State ex rel. Columbus Park Community Council v. Board of Zoning Adjustment of Kansas City, WD

• Citation: 864 S.W.2d 437
• Decision Date: 09 November 1993
• Docket Number: No. WD,WD
• Parties: STATE ex rel. COLUMBUS PARK COMMUNITY COUNCIL, et al., Respondents, v. BOARD OF ZONING ADJUSTMENT OF KANSAS CITY, Missouri, et al., Defendants, and Full Faith Church of Love, et al., Intervenor-Appellant. 47525.
• Court: Court of Appeal of Missouri (US)

Page 437

864 S.W.2d 437

STATE ex rel. COLUMBUS PARK COMMUNITY COUNCIL, et al., Respondents, v. BOARD OF ZONING ADJUSTMENT OF KANSAS CITY, Missouri, et al Defendants and Full Faith Church of Love, et al., Intervenor-Appellant.

No. WD 47525.

Missouri Court of Appeals Western District.

Nov. 9, 1993.

Timothy Brownlee, Kansas City, for intervenor/appellant.

Lawrence R. Hamel, Kansas City, for respondents.

Before HANNA, P.J., and LOWENSTEIN and FENNER, JJ.

FENNER, Judge.

Appellants, Full Faith Church of Love and Cindy Kimball, appeal the order of the Circuit Court of Jackson County, Missouri at Kansas City, reversing the decision of the Board of Zoning Adjustment (BZA). The Circuit Court remanded the case to the BZA with directions to consider evidence concerning abandonment of the legal nonconformance of the property located at 546 Harrison Avenue in Kansas City, Missouri (hereinafter referred to as the Property) in accordance with the provisions of section 39.230(V) of the Zoning Ordinance of Kansas City, Missouri. ¹

I. HISTORICAL BACKGROUND

The Property is located in an area of the city known as Columbus Park. Prior to 1951, the zoning in the district where the Property was located was U-5 and there were no yard requirements. When constructed, the Property had no front or side yard. Thus, it complied with the then existing U-5 zoning. In 1951, however, the area was rezoned to R-4, which had front and side yard requirements. The Property then became a nonconforming structure. The building itself could not comply with the requirements of the new R-4 zoning district.

The Property was used as a baptist church from at least 1968 until 1988. The church closed in July of 1988. Water service was cut off on or about July 27, 1988. The Property was vacant for approximately sixteen months except for a couple of youth activities held in the building by the trustees of the church.

In late 1989 or early 1990, the Full Faith Church of Love heard that the Property was available. Around that time, Cindy Kimball became the record owner of the Property. She leased the Property to the Full Faith Church of Love which took possession of the Property in January of 1990. The Property is currently being used for church ministry.

Respondents in this case are the Columbus Park Community Council (the Council) and William and Angeline Dunmyer, owners and residents of 542 Harrison Avenue which is adjacent to the subject property. The Council is a general not for profit corporation and has as its members persons residing or owning property in the Columbus Park neighborhood. One of the Council's purposes is to improve the quality of life of residents in the Columbus Park neighborhood by carrying out a group and neighborhood effort to upgrade the vicinity and maintain its predominantly residential character.

II. PROCEDURAL BACKGROUND

On March 8, 1990, the Full Faith Church of Love filed an application for a BZA hearing requesting approval of off-site parking and/or a parking variance for a church. The Codes Administrator investigated the request and issued an Application for Zoning Determination questioning the legality of the building setbacks and parking on the Property. The Codes Administrator determined that the Property had a valid certificate of legal nonconformance and was not in violation of the zoning ordinance.

On July 20, 1990, the Council, by William Dunmyer, President of the Council, filed an application with the BZA appealing the decision of the Codes Administrator. The BZA continued the case on September 11, 1990 so that the various parties involved could discuss the issue further and could gather additional information and evidence to submit to the Codes Administrator on the issue of whether the legal nonconformance had been abandoned pursuant to section 39.230(V). The Council had requested that the Codes Administration review the abandonment issue. If the Property were found to be abandoned, it would lose its certificate of legal nonconformance pursuant to section 39.230(V)(C)(1).

