State v. Christopher

• Decision Date: 11 July 1927
• Docket Number: No. 27909.,27909.
• Citation: 298 S.W. 720
• Parties: STATE ex rel. OLIVER CADILLAC CO. v. CHRISTOPHER, City Building Commissioner of St. Louis, et al.
• Court: Missouri Supreme Court

298 S.W. 720

STATE ex rel. OLIVER CADILLAC CO. v. CHRISTOPHER, City Building Commissioner of St. Louis, et al.

No. 27909.

Supreme Court of Missouri, in Banc.

July 11, 1927.

Motion for Rehearing Denied September 27, 1927.

Appeal from St. Louis Circuit Court; Anthony F. Ittner, Judge.

Mandamus by the State, on the relation of the Oliver Cadillac Company, against Edward E. Christopher, Building Commissioner of the City of St. Louis, and another. From a judgment awarding peremptory writ of mandamus, defendants appeal. Reversed.

Julius T. Muench, of St. Louis, and Leonard J. Holland, Jr., for appellants.

S. L. Swarts, Louis Kawin, and Caulfield & Bartlett, all of St. Louis, for respondent.

RAGLAND, J.

For a concise statement of the general nature of this action, its objective and the parties thereto, we quote from appellants' brief:

"This is a proceeding in mandamus, brought by the state, at the relation of the Oliver Cadillac elan, a corporation, against the appellants, building commissioner and director of public safety, respectively, of the city of St. Louis, to require them to issue the Oliver Cadillac Company a permit for the erection on a lot southwest corner of Lindell boulevard street in St. Louis, of a two-story reinforced concrete, brick and stone building with a basement, to be occupied and used as place of business for the display, sale, and adjustment of automobiles, and for the sale am installation of automobile parts and accessories

"The lot in question has a front of 258 fee on Lindell boulevard, and runs back 213 fee along Sarah street to an alley. The propose building was to occupy the eastern 170 feet o the lot, and was to be set back 30 feet from tin property line on Lindell.

"The petition charged, and the evidence show" ed, that the relator, the respondent here, had of May 24, 1926, applied to the appellants, the respondents below, for a building permit, and had at that time complied with the requirements of the then existing building code. It was admit" ted that the permit had been refused. Application was thereupon made for an alternative writ of mandamus, which was issued on May 24, 1926, and was served on the appellant Brod or May 25th, and on the appellant Christopher or May 26th.

"The permit was refused on the grounds, first, that the proposed building constituted a garage within the meaning of section 2559 of the Revised ode of 1914, and its erection would therefore violate Ordinance No. 34103 of the city of St. Louis, prohibiting garages on Lindell boulevard between Grand avenue and Kingshighway; and, secondly, that, being a business structure, the building could not be constructed without violating the provisions of Ordinance No. 35003, the new zoning ordinance, which was to go into effect two days later, and which placed the lot on which the building was proposed to be erected in the multiple dwelling district, in which commercial and industrial buildings were prohibited."

The zoning ordinance referred to became effective May 26, 1926. Its purported authorization and objectives are disclosed by its preamble and title, as follows:

"In order to avail itself of the powers conferred by an Act of the General Assembly, approved on the 30th day of April, 1925, Laws of Missouri, 1925, p. 309, the city of St. Louis, through its legislative body, has heretofore appointed the members of its city plan commission to be and constitute a commission known as the zoning commission, to recommend the boundaries of the various original districts into which it is proposed for the purpose of this ordinance and pursuant to said act, to divide the city and to recommend appropriate regulations to be enforced therein. Pursuant to said appointment, said zoning commission has prepared and made a preliminary report, held public hearings thereon, and thereafter made and submitted to the board of aldermen its final report, recommending the boundaries of said original districts and the regulations to be enforced therein.

"An ordinance to regulate and restrict the height, number of stories, bulk, volume, and size of buildings and structures, the size of yards, courts and other open spaces, the location, erection, alteration, and use of buildings, structures and land for the purpose of promoting the health, safety, morals, and general welfare of the city of St. Louis, and for said purposes to divide the city of St. Louis into districts; to provide for change of the regulations, restrictions and boundaries of such districts; to provide for a board of adjustment; to provide for enforcement; to prescribe penalties for violation of the provisions hereof."

