Ogawa v. City of Des Peres

• Decision Date: 29 December 1987
• Docket Number: No. 52605,52605
• Citation: 745 S.W.2d 238
• Parties: Richard T. OGAWA, Plaintiff-Appellant, v. CITY OF DES PERES, Mo., et al., Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 238

745 S.W.2d 238

Richard T. OGAWA, Plaintiff-Appellant, v. CITY OF DES PERES, Mo., et al., Defendants-Respondents.

No. 52605.

Missouri Court of Appeals,

Eastern District,

Division Four.

Dec. 29, 1987.

Motion for Rehearing and/or Transfer Denied Jan. 26, 1988.

Application to Transfer Denied March 15, 1988.

Steven Walter Garrett, Clayton, for plaintiff-appellant.

James W. Erwin, St. Louis, for defendants-respondents.

SIMON, Presiding Judge.

Richard T. Ogawa (hereinafter "appellant") filed petitions for certiorari and mandamus in the St. Louis County Circuit Court seeking review of a decision by the Board of Adjustment of the City of Des Peres, Missouri (Charles Hobbs, Chairman, and board members, Michael Searles, Charles Wetzel, John Tomasovic, and John M. Olson, hereinafter "the Board") denying appellant's request for certain zoning variances. The circuit court found in favor of the Board and appellant appeals.

On appeal, appellant contends that the trial court erred in denying the petitions for certiorari and mandamus because: (1) the Board's denial of one variance was unreasonable, arbitrary, and capricious, amounting to an unlawful taking of appellant's property; (2) the Board's denial of two of the four requested variances was illegal, arbitrary, and capricious, creating an inconsistency; (3) appellant established a nonconforming use of the property as a dental office; and, (4) the Board improperly heard, considered, and relied upon evidence and speculation of both residents and board members concerning the effect that granting variances to appellant would have on future potential owners of the property and the use they might put on said property. We affirm.

Appellant, a licensed dentist practicing in the City of Des Peres, St. Louis County, Missouri, sought to relocate his office. In March, 1984, he became interested in property located at 1090 Kinstern, City of Des Peres. Before purchasing the property, appellant's real estate agent sent a letter to the Des Peres Director of the Public Works inquiring as to whether the property could be used for a dental office. The director responded informing appellant and his agent that the above numbered property was zoned "C-1 commercial" and as such, allowed "offices for the pursuit of any lawful business or profession." Additionally, the director informed them that while a dental office appeared to be an appropriate use within the meaning of the ordinance, a site plan would have to be approved by the Des Peres Planning and Zoning Commission (hereinafter "the Commission") and variances might have to be requested from the Board. Shortly thereafter, on May 8, 1984, appellant purchased the property.

On July 11, 1984, and again on August 8, 1984, appellant appeared, without counsel, before the Commission to obtain approval for his site plan. The Commission denied the site plan. The denial was allegedly based on an erroneous belief that an ordinance required commercial property to have a 150 foot frontage requirement on Manchester Road. At the time, however, no such ordinance existed. Judicial review of this decision was not sought. Approximately one month after the site plan was denied, the Board passed an ordinance amending the C-1 ordinance requiring all C-1 commercial property to have a minimum of 150 feet of frontage on Manchester Road. The new ordinance became effective September 10, 1984.

The pertinent Des Peres zoning ordinances provide as follows:

Section 405.090: Permitted Uses in Commercial "C-1" Districts

A. Property located in this district may be used for the permitted uses hereinafter set forth only if said property fronts directly on Manchester Road and then only if said frontage is a minimum length of 150 feet. Subject to the foregoing, the following uses are permitted in the district:

1. Any use permitted in the residential "A" district other than a dwelling.

2. Financial institutions (other than banks) and financial offices.

3. Barber shops and beauty shops.

4. Electronics repair and servicing.

5. Clothes pressing, tailor shops, laundry and dry cleaners.

6. Offices for the pursuit of any lawful business or profession.

7. Insurance and real estate agencies.

8. Retail stores.

9. Repair or servicing of small household or personal items.

10. Planned business centers.

11. Accessory uses to the above.

The residential uses alluded to in Des Peres Zoning Ordinance § 405.090(A)(1) are listed in Des Peres Zoning Ordinance § 405.020:

Residential "A" District

A. Only the following uses are permitted in this district:

1. Single Family dwelling.

2. House of worship.

3. Public school or private school with curriculum similar to that of a public school.

4. Home occupations.

5. Municipally owned or operated facilities upon approval by the Board of Aldermen after a hearing notice and held in a manner the same as a zoning change.

