Mullen v. City of Kansas City, KCD

• Decision Date: 11 October 1977
• Docket Number: No. KCD,KCD
• Parties: Leo M. MULLEN, M.D., Appellant, v. CITY OF KANSAS CITY, Missouri, a Municipal Corporation, and Board of Zoning Adjustment, Respondents. 28399.
• Court: Missouri Court of Appeals

Page 652

557 S.W.2d 652

Leo M. MULLEN, M.D., Appellant, v. CITY OF KANSAS CITY, Missouri, a Municipal Corporation, and Board of Zoning Adjustment, Respondents.

No. KCD 28399.

Missouri Court of Appeals, Kansas City District.

Oct. 11, 1977.

Haskell Imes and Allan R. Browne of Ennis, Browne, Martin & Tapp, Kansas City, for appellant.

Aaron A. Wilson, City Atty., James C. Bowers, Jr., Asst. City Atty., Kansas City, for respondents.

Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.

SWOFFORD, Presiding Judge.

This appeal involves an attempt by the appellant to establish a legal nonconforming use status under Missouri Zoning Ordinances for a horse breeding farm at 7611 Sycamore in Kansas City, Missouri, zoned for single family dwellings. Appellant's application for such authority was denied by the Board of Zoning Adjustment (Board) after two evidentiary hearings, and he filed his petition for review, as provided by law, in the Circuit Court. That court affirmed the Board's ruling, finding that there was competent and substantial evidence to support the Board's decision denying appellant's request for a special permit for nonconforming use of the property for horse breeding purposes and, thereafter, denied a rehearing. This appeal followed in due course.

The appellant advances two points upon which he seeks reversal. His second point will be initially considered because, if meritorious, it disposes of the entire appeal. He asserts that, since the Board made no findings of fact and no declarations of law, "the orders of the court (below) were illegal and without authority" because "the circuit court was afforded no way to make its determination as to the propriety of the Board's decision". It is true that the Board's duty is to find and determine the facts. Veal v. Leimkuehler, 249 S.W.2d 491, 496(9-12) (Mo.App.1952); McKinney v. Board of Zoning Adjustment of Kansas City, 308 S.W.2d 320, 322(1, 2) (Mo.App.1957).

Appellant, however, cites no cases or other authority supportive of his position that the Board must make written findings of fact. No such requirement is found in the Zoning Ordinances of Kansas City nor in Chapter 89, RSMo 1969 (Zoning and Planning), nor in the case law. The cases relied upon by appellant which require reversal for lack of written findings of fact and conclusions of law deal with boards or administrative bodies governed by Chapter 536 RSMo 1969 (Admr. Procedures & Review). These statutes do not deal with nor apply to municipal zoning board decisions. Cohen v. Ennis, 314 S.W.2d 239, 244(3, 4) (Mo.App.1958); Reed, "The 1945 Constitution and Administrative Agency Legislation", 19 Univ. K.C.Law Rev., 282, 287 (1950-1951); Section 536.100 RSMo 1969.

Moreover, the appellant concedes in his brief that the evidence before the Board was not in any dispute or material conflict (App. Brief, pp. 5-6) and he made no request for any written findings or conclusions to the Board, nor did he assert any error based upon the lack thereof in his petition for review or certiorari in the court below. This second ground or point on this appeal is without merit and is ruled against appellant.

The appellant's first point, in summary, is that under the undisputed evidence the property in question has been used for horse breeding purposes for such a time before the imposition of a zoning ordinance restricting its use to single family dwellings that a "de facto horse breeding farm situation was established" i. e. an undisputed nonconforming use. Therefore, the appellant argues, the Board's orders were without reasonable basis and "against the overwhelming weight of the evidence."

It should be here noted that no additional evidence was heard in the Circuit Court and its decision, now under review, was based solely upon the transcript of the testimony before the Board. Under such circumstances the scope of this court's review is whether or not, in the proceeding before the Board, there was competent and substantial evidence to support the Board's order. Beckmeyer v. Beuc, 367 S.W.2d 9, 11(1, 2) (Mo.App.1963); Pearce v. Lorson, 393 S.W.2d 851, 854(1) (Mo.App.1965).

The property in question consists of approximately 6 acres of land, and was annexed to Kansas City, Missouri in 1957 and became subject to the municipal zoning law. It is conceded that the area in which this property is located by such annexation became zoned for single family dwellings and that the use made of the property by appellant was nonconforming. It was by application to the city for permission to legally continue such use that this proceeding was initiated.

Section 65.020 of the zoning ordinance defines a nonconforming use as "one that does not, by reason of use, size or design comply with the regulations of the district or districts in which it is situated." Section 65.230 provides that a lawful nonconforming use existing at the time the zoning became applicable may be continued with certain exceptions. Such lawful nonconforming use may not be changed to a lower use nor may it be discontinued or abandoned and then resumed after a lapse of six months. Section 65.230(7). The Commissioner of Buildings and Inspections is authorized to issue certificates of occupancy for all lawful nonconforming use.

All zoning ordinances must contain provisions exempting from their...