Schaefer v. Neumann

• Decision Date: 29 December 1977
• Docket Number: No. 37592,37592
• Citation: 561 S.W.2d 416
• Parties: William R. SCHAEFER et al., Plaintiffs-Respondents, v. William R. NEUMANN et al., Defendants-Appellants. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 416

561 S.W.2d 416

William R. SCHAEFER et al., Plaintiffs-Respondents, v. William R. NEUMANN et al., Defendants-Appellants.

No. 37592.

Missouri Court of Appeals, St. Louis District, Division Three.

Dec. 29, 1977.

Motion for Rehearing and/or Transfer Denied Feb. 14, 1978.

Application to Transfer Denied March 13, 1978.

Niedner, Moerschel, Nack & Ahlheim, Robert V. Niedner, St. Charles, for defendants-appellants.

Robert D. Tucker, Albert E. Schoenbeck, St. Louis, for plaintiffs-respondents.

KELLY, Judge.

This is an appeal from a judgment of the Circuit Court of St. Charles County permanently enjoining the defendants-appellants from continuing to employ their properties, situated in an unincorporated portion of St. Charles County, approximately one mile west of O'Fallon and adjacent to Interstate 70, for certain business purposes. We affirm.

The property in question is bounded on the south by the North Service Road of Interstate 70 and on the north by the tracks of the Norfolk and Western Railway Company. Plaintiffs reside on property north of the railroad tracks, and directly north of defendants' property. McGee Road, a private McGee Road also divides defendants' property into two parcels. The parcel lying to the east of McGee Road is referred to hereinafter as the East Parcel, and that lying to the west of the private road as the West Parcel.

road constructed on a road easement twenty feet wide, runs northwardly from the North Service Road for Interstate 70, crosses the railroad tracks into the area where the plaintiffs reside and is the only means of access plaintiffs have to their residences.

Defendants William Neumann and Ruth Neumann, husband and wife, are officers of defendant Goodfellow Auto Sales and Salvage Co., a corporation, which operates an auto salvage business on the East Parcel, and engages in the business of buying, selling and repairing mobile homes on the West Parcel.

The Neumanns purchased the West Parcel in 1967. Shortly after purchasing the parcel, they had it rezoned for industrial use, an M-1 classification under the County Zoning Order of 1959 which was then in effect. Under this zoning classification the operation of a "public garage" was permitted. After this parcel was rezoned a quonset hut was erected and it was rented out initially as a body shop and later to a truck hauling outfit which repaired trucks in it. At time of trial it was being used as a welding shop.

The Neumanns also rent an area on the West Parcel to Martin Hoffman who lives in a mobile home thereon. He does repair work on automobile motors and other machines brought onto the premises for that purpose. A couple by the name of Siar also occupies a mobile home on this parcel. Harold Siar testified at trial that he worked for McDonnell-Douglas from 7 a. m. to 3:30 p. m. and as a night-watchman for Goodfellow Auto Sales and Salvage Co. after 4:30 p. m. and until 10 or 11 p. m.

The Neumanns purchased the East Parcel in 1965. Prior to purchasing this parcel they had, since about 1958, engaged in the business of buying and selling automobiles and automobile parts, and repairing automobiles on a site south of and across the outer roadway of Interstate 70 "South side of Old Highway 40" and when this parcel was purchased they were still so engaged. When the Neumanns purchased this parcel there was a seven room house on the premises which was made into three apartments and was being so used at that time. There was also an old shed out in back of the house which was used as a garage. Prior to their acquisition of the land a filling station had been operated there.

Mr. Whitener, another defendant, resided in the house on the East Parcel for a time. Sometime "in early 1965" the Neumanns sought and were granted a rezoning of this parcel to M-2 heavy industrial. In 1966 there was a fire which damaged the house, Mr. Whitener moved out, and they boarded-up the windows and stored various components of automobiles, such as generators and starters, therein. The County Zoning Order of 1959 specified automobile salvage yards as a permissible use in the heavy industrial district, M-2 classification. Goodfellow Auto Sales and Salvage Co. at time of trial conducted an auto salvage business on this Parcel and Messrs. Higgins and Neumann conducted a bumper and plate glass business on this Parcel also.

