Stickelber v. Board of Zoning Adjustment
| Decision Date | 07 April 1969 |
| Docket Number | No. 25132,25132 |
| Citation | 442 S.W.2d 134 |
| Parties | David A. STICKELBER, Appellant, v. BOARD OF ZONING ADJUSTMENT, Leo Eisenberg, Chairman, James L. Young, Jr., C. Harold Mann, John D. O'Flaherty, and Clair Schroeder, Members of the Board of Zoning Adjustment, and Jack D. White, and William M. Austin, Walker R. James, and Monroe B. Sawyer, Partners d/b/a Oak Street Enterprises, Respondents. |
| Court | Missouri Court of Appeals |
Henry L. Graf, Kansas City, for appellant.
William M. Austin, North Kansas City, Richard N. Ward, Asst. City Counselor, for respondents.
Plaintiff David A. Stickelber appeals from a judgment of the Circuit Court of Jackson County, Missouri, affirming, after review by writ of certiorari, the decision of the Board of Zoning Adjustment of Kansas City, Missouri.
Respondent Oak Street Enterprises was a partnership composed of William M. Austin, Walter R. James and Monroe B. Sawyer. They had examined the zoning ordinances and maps of Kansas City, Missouri and had thereupon concluded that the property located at 4333 Oak Street in Kansas City, Missouri, was in the R--4 Low Apartment District and therefore suitable for their intended purposes. They purchased it on January 7, 1967. Some months later, they obtained a building permit authorizing the construction upon that site of a seventeen unit apartment building. On December 14, 1967, Mr. Jack D. White, Building Code Engineer, suspended the permit because the building plans described a twenty feet front yard 'set back', whereas he appears to have tentatively concluded that thirty-one feet 'set back' was required. To dispel any lingering uncertainty, he, by letter, requested the Board of Zoning Adjustment 'to determine if the property in question is zoned District R--4 Low Apartments'. Oak Street Enterprises, on their part, appealed the suspension of the building permit and in so doing, requested the Board to authorize the variance of a twenty feet 'set back' for the apartment building project. Appellant Stickelber opposed this requested variance, not only because it was an incidence of 'spot zoning', among other reasons, but also because the lawful zoning applicable to the subject site had bifurcated it into R--2a (Two Family Dwelling District) for 85 feet of its 118 feet width and R--4 (Low Apartment District) for the remaining 33 feet. He contended also that when Chapter 65 (Zoning Ordinance) was later amended, new zoning maps supplanted those hitherto applicable and in so doing the zoning designation for the entire Oak Street site was adventitiously and unlawfully changed to R--4.
On January 23, 1968, the board conducted a hearing, received numerous exhibits and other evidence from witnesses. Appellant Stickelber did not personally appear but his opposition to the requested variance was presented by Mr. Henry Graf, his attorney. The board ruled that the subject Oak Street site was entirely zoned R--4 Low Apartment District and also, in effect, approved the requested 'set back' variance. Appellant had certiorari thereof, and this appeal follows.
Reviews of the decisions of boards of adjustment by writ of certiorari are authorized and prescribed by Section 89.110, V.A.M.S.1959, of the Zoning Enabling Act. Section 65.320 of the Revised Ordinances of Kansas City, Missouri adopts the essential language of the enabling statute. The relevant portions of the ordinance provide:
Respondents contend that the evidence does not support plaintiff Stickelber's status as an 'aggrieved person' within the meaning of the statute and ordinance cited, as no evidence was presented that plaintiff owned property, was a resident of Kansas City or was 'in any way affected by the decision of the Board of Adjustment'. Therefore, plaintiff was entitled neither to the review of the Board's decision by certiorari nor to this appeal from the court's ruling thereon. We concur with respondents and conclude that under the evidence, plaintiff was not an 'aggrieved person'.
There is no competent record evidence of either identity or interest to link plaintiff with the proceedings before the Board of Zoning Adjustment. He did not attend the hearing before it and gave no testimony. In effect, the single reference to him in the entire record was his attorney's declaration 'I work for Mr. David Stickelber, who lives at 4335 McGee Street'. As the attorney was not then sworn, even that inconsequential offering cannot be considered in evidence. State ex rel. Cooper v. Cowan, Mo.App., 307 S.W.2d 676; compare, also, Cohen v. Ennis, Mo.Sup., 318 S.W.2d 310. Appellant refers us as well to the testimony of witness Arlene Lindsey, presumably as the basis for an inference that appellant owned property in the vicinity of the subject site. She appeared on behalf of her father, Mr. Morris, who owned property at 4300 McGee and was instructed by him to express his views in favor of allowing the variance respondents sought. Mr. Graf, appellant's attorney repeatedly objected to her testimony, the rulings to which are unclear. The entire colloquy involving witness Lindsey, attorney...
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...property owners to contest changes in use of property, Allen v. Coffel, 488 S.W.2d 671 (Mo.App.1972); Stickelber v. Board of Zoning Adjustment, 442 S.W.2d 134 (Mo.App.1969). The ordinance in question approved the redevelopment plan under Missouri's Urban Renewal Law, and authorized the city......
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...rule, they have applied these criteria of standing in zoning cases interchangeably. 1 Recently, we observed in Stickelber v. Board of Zoning Adjustment, Mo.App., 442 S.W.2d 134, that whether a protectable interest is shown so as to invest standing in such controversies is a matter for ad ho......
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