Women's Kansas City St. Andrew Soc. v. Kansas City, Mo.

• Decision Date: 20 April 1932
• Docket Number: No. 9348.,9348.
• Citation: 58 F.2d 593
• Parties: WOMEN'S KANSAS CITY ST. ANDREW SOC. v. KANSAS CITY, MO.
• Court: U.S. Court of Appeals — Eighth Circuit

58 F.2d 593 (1932)

WOMEN'S KANSAS CITY ST. ANDREW SOC. v. KANSAS CITY, MO.^*

No. 9348.

Circuit Court of Appeals, Eighth Circuit.

April 20, 1932.

Frank Schibsby, of Kansas City, Mo., for appellant.

John B. Pew and Marcy K. Brown, Jr., both of Kansas City, Mo. (George Kingsley, of Kansas City, Mo., on the brief), for appellee.

Before STONE, KENYON, and GARDNER, Circuit Judges.

KENYON, Circuit Judge.

This is an action brought to restrain appellee, hereinafter designated defendant; from enforcing against appellant, henceforth designated plaintiff, the terms of a zoning ordinance to prevent the use of plaintiff's property, hereafter called the locus, as a philanthropic "old ladies' home"; the claim being that the restrictions of the ordinance deprive plaintiff of its property without due process of law. The trial court found against plaintiff, and dismissed the bill of complaint. This appeal followed the adverse decree.

The facts are as follows:

Plaintiff is a charitable corporation organized under the laws of Missouri, and proposes to use the locus as a home for elderly white ladies who to be admitted must have reached the age of 65 years, must be sound in mind and body, and must pay an original entrance fee of $800. The locus was given to plaintiff for this purpose by Mrs. Mary Gair, a wealthy woman of Kansas City, in memory of a deceased daughter. It consists of a lot 150 feet wide by 205 feet deep with a three-story, seventeen-room stone house built thereon. Structurally it is a single family residence property, and there is no question but that the physical property itself, as distinguished from the use to which it may be put, is in entire harmony with all of defendant's zoning regulations. The sole question of this case arises from defendant's attempt to forbid the particular use which plaintiff intends to make of it.

Defendant's zoning ordinance, following the usual pattern of modern zoning ordinances, has platted the city into what may be called, in accordance with the "uses" to which they are primarily "dedicated," first and second residence, retail business or commercial, light and heavy industrial, and unrestricted, use districts. Each use district except the last named, while dedicated primarily to a particular class of uses, is closed only to uses of a lower classification. Thus, a first residence district is one dedicated exclusively to what are classified by the ordinance as class U-1 uses; but a second residence district, while dedicated primarily to class U-2 uses, is not closed to class U-1 uses; a retail business district, while dedicated primarily to class U-3 uses, is closed only to class U-4, class U-5, class U-6, and class U-7 uses; and so on until class U-6 uses are assigned to districts altogether unrestricted, unrestricted to class U-7 uses as much as to class U-1, class U-2, class U-3, class U-4, or class U-5, uses. No territory has been set aside as the particular home of class U-7 uses; they were simply allowed the benefit of the failure to restrict class U-6 territory, and of section 10 (1) (e) of the ordinance, which provided that the board of zoning appeals could "permit the location of a class U-7 use in any use district provided such location will not seriously injure the appropriate use of neighboring property." And section 10 (2) of the ordinance provided that "a class U-7 use existing in any use district at the time of the passage of this ordinance shall be deemed an authorized use upon the lot devoted to such use at the time of the passage of this ordinance."

Class U-7 uses are called by the ordinance "Special Classes," and include: (1) Aviation field; (2) amusement park; (3) philanthropic or eleemosynary use or institution, hospital or sanitarium, institution for the care of feeble-minded or insane, or penal or correctional institution; (4) cemetery; (5) crematory; (6) sewage, refuse, or garbage disposal plant; (7) refuse dump.

In the light of the provisions of sections 10 (1) (e) and 10 (2) quoted above, it does not seem to have been the intention of the framers of the ordinance to exclude class U-7 uses from the city altogether, or to confine them to the unrestricted districts set apart in the river bottoms in the north part of the city as the special home of the uses of a nuisance class listed in class U-6 (petroleum refining, cement, lime, gypsum, or plaster of paris manufacture, chlorine or hydrochloric, nitric, picric, sulphurous, or sulphuric acid manufacture, smelting of copper, tin, zinc, or iron ores, manufacture or storage of explosives, except fireworks, distillation of bones, fat rendering, glue manufacture, slaughter of animals, stockyards, fertilizer manufacture from organic materials, reduction or dumping of garbage, offal, and dead animals, and "any other use the classification of which is not otherwise herein provided for"). It seems rather to have been their intention to recognize a class of uses, the location of which, whether in a district of high or of low use classification, could best be determined ad hoc, as the need should arise in each particular case. Property already devoted to a class U-7 use could continue to be devoted to that particular use, regardless of the use district in which it should happen to be located; and the devotion to a class U-7 use of property not already so devoted was to be determined in each particular case by the nature of the particular class U-7 use with reference to the district in which it should wish to locate.

Such being the nature of the class U-7 group of uses, the presumption of unreasonableness that first arises from the fact alone that all philanthropic and eleemosynary institutions as well as hospitals and sanitariums are placed by the ordinance alongside cemeteries, crematories, sewage and garbage disposal plants, and refuse dumps, in what appears at first glance to be a subnuisance classification, disappears.

Plaintiff in the instant case is concededly a philanthropic or eleemosynary institution within the meaning of the ordinance, and seeks to devote to a philanthropic or eleemosynary use property that is concededly within a first residence, or class U-1, use district. Class U-1 uses, as listed in the ordinance, include: (1A) Single-family dwelling. Publicly owned park. (1) Two-family dwelling. (2) Church. School. Community center building. Public library. Public museum. (3) Private club or fraternal order, excepting a club, the chief activity of which is a service customarily carried on as a business. Public playground. Public recreation building. Water supply reservoir, filter bed or tower. Passenger station. Railway right of way not including railway yards. (4) Farming. Greenhouse. Nursery. Truck gardening.

In accordance with section 10 (1) (e) of the ordinance, quoted above, plaintiff on May 24, 1929, filed an application with the board of zoning appeals to have the locus re-zoned so as to permit of the class U-7 use to which plaintiff intended to devote it. The application was opposed by interested parties, and was denied by the board. Plaintiff then took certiorari proceedings to review the board's decision to the circuit court of Jackson county, Mo., which, however, sustained the board. Plaintiff duly appealed the circuit court's decision to the Supreme Court of Missouri, but dismissed the appeal when the Supreme Court decided the case of State ex rel. Nigro v. Kansas City et al., 325 Mo. 95, 27 S.W. (2d) 1030.

In that case it was determined that in a case of re-zoning the powers of the board of zoning appeals were limited to the making of recommendations to the city council. And an amendment to the zoning ordinance made June 2, 1930, provided that a change in use could likewise be effected only by another ordinance duly enacted by the council.

It thus became useless for plaintiff to carry further proceedings that were intended to compel the board of zoning appeals to do something which it