Women's Christian Ass'n of Kansas City v. Brown

• Decision Date: 03 December 1945
• Docket Number: 39402
• Citation: 190 S.W.2d 900,354 Mo. 700
• Parties: Women's Christian Association of Kansas City, a Corporation, v. Victor Brown and Sadie Brown, Appellants
• Court: Missouri Supreme Court

190 S.W.2d 900

354 Mo. 700

Women's Christian Association of Kansas City, a Corporation, v. Victor Brown and Sadie Brown, Appellants

No. 39402

Supreme Court of Missouri

December 3, 1945

Appeal from Jackson Circuit Court; Hon. Albert A. Ridge Judge.

Affirmed.

William G. Boatright for appellants.

(1) The Zoning Order expressly provides that a lawful non-conforming use, building or structure existing on the effective date may be continued or changed to another non-conforming use of the same classification or of a higher classification. Sec. 16 Jackson County Zoning Order. (2) No permit of the Zoning Engineer was required before defendants had the right to (1) make interior alterations and ordinary repairs and (2) change the use to another of the same classification. Section 11 of the Enabling Act and Section 21 of the Zoning Order, properly construed, do not so require. Sec. 11, Enabling Act, Laws 1941, p. 487; Sec. 21, Jackson County Zoning Order. (3) Zoning laws, being in derogation of common law rights to use real estate, are to be strictly construed in favor of the property owner whose use is sought to be restricted. 440 East 102nd St. Corp. v. Murdock, 285 N.Y. 298, 34 N.E.2d 329; People v. Bales, 229 N.Y.S. 550, affirmed 250 N.Y. 598, 166 N.E. 339; City of Little Rock v Williams, 177 S.W.2d 924. (4) Alterations and repairs of the character made by defendants to their building have been construed by other courts not to constitute structural alterations. Klumpp v. Rhoades, 200 N.E. 153; Paye v. City of Grosse Pointe, 271 N.W. 826; 440 E. 102nd Street Corp. v. Murdock, 34 N.E.2d 329; City of Little Rock v. Williams, 177 S.W.2d 924; People v. Leo, 178 N.Y.S. 851. (5) The provision of Section 11 of the Enabling Act and Section 21 of the Zoning Order, that the "use of any land" shall not be changed without first obtaining a permit from the Zoning Engineer does not require a permit to change the use of a lawful non-conforming building or structure to another non-forming use of the same classification. The land use was still the same, i.e., the same non-conforming building or structure. (6) Even if permit was required, plaintiff was not entitled to injunctive relief. Plaintiff's petition proceeded on the sole theory that defendants were changing their lawful non-conforming use to another non-conforming use of a lower classification rather than to one of the same classification or of a higher classification. (7) The raising of the constitutional question was timely. Kristanik v. Chevrolet Motor Co., 335 Mo. 60, 70 S.W.2d 890; Hartzler v. Metropolitan St. Ry., 218 Mo. 562, 117 S.W. 1124; Beck v. Kansas City Pub. Serv. Co., 37 S.W.2d 589; Mesenbrink v. Boudreau, 171 S.W.2d 728. (8) Zoning laws and regulations must find their justification in a proper exercise of the police power exerted in the interest of public health, safety, morals or general welfare. Glencoe Lime & Cement Co. v. St. Louis, 341 Mo. 689, 108 S.W.2d 143; State of Washington ex rel. v. Roberge, 278 U.S. 116, 73 L.Ed. 210, 49 S.Ct. 50, 86 A.L.R. 654. (9) The discretion vested in the Zoning Engineer to grant or refuse a permit for alterations, repairs or use under the circumstances of this case constitutes an arbitrary one because no standards of guidance or limitation are set up by either the Enabling Act or the Zoning Order. St. Louis v. Polar Wave Ice & Fuel Co., 317 Mo. 907, 296 S.W. 993, 54 A.L.R. 1082; Annotation, 54 A.L.R. 1104. (10) The discretion vested in the Zoning Engineer to grant or refuse a permit for alterations, repairs or use where the alterations or repairs are to adapt a lawful structure to a use expressly recognized and sanctioned by the Zoning Order is not reasonably necessary to a proper exercise of the police power invoked for the regulation of the use or real estate under zoning laws. State of Washington ex rel. v. Roberge, 278 U.S. 116, 73 L.Ed. 210, 49 S.Ct. 50, 86 A.L.R. 654; Glencoe Lime & Cement Co. v. St. Louis, 341 Mo. 689, 108 S.W.2d 143.

Lathrop, Crane, Sawyer, Woodson & Righter, Cyrus Crane, James F. Walsh and Rudolph Heitz for respondent.

