Wolfner v. Bd. of Adj. City of Warson Woods, ED 81434.
| Decision Date | 17 June 2003 |
| Docket Number | No. ED 81434.,ED 81434. |
| Citation | 114 S.W.3d 298 |
| Parties | Greg & Terri WOLFNER, Respondents, v. BOARD OF ADJUSTMENT OF THE CITY OF WARSON WOODS, Appellant. |
| Court | Missouri Court of Appeals |
Paul V. Rost, St. Louis, MO, for appellant.
David M. Stolze, Clayton, MO, Daniel R. Schramm, Chesterfield, MO, for respondent.
Before MARY R. RUSSELL, P.J., CLIFFORD H. AHRENS, J., and BOOKER T. SHAW, J.
Appellant, the Board of Adjustment of the City of Warson Woods ("the Board"), appeals from the trial court's judgment reversing the Board's denial of a zoning variance to respondents, Greg and Terri Wolfner ("the Wolfners"). We find the Board's third point on appeal dispositive and reverse and remand with directions for the trial court to enter judgment consistent with this opinion.
In 1939, Mr. Willard Trower purchased a home located on a lot at 1659 Dearborn for $8,500 ("Principal Lot"). In 1941, what is now the City of Warson Woods, adopted the current and applicable zoning regulations.1 Although the Principal Lot did not meet the minimum area and width requirements for a residential family dwelling under the new zoning regulations, it was exempted under the lawful nonconforming use exemption because Mr. Trower's home had been built prior to the enactment of the regulations. In 1945, Mr. Trower purchased the lot adjacent to the Principal Lot at 1657 Dearborn for $100 ("Side Lot"), which also did not meet the minimum area and width requirements of the zoning regulations for a residential family dwelling. In the late 1980's early 1990's, Mr. Trower added his wife, Mrs. Joyce Ann Trower's name to the titles of both lots. Subsequently, Mr. Trower died and Mrs. Trower acquired sole title to both the Principal Lot and the Side Lot.
From 1945 to 1995, the Side Lot was used solely as a sideyard by the Trowers. In 1995, Mrs. Trower sold the Principal Lot, but retained ownership of the Side Lot. The purchaser of the Principal Lot attempted to purchase the Side Lot along with the Principal Lot from Mrs. Trower, but she rejected the offer. Likewise, individual and joint attempts were made by the adjacent property owners to purchase the Side Lot. Nonetheless, Mrs. Trower rejected all of these offers.
On May 5, 1997, Mrs. Trower requested a zoning variance from the Board so that she could sell the Side Lot to a homebuilder. The Side Lot was located in Residential District "B." Section 415.020(B)(4) of the zoning regulations provides:
Every family dwelling hereafter erected or structurally altered in the "B" Residence District shall provide a lot area of not less than eight thousand seven hundred fifty (8,750) square feet, and that no lots shall have an average width at the building line of less than seventy (70) feet.
Warson Woods, MO, Code of Ordinances, Title IV, Section 415.020(B)(4) (1995). However, the Side Lot is only 7,500 square feet in area and 60 feet in width. After a hearing, the Board issued written findings of fact, denying Mrs. Trower's variance request. One of the Board's reasons for denying Mrs. Trower's variance request was that the Board believed she had created the practical difficulty of which she complained by not selling the Side Lot along with the Principal Lot. Mrs. Trower appealed to the circuit court, which affirmed the Board's denial. Mrs. Trower did not appeal the circuit court's judgment.
On January 19, 1998, the Wolfners entered into a residential sales contract with Mrs. Trower for the purchase of the Side Lot. The sales contract included an addendum which expressly provided that the contract is contingent upon the
[p]arties receiving [the] necessary written approval from the City of Warson Woods or [t]he Circuit Court of St. Louis County, including [a] variance for lot frontage and lot size, by approving the lot as a buildable lot. If within 90 days after contract acceptance [the Wolfners] are not completely satisfied... this contract may be declared null and void with earnest money refunded.
On February 24, 1998, the Wolfners applied for a building permit for the Side Lot. On March 3, 1998, the building commissioner denied their application because of the Side Lot's failure to meet the minimum zoning requirements.2 On April 8, 1998, the Wolfners, acting as agents for Mrs. Trower, applied to the Board for a zoning variance. Subsequently, in a letter dated April 21, 1998, the City Attorney for the City of Warson Woods informed the Wolfners, that "if [they] purchase[d] or otherwise [took] fee title to the property, they [would be] do[ing] so with full knowledge that the Side Lot fails to meet the area and width requirements of the City's zoning code and, thus, is not suitable for a residential structure." Nevertheless, the Wolfners purchased the Side Lot from Mrs. Trower and title to the property was transferred to them by quitclaim deed on May 28, 1998. On December 1, 1998 a hearing was held on the Wolfners' zoning variance request and the following day, the Board denied the Wolfners' request and issued findings of fact in support of their decision.
