State v. Holekamp
| Decision Date | 03 June 1941 |
| Docket Number | No. 25679.,25679. |
| Citation | 151 S.W.2d 685 |
| Parties | STATE ex rel. KAEGEL v. HOLEKAMP et al., Board of Adjustment. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, St. Louis County; Julius R. Nolte, Judge.
"Not to be reported in State Reports."
Certiorari proceeding by the State of Missouri, on the relation of Albert L. Kaegel, against Carl H. Holekamp and others, as the Board of Adjustment of the City of Webster Groves, Missouri, to review decision of the Board of Adjustment refusing to reverse determination of the city building commissioner refusing the application of the relator for a certificate of occupancy of his premises as a residence and as a place for giving private instruction in aesthetic dancing. From a decree affirming decision of the Board of Adjustment, the relator appeals.
Affirmed.
Alva C. Trueblood and Joseph Holland, both of St. Louis, for appellant.
John A. Nolan, of Clayton, for respondents.
BENNICK, Commissioner.
This case grows out of the action of the Building Commissioner of the City of Webster Groves, Missouri, in refusing the application of Albert L. Kaegel, the owner of certain premises known as 227 East Lockwood Avenue in said city, for a certificate of occupancy of the premises as a residence and as a place for giving private instruction in aesthetic dancing.
Such application was made pursuant to the provisions of Section 18 of Ordinance No. 4462, the zoning ordinance of Webster Groves, which provides, among other things, that no building structurally altered shall be thereafter occupied or used until a certificate of occupancy shall have been issued by the Building Commissioner which shall state that the building or proposed use of the building complies with all the building and health laws and ordinances as well as with the provisions of such zoning ordinance.
As a matter of fact, the alterations were completed before Kaegel's application had been acted upon, and consisted of the removal of a partition on the first floor so that what had formerly been the living room and the dining room was converted into one large room adapted in size for the use of dancing classes. In addition, a lavatory was installed in what had been the butler's pantry, and a cloakroom in what was formerly the kitchen. No alterations were made upon the second and third floors of the building, which were occupied by Kaegel and his family for residential purposes.
The application for a certificate of occupancy was denied by the Building Commissioner upon the ground that the proposed use of the building was that of a dancing school, which use, while permitted elsewhere, was not permitted under the zoning ordinance in the "B" Two-family District of the city in which the building was located.
Section 17 of the zoning ordinance makes provision for an appeal by any party aggrieved by a decision of the Building Commissioner, and in due course Kaegel took his appeal to the Board of Adjustment, whose five members, in their official capacities, are the respondents in the case before this court.
After a hearing before the Board of Adjustment, its members voted three to one (with one member absent) in favor of sustaining the appeal and instructing the Building Commissioner to issue the necessary certificate. Section 17 of the ordinance provides, however, that the concurring votes of four members of the board shall be necessary to reverse any order, decision, or determination of the Building Commissioner, and consequently the appeal failed for want of the concurrence of four members, leaving the decision of the Building Commissioner to stand.
It is to be observed, incidentally, that the provisions of Section 17 of the ordinance with respect to the creation of the Board of Adjustment, its powers and duties, and the procedure to be followed in the disposition of appeals taken to it, have their authorization in Section 7418, R.S.Mo.1939, Mo.St.Ann. § 7265, p. 5858, which is a part of the enabling act under which the zoning ordinance was enacted.
Such statute provides that whenever a municipality shall undertake to avail itself of the powers conferred by the act with respect to the creation of building zones within its limits, the local legislative body shall provide for the appointment of a Board of Adjustment of five members; that appeals may be taken to the board by any person aggrieved by any decision of the administrative officer; that the concurring votes of four members of the board shall be necessary to reverse any order, decision, or determination of any such administrative officer; and that any person or persons jointly or severally aggrieved by any decision of the Board of Adjustment may petition the circuit court of the city or county in which the property affected is located for a writ of certiorari directed to the Board of Adjustment for a review of its decision.
So in this case, following the failure of the Board of Adjustment to sustain his appeal, Kaegel filed a petition in the Circuit Court of St. Louis County alleging the illegality of the decision of the board, and praying for the issuance of a writ of certiorari to review the legality of its action.
The writ was thereafter issued by the court, and upon return being made, a hearing was had at which additional testimony was taken as Section 7418 expressly permits to be done in such cases whenever it appears to the court that testimony is necessary for a proper disposition of the matter.
At the conclusion of the hearing the court entered a decree affirming the action and decision of the Board of Adjustment, and Kaegel's appeal to this court has followed in the usual course.
According to the testimony, it appears that the premises are already being used as a place for giving instruction, not only in aesthetic dancing, but also, to a lesser degree, in tap, toe, and ballroom dancing, with the activities in charge of Kaegel's wife, a professional dancer, who is known professionally as Jeannette Lipp. Save for a part-time pianist who is employed by the hour, her only assistant is her sister-in-law, who stays on the premises with the family from Monday to the end of each week, but returns to her home in the country for each week end.
The students who come to Mrs. Kaegel for instruction range from children three or four years old to boys and girls of high school age, in addition to which she has classes for women, which meet of mornings at the end of the children's classes and continue until about 12:00 o'clock. Instruction is given from 9:30 until 5:00 o'clock each day for six days in the week, and again in the evening until 9:30 or 10:00 o'clock, during which period she has her four largest classes. Pupils are instructed in groups of from only a few children to as many as fourteen or fifteen in the class, and the music is supplied either by a piano or by a Victrola, which she uses part time in her instruction. Her classes are conducted for compensation, and continue during about nine months of the year, with the school practically closed in summertime.
While appellant makes some eight assignments of error on the part of the court below, he concedes in his brief that the one question before this court, just as was the case before the court below, is the proper interpretation of the zoning ordinance of the City of Webster Groves as it applies to his situation as shown by the undisputed evidence. In other words, was appellant, under the applicable provisions of the ordinance, legally entitled to receive from the Building Commissioner a certificate of occupancy for the use of his remodeled premises for the combined purposes of a residence and a place for giving instruction in dancing, or was the latter use of a character not permitted in the particular district of the city in which appellant's property is located so as to have warranted the action of the Building Commissioner in refusing the application for a certificate of occupancy upon the ground assigned? There is no claim that the ordinance is arbitrary or unreasonable either in its general scope or as particularly applied to appellant himself, but on the contrary the whole claim is that appellant's proposed use of his premises as a place for giving instruction in dancing is permissible under the classifications made by the ordinance, and that he is therefore legally entitled to have a certificate of occupancy issued to him for his use of the premises for the purpose he intends.
The zoning ordinance divides the territory of the City of Webster Groves into districts, and provides certain use regulations for the buildings and land located within the respective districts. Generally speaking,...
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