State ex rel. Sims v. Eckhardt, 46264

• Decision Date: 13 April 1959
• Docket Number: No. 46264,No. 2,46264,2
• Citation: 322 S.W.2d 903
• Parties: STATE of Missouri at the relation of James Milford SIMS, Appellant, v. Willard L. ECKHARDT, O. R. Johnson, Harry Gentry, Fred T. Kennedy, and Paul D. Higday, being the duly appointed members of the Board of Zoning Adjustment of the City of Columbia, Missouri, a municipal corporation, Respondents, Neal Primm, Intervenor-Respondent
• Court: Missouri Supreme Court

Page 903

322 S.W.2d 903

STATE of Missouri at the relation of James Milford SIMS, Appellant, v. Willard L. ECKHARDT, O. R. Johnson, Harry Gentry, Fred T Kennedy, and Paul D. Higday, being the duly appointed members of the Board of Zoning Adjustment of the City of Columbia, Missouri, a municipal corporation, Respondents Neal Primm, Intervenor-Respondent.

No. 46264.

Supreme Court of Missouri, Division No. 2.

April 13, 1959.

Carl F. Sapp, Orr & Sapp, Columbia, for appellant.

J. Robert Tull, Columbia, for respondents.

BOHLING, Commissioner.

This is an appeal by relator, James Milford Sims, from a judgment of the Circuit Court of Boone County affirming the revocation by the Board of Adjustment of the City of Columbia of a building permit issued to appellant by the City Director of Public Works.

Appellant contends he has spent more than $9,000 in construction on the property involved and that will be lost if his building permit is revoked. The record shows the money value of the relief to appellant exceeds $7,500 and this court has jurisdiction. Fleming v. Moore Brothers Realty Co., 363 Mo. 305, 251 S.W.2d 8.

In July, 1955, appellant became the owner of and has since owned Lot 4 of Eastwood Hills Subdivision, a subdivision then located outside the limits of the City of Columbia.

The City, proceeding under Secs. 89.010 to 89.140, also known as the Enabling Act (Laws 1925, p. 307), had adopted a comprehensive zoning plan for the area within its corporate limits. (Statutory references are to R.S.Mo.1949 and V.A.M.S.)

A proposal to extend the corporate limits of the City and annex approximately 2,500 acres of land, including appellant's said lot, was to be voted upon December 15, 1955. Anticipating the approval of the annexation, an ordinance, known in the record as Sec. 8.1, to amend the comprehensive zoning ordinance was introduced in the City Council November 7, 1955. It provided that all new territory whenever incorporated within the City should automatically be zoned in District A, which was restricted to dwellings designed for not more than two families. The minutes of the City Council recited that the proposed ordinance 'was introduced, read and held for further consideration. The Council directed that this bill be referred to the Planning and Zoning Commission and that a public hearing thereon be held December 5th next and the Clerk directed to advertise the same.'

A notice of a hearing on proposed 'Section 8.1,' setting it out, before the City Council at 7:00 p. m. December 5, 1955, was published. We quote the section:

'Section 8.1. Zoning of Annexed Areas. Whenever additional areas of land are annexed and incorporated within the corporate boundaries of the city as provided by law, such areas of land at the time of the effective date of said annexation and incorporation shall come into the classification of District A, First Dwelling District, subject to all of the provisions of this chapter, and the Zoning District Map shall be changed to show such additions thereto.'

A called special meeting of the City's Planning and Zoning Commission, also referred to as the Zoning Commission, was held November 28, 1955, at the office of the City Director of Public Works. This meeting lasted about thirty minutes, and a motion was adopted recommending that Article 2 of Chapter 19 of the zoning ordinance be amended by adding Sec. 8.1 thereto. By letter dated December 1, 1955, the Secretary of the Zoning Commission advised the City Council of this recommendation of the Zoning Commission.

No one appeared at the Council meeting in opposition to said Sec. 8.1, and Sec. 8.1 was twice read, put upon final passage, and adopted by the City Council on December 5, 1955.

The proposed annexation carried at the election on December 15, 1955, and the result of the vote was certified to the City Council on December 19, 1955.

On July 18, 1956, the City Director of Public Works issued a building permit to appellant for a four-family dwelling on said Lot 4. Section 8.1 above, if valid, by placing appellant's lot in District A, limited buildings thereon to one-and two-family dwellings. Appellant commenced actual construction in November, 1956. December 5, 1956, eighteen lot owners served a written demand on the City Director of Public Works that the building permit issued to appellant be revoked, stating their grounds therefor. This demand was denied and an appeal was taken to the Board of Adjustment. The Board of Adjustment, following a hearing, sustained the contentions of the protesting lot owners and revoked and cancelled the building permit issued to appellant on the ground the construction of a four-family dwelling on said Lot 4 was in violation of Sec. 8.1 of the zoning ordinance, and was also in violation of a recorded restrictive covenant against said Lot 4.

