State ex rel. Weinhardt v. Ladue Professional Bldg., Inc.

• Decision Date: 21 September 1965
• Docket Number: No. 31991,31991
• Citation: 395 S.W.2d 316
• Parties: STATE of Missouri ex rel. Edward P. WEINHARDT and Florence A. Weinhardt, Petitioners-Appellants, v. LADUE PROFESSIONAL BUILDING, INC., a Corporation, and Jules Q. Strong, S. R. Kinsella, George Engelsmann, Jr., Creighton B. Calfee and Harry G. Giessow, constituting the Board of Adjustment of the City of Ladue, Respondents.
• Court: Missouri Court of Appeals

Page 316

395 S.W.2d 316

STATE of Missouri ex rel. Edward P. WEINHARDT and Florence A. Weinhardt, Petitioners-Appellants, v. LADUE PROFESSIONAL BUILDING, INC., a Corporation, and Jules Q. Strong, S. R. Kinsella, George Engelsmann, Jr., Creighton B. Calfee and Harry G. Giessow, constituting the Board of Adjustment of the City of Ladue, Respondents.

No. 31991.

St. Louis Court of Appeals, Missouri.

Sept. 21, 1965.

F. Wm. McCalpin, Lewis, Rice, Tucker, Allen & Chubb, St. Louis, for petitioners-appellants.

Edward D. Weakley, Boyle, Priest, Elliott & Weakley, St. Louis, for respondents.

John H. Cunningham, Jr., St. Louis, amicus curiae, City of Ladue.

JAMES D. CLEMENS, Special Judge.

This case concerns a parking problem. The relators Edward P. and Florence A. Weinhardt seek to bar the respondent Ladue Professional Building, Inc., from erecting a medical office building on its vacant lot which adjoins theirs in the City of Ladue. Initially, the City's Building Commissioner declined a building permit because the building company had not provided enough off-street parking spaces. The building company appealed, and the City's Board of Zoning Adjustment reversed the commissioner's denial, and the permit was granted. Relators Weinhardt then brought certiorari proceedings. On review, the Circuit Court considered the Board's return, heard further evidence, and affirmed the Board's order granting the building permit. The Weinhardts' appeal to this court followed.

The issues raised here are these: Whether the evidence before the Board warranted it in granting the permit, either on the ground of compliance or hardship; the propriety of admitting new evidence in the Circuit Court; and the force of evidence that the Board heard unsworn testimony.

The lands under consideration here are three adjacent tracts lying between Clayton Road on the south and Conway Road on the north. The roads intersect at a sharp angle. At the eastern point is a tract owned by the Socony Mobil Oil Co. and leased to Robert French who operated a service station there. To the west of the service station is the proposed office building site of the respondent Ladue Professional Building, Inc. To the west of that is the land of the realtors Weinhardt on which they have a two-story building which houses their catering business and living quarters.

Section 7 of the City's zoning ordinance requires that in this area an office building shall afford off-street parking space for one motor vehicle '* * * for each two hundred (200) square feet of floor space in the building * * *', and that such parking space '* * * shall be provided either on the lot or within three hundred (300) feet thereof * * *.' It seems that in the past the City's Building Commissioner had granted permits for commercial buildings where the number of required parking spaces was computed on the amount of rentable floor space in the building rather than on the amount of gross floor space. Accordingly, the respondents' architects drew plans for the office building with a parking area for 42 cars. Using the rentable floor space as a basis for the computation, this would have been enough. However, using the gross floor space as a basis, there would have to be at least eight more parking spaces. After the building commissioner denied the permit, the respondent building company made arrangements with the lessee of the adjoining service station to rent parking space on his lot to park twelve additional cars, thus affording off-street parking for 54 cars.

With the problem in this posture, the respondent building company appealed to the City's Board of Zoning Adjustment. It claimed error in denial of the permit on the ground of inadequate parking space. Alternatively, it claimed that the denial of the permit on this ground imposed unusual difficulties and a particular hardship. This on the basis of Sec. 89.090, Subd. 1(3), V.A.M.S., and Sec. 15(7) of the City's zoning ordinance which empower the Board to grant a variance in such cases. The Board gave proper notice of a hearing on the respondents' appeal. In its subsequent return to the writ of certiorari, the Board included the duly certified minutes of its meeting at which the appeal was considered.