6. Accessory buildings.

We note that the record contains the foregoing ordinances and several other ordinances, but not the entire Des Peres Zoning Code.

On June 20, 1985, appellant appeared, without counsel, before the Board of Adjustment to obtain approval for certain variances. The variances requested included:

1. Front yard set back of 44.77 feet from the center line of Kinstern and 45.00 feet from the center line of Academy in lieu of the required 60 feet front yard set back 405.090(d) Des Peres Zoning Ordinances.

2. Lot width of 125 feet on Kinstern in lieu of the required 150 feet on Manchester Road. § 405.090(a) Des Peres Zoning Ordinances.

3. Buffer at the rear yard of 5 feet in lieu of the required 25 feet. § 405.090(i) Des Peres Zoning Ordinances.

4. Parking set back of 28 feet from the center line of Kinstern Drive in lieu of the required 40 feet. § 405.180(e)(3) Des Peres Zoning Ordinances.

The Board denied the request for variances and judicial review was not sought. Subsequently, appellant rented the property as a dwelling.

Thereafter, appellant obtained counsel and requested a second hearing before the Board. The Board granted a second hearing on March 25, 1986. Appellant's counsel presented additional arguments in requesting the same four variances previously denied. The Board granted variances (1) and (3), and denied (2) and (4). The denial of these two variances forms the basis of this appeal.

The Board did not make written findings of fact and conclusions of law, and is not so required. Chapter 89 RSMo (1986); Mullen v. City of Kansas City, 557 S.W.2d 652, 654 (Mo.App.1977). However, § 89.080 RSMo (1986) provides, in pertinent part:

The board shall keep minutes of its proceedings, showing the vote of each member upon question, or, if absent or failing to vote, indicating such fact, and shall keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the board and shall be a public record. All testimony, objections thereto and rulings thereon, shall be taken down by a reporter employed by the board for that purpose.

(Asterick omitted). Here, the record contains the transcript of the Board's proceedings.

Whether application of a zoning ordinance to a particular tract is reasonable and constitutional, or arbitrary and unconstitutional, depends upon the facts, circumstances, and the evidence in each case. Loomstein v. St. Louis County, 609 S.W.2d 443, 446 (Mo.App.1980). The burden of proving unreasonableness is on the person challenging the ordinance. Lafayette Park Baptist Church v. Scott, 553 S.W.2d 856, 861 (Mo.App.1977). Property may not be zoned so as to prevent any effective use, because such a regulation becomes an unlawful confiscation. Id. at 862.

In zoning variance cases, we must determine the type of variance involved, i.e., use or nonuse. The type of variance will determine what facts the applicant for the variance must establish. See: Matthew v. Smith, 707 S.W.2d 411 (Mo. banc 1986). A use variance is one permitting a use other than one proscribed by the zoning ordinance in the particular district; it permits a use which the ordinance prohibits. A nonuse variance authorizes deviations from restrictions which relate to a permitted use, rather than limitations on the use itself. Matthew v. Smith, 707 S.W.2d at 413 (quoting from, 3 A. Rathkopf, The Law of Zoning and Planning § 38.01 (1979)). Since appellant's property is in an area zoned C-1 commercial, the variance from the 150 foot frontage requirement and the parking set back variance are not use variances, but are nonuse variances.

We limit our review of a decision by the Board of Adjustment to a determination of whether the ruling is authorized by law and supported by competent and substantial evidence upon the whole record. Volkman v. City of Kirkwood, 624 S.W.2d 58, 59 (Mo.App.1981). Additionally, in determining whether substantial evidence exists to support the decision of the Board, we view the evidence, and its reasonable inferences, in a light most favorable to the Board's findings. Id. at 58-59.

The Board's authority to grant a variance is statutorily based upon a showing of "practical difficulty or unnecessary hardship." See: § 89.090.1(3) RSMo (1986) and Des Peres Zoning Ordinance § 435.040(3). This power and authority must be exercised sparingly and only under exceptional circumstances. Matthew v. Smith, 707 S.W.2d at 413. Such application is essential in order to maintain the integrity of the zoning code.

To obtain a nonuse variance, appellant must establish, inter alia, practical difficulties, which are the existence of conditions slightly less rigorous than unnecessary hardships. Matthew v. Smith, 707 S.W.2d at 416 (Emphasis theirs). Our Supreme Court in Matthew permitted use variances under the proper circumstances for the first time in Missouri. Id. at 414. Although the majority opinion cites several Missouri cases which state that a use variance is not allowable, Id. at 414 n. 2, the opinion expressly permits nonuse variance analysis to be derived...