Subsequently, the Wolfners filed a Petition for Writ of Certiorari in the Circuit Court of St. Louis County to review the Board's denial of their zoning variance for the Side Lot. The trial court reversed the decision of the Board and directed the Warson Woods Building Commissioner and the Board to grant the Wolfners a zoning variance. The Board appealed to this Court and we reversed and remanded the case to the trial court to determine whether the Petition for Writ of Certiorari was barred by the statute of limitations for failure to exercise due diligence in giving notice to the abutting property owners. Wolfner v. Board of Adjustment of City of Warson Woods, 39 S.W.3d 76, 78 (Mo.App. E.D.2001). Thereafter, the Wolfners notified each of the four abutting landowners of the Petition for Writ of Certiorari by certified mail. On remand, the trial court determined that the Wolfners had served the abutting landowners such that the statute of limitations was not implicated and again directed the Warson Woods Building Commissioner and the Board to grant the Wolfners a zoning variance. The Board appeals from this judgment.
The Board raises six points on appeal. In its third point, the Board argues the trial court erred in reversing the Board's decision to deny the Wolfners a zoning variance because it was based on substantial and competent evidence on the whole record and that the Board did not abuse its discretion. We agree. Because we find the Board's third point dispositive, we do not address the Board's other points on appeal.
"On appeal, we review the findings and conclusions of the Board, not the judgment of the circuit court." Raskin v. City of St. Louis, 87 S.W.3d 911, 912 (Mo. App. E.D.2002). The scope of our review of a board of adjustment decision is limited to determining whether the decision was authorized by law and supported by competent and substantial evidence upon the whole record. Id. We cannot substitute our judgment for that of the Board of Adjustment. Campbell v. City of Columbia, 824 S.W.2d 47, 49 (Mo.App. W.D. 1991). We view the evidence in the light most favorable to the Board's decision, giving it the benefit of all reasonable inferences. Id. If the result reached by the Board could reasonably have been reached, we are without authority to disturb the Board's finding unless it was clearly contrary to the overwhelming weight of the evidence. Id.
In Campbell, 824 S.W.2d at 49, the court, in affirming the Board's denial of a conditional use permit to build a concrete plant, held that a zoning board acts strictly in an administrative capacity in the exercise of discretionary power delegated to it by the city legislative body to enforce zoning regulations. "The granting of a variance... is an authorized act of discretion on the part of the administrative board where indicated by special circumstances which justify the alleviation of hardship." Wolfner v. Board of Adjustment of City of Frontenac, 672 S.W.2d 147, 150 (Mo.App. E.D.1984).
In order to limit the discretion to grant or deny a building permit, the standards under which the board operates must be sufficiently definite and clear. Campbell, 824 S.W.2d at 49. In this case, the standards set forth under Section 410.030 of the zoning regulations of the City of Warson Woods meet that criteria. Section 410.030(7) provides that the Board of Zoning Adjustment has the authority
[t]o authorize upon appeal, whenever a property owner can show that a strict application of the terms of this Title relating to the construction or alteration of buildings or structures or the use of land will impose upon him/her practical difficulties or unnecessary hardship, such variations of the strict application of the terms of this Title as are in harmony with its general purpose and intent but only when the Board is satisfied that a granting of such variation will not merely serve as a convenience to the applicant, but will alleviate some practical difficulty or unnecessary hardship so great as to warrant a variation from the comprehensive plan as established by this Title, and at the same time the surrounding property will be properly protected.
Warson Woods, MO, Code of Ordinances, Title IV, Section 410.030(7) (1995) (emphasis added).
"The zoning powers vested in charter counties such as St. Louis County by the Missouri Constitution, Art. VI, Section 18(c), are designed to promote public safety and welfare." Hutchens v. St. Louis County, 848 S.W.2d 616, 619 (Mo. App. E.D.1993); see also St. Louis County v. City of Manchester, 360 S.W.2d 638, 642 (Mo. banc 1962). Therefore, such counties should exercise their power to grant a variance sparingly and in accordance with the public welfare. Hutchens, 848 S.W.2d at 619....
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