By letter dated January 11, 1991, and after review of the evidence submitted to him by the various parties involved, Gerald Anderson, the Codes Administrator, issued his determination that the legal nonconformance at 546 Harrison Avenue had not been abandoned. Mr. Anderson ruled that the abandonment provisions of the zoning ordinance did not apply to the Property because the Property is a legal nonconforming structure, as defined by section 39.230(I)(F), and the abandonment provisions in section 39.230(V) do not apply to legal nonconforming structures. Mr. Anderson further stated in his letter:

Should our ruling on the applicability of abandonment be appealed and overturned by the [BZA] we will rule on the issue of abandonment for the explicit purpose of getting the case resolved in an expeditious manner. Should the issue of abandonment become applicable then our ruling in this case is that abandonment has not occurred. Although it is clear that there was a discontinuance in the use of the property, it is not evident that there was any intent to abandon the legal nonconformance. Our determination is based on the facts of the case and that on the Boards handling of previous cases where we believe that they have interpreted the ordinance to necessitate that we look at the issue of intent when ruling on the issue of abandonment.

The Council appealed the Codes Administrator's determination.

On February 12, 1991, the BZA held a hearing to review the Codes Administrator's determination. Attorneys appeared for both sides. At the conclusion of the hearing, the BZA voted to uphold the decision of the Codes Administrator.

On March 7, 1991, respondents filed a Petition for Writ of Certiorari which was granted by the Circuit Court of Jackson County, Missouri. Respondents claimed that the BZA's decision was not authorized by law and was not based on competent and substantial evidence. Respondents argued that the Property should have been classified as a conforming use of a nonconforming structure pursuant to section 39.230(I)(E). As such, the abandonment provisions would have been applicable. Respondents argued further that regardless of whether the Property was considered a conforming use in a legal nonconforming structure ( § 39.230(I)(E)) or a legal nonconforming structure ( § 39.230(I)(F)), the abandonment provisions of section 39.230(V) should have applied. Respondents asked the court to reverse the BZA's decision.

On February 2, 1993, the trial court entered its order reversing the BZA's decision as not supported by competent and substantial evidence. The court remanded the case to the BZA with directions to consider evidence from respondents concerning abandonment of the legal nonconformance of the Property pursuant to section 39.230(V).

On March 4, 1993, appellants, the Full Faith Church of Love and Cindy Kimball, filed their notice of appeal.

III. STANDARD OF REVIEW

An appellate court hearing an appeal in a zoning matter reviews the BZA's action and not the judgment of the circuit court. Rice v. Board of Adjustment, 804 S.W.2d 821, 822 (Mo.App.1991). The scope of appellate review of a BZA decision is limited to determining whether the BZA's decision was legal in the sense of being authorized by law, and whether the BZA's decision was supported by competent and substantial evidence upon the whole record. Huff v. Board of Adjustment, 695 S.W.2d 166, 167 (Mo.App.1985) (citations omitted). In determining whether substantial evidence exists to support the decision of the BZA, the appellate court must view the evidence, along with the reasonable inferences therefrom, in a light most favorable to the BZA's findings. State ex rel. Alexander v. Board of Adjustment, 766 S.W.2d 458, 459 (Mo.App.1989). If the decision is fairly debatable, a reviewing court cannot substitute its opinion. State ex rel. Tucker v. McDonald, 793 S.W.2d 616, 617 (Mo.App.1990).

The scope of judicial review, however, is not limited to a determination of whether the BZA's decision is supported by competent and substantial evidence. State ex rel. Rhodes v. City of Springfield, 672 S.W.2d 349, 355 (Mo.App.1984). The other ground of review is the legality of the board's decision and if the board exceeds the authority granted to it, the court on review may, and should, hold the board's decision to be illegal and void. Id.

In short, the appellate court has the duty and responsibility to decide (1) was the result reached illegal and not in compliance with the ordinance, and (2) was it supported by competent and substantial evidence. McKinney v. Board of Zoning Adjustment, 308 S.W.2d 320, 322 (Mo.App.1957). Where the issue presents a question of law, it is a matter for the independent judgment of the reviewing court. Rice, 804 S.W.2d at 822.

IV. ARGUMENTS ON APPEAL

Appellants raise six points on appeal. ² Appellants' fifth point on appeal, which concerns the Council's standing, will be addressed first. Appellants' second, third, and sixth points, which concern the legality of the BZA's decision, will be addressed together. Because these latter points are dispositive, we need not address appellants' fourth point on appeal, which argues that the BZA's decision was supported by competent and substantial evidence.

A. Standing

Appellants argue that the trial court erred in not dismissing the Council as a party because the Council lacks standing in that it is not an "aggrieved person" since it owns no property and has no pecuniary interest in the case. ³

Section 89.110, RSMo 1986, provides, in pertinent part, as follows:

Any person or persons jointly or severally aggrieved by any decision of the board of adjustment, or any officer, department, board or bureau of the municipality, may present to the circuit court of the county or city in which the property affected is located a petition, duly verified, setting forth that such decision is illegal, in whole or in part,...