom.

Plaintiffs offered the testimony of a number of witnesses. Mr. Monroe, qualified in the fields of architecture and zoning, testified to the effect that an ordinance extending a business district into a residential area, constituted 'spot' zoning; that the area west of Troost on 79th and 79th Terrace was gradually developing as previously zoned; that this rezoning does not tend to protect or preserve the residential property of the area; that the addition of about 50% more bowling lanes would bring more traffic to the area; that he saw beer cans and bottles lying between the parking lot and 79th Street; that the amendment to the zoning ordinance will bring no benefit to the public generally.

Mrs. Murray lived at 918 E. 79th Terrace, in a house to the west of and adjoining the new part of the parking lot. She stated that lights from the lot (or from cars in the lot) shine into her windows; that intervenor removes garbage at 2:00 a. m., to her annoyance; that conditions are worse since the lot was enlarged; that there are many children in the neighborhood who will be endangered by additional traffic on 79th Terrace, which is narrow, uncurbed, and in poor repair.

Mrs. Scanlon, a realtor, had appraised the dwelling house at 916 E. 79th Terrace in 1959, prior to extension of the parking lot, at $12750.00; that, afterward, F.H.A. appraised it at $10,000.00, for which sum it was sold. She believed the extention of the parking lot depreciated the value of the property in the area.

Mrs. Bader had lived across the street, south from the extension of the lot, for 25 years. She stated that, prior to the extension, she was 300 feet from the lot but that she will be 100 feet from the extension; that traffic on 79th Terrace has increased since the lot was extended, and she saw broken bottles and trash on the Murray property; that many children travel on the street to and from Troost, in daytime and in the evening; that extension of the lot will be detrimental to the value and usage of her property.

Mrs. Finkel bought and owns a duplex on 79th Street. She stated that since the shrubbery was removed along the border of the original parking lot, noise has increased; that her family is disturbed by noises at night caused by garbage trucks and by other noises and lights from cars leaving late at night; that her property has depreciated in value some $5000.00 because of changes made in the lot.

Mr. Vogl stated that he formerly owned 916 E. 79th Terrace; that since the extension was made he has picked up beer bottles and cans from the front yard; that there is more noise since the trees in the new section were removed; that there is more traffic; and that property has depreciated in value because of the extension.

Mrs. Giordano, who lives at 917 E. 79th Terrace, across the street from the lot, stated that she is annoyed by noise from trash removal at 1:30 a. m., by motors and horns, and by patrons shouting and screaming; that cars are always in the lot and that they drive across adjoining property to enter the parking lot.

Mr. Saurbier purchased a duplex on 79th adjoining the parking lot, after intervenor's building and lot were constructed. He stated that the used part of the parking lot was then 25 or 30 feet away from his property and was screened, but that the screening has been removed on the east and south of his lot; that he has lost tenants and income as a result of intervenor's actions; and that his property has depreciated in value.

Mr. Massey, secretary of City Plans Commission and Board of Zoning Adjustment, had been employed in zoning work for 15 years. He testified to the effect that the original master zoning plan, including Troost Avenue, was adopted in 1923; that, in 1946, the area here involved was zoned by amendment to the master plan, in accordance with its provisions; and that it became effective January 1, 1947.

Mr. Falin, Director of Traffic for Kansas City, stated that, prior to 1959, there were complaints of traffic congestion on Troost in this area; that the trouble was caused by access and egress to the parking lot both being on Troost, side by side; that this caused all of the trouble; that when a driveway was added to the lot, on 79th Street, the trouble ceased; that he has never had a complaint of congestion on 79th; that if traffic from the lot were directed eastward on 79th and 79th Terrace, and if ingress was confined to Troost, it would not create any traffic problem on any of those streets; that the parking lot and traffic attracted by it, tends to lower the safety of residents of the area; that the zoning change made by this ordinance is not 'spot zoning', which is a 'coined phrase difficult to define with exactitude'.

It will be noted that much of plaintiffs' testimony revolved about conditions as they now exist, before the proposed expansion of intervenor's facilities has been made. That is true of noises from trash haulers, motors, the shouting and screaming of patrons, and the annoyances caused by lights. Such depreciating effect on property as may be due to conditions now existing, because of prior rezoning and construction, is not material in considering the effect of enlarging the bowling and parking facilities, except in so far as it may indicate that such conditions will be...