State ex rel. Steak n Shake, Inc. v. City of Richmond Heights, 38039

• Decision Date: 27 December 1977
• Docket Number: No. 38039,38039
• Citation: State ex rel. Steak n Shake, Inc. v. City of Richmond Heights, 560 S.W.2d 373 (Mo. App. 1977)
• Parties: STATE ex rel. STEAK n SHAKE, INC., a corporation, Appellant, v. CITY OF RICHMOND HEIGHTS, Missouri, a Municipal Corporation, Richard F. Provaznik, Charles F. Sargent, Nelson Clark and G. V. (Jerry) Flynn, Respondents. . Louis District, Division Four
• Court: Missouri Court of Appeals

Page 373

560 S.W.2d 373

STATE ex rel. STEAK n SHAKE, INC., a corporation, Appellant, v. CITY OF RICHMOND HEIGHTS, Missouri, a Municipal Corporation Richard F. Provaznik, Charles F. Sargent, Nelson Clark and G. V. (Jerry) Flynn, Respondents.

No. 38039.

Missouri Court of Appeals, St. Louis District, Division Four.

Dec. 27, 1977.

Robert C. Jones, Ziercher, Hocker, Tzinberg, Human & Michenfelder, Clayton, for appellant.

Donald U. Beimdiek, St. Louis, for respondents.

ALDEN A. STOCKARD, Special Judge.

Steak n Shake, Inc. has appealed from the judgment of the Circuit Court of St. Louis County wherein it affirmed the refusal of the City of Richmond Heights to grant "conditional use permits" for appellant to construct and operate an enlarged restaurant facility.

Appellant submitted to the City of Richmond Heights two petitions for a "conditional use permit." Petition 74-7 described land on which there existed a Steak n Shake restaurant operating primarily as a "carry-out" or "curb-service" facility. By the petition permission was sought to construct an enlarged facility. The other, Petition 74-6, described an area to be used for parking space for patrons of the new restaurant.

We do not find a copy of the applicable ordinance in the record. Therefore, we do not know and cannot set out the procedure therein provided for processing a petition for a conditional use permit. See for example, State ex rel. Union Electric Co. v. University City, 449 S.W.2d 894 (Mo.App.1970). Apparently it required the petitions to be submitted to various city departments, including the city Plan and Zoning Commission which recommended "that the City Council approve (the) petitions" contingent on seven enumerated conditions, all of which were expressly accepted and agreed to by appellant. Other departments made recommendations or comments concerning the applications, but none recommended disapproval, and there is no contention that appellant did not agree to any recommended condition.

On May 19, 1975 a public hearing was held before the City Council. At that hearing it was developed that Steak n Shake had an existing facility located on the land described in Petition 74-7 which had a floor area of 915 square feet, and which had eleven "stool-type" seats at a counter. Appellant sought to enlarge and modernize the building to 3,715 square feet and increase the seating capacity to 120 seats. By use of the land described in Petition 74-6 it was proposed to increase the parking facilities to 63 spaces. The overall purpose was to convert the facility to be primarily a "sitdown" restaurant, but to retain at least some curb-service. While the present business was 70% To 75% Curb service, it was estimated that in the new facility only about 25% Of the business would be curb-service. There was no evidence presented by the City, although questions were asked of appellant's representatives by members of the Council, and there was some comment by a lay person concerning the then existing traffic conditions.

Again we note that we are not advised of the requirements of the applicable ordinance, but at the conclusion of the hearing the mayor announced that "in the matters concerning the granting or the consideration of the granting of the conditional use permits, we are required under the conditions and directions of our zoning ordinance to make certain specific findings."

We set forth verbatim from the minutes of the City Council for November 3, 1975, the questions on which votes were taken, the questions being identical as to each petition, and the vote as to each petition.