As its title indicates, the ordinance is a comprehensive one. It zones the entire city (1) into use districts; and (2) into height and area districts. The pertinent portions of sections 2, 3, and 4 are as follows:

"Sec. 2. In order to regulate and restrict the location, erection, alteration or use of buildings, structures or land, the city of St. Louis is hereby divided into five (5) use districts, known as:

"1. Residence district. "2. Multiple dwelling district., "3. Commercial district. "4. Industrial district. "5. Unrestricted district.

"The city of St. Louis is hereby divided into the five (5) districts aforesaid and the boundaries of such districts are shown upon the map attached hereto, being designated as the use district map, and which is hereby made a part of this ordinance.

"Sec. 3. In the residence district no building or premises shall be used and no building therein shall be erected or structurally altered except for the following purposes:

"1. One-family dwelling.

"2. Two-family dwelling.

"3. Church.

"4. Schools offering instruction in primary, secondary or collegiate courses of study.

"5. Library, museum, playground, park or recreational buildings which are owned or operated by the municipality.

"6. Accessory buildings, including one private garage or private stable when located not less than thirty (30) feet from the front lot line and not less than five (5) from any side street line, or a private garage constructed as a part of the main building.

"Sec. 4. In the multiple dwelling district no building or premises shall be used and no building therein shall be erected or structurally altered except for the following purposes:

"1. Any use permitted in the residence district. "2. Multiple dwelling. "3. Hotel. "4. Private club or lodge, excluding any which has as its chief activity a service customarily carried on as a business.

"5. Boarding or lodging house. "6. Hospital or clinic.

"7. An institution of an educational, philanthropic or eleemosynary nature.

"8. Accessory buildings, including private and storage garages when located on the same lot not less than thirty (30) feet from the front lot line, and not less than five (5) feet from any side street line unless constructed as a part of the main building; however, it shall be permissible to maintain and operate a storage garage in the basement or on the ground floor of fireproof hotels and apartments, which garage is to be operated and maintained for the use of the guests or tenants residing within such hotel or apartment."

The provisions creating a board of adjustment and delegating to it certain powers follow closely section 7 of the Enabling Act. Laws of 1925, p. 309. Appeals to this board may be taken by any person aggrieved or by any officer, department, board, or bureau of the municipality affected by any decision of an administrative officer. And, In passing upon appeals, where there are practical difficulties or unnecessary hardships in the way of carrying out the letter of the ordinance, the board is authorized to vary or modify the application of any of the regulations or provisions of the ordinance relating to the use, construction, or alteration of buildings or structures or the use of land so that the spirit of the ordinance shall be observed, public safety secured, and substantial justice done. However, every such variation or modification must be reported immediately to the board of aldermen and embodied in the ordinance by way of an amendment thereto before it can become effective. All decisions of the board of adjustment are subject to review on certiorari by the circuit court.

None of the use districts into which the city is divided by the ordinance is composed of compact or contiguous territory. The multiple, dwelling district, for example, consists of many widely separated areas. The one involved in this case is triangular In form, the base resting on Kingshighway and the apex extending east to Grand avenue. The triangle is bisected by Lindell boulevard. Kingshighway forms the eastern boundary of Forest Park. Sarah street crosses Lindell boulevard five blocks east of Kingshighway and three blocks west of Grand avenue. Whittier avenue comes into Lindell boulevard from the south about a half block west of Sarah street, and Vandeventer avenue crosses Lindell boulevard a block east of Sarah. The locus in quo is at the southwest corner of Lindell and Sarah. One of respondent's witnesses made a survey with reference to the uses of both sides of Lindell boulevard from Whittier to Vandeventer. He found that the great majority of the buildings were used as multiple dwellings, rooming houses, apartments, and hotels. In addition to these he found three oil-filling stations, two automobile show and sales rooms, one drug store, one grocery store, and two other buildings used for commercial purposes which he was unable to describe. The city planning engineer also made a survey. He testified that 93 per cent. of Lindell boulevard between Kingshighway and Grand avenue (calculated by the front foot) was used for "dwelling," within the meaning of that term as defined by the ordinance.

As heretofore stated, the building which respondent seeks a permit to erect is a two story, reinforced concrete, brick and stone structure with a basement, presumably fireproof. It...