St. Charles County v. McPeak, 51497

• Decision Date: 02 June 1987
• Docket Number: No. 51497,51497
• Citation: 730 S.W.2d 611
• Parties: ST. CHARLES COUNTY, Missouri, Plaintiff/Appellant, v. John R. McPEAK and Sandra M. McPeak, Defendants/Respondents.
• Court: Missouri Court of Appeals

Page 611

730 S.W.2d 611

ST. CHARLES COUNTY, Missouri, Plaintiff/Appellant, v. John R. McPEAK and Sandra M. McPeak, Defendants/Respondents.

No. 51497.

Missouri Court of Appeals,

Eastern District,

Division One.

June 2, 1987.

Ellsworth Cundiff, Jr., St. Charles, for plaintiff-appellant.

Rollin J. Moerschel, St. Charles, for defendants-respondents.

SATZ, Presiding Judge.

This is an action to enforce a Zoning Order. Plaintiff, St. Charles County (County), sought to enjoin defendants, John McPeak and Sandra McPeak (McPeaks), from conduct alleged to be prohibited in a district zoned residential. The trial court entered judgment for the McPeaks. The County appeals. We reverse and remand with directions.

The McPeaks own property in St. Charles County within a district zoned residential. The County alleged the McPeaks used the property to repair, store and maintain "dump trucks and other commercial vehicles" and were "engaged in ... [the] business of operating a trucking company". The County sought to enjoin the McPeaks "from parking, repairing or otherwise storing commercial vehicles, including but not limited to dump trucks" and "from conducting any commercial enterprise on the property". The trial court found "that on occasions, ... [the McPeaks'] trucks are repaired in the interior of [an] ... out building" containing "equipment capable of repairing ... [the] trucks". But, the court also found the repair of the trucks was "casual, not constant ... and reasonably infrequent". The court then concluded this conduct did not constitute the operation of a trucking business and did not constitute "an offense of the ... use restrictions in [a residential] zoning district".

In this court tried case, we defer to the trial court's resolution of credibility, Rule 73.01, and we consider only those evidentiary facts and inferences favorable to the prevailing party, the McPeaks. E.g., Atkins v. Clark, 644 S.W.2d 365, 369 (Mo.App.1982). We affirm the trial court's judgment unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or it states or applies the law erroneously. E.g., Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The trial court here erroneously applied the law.

The Zoning Order in question is an example of permissive zoning. See, e.g., State ex rel. Barnett v. Sappington, 266 S.W.2d 774, 776 (Mo.App.1954). The Order divides St. Charles County into approximately 21 districts and expressly prescribes the uses permitted within districts. Table of Contents, St. Charles County Zoning Order. ¹ With certain qualifications, any use not expressly permitted within a district is prohibited. Devices for flexibility, such as "conditional uses" and "variances", are built into this comprehensive scheme. This allows for controlled deviation from strict application of the Order.

The McPeaks' property is zoned "R-1E, Single-Family Residential". The uses expressly permitted are "single-family dwelling[s]" and public noncommercial uses, such as, a "park or playground", ... "public school", "church", "Institution (hospital, nursing, rest or convalescent home)." "Conditional Uses", low intensive commercial uses, are permitted upon application and after hearing and approval by an administrative tribunal. § 5.

It is obvious to both parties, as it is to us, that a trucking business is a prohibited use in this district. The County argues the record shows the McPeaks were conducting a trucking business in violation of this prohibition. The County acknowledges the Zoning Order fails to define the term "business", but it urges us to adopt what it believes to be the commonly accepted definition of "business" or to adopt the definitions used by other jurisdictions. We see no need to adopt any of the County's suggested definitions, for the present record does not show the McPeaks were conducting a trucking business under any one of the suggested definitions.

To support this argument, the County relies on certain admissions of the McPeaks and evidence elicited by the County from its witnesses. The County may rely on the admissions made by the McPeaks. However, it cannot rely on the evidence it elicited from its witnesses. The trial court could have chosen to disbelieve the County's witnesses, and apparently it did. Rule 73.01; Alice v. Ronald, 683 S.W.2d 307, 310 (Mo.App.1984); See also, S.G. Adams Printing v. Central Hardware, 572 S.W.2d 625, 628 (Mo.App.1978). Without the latter evidence, this argument of the County fails. Moreover, since the McPeaks' admissions, standing alone, are not enough to prove a "business" under any definition suggested by the County, no useful purpose would be served by an extended discussion of these various definitions.

However, the County did not only request the trial court to enjoin a "trucking business". It also requested the court to enjoin the McPeaks from using their land to repair trucks. The trial court did find the McPeaks repaired trucks on their land. This is not a permitted nor even a conditional use of land in an R1-E district; thus, it is a prohibited use; and "casual, not constant and ... reasonably infrequent" repairs, as found by the court, does not obviate this prohibition.

Although repair of commercial trucks is not a permitted or conditional use in a residential district, there are, as noted earlier, certain devices built into the zoning scheme to allow for flexibility. We have examined each of these devices and not one would permit the McPeaks to repair trucks on their residential property.

First, the Zoning Order allows "accessory uses" to any permitted use in an R-1E district. § 5. An "accessory use" is a use customarily incident to the main use of the property. § 2. Commercial truck repair, however, is not customarily incident to the use of a single family dwelling. Second, "home occupations" are allowed under the Order. A "home occupation" is an occupation or profession carried on by a member of the immediate family, residing on the premises, and, if...