(a) Will the proposed use substantially increase
                    traffic hazards or congestion
                    No. 74-7        Ayes-3;            Naes-1
                    No. 74-6        Ayes-3;            Naes-1
                (b) Will the proposed use substantially increase
                    fire hazards?
                    No. 74-7        Ayes-0;            Naes-4.
                    No. 74-6        Ayes-0;            Naes-4.
                (c) Will the proposed use adversely affect the
                    character of the neighborhood?
                    No. 74-7        Ayes-0;            Naes-4 1
                    No. 74-6        Ayes-3;            Naes-1.
                (d) Will the proposed use adversely affect the
                    general welfare of the community?
                    No. 74-7        Ayes-0;            Naes-4.
                    No. 74-6        Ayes-0;            Naes-4.
                (e) Will the proposed use over-tax public utilities?
                    No. 74-7        Ayes-0;            Naes-4.
                    No. 74-6        Ayes-0;            Naes-4.
                (f) Will the proposed use adversely affect public
                    safety and health?
                    No.74-7         Ayes-1;            Naes-3.
                    No.74-6         Ayes-0;            Naes-4.
                (g) Is the proposed use consistent with good
                    planning practice?
                    No.74-7         Ayes-2;            Naes-2.
                    No.74-6         Ayes-1;            Naes-3.
                (h) Can the proposed use be operated in a
                    manner that is not detrimental to the permitted
                    developments and uses in the District?
                    No. 74-7        Ayes-4;            Naes-0.
                    No. 74-6        Ayes-4;            Naes-0.
                (i) Can the proposed use be developed and
                    operated in a manner that is visually compatible
                    with the permitted uses in the surrounding
                    area?
                No.74-7             Ayes-3;            Naes-1.
                No.74-6             Ayes-3;            Naes-1.
                (j) Is the proposed use deemed essential or
                    desirable to preserve and promote the public
                    health, safety and general welfare of
                    the City of Richmond Heights?
                No.74-7             Ayes-2;            Naes-2.
                No.74-6             Ayes-1;            Naes-3.
                

The mayor then announced that as to Petition 74-7 the Council's findings "by a majority voice vote" were affirmative as to (a) and negative as to (g) and (j), thereby denying the granting of the petition, and that as to Petition 74-6 the Council's findings "by a majority voice vote" were affirmative as to (a) and (c) and were negative as to (g) and (j), thereby denying the granting of the petition. We note here that the vote on Petition 74-7 as to questions (g) and (j) was not "by a majority voice vote," but the vote was equally divided.

On December 1, 1975 appellant filed in the Circuit Court of St. Louis County its petition for a judicial review of the decision of the City Council pursuant to Rule 100.07, or in the alternative for a writ of certiorari for review pursuant to Rule 100.08. Appellant argues on this appeal that this is not a "contested case" as defined in Rule 100.01, and that the scope of review is that provided by Rule 100.08(a). No additional evidence was submitted to the trial court, and on March 3, 1976, it entered judgment that "the decision of the City Council denying (appellant's) applications for conditional use permits (is) supported by competent and substantial evidence, and (is) not against the overwhelming weight of the evidence."

This requires a determination on our part of the scope of our review which depends upon whether this case is a "contested case" within the meaning of Rule 100.01(3). The term is there defined as a "proceeding before an agency in which legal rights, duties or privileges of specific parties are required by law to be determined after hearing; * * *."

When the legislative body of the City chooses, as the City of Richmond Heights has done, to delegate to itself the discretionary power to enforce its regulation of conditional use permits, it acts administratively in passing on applications for such permits. State ex rel. Manchester Improvement Co. v. City of Manchester, 400 S.W.2d 47 (Mo.1966); State ex rel. Union Electric Co. v. University City, supra.

A hearing was held on the petitions for conditional use permits, and in its brief appellant admits that "a public hearing is required (by the ordinance) to be held prior to the issuance of a conditional use permit." It asserts, however, that this is not a "contested case" because "there is no statutory or ordinance requirement for a record to be kept." We do not agree that this results in this not being a contested case. The case of In re Village of Lone Jack, 419 S.W.2d 87, 90 (Mo. banc 1967), involved a situation where the testimony of witnesses at a required hearing before an administrative agency was not preserved and therefore not filed with the reviewing court. It was held: "Parties desiring that their interests be reviewed in accordance with § 536.140 (Rule 100.07) will see to it that the full record necessary for proper review is certified to the initial reviewing court; * * *." The requirement in this case that the conditional use permits be issued only after a hearing resulted in this case being a "contested case," but the duty to cause a record thereof to be made and kept is on the "parties desiring that their interests be reviewed." See also Sullivan County v. State Tax Commission, 513 S.W.2d 452 (Mo.1974).

Appellant admits that the conditional use provisions of the ordinance of the City of Richmond Heights contain sufficient standards to guide the City Council in making its determinations, but it contends that the Council acted "arbitrarily, capriciously and discriminatorily in applying the evidence to these standards, and ignored uncontradicted and unimpeached testimony in making their determination to deny the applications." See Rule 100.07(6). It also contends that there was not substantial and competent evidence to support the conclusions reached. See Rule 100.07(3).

We are not informed why two petitions for a conditional use permit were filed. It may have been because the land described in Petition 74-7 was zoned "G-Commercial" and that described in Petition 74-6 was zoned "F-1 Limited Commercial." But in each petition it was made clear that the purpose and intent was to "utilize the entire tract of land" owned by Steak n Shake as a "total facility" for a restaurant. Also, in the presentation of this case to the City Council appellant made it plain that it proposed to use the two tracts described in the petitions "for a combined use and parking facility." Under no...