In July, 1967, the County Court amended the County Zoning Order and thereafter a salvage yard was a permissible use in any area zoned heavy industrial, M-2, but only after the location of such use had been approved by the County Court, after report by the County Engineer and the Planning and Zoning Commission. Salvage yards, even under the 1959 Zoning Order, had to be completely enclosed by a solid fence or wall not less than eight feet in height, and no change in this requirement was affected by the 1967 amendment of said Zoning Order.

The Revised Zoning Order, as relevant to the issues here, is set out in an appendix following this opinion.

With respect to the West Parcel, which was zoned "light industrial," permissible Uses approved in the C-2 District General Commercial District included automobile service stations and automobile repair garages, provided no dismantled vehicles or parts were displayed or stored outside the building. Operation of a public garage or parking lot was permissible.

and conditional uses authorized under the 1973 amendments are those permitted in the C-2 District "except dwellings, provided dwellings for, and to be occupied by, watchmen, guards, attendants and other personnel who customarily reside on the premises of an industrial use" permitted in this classification. Other uses relevant to the issues in this case were machine shops, electroplating, photo engraving, plumbing and sheet metal shops as well as accessory uses customarily incident to any of those uses.

With respect to the East Parcel, the permissive uses in the heavy industrial district M-2 included, among others, "(a)utomobile wrecking, cars and parts, storage and sale" as a conditional use. No dwelling, other than that for a resident watchman or caretaker employed on the premises was permitted.

Section 9 of the 1973 Rezoning Code covered "Non-conforming Use of Lands." Any non-conforming junk yard could be continued for a period not more than 5 years, provided it was enclosed with an 8 foot high sight-proof fence. Uses in existence at the time this Order was adopted which were eligible for conditional use permits were not considered non-conforming uses and could not be used nor construed to establish a non-conforming use on any lot or tract. Casual, intermittent, temporary or illegal use of the land or buildings on all or a part of the land could not be the basis for establishing a non-conforming use, and whether one existed was a question of fact to be decided by the Board of Adjustment after public notice and hearing.

Once established, a non-conforming use could be continued despite any amendment to the Zoning Order or Zoning District Map if no structural alterations were made and it could be changed to another non-conforming use of a higher classification.

A non-conforming use could not be enlarged, extended, reconstructed or altered except to conform to regulations of the district in which it was located.

Plaintiffs are the owners of and reside on four parcels of property which lie generally north of and directly across the Norfolk and Western Railway Company tracks from subject property of the Neumanns. This suit was filed in 4 counts.

Count I of Plaintiffs' Fourth Amended Petition on which this cause came on for trial, sought to enjoin the Neumanns, John P. Whitener, and the Goodfellow Auto Sales and Salvage Co. from depositing large quantities of junk, debris, used and salvaged automobile parts and equipment, and other such materials, on the East Parcel in violation of Sec. 5 of the Revised Zoning Order of 1973, restricting certain uses in an area zoned M-2 Heavy Industrial District because the defendants had not obtained a conditional use permit. This Count further sought a decree enjoining the defendants from blocking McGee Road by obstructing it with junk, debris and other such materials and from damaging said road by creating ruts and holes therein by moving junk, salvaged automobiles and other heavy materials over the road thereby preventing plaintiffs from using the road as a means of ingress and egress from their residences.

Count II sought an injunction on the same activities of the defendants alleged in Count I, however, on the ground such activities constituted a private nuisance.

Count III sought to enjoin the Neumanns, Whitener and Goodfellow Auto Sales and Salvage Co. from engaging in the business of buying, storing, repairing, removing parts from and selling automobiles on the West Parcel; and it further sought to enjoin Mr. Neumann and Leonard Higgins from conducting their partnership business, Midwest Bumper and Glass Company, on this same Parcel, on the grounds that these businesses were so run that they constituted a private nuisance. It was alleged Count IV also sought an injunction against the same defendants named in Count III of the petition to enjoin them from "repairing damaged, deteriorated, used, and unoccupied mobile homes" on the West Parcel and from the "open storage and repair of automobiles" thereon. The theory of this Count, was that these activities of the defendants on the West Parcel constituted uses which were not permitted in areas zoned M-1, Light Industrial District, by the 1973 Revised Zoning Order.

and an injunction to stop such actions was prayed, that the defendants were interfering with plaintiffs' use of McGee Road by the same means alleged in the prior two Counts.

The defendants' Answer denied these allegations of plaintiffs' petition relative to the alleged violations of the Zoning Order and further alleged that Goodfellow Auto Sales and Salvage Co. had, since ...