State ex rel. Housing Authority of St. Louis County v. Wind

• Decision Date: 05 July 1960
• Docket Number: No. 30459,30459
• Citation: 337 S.W.2d 554
• Parties: STATE of Missouri ex rel. HOUSING AUTHORITY OF ST. LOUIS COUNTY, a municipal corporation, Fischer & Frichtel Construction Co., Design & Construction, Inc. and Herbert G. Poertner, Relators (Respondents), v. J. C. WIND, E. C. Wirtel, A. A. Grellner, Chairman and Herman Wagner, Secretary, constituting the Board of Zoning Adjustment of the County of St. Louis, Respondents, Gus Tomich, Ann Tomich, his wife, Joseph Nothum, Mariann Nothum, his wife, Intervenors (Appellants).
• Court: Missouri Court of Appeals

Page 554

337 S.W.2d 554

STATE of Missouri ex rel. HOUSING AUTHORITY OF ST. LOUIS COUNTY, a municipal corporation, Fischer & Frichtel Construction Co., Design & Construction, Inc. and Herbert G Poertner, Relators (Respondents), v. J. C. WIND, E. C. Wirtel, A. A. Grellner, Chairman and Herman Wagner, Secretary, constituting the Board of Zoning Adjustment of the County of St. Louis, Respondents, Gus Tomich, Ann Tomich, his wife, Joseph Nothum, Mariann Nothum his wife, Intervenors (Appellants).

No. 30459.

St. Louis Court of Appeals, Missouri.

July 5, 1960.

Rehearing Denied Sept. 6, 1960.

J. A. Gochenour, Frank Bild, Fred J. Hoffmeister, St. Louis, for appellants.

John McAtee, Clayton, Carroll J. Donohue, Shulamith, Simon, Husch, Eppenberger, Donohue, Elson & Jones, St. Louis, for respondents.

DOERNER, Commissioner.

This case involves the validity of forty-eight building permits which were granted to the respondent Housing Authority of St. Louis County for the construction of part of a public housing project upon a tract of approximately twenty-nine or thirty acres owned by the Housing Authority in the Jefferson Barracks area of St. Louis County. Respondents Fischer & Frichtel Construction Company and Design and Construction, Inc., are the general contractors engaged in building the project, and respondent Herbert G. Poertner is the Public Works Director of St. Louis County. The only appellants are Gus Tomich and Ann Tomich, his wife, and Joseph Nothum and Mariann Nothum, his wife, who were permitted to intervene in the proceedings in the circuit court.

Beginning in late September, 1958, surface grading of the area was commenced on the project. No permit for such grading was required. On November 24, 1958, William Guhman, the then Public Works Director of the County, issued ninety-six individual permits to the Housing Authority, forty-eight of which were for the erection and construction of four-family buildings and the remaining forty-eight of which were for two-family units. For a reason which is not clear from the transcript, the permits for the forty-eight two-family buildings were revoked on November 28, 1958, but were reissued on December 12, 1958. On January 9, 1959, appellants Tomich and Nothum filed their appeal with the Board of Zoning Adjustment of St. Louis County praying for the revocation and rescission of all ninety-six permits. After a hearing held on January 28, 1959, the Board, on February 18, 1959, unanimously held that the Public Works Director had erred in issuing the permits for the two-family dwellings, reversed his decision, and 'requested' the Director to revoke such permits.

Thereupon the respondents herein petitioned the Circuit Court of St. Louis County for a writ of certiorari to review the decision of the Board of Zoning Adjustment. Pursuant thereto, the writ was issued (presumably to the members of that Board, though the transcript is silent on the matter) and a certified transcript of the proceedings before the Board of Zoning Adjustment was filed in court on March 19, 1959. Meanwhile the appellants Tomich and Nothum, having sought and been granted leave to intervene, filed what they termed a cross-petition, in which they asked the court to ratify and affirm the order of the Board. The cause was argued and submitted on April 2, and on June 1, 1959, the Circuit Court entered a judgment and decree reversing the decision of the Board of Zoning Adjustment and dismissing appellants' cross-petition. Following an unavailing motion for a new trial, appellants Tomich and Nothum appealed to this court.

Various contentions made during the proceedings below by the respective parties have been abandoned. Indeed, the legality of the forty-eight permits for the four-family dwellings is no longer questioned by the appellants. Analyzing the points in the briefs of the parties, the issues presented to us are: (1) whether the Housing Authority is subject to the zoning ordinances of St. Louis County; (2) whether appellants were such 'aggrieved parties' as could appeal to the Board of Zoning Adjustment; (3) whether, if they were, their appeal was timely filed; (4) whether the circuit court erred in substituting its own judgment for that of the Board; and (5) whether the court erred in interpreting the provisions of the zoning ordinance.

