Pearce v. Lorson, 31719

• Decision Date: 20 July 1965
• Docket Number: No. 31719,31719
• Citation: 393 S.W.2d 851
• Parties: Richard C. PEARCE, Relator-Appellant, v. J. J. LORSON, Chairman, R. G. Greise, William Maier, T. Czarnecki and E. Eikermann, in their capacity as members of the Board of Adjustment of the City of Flordell Hills, and the Board of Adjustment of Flordell Hills, Respondents, and Herman Nieland and Della Nieland, Intervenors.
• Court: Missouri Court of Appeals

Page 851

393 S.W.2d 851

Richard C. PEARCE, Relator-Appellant, v.J. J. LORSON, Chairman, R. G. Greise, William Maier, T Czarnecki and E. Eikermann, in their capacity as members of the Board of Adjustment of the City of Flordell Hills, and the Board of Adjustment of Flordell Hills, Respondents and Herman Nieland and Della Nieland, Intervenors.

No. 31719.

St. Louis Court of Appeals, Missouri.

July 20, 1965.

Rehearing Denied Sept. 8, 1965.

Paul Simon, Floyd McBride, Thomas F. McGuire, St. Louis, for relator-appellant.

John J. Shanahan, St. Louis, for respondents.

Husch, Eppenberger, Donohue, Elson & Cornfeld, Shulamith Simon, St. Louis, for intervenors.

WOLFE, Acting Presiding Judge.

This matter originated before the Board of Adjustment of the City of Flordell Hills.The Building Commissioner of the city had issued an occupancy permit to Richard C. Pearce, a chiropodist, for the occupancy and use of a building as a doctor's office.Mr. and Mrs. Herman Nieland had requested the Building Commissioner to revoke the permit, and upon his refusal to do so they filed an appeal with the Board of Adjustment of the City of Flordell Hills.A hearing was held on the appeal, and the Board revoked the permit.Pearce then brought an action by way of certiorari in the Circuit Court of St. Louis County, in an effort to reverse the order of the Board of Adjustment.The Circuit Court affirmed the order of the Board, and Pearce prosecutes this appeal.

The property in question is a five-room brick house built for residential occupancy.It is located at 7051 West Florissant Avenue.This is a residential area zoned as Class B, which is for single family dwellings.On April 12, 1957, the zoning of this district was changed so as to permit it to be used, not only as a single family dwelling area but also permitted medical offices and clinics.This remained in effect until March 10, 1961, when an ordinance was passed again limiting the area to single family dwellings, and specifically prohibiting medical offices and clinics.

Herman Nieland and his wife lived at 7055 West Florissant Avenue.This house is next door to 7051, the property here under consideration.They had lived there since 1942.During that time the house at 7051 had only been used as a single family residence.In January, 1961, they noticed that a sign had been placed on the front lawn of the house next door, offering it for sale 'For Doctor's or Medical Clinic'.Mr. Nieland then got in touch with one of the Aldermen and found out, for the first time, that the property was then zoned so that a doctor's office or clinic could be established.Mr. and Mrs. Nieland and others met with the Board of Aldermen and presented a petition for a change in the zoning law, so that the area would be in Class A, which would restrict it solely to single family residences.Such an ordinance was passed by the Board and signed by the Mayor at 10:30 P.M. on March 10, 1961.

On March 1, 1961, Richard C. Pearce, the chiropodist and Relator-Appellant herein, entered into an earnest money contract to purchase the property at 7051 for the sum of $17,250.On the 7th of March he applied for and received an occupancy permit to use and occupy the building as a doctor's office.On the 10th day of March, 1961, the same day that he ordinance rezoning the property was enacted, the sale was consummated.

On March 10, Mr. and Mrs. Nieland requested the Building Commissioner to revoke the occupancy permit that he had issued on March 7.He refused to do so, and on April 14, the Nielands appealed to the Board of Adjustment of the City of Flordell Hills.On April 27 the appeal was heard.As a defense to he action Pearce set up a claim that he occupied the building as a doctor's office prior to the ordinance of March 10 and thereby established a non-conforming use of which he could not be divested.

Mr. and Mrs. Nieland testified before the Board of Adjustment to the facts as set out above and they also testified that the house in question was not occupied by Pearce until the last of March or the first part of April.Mrs. Nieland testified that the house was without water or heat until the last of March and at that time furniture and equipment was moved in.

Pearce testified to the facts above stated in relation to the purchase of the property.As to the time he occupied the place as an office for the practice of chiropody he stated that at the date of purchase he maintained an office at 7120 West Florissant Avenue.He continued his practice from 7120 West Florissant Avenue until the end of March.He stated that on the First of March he put a sign in the window at 7051 which read 'Dr. R. C. Pearce, Chiropodist, Foot Specialist' and moved in a treatment chair and some supplies.A friend, who helped him move in the chair, said some supplies were there.There were no other chairs or seats for patients.

Pearce testified that a patient named Granninger phoned for an appointment on March 10 and he directed him to come to 7051 West Florissant.He arrived there about 8:45 P.M. and Pearce treated his feet.Pearce also said, that a man who came to the place to figure on some alterations, talked to him about 'fatigue'.He billed Ganninger for his services, but he did not bill the other person mentioned.There was testimony that the house was worth $1,750 to $2,250 more as an office building than as a dwelling.

Upon the foregoing evidence the Board of Adjustment found that Pearce had not established a non-conforming use and revoked the occupancy permit.As stated, this action was brought by Pearce to review and reverse the ruling of the Board of Adjustment but the Circuit Court affirmed the Board's ruling and Pearce prosecutes this appeal.

It is here contended that the trial Court erred in affirming the ruling of the Board of Adjustment in 'that the undisputed evidence' showed that Pearce had established a non-conforming use...