Appellant thereupon timely instituted this review proceeding under Sec. 89.110.

Zoning ordinances operate locally, but they constitute the exercise of a governmental function referable to the police power. Fleming v. Moore Brothers Realty Co., 363 Mo. 305, 251 S.W.2d 8, 15; Wippler v. Hohn, 341 Mo. 780, 110 S.W.2d 409, 411. A city is the creature of the State and has no inherent police power. Tietjens v. City of St. Louis, 359 Mo. 439, 222 S.W.2d 70, 73; City of Meadville v. Caselman, 240 Mo.App. 1220, 227 S.W.2d 77, 79[1, 2].

We stated in State ex rel. Kramer v. Schwartz, 336 Mo. 932, 939, 82 S.W.2d 63, 66: 'We think it clear upon elementary principles that the Enabling Act of 1925 [now Secs. 89.010 to 89.140], properly interpreted, must be treated as the measure of the power of * * * [a municipality] to pass a valid zoning ordinance. The Enabling Act is a grant of a portion of the state's police power, and the extent of the powers granted as well as the manner of their exercise must conform to the terms of the grant.' See also 8 McQuillin, Municipal Corporations, 3d Ed., Sec. 25.58, n. 49.

We consider the issues as presented.

Appellant's first contention is that Sec. 8.1 is invalid, having been enacted in violation of Sec. 89.070, quoted infra.

We find no authority conferred upon boards of adjustment to repeal or to hold invalid the provisions of the ordinances they are called upon to administer; and the ruling of the Board of Adjustment at the instant hearing to the effect it would proceed on the basis of the validity of the ordinances was sound. Adams v. Board of Zoning Adjustment, Mo.App., 241 S.W.2d 35, 38; Phillips v. Board of Adjustment, Mo.App., 308 S.W.2d 765, 768; Baddour v. City of Long Beach, 279 N.Y. 167, 18 N.E.2d 18, 124 A.L.R. 1003.

Respondents contend Sec. 89.070 applies only to the enactment of an original zoning ordinance; that Sec. 8.1 amended the original zoning ordinance of the City, and that Secs. 89.060 and 89.050 apply. Section 89.050 is general in nature and directs municipal legislative bodies to provide for the manner in which zoning regulations, restrictions and boundaries shall be determined, established, and enforced, 'and * * * from time to time amended, supplemented or changed,' and also provides that no such regulation, restriction or boundary shall become effective until following a public hearing held after at least fifteen days' notice. The record does not disclose what procedure the ordinances of the City of Columbia provide pursuant to Sec. 89.050.

Section 89.060 treats specifically of amendments and, as far as here involved, provides: 'Such regulations, restrictions, and boundaries may from time to time be amended, supplemented, changed, modified or repealed. * * * The provisions of section 89.050 relative to public hearings and official notice shall apply equally to all changes or amendments.'

Respondents strees Geneva Inv. Co. v. City of St. Louis, 8 Cir., 87 F.2d 83, and State ex rel. Luechtefeld v. Arnold, Mo.App., 149 S.W.2d 384. Neither case is determinative here. Each involved a change or a purported change of a zoning classification of property in a district within the corporate boundaries subject to an existing valid comprehensive zoning ordinance. There was no justiciable controversy in either case respecting zoning provisions affecting newly annexed areas or areas outside the corporate limits of the municipality. In respondents' cited case of City of Highland Park v. Calder, 269 Ill.App. 255, 262, the court stated that a stipulation entered into by counsel precluded the landowners from asserting the zoning ordinances were not properly passed and, therefore, were invalid.

We find no express provision in Secs. 89.010 to 89.140 for a municipality having a comprehensive zoning ordinance to extend zoning regulations into newly annexed territory, and apparently the precise question presented here has not been ruled by an appellate court of this State. The provisions in Secs. 89.050 and 89.060 for amending, supplementing, changing, modifying or repealing relate to the amendment, change or repeal of an existing regulation, restriction or boundary. The record discloses no attempt by the City of Columbia to establish any regulations, restrictions or districts under the zoning law for newly annexed territory prior to the adoption of Sec. 8.1 here involved.

On the other hand, Sec. 89.070 relates to 'original districts' and provides: 'In order to avail itself of the powers conferred by sections 89.010 to 89.140, such legislative body shall appoint a commission, to be known as 'The Zoning Commission,' to recommend the boundaries of the various original districts and appropriate regulations to be enforced therein. Such commission shall make a preliminary report and hold public hearings thereon before submitting its final report and such legislative body shall not hold its public hearings or take action until it has received the final report of such commission. Where a city plan commission already exists, it may be appointed as the zoning commission.'

The requirement of Sec. 89.070 that the municipal...