St. Louis County v. Kienzle
| Decision Date | 29 December 1992 |
| Docket Number | No. 61492,61492 |
| Citation | 844 S.W.2d 118 |
| Parties | ST. LOUIS COUNTY, Missouri, Appellant, v. Edward C. KIENZLE, et al., Respondent. |
| Court | Missouri Court of Appeals |
Patricia Redington, Clayton, for appellant.
Robert J. Koster, Elizabeth D. Odell, King, Koster & Murphy, Clayton, for respondent.
Edward C. Kienzle and Patricia Kienzle, appellants, appeal from the judgment of the trial court in favor of respondent, St. Louis County. Appellants were enjoined from operating an insurance and bonding business out of their home, in violation of the zoning ordinance of St. Louis County, to the extent that such operation involved the employment of individuals who were not members of appellants' family residing on the premises. Appellants essentially contend that the trial court erred in concluding that (1) the employment of persons other than family members residing on the premises is an illegal and unlawful business operation on the premises under the zoning ordinance; and (2) the ordinance's prohibition of non-resident employees in a home occupation is constitutional. We affirm.
In June of 1987 appellants finalized construction of, and at all relevant times owned, a house in an R-2 zoning district in an unincorporated area of St. Louis County. As a structural part of the house, appellants built an office for the specific purpose of operating an insurance and bonding business on the premises. Appellants employed two blood relatives, a niece of each appellant, to act as secretaries for their home-based business. Neither niece resided on the premises, and each drove her own car to work daily. After a trial at which both appellants and the County presented evidence, the trial court concluded that the business operated by appellants did not constitute a home occupation as defined in the ordinance insofar as the business employs persons other than resident members of the family, that neither niece was a member of appellants' "family" as that term is defined in § 1003.020.2. (28) St. Louis County Revised Ordinances (SLCRO) (all further references shall be to SLCRO unless otherwise noted), and that employment of persons other than resident members of the family is an illegal and unlawful business operation on the premises. The trial court ordered appellants to refrain from the operation of their business on the premises to the extent that such operation involved employment of any persons not both living on the premises and being members of appellants' family.
Section 1003.050 limits the use and development of land and structures within any zoning district to those uses and developments set forth in the ordinance sections applicable to the particular district. Section 1003.113.2. (6) permits "home occupation" in an R-2 residence district. Home occupation is defined as:
A domestic activity carried on by members of a family residing on the premises, but excluding beauty shops, barbershops, music schools, convalescent or nursing homes, tourist homes, massage or other establishments offering services to the general public, and providing that there are no signs nor any display that will indicate from the exterior of the building that it is being utilized, in whole or in part, for any purpose other than that of a dwelling; providing, also, that there is no stock-in-trade or commodity sold upon the premises, no person is employed other than a member of the family residing on the premises, and no mechanical equipment is used except such as is customary for purely domestic or household purposes. The keeping of not more than two (2) roomers or boarders shall be considered a permitted home occupation. The care and supervision of not more than four (4) children other than those residing on the premises shall be considered a permitted home occupation. Section 113.020.3(44). (Emphasis added.)
This definition sets forth certain restrictions which must be observed in order for an activity to be a permissible home occupation. In certain respects, appellants' operation of their insurance and bonding business was not at odds with the definition of home occupation. There was no sign or any other display indicating that a business was being conducted inside the home, no clients went to appellants' residence to conduct business, and no products or goods in trade were sold from the premises. The violation which the county alleged and sought to abate was appellants' employment of two persons (nieces) who did not live on the premises.
In their first point, appellants contend that the trial court erred in concluding that the employment of persons other than resident members of the family is an illegal and unlawful business operation. They argue that the trial court was required to interpret the definition of home occupation as permitting the employment of nonresident family members because the terms of the ordinance are ambiguous and support such a construction in their favor. Specifically, appellants assert that the restriction in the ordinance against employment of persons "other than a member of the family residing on the premises" may reasonably be construed as permitting the employment of family members who do not reside on the premises, and that this construction is consistent with the wording, purpose, and intent of the ordinance. Construed as such, appellants contend, their activities do not violate the ordinance since their employees are their nieces and therefore members of their family under the ordinance.
Section 1003.020.3. (29) defines family as:
An individual or two (2) or more persons related by blood or marriage or a group of not more than three (3) persons who need not be related by blood or marriage living together and subsisting in common as a single nonprofit housekeeping unit utilizing only one kitchen.
The flaw in appellants' contention that their nieces are members of their family is that the definition of family in the ordinance requires common residence. Thus, appellants' nieces would not come within the definition since they do not reside on the premises.
Notwithstanding this initial flaw in their reasoning, appellants rely on Coots v. J.A. Tobin Construction Company, 634 S.W.2d 249 (Mo.App.1982), for the proposition that zoning ordinances are in derogation of common law property rights and should be strictly construed in favor of the property owner and against the zoning authority; and also for the proposition that where a term in a zoning ordinance is susceptible of more than one interpretation, the courts are to give weight to the interpretation that, while still within the confines of the term, is least restrictive upon the rights of the property owner to use the land as he wishes.
While we do not dispute with these propositions of law, they are not applicable when the language of the ordinance is unambiguous. Here, the plain language of the ordinance clearly prohibits non-resident employees in a home occupation. We do not see this language as being susceptible of more than one interpretation, least of all one that goes directly against the plain wording of the ordinance.
Also, in support of their position appellants cite and then attempt to distinguish State ex rel. Kaegel v. Holekamp, 151 S.W.2d 685 (Mo.App.1941), and Donelson v. Board of Zoning Adjustment, 368 S.W.2d 728 (Mo.App.1963). The Holekamp ordinance, utilizing language similar to the ordinance in the present case, defined a home occupation as "any occupation in connection with which there is ... no person employed other than a member of the immediate family residing on the premises". Id., 151 S.W.2d at 688. The court upheld the action of the Building Commissioner denying a certificate of occupancy of the premises as a residence and as a place for giving private instruction in aesthetic dancing. Id., at 686. The court held that the proposed use was "in no sense an undertaking customarily incident to the use of the premises for residential purposes." Id., at 689. The court continued:
Moreover, there are persons employed to assist in the work other than members of the family residing on the premises. No one suggests that the part time pianist, who is employed by the hour, is a member of the family, nor for that matter, do we think that the sister-in-law is to be so regarded either, when her presence on the premises is primarily for the purpose of assisting Mrs. Kaegel in giving dancing instructions, and she has a home of her own elsewhere to which she repairs over week ends when there are no dancing classes with which she may assist. Id.
The Holekamp holding does not assist the appellants. The court, citing the fact that the sister-in-law's presence on the premises was primarily for the...
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