R. A. Vorhof Const. Co. v. Black Jack Fire Protection Dist.

• Decision Date: 28 April 1970
• Docket Number: No. 33651,33651
• Citation: 454 S.W.2d 588
• Parties: R. A. VORHOF CONSTRUCTION COMPANY, a corporation, et al., Plaintiffs-Respondents, v. BLACK JACK FIRE PROTECTION DISTRICT, a corporation, et al., Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 588

454 S.W.2d 588

R. A. VORHOF CONSTRUCTION COMPANY, a corporation, et al Plaintiffs-Respondents, v. BLACK JACK FIRE PROTECTION DISTRICT, a corporation, et al Defendants-Appellants.

No. 33651.

St. Louis Court of Appeals, Missouri.

April 28, 1970.

Rehearing Denied May 28, 1970.

Paul G. Ochterbeck, Florissant, for defendants-appellants.

Robert P. Baine, Jr., Clayton, for plaintiffs-respondents.

WEIER, Commissioner.

Plaintiffs sought and obtained a declaration of invalidity with respect to an ordinance of the Black Jack Fire Protection District. The court also enjoined enforcement of the ordinance. Its judgment was premised on a determination that the ordinance was an unreasonable exercise of powers conferred upon the district. Unconstitutionality was not raised and the judgment did not rule on such an issue. The appeal is therefore properly before this court. Conner v. Herd, Mo., 442 S.W.2d 501, 502.

The Black Jack Fire Protection District is a corporate body organized in 1953 under the provisions of Chapter 321, RSMo 1959, V.A.M.S. It affords fire protection to a large area in north St. Louis County. According to Ferdinand Schladerbach, president of its board of directors, the district encompasses some 25 square miles and extends from New Halls Ferry Road on the west to U.S. Highway 67 on the east, and from the Missouri River on the north to Vorhof Drive on the south. When originally organized as a volunteer district in 1929, the area was largely rural. Now it is about one-half urban. The rate of growth in population has been rapid. One commercial area has been established and a major shopping center was under construction when the case was tried in 1968. Immediately west and adjoining the district, is the City of Florissant, which, according to the United States Census, experienced a population growth of 921.3% in the decade from 1950 to 1960.

On December 26, 1967, the district board of directors adopted Ordinance No. 13 which supplemented a prior ordinance, No. 12, by adding three sections. The first two sections are:

'Section 11. Neither wood shingles nor any other roof covering of wood or wooden materials shall be used anywhere within the boundaries of the Black Jack Fire Protection District.

'Section 12. Where wood shingles or shakes are used as exterior wall coverings they shall be backed up with a masonry wall no less than 6 inches in thickness anywhere within the boundaries of the Black Jack Fire Protection District.'

The third section, No. 13, made February 1, 1968, the effective date and required that the two prior sections be applicable to all construction pursuant to building permits issued after that date.

In holding that the ordinance was unreasonable, the court below based its conclusion upon two findings. First, the district did not establish fire limits but treated all of the area of the district alike in applying its ordinance, even though one-half of the area is farm land. Second, the court found that Ordinance No. 12, which Ordinance No. 13 'attempted to amend', was an inspection ordinance and not an ordinance regulating construction and establishing building specifications. Thus, the court reasoned, the new ordinance changed the purpose of the original ordinance. Going on in its memorandum opinion, the court says the amending ordinance falls 'far short of the certainty and definiteness required in an ordinance intended to regulate and control the construction, repair, alteration, wrecking, moving and dismantling of buildings within the limits of the Fire District required to constitute it a valid exercise of the police power.'

Defendants contend that the evidence did not show the defendant fire district had abused its power to regulate and control the construction of buildings by prohibiting the use of wood shingles and shakes for roof coverings or prescribing masonry walls to back shingle or shake trim. In support of this contention they say the evidence was contrary to the court's findings referred to above and that Ordinance No. 13 was a reasonable exercise of the powers of the district. Further, that the pertinent inquiry which must be made by the court was whether the legislative body had before it facts at the time it took action which could make the issues debatable. If the evidence showed such a state of facts, then, defendants contend, the action of the board in its resolution of the problem is conclusive and the court cannot substitute its opinion for that of the board. We therefore review the evidence to test the contentions of the defendants.

