State ex rel. Holly Inv. Co. v. Board of Zoning Adjustment of Kansas City
| Decision Date | 13 June 1989 |
| Docket Number | No. WD,WD |
| Citation | 771 S.W.2d 949 |
| Parties | STATE of Missouri, ex rel., HOLLY INVESTMENT CO., Appellant, v. BOARD OF ZONING ADJUSTMENT OF KANSAS CITY, Missouri, Respondent. 41347. |
| Court | Missouri Court of Appeals |
James C. Bower, Jr., Kansas City, for appellant.
Richard N. Ward, City Atty., Kathleen A. Hauser, Asst. City Atty., Kansas City, for respondent.
Before SHANGLER, P.J., and NUGENT and LOWENSTEIN, JJ.
Holly Investment Company, Inc. (appellant) filed a petition for certiorari in the Circuit Court of Jackson County seeking review of a decision by the Board of Zoning Adjustment of Kansas City (Board) denying the appellant's requested variance for its property (known as Meldonia, a residential care facility) located at 505 Olive Street in Kansas City. The circuit court found in favor of the Board.
The Meldonia is and has for many years been a group home to 47 elderly and mental patients. It has been licensed by the state. Most of the residents come from placements by Western Missouri Mental Health, probate commitments and other providers for mental health and elderly services. The monthly charge is about $600. The Codes Administrator of Kansas City classified the Meldonia as a "group home facility." Under § 39.080 of the Code of General Ordinances of Kansas City, a group home facility is described as a residential facility operated for the care of persons:
(a) Who are handicapped due to a developmental disability where the disability is attributable to mental retardation, cerebral palsy, epilepsy, or other neurological conditions which are closely related to mental retardation and who require treatment similar to mental retardation; or
(b) Who are in need of rehabilitation, habilitation or resocialization when their mental illness is stabilized;
* * * * * *
This designation requires 300 square feet of lot area per resident. Because Meldonia has only 4,920 square feet, the zoning ordinance permits a maximum of 16 residents. Meldonia is approximately 9,180 feet shy of the 14, 100 square feet required to house its 47 residents.
On August 14, 1987, a notice of violation was served by the Codes Administrator of Kansas City on Meldonia for "insufficient lot area." Meldonia appealed to the Board of Zoning Adjustment on two points: 1) Meldonia sought to have its classification as a "group home facility" changed to house more than 16 residents; 2) Meldonia also sought a zoning variance. The Board of Zoning Adjustment upheld the Code Administrator's classification of the Meldonia as a "group home facility" and denied the requested zoning variance. The owners of the Meldonia sought and were denied relief in circuit court. The appellant has not included review of the classification of Meldonia as a group home in the points relied on section of the brief and denial of the requested change is considered abandoned. Rule 84.04. Jones v. Eagan, 715 S.W.2d 596 (Mo.App.1986).
The appellant contends that the trial court erred in denying its petition because: 1) the Board's denial of the variance was arbitrary, capricious and not supported by competent and substantial evidence; 2) the Board improperly based its decision on the nature of the residents of Meldonia and their relationship with the neighborhood.
The Board's decision denying the variance will be affirmed if it was authorized by law and if the decision is supported by competent and substantial evidence upon the whole record. Ogawa v. City of Des Peres, 745 S.W.2d 238, 242 (Mo.App.1987). In determining whether there was substantial evidence supporting the decision, the evidence, and its reasonable inferences are viewed in a light most favorable to the findings. Id. This court may not substitute its judgment for that of the Board if the Board's decision meets those criteria. Volkman v. City of Kirkwood, 624 S.W.2d 58, 59 (Mo.App.1981).
This case then boils down to the appellant's plea to allow it a variance to operate the home with far more residents than is allowed by ordinance. The appellant claims it cannot economically operate this longstanding home with 16 residents, and without relief in the form of a variance will have to close Meldonia and send its residents elsewhere.
"Whether application of a zoning ordinance to a particular tract is reasonable and constitutional, or arbitrary and unconstitutional, depends upon the facts, circumstances, and the evidence in each case ... The burden of proving unreasonableness is on the person challenging the ordinance." Ogawa v. City of Des Peres, supra, at 242. (Citations omitted). The variance procedure "fulfil[s] a sort of 'escape hatch' or 'safety valve' function for individual landowners who would suffer special hardship from the literal application of the ... zoning ordinance." Matthew v. Smith, 707 S.W.2d 411, at 413 (Mo. banc 1986). (quoting City & Borough of Juneau v. Thibodeau, 595 P.2d 626, 633 (Alaska 1979)).
The type of variance involved here is a "non-use variance."
A use variance is one which permits a use other than one proscribed by the zoning ordinance in the particular district; it permits a use which the ordinance prohibits. A nonuse variance authorizes deviations from restrictions which relate to a permitted use, rather than limitations on the use itself.... Matthew v. Smith, 707 S.W.2d at 413 (quoting 3 A. Rathkopf, The Law of Zoning and Planning § 38.01 (1979)).
The language from the following cases is helpful in a critical analysis of the review of this decision.
The Board's authority to grant a variance is statutorily based upon a showing of "practical difficulty or unnecessary hardship." See: § 89.090.1(3) RSMo (1986) and Des Peres Zoning Ordinance § 435.040(3). This power and authority must be exercised sparingly and only under exceptional circumstances. Matthew v. Smith, 707 S.W.2d at 413. Such application is essential in order to maintain the integrity of the zoning code.
To establish an area or nonuse variance the conditions may be "slightly less rigorous than for unnecessary hardship." Matthew, supra, at 416.
The phrase "practical difficulties or undue hardships" as contained in the Zoning Code does not refer to conditions personal to the owner of the land in question but rather refers to the conditions especially affecting the lot in question. Further, the practical difficulty or undue hardship relied on as a ground for a variance must be unusual or peculiar to the property involved and...
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