Because it was the Board's return that was the proper subject of the review in the Circuit Court, we must refer to and quote from it rather fully: Among those present at the hearing were Messrs. Strong, chairman, and Kinsella, Engelsmann, Calfee and Giessow, members of the Board, and the City's building commissioner Farrar and building inspector Bockhorst. Also present were the building company's architects and its attorney, Mr. Edward D. Weakley, and the respondents Weinhardt. Chairman Strong announced that the purpose of the hearing was the building company's appeal from the denial of its permit because of the minimum parking space requirements. The rest of the return is set out in full:

'Mr. Weakley stated that in August of 1962, plans were submitted for the construction of an office building, the proposed locating being to the east of Weinhardt's Catering Company at Conway and Clayton Road. There was a discussion of the proposed building by Gale and Cannon, Architects with the officials of the City of Ladue, at which time various matters were discussed, and subject to several small changes, they were informed that the plans would be all right and the plans were altered and redesigned. That in August of 1962 the Architect's, in a conference with Mr. Bockhorst, it was stated that the parking lot requirements are computed on the basis of the rentable space; that it is comparable to the Fischer Building next to Sir John's Den on Clayton Road. Based on this, they computed the 42 parking spaces under the terms of Section 7 of the Zoning Ordinance. They were then informed that they were some eight parking spaces short. Mr. Weakley further noted that the entrance to the building will be on Clayton Road and the exit will be on Conway Road; that with the refusal to issue a permit, they contracted with the Mobil Oil Station operator for 12 additional parking spaces. Mr. Weakley stated that (1) they have conformed to the requirements, in that they have computed the parking area based on the net rentable space; (2) if the Board does not accept it, they cannot build it; that the Zoning Ordinance does not spell it out; that with respect to the type of building involved, it is strictly doctors and dentists who will occupy it; it will be a convenience to the residents of the City of Ladue; that the additional parking spaces brings them in compliance with the provisions of the Zoning Ordinance; that the financing was obtained from the Prudential Savings and Loan Association for 75% of the total cost of the building and the remaining 25% was put up by Mr. Niedringhaus and Mr. Karl M. Block, who are both residents of the City of Ladue. That there has been $3,750.00 put up in points, should this building not be built and if they do not get relief of these eight parking spaces, they will be out of business. Mr. Weakley then presented a tentative lease between the Ladue Professional Building and Mr. Storie, leasee of the Mobil Service Station for 12 additional parking spaces, stating that Mr. Storie was not the owner but that he has the right to do what he wants to do. Mr. Strong noted that it would remain only in effect for as long as Mr. Storie was there and that it was not a very definite time, only eight years. Mr. Weakley further stated that it was a Permissive Lease; that they would pay $8.00 per slot per month. Mr. Weakley further stated that the ordinance does not state clearly what it means. Mr. Strong then read Section 7 of the City's Zoning Ordinance No. 282, noting that the additional parking on the Mobil property would not be a violation; that it provides for parking either on the lot or within 300 feet thereof; that the parking space shall be adequate to accommodate one (1) car for each two hundred (200) feet of floor space, therefore they computed 42 car spaces. Mr. Weakley further added that the rentable space is 8,393 square feet and the gross square feet is 9,993.49 square feet, leaving a difference of 1600 square feet. Mr. Giessow asked what the position of the building will be with relation to the lot? Mr. Gale presented a model of the building, noting that the building will be approximately 43 feet from Clayton Road, also adding that the position of the building as it is shown on the model was made to scale. That the gross square feet included the halls, toilets, stairways and entrance lobby. Mr. Strong asked what part of the 1600 square feet includes the halls, toilets, etc.? Mr. Cannon figured it to be as follows: 816 square feet for corridors, 294 square feet for stair wells, 158 square feet for mechanical equipment, 110 square feet for entrance lobby and 215 square feet for rest rooms. Mr. Giessow asked if there was going to be landscaping? Mr. Gale answered that it would be exactly as it was shown on the model and estimated the cost at $2,000.00 for landscaping. Mr. Strong asked Mr. Farrar how they had computed the parking spaces on previous buildings? Mr. Bockhorst stated that they had computed it on the net floor space, and that this is the second time this question has come up, the first being the Lammert Furniture Company. Mr. Strong noted that in regards to the Lammert Furniture Company, they had divided up some of the parking spaces. Mr. Bockhorst noted that the City of St. Louis required a...