State ex rel. Cooper v. Cowan

• Decision Date: 02 December 1957
• Docket Number: No. 22678,22678
• Citation: 307 S.W.2d 676
• Parties: STATE of Missouri Ex Rel. W.C. Cooper Et Al., Respondents, v. Ray G. COWAN Et Al., Appellants. Missouri
• Court: Missouri Court of Appeals

Page 676

307 S.W.2d 676

STATE of Missouri Ex Rel. W.C. Cooper Et Al., Respondents, v. Ray G. COWAN Et Al., Appellants.

No. 22678.

Kansas City Court of Appeals,

Missouri.

Dec. 2, 1957.

James L. Williams, Kansas City, Jack G. Beamer, Stubbs, McKenzie, Williams & Merrick, Kansas City, for appellant.

James P. Aylward, George V. Aylward, James P. Aylward, Jr., Kansas City, for respondent.

HUNTER, Judge.

This is an appeal from the decree of the Circuit Court of Jackson County, Division No. 12, reversing an order of the County Court of Jackson County rezoning a tract of land in the unincorporated portion of Jackson County from District "A" (residential) to District "E" (business).

Intervenor-Appellant, Wilford E. Chambers, owned a tract of land of approximately five acres, lying along both the east and west sides of Blue Ridge Boulevard at approximately 104th Street in Jackson County. Under date of October 13, 1955, Chambers filed an application with the Jackson County Planning Commission requesting the rezoning of the tract "from District A to District E for the proposed use as a service station". There was an accompanying plat of the tract and of the immediately adjacent area, together with a list of names of property owners in its vicinity reportedly notified of the application. Other notice was given, and the hearing was set for February 14, 1956. As a result of that hearing, at which Chambers and his attorney appeared and testified in favor of the rezoning, and numerous interested property owners appeared and testified against it, the Jackson County Planning Commission recommended denial of the application. On March 14, 1956, again on notice to interested parties a hearing on the application was held by the Jackson County Court. Since the disposition of this case, as we view it, turns upon the testimony and evidence presented at the hearing before the county court, we proceed to set it out in substance.

James McMullin, attorney for Chambers, made a statement on behalf of his client in which he undertook to locate and describe the tract proposed to be rezoned, and to describe the floor plan and structure of the contemplated filling station, its storage area and tanks. He also undertook to answer certain questions asked by some of the opponents. Since he was not sworn as a witness we do not treat his remarks as testimony or evidence. State ex rel. Horn v. Randall, Mo.App., 275 S.W.2d 758; Hardwick v. Kansas City Gas Co., 352 Mo. 986, 180 S.W.2d 670; State ex rel. Rice v. Public Service Commission, 359 Mo. 109, 220 S.W.2d 61.

The only witness appearing for proponent Chambers was proponent. The substance of his testimony is as follows: He is the fee simple owner of the tract, and is asking that it be changed from "A" to 'E". It is considered as unimproved land, but it does have a house located on the north side of that portion of the tract on the east side of Blue Ridge Boulevard. He intends to construct a 10-pump filling station on that portion of the tract lying east of Blue Ridge Boulevard, and it is to be constructed according to the plans introduced in evidence. It would have a concrete entranceway and the building would be made of mason block. In the building there would be a sales room, storage room and two rest rooms. The storage tanks would be underground. Empty cans and such would be put in an open square pit, and as in a residential area "There is a man who comes by once a week to pick it (such trash) up." He doesn't know if the station will be a "cut-rate station" or not. As to whether it would remain open all night that depended on whether or not enough business developed to justify it. As to a mentioned water shortage in the area, he would not expect during any such event to be permitted to wash cars, but would use water for drinking and to flush stools. He currently has a tenant on the premises but so far as he knows, no business is being presently operated there.

Four pictures of the five-acre tract were introduced in evidence. While they give a clear view of the unimproved portion of the tract, they show relatively little of the surrounding area. Also offered in evidence was proponent's certificate of survey of the tract showing that the frontage on each side of Blue Ridge Boulevard was approximately 534 feet, and that well over 75% of the tract lay on the east side of that boulevard. Proponent's counsel informed the county court they did not plan any use of or business for the smaller portion of the tract lying on the west side of the boulevard; "All we care about is the filling station." The master zoning ordinance enacted in 1943 was put in evidence.

Twenty-eight residents of the immediate area appeared and testified in opposition to the request for the zoning change. The substance of their combined testimony is as follows: The requested rezoning and building of the proposed filling station will cause a substantial depreciation in value of the numerous family residences in the area, and lessen their desirability as homes. It would depreciate the property, particularly for F.H.A. loans, and prevent the future obtaining of those loans. It would create a fire hazard. It would create a traffic hazard and increase the present traffic danger, particularly to the substantial number of small children in the locality who board the school bus near it. The fumes, fire hazard, traffic hazard and other safety hazards that would result are not conducive to the safety, health or welfare of the many children in the vicinity. It would be unsightly, and result in an unnecessary eyesore in an otherwise residential area that includes homes, some of which are valued at $20,000 or more. It is the only vacant tract on Blue Ridge. The nearest crossroads are so far away from this five-acre tract that rezoning of the tract for business would be the same "as having it in the middle of a block between homes". The area cannot support any new business. There are already no less than fifteen or sixteen filling stations within a mile radius of this tract in question. The filling station proposed would not occupy all of the tract but would leave a small portion of it open to be occupied by some other possibly undesirable business to this essentially residential area of nice homes.

On September 5, 1956, the county court entered its formal order granting the application for rezoning as to a major portion of the five-acre tract and attached certain "conditions" thereto.

On application, a writ of certiorari was issued in the cause, and Wilford E. Chambers was permitted to intervene. The circuit court, without hearing any further evidence, tried this cause. On February 28, 1957, the circuit court entered its order and decree in favor of respondents (opponents) together with its finding that the county court order was made in excess of its statutory authority; was not supported by competent and substantial evidence upon the whole record; was unauthorized by law; was arbitrary and capricious, involved an abuse of discretion and constituted spot zoning. Thereafter, timely appeal was taken to this court.

We commence with consideration of appellant's contention that the circuit court erred in holding that the zoning amendment order was not supported by competent and substantial evidence upon the whole record. In so doing, we acknowledge that judicial review of a zoning order of the county court is a limited one, and that certain well-defined rules govern. State ex rel. Christopher v. Matthews, 362 Mo. 242, 240 S.W.2d 934; Colt v. Bernard, Mo.App., 279 S.W.2d 527; Wood v. Wagner Electric Corporation, 355 Mo. 670, 197 S.W.2d 647.

Jackson County is a first class county. The statutory law authorizing its zoning orders, their amendment, and their review is to be found in ...