Three corporate plaintiffs were builders and subdividers of land actively engaged in business in the fire district. One of these, R. A. Vorhof Construction Company, was engaged in the development of Whitney-Chase subdivision. It extended about a mile east of Old Halls Ferry Road and contained 358 lots for dwellings. The lots would average in dimension about 75 feet by 125 to 140 feet. The building line on the side of each lot is established at six feet by county zoning ordinance. Whitney-Chase North is another subdivision in which this plaintiff was interested in constructing houses. It also participated with others in the construction of dwellings in Ridge Manor, a subdivision also located within the district. One display home has a wood shingle roof. Roofs covered with cedar wood shingles and shakes had been offered as optional items to customers. Fireplaces were also offered as an optional item.

Alfred H. Mayer Company, another plaintiff, expected that 900 homes would be constructed in Paddock Forest, a subdivision located in the district. The Mayer company was building a shopping center on a tract of approximately ten acres. At the time of the passage of Ordinance No. 13, the company had designed and was in the process of constructing a house with a cedar shake mansard type roof. This design had to be revised to conform with the ordinance.

Milton Duenke of the Vorhof-Duenke Company, the third corporate plaintiff, said that his company had developed and was developing residential subdivisions in the district. Some of these were Calavera with 42 lots, Hathaway 7 Hills with 546 lots and Hathaway Trails with 399 lots. On some of the model houses, this company offers a cedar wood shake roof. Of seventy-five houses sold at the time of trial, about twenty-five per cent were to be constructed with shakes on some portion of the roof. Also planned in some of these subdivisions were many apartment buildings with eight to twelve apartments in each unit.

The remaining plaintiff was Julius Seidel, who, as an individual proprietor, engaged in the distribution and sale of roofing and siding material. He had agreed with Vorhof Construction Company to supply it with some wood shingles. In this, he was prevented by the passage of the ordinance.

Three additional witnesses were called by plaintiff and testified. One was an architect who had designed houses using wood shingles and shakes. He had found those made of red cedar to be durable, resistant to wind, and with good insulation qualities. Another witness was a representative of the Red Cedar Shingle and Handsplit Shake Bureau of Seattle, Washington. This is a trade association which represents the majority of the shingle and shake manufacturers in the northwestern part of the United States and the western part of Canada. His work was mainly to promote the sale and use of red cedar shingles and shakes. He had worked closely with associations of fire chiefs in southern California but had never seen a wood shingle roof burn. After the Bel Air (California) fire in 1961 when more than 400 homes were destroyed, he had employed a firm to make a survey of the area. This disclosed that about 58 per cent of the homes had wood roofs before the fire and about the same percentage of those that burned had wood roofs. Everything in the path of this brush fire was destroyed. The witness had never had any special training in fire protection and had never made a study of the subject.

The last witness produced by plaintiffs was Rex Walker, a building code consultant for the National Forest Products Association. This association has sixteen members who are largely lumber manufacturers and it disseminates technical information to engineers and architects on the use of wood. Previous to this employment he had been a building commissioner for municipalities in Illinois and Minnesota. His primary duties with the association were to gather statistics and data and to suggest changes to municipalities, fire protection districts and state legislatures with respect to building codes. The particular building code that he was charged with as an industrial advisor was the Basic Building Code of the Building Officials Conference of America, Inc. According to the witness, this was an association of building officials from various parts of the country. Periodic open and public meetings of the association with respect to changes or amendments of the code were attended by Mr. Walker, who would present data and recommendations.

In addition to the code referred to above, the witness claimed to have an extensive knowledge of other model building codes including those provisions with respect to fire protection and prevention. Furthermore, whenever an important fire or a catastrophe occurred in the upper mid-west area of this country it was his duty to investigate on behalf of his employer and determined the cause to the best of his knowledge. At the time of the hearing he was a member of the fire safety committee of the Joint Committee of Accreditation of Hospitals which was engaged in setting up standards of fire safety for hospitals. Based upon his knowledge, training and experience, he was of the opinion that cedar wood shingles or shakes properly applied would not constitute a fire hazard.

Appearing on behalf of the defendant fire district and the defendant members of the board of directors of the...