(1) The decisions of the county zoning officials, that (1) a permit was required, and (2) that defendants were not entitled to such a permit, are final for the purposes of this proceeding. Sec. 12, Laws 1941, pp. 487, 488; People v. Calvar Corp., 286 N.Y. 419, 36 N.E.2d 644; Home Fuel Oil Co. v. Borough of Glen Rock, 118 N.J.L. 340, 192 A. 516; Payne v. Borough of Sea Bright, 14 N.J. Misc. 756, 187 A. 627; Glencoe Lime & Cement Co. v. St. Louis, 341 Mo. 689, 108 S.W.2d 143; Secs. 16, 21, 22, Zoning Order of Jackson County, Mo. (2) Defendants were required to secure a permit to change from one non-conforming use to another non-conforming use of the same classification. Sec. 11, Laws 1941, p. 487; Secs. 11, 16, 21, Zoning Order of Jackson County, Mo. (3) A permit was required to revamp, alter and repair. Sec. 12, Par. (3), Laws 1941, p. 488; Sec. 16, Zoning Order of Jackson County, Mo.; In re Botz, 236 Mo.App. 566, 159 S.W.2d 367; De Felice v. Zoning Board of Appeals, 130 Conn. 156, 35 A.2d 635. (4) A permit was required to make alterations. Sec. 11, Laws 1941, p. 487; Secs. 4, 21, Zoning Order of Jackson County, Mo., (5) Plaintiff is entitled to injunctive relief. Sec. 15, Laws 1941, p. 489; Sec. 23, Zoning Order of Jackson County, Mo.; 54 A.L.R. 366; 129 A.L.R. 885; Holzbauer v. Ritter, 184 Wis. 35, 198 N.W. 852; Pritz v. Messer, 112 Ohio St. 628, 149 N.E. 30. (6) The zoning order does not give an arbitrary discretion to deny or grant permits and, therefore, due process is not lacking. Secs. 17, 18, 21, Zoning Order of Jackson County, Mo.; State of Washington ex rel. v. Roberge, 278 U.S. 116, 73 L.Ed. 210, 49 S.Ct. 50; St. Louis v. Polar Wave Ice & Fuel Co., 317 Mo. 907, 296 S.W. 993; Ex parte Williams, 345 Mo. 1121, 139 S.W.2d 485; St. Louis v. Kellmann, 295 Mo. 71, 243 S.W. 134.

OPINION

Hyde, P.J.

This is a suit in equity in which an injunction was sought against defendants, alleged to be operating a dance hall upon their property in violation of the zoning laws and orders applicable to Jackson County. Such violation was found by the trial court and a permanent injunction ordered. Defendants have appealed, claiming their loss, if such use is permanently enjoined, will exceed $ 7500.00.

Plaintiff owned a 35 acre tract, between Wornall Road and Summit Street south of 81st Street, on which it operated the Gillis Home for orphans, where fifty to sixty orphans were enrolled at the time of the trial; and, on the same premises, it also operated the Armour Memorial Home for aged persons. Defendant owned 13 acres south of the city limits of Kansas City. On April 26, 1943, a zoning order was made by the County Court under authority of Laws 1941, p. 481, which placed defendants' property in an "A" district, zoned for residential purposes. However, both the order (Sec. 16) and the Act (Sec. 8) permitted continuance of an existing non-conforming use.

At the time of making the zoning order, there was located on defendants' land a large frame building, 200 feet by 210 feet, which had been used by defendants' vendors as a riding academy. Riding instruction had been given by a former United States Cavalry Sergeant up to 1942, when defendants purchased it; also both show horses and riding horses had been boarded there for their owners. This building was about 40 feet high in the center. Its weight was carried on steel girders 85 feet long and about 20 feet high, placed about 17 feet apart. In the center of the building, as originally constructed, was a riding and show ring; and around three sides of the inside of the building there were approximately 100 horse stalls. It had only a dirt floor. The building was 115 feet south of the north property line and 55 feet east of the west property line. The shortest distance from defendants' building to the nearest one of plaintiff's buildings (a dormitory) was 625 feet. Outside of the building, there was another riding ring, lighted by electric lights on poles so that it could be used at night.

There was no substantial evidence to show that defendants ever operated a riding academy. When they first purchased the property, in 1942, they considered doing so and bought four riding horses and some equipment from the former owners. However, defendants' evidence showed that they never employed a riding instructor; and upon investigation of liability insurance, for such business, decided its cost was too high for profitable operations under then existing wartime conditions. They, therefore, operated the place as a boarding stable for both riding horses and show horses. In some instances, they furnished all feed and care for horses left there, while in others the owners sent out their own grooms and feed. Owners would come to the premises to ride or exercise their horses. During the summer of 1943, defendants also raised chickens in the building.

In October, 1943, with advice of counsel, defendants applied for a permit to operate a roller skating rink and amusement center. This application was denied. Thereafter, on January 11, 1944, on advice of another attorney, they applied for a permit to change the land use from a boarding stable to a chicken dinner and dancing place and this was denied. Defendants then employed a third attorney, who advised defendants that they were not required to obtain a permit to change the use of their premises to a dance hall and chicken dinner place or to have a permit to make the necessary alterations for that change of purpose. Defendants decided to follow the advice of this attorney (present counsel was not one of these three attorneys) and did, in June of 1944 improve their premises for use as a dance hall. The County Zoning Engineer,...