Presumably relying on the theory that the best defense is an offense, respondents argue in their brief that the Housing Authority is exempt from the zoning ordinance of St. Louis County because it is a municipal corporation, exercising public and essential governmental functions, and has the right to acquire lands by the exercise of the power of eminent domain. It is true that a Housing Authority created pursuant to the statutes has been both legislatively and judicially declared to be a municipal corporation. Section 99.080 RSMo 1949, V.A.M.S.; Laret Investment Co. v. Dickmann, 345 Mo. 449, 134 S.W.2d 65; Schmoll v. Housing Authority of St. Louis County, Mo., 321 S.W.2d 494. It is likewise true that it is given the right '* * * to acquire by the exercise of the power of eminent domain any real property in fee simple or other estate * * *.' Section 99.080(4); Section 99.120. But it does not follow, as respondents contend, that a housing authority is therefore immune from local zoning laws or ordinances. Indeed, as respondents admit, by Section 99.130 the General Assembly specifically provided:

'All housing projects of an authority shall be subject to the planning, zoning, sanitary and building laws, ordinances and regulations applicable to the locality in which the housing project is situated. In the planning and location of any housing project, an authority shall take into consideration the relationship of the project to any larger plan or long-range program for the development of the area in which the housing authority functions. (R.S.1939, Sec. 7865)'

Respondents argue that that section '* * * simply authorizes the regulation of housing projects with respect to matters directly and vitally related to health and welfare matters, but does not even purport to make the location of projects a subject of local cognizance.' The answer to this argument is that the location of the project is not in dispute. Appellants do not contend that a housing project may not be located on the tract involved; what they question, as will be more fully developed later, is whether, under the zoning ordinance of St. Louis County, two-family dwellings may be interspersed with four-family buildings.

Furthermore, while it was said in State of Missouri ex rel. Askew et al. v. Kopp, Mo., 330 S.W.2d 882, 888, that '* * * Local zoning ordinances are not applicable to public uses of property for which an agency of the government has the power to acquire lands by the exercise of the power of eminent domain * * *,' the court was careful to point out that the state and its agencies would be within the purview of such regulations if '* * * an intention to include them is clearly manifest * * *.' By the first sentence of Section 99.130 the legislature stated in plain and unequivocal language that all housing authority projects shall be subject to local zoning and building laws and ordinances of the locality, thus clearly manifesting its intention that housing projects are not to be immune from such local regulations.

Section 1004.100, St. Louis County Revised Ordinances, 1958, relating to the Board of Zoning Adjustment of St. Louis County, provides that an appeal to the Board may be made '* * * by any person * * * allegedly aggrieved by the grant or refusal of a use and occupancy permit or by any other administrative decision based or claimed to be based, in whole or in part, upon any Zoning regulations, or the Zoning District Map.' Respondents contend that appellants are not aggrieved parties because '* * * Private individuals lack standing to complain of alleged zoning violations without proving themselves specially and peculiarly injured * * *'; and that no showing of special damage was made by appellants in this case. However, in the latest case cited by respondents, Kellog v. Joint Council of Women's Auxiliaries Welfare Ass'n, Mo., 265 S.W.2d 374, the Supreme Court made it clear that the special injury required to sustain an action to enjoin the violation of a zoning ordinance need not necessarily be a depreciation in value of the plaintiff's property or any special pecuniary damage. It held, in fact, that as owners of residences in the district the plaintiffs there had such an interest in the continuation of the observance of the single-family dwelling classification as to entitle them to maintain the action. Here there was evidence that the property belonging to appellants Nothum was directly across the street, and less than 100 feet, from the tract belonging to the Housing Authority. The proximity of his property to that where the alleged violation was to occur was sufficient to constitute him an aggrieved party. Kellog v. Joint Council of Women's Auxiliaries Welfare Ass'n, supra; Hernreich v. Quinn, 350 Mo. 770, 168 S.W.2d 1054. Furthermore, this is not a suit to enjoin a violation of a zoning ordinance, but a proceeding under the zoning ordinances to protest the issuance of a building permit allegedly in violation thereof. If the validity of zoning ordinances are predicated upon the protection of the public health, safety, morals and welfare, as was held in Flora Realty & Investment Co. v. City of Ladue, 362 Mo. 1025, 246 S.W.2d 771, it might well be argued that every resident in the community would, in some measure, have an interest in protesting the issuance of a building permit issued in violation of the applicable ordinance. In that connection, see O'Connor v. Board of Zoning Appeals of Town of Stratford, 140 Conn. 65, 98 A.2d 515. In any event, under the evidence adduced, we hold that appellants were entitled as aggrieved parties to appeal to the Board of Zoning...