Veal v. Leimkuehler

• Decision Date: 20 April 1954
• Docket Number: No. 29009,29009
• Citation: 267 S.W.2d 387
• Parties: VEAL et al. v. LEIMKUEHLER et al.
• Court: Missouri Court of Appeals

Page 387

267 S.W.2d 387

VEAL et al. v. LEIMKUEHLER et al.

No. 29009.

St. Louis Court of Appeals, Missouri.

April 20, 1954.

Motion for Rehearing or to Transfer to Supreme Court Denied

May 17, 1954.

Ackerman & Schiller, Clayton, Timothy R. Veal, St. Louis, for appellants.

Alphonse Lynch and Theodore McMillian, St. Louis, for intervenors.

Samuel H. Liberman, City Counselor, John J. Shanahan, Associate City Counselor, St. Louis, for respondents.

ANDERSON, Presiding Judge.

This is an appeal from a final judgment of the Circuit Court dismissing appellants' motion in the nature of a writ of error coram nobis to set aside an adverse judgment.

The judgment sought to be set aside was one affirming an order of the Board of Adjustment of the City of St. Louis which revoked an alteration permit granted by the building commissioner to appellants, Timothy and Olivette Veal. This judgment was affirmed by this court--Veal v. Leimkuehler, 249 S.W.2d 491.

Appellants are the owners of property located at 4311 Page Boulevard in St. Louis. On March 6, 1950, appellants made application to the building commissioner for a permit to alter the building on said premises, and for a permit to occupy the building as a funeral home. At that time, under Zoning Ordinance No. 35003, as amended by Ordinance No. 35009, effective May 26, 1926, the property was zoned for commercial use. On April 25, 1950, Ordinance No. 45309, a new zoning ordinance, was approved, to become effective thirty days thereafter. Under said ordinance the property was re-zoned and classified as 'C' four-family dwelling district. On May 13, 1950, the building commissioner issued to appellants Alteration Permit No. S 4566, and Occupancy Permit No. S 4567, which granted appellants permission to alter their said building and occupy same for use as a funeral home. Thereafter, and on August 17, 1950, Block Unit No. 48 filed an appeal to the Board of Adjustment seeking revocation of Permit No. S 4566. A hearing thereon was held on September 13, 1950, which resulted in an order revoking said Permit No. S 4566. A rehearing was held on September 27th, and on October 25th the Board affirmed the order of September 13, 1950, revoking said permit. A summary of the evidence adduced at these hearings is contained in our former opinion. Veal v. Leimkuehler, 249 S.W.2d, loc. cit. 493-494. The Board ruled that 'the 1950 ordinance has placed this property in the 'C' four-family dwelling district, and the holder of the permit has not expended an appreciable sum of money to carry out the work for which it was issued, and has not established non-conforming use. To allow the permit to remain in force would be a distinct detriment to this predominantly residential neighborhood.'

Thereafter, appellants applied to the Circuit Court for certiorari, their petition praying that the Board's order be reversed on the grounds: (1) that petitioners had a lawful non-conforming use on the effective date of the new zoning ordinance; (2) of undue hardship; and (3) that the order violated Article 1, Sections 10 and 13 of the Missouri Constitution, V.A.M.S. and the Fourteenth Amendment to the Federal Constitution. The Board filed a return, attaching thereto a transcript of the proceedings had before the Board, and alleging that the said permit was properly and lawfully revoked.

The cause was submitted to the court on the pleadings. The court thereafter entered its judgment affirming the order of the Board, which judgment, as heretofore stated, was affirmed by this court.

The issue tried before the Board of Adjustment was whether appellants had acquired a vested right to the continued enjoyment of the permit by making and contracting for substantial expenditures in reliance thereon, and whether they had established a non-conforming use prior to the effective date of the new zoning ordinance.

By their motion, in the nature of a writ of error coram nobis, it is averred that the Board of Adjustment, by virtue of the provisions of the zoning ordinance and the building code of the City of St. Louis, did not have jurisdiction to revoke either a building permit or certificate of occupancy lawfully issued; and that the court, had it been apprised of the applicable ordinances, would have set aside the decision of the Board.

The sections of the building code relied on by appellants, and introduced at the hearing on the motion, are as follows:

'Section 27. Permits required--Except for minor repairs as hereinafter defined no sign, booth, structure, devise, apparatus or equipment of any nature which is governed by the requirements of this Code, shall be installed, altered, repaired, erected, moved, removed, or demolished, until application for permit therefor shall have been made to and approved by the building commissioner or designated official and a permit issued by him after inspection of the premises, if he deems such necessary. * * *.'

'Section 28. Compliance with zoning ordinance required. No permit shall be issued for the erection of any structure until application for a certificate of occupancy or use shall have been filed with the building commissioner and approved by him as covering an occupancy for use complying with the requirements of the zoning ordinance and of this Code, nor shall such structure be occupied or used prior to the issuance of such certificate.'

'Section 29. Change in occupancy. There shall be no change in the type of occupancy of any structure except in accordance with the provisions of this Code. No change shall be made in the type of occupancy group of any structure which will increase the floor loads or the number of persons or families permitted therein, until the building commissioner, upon application therefor, shall have made a special inspection and issued a new permit for such change in type of occupancy.'

'Section 34. Time limits or extension of permits.--Except where work under the terms of any permit shall have been begun and pursued with reasonable continuity within one year of the date thereof, and except where the building commissioner, or designated official, shall deem it proper to extend the period thereof, such permit shall expire by limitation within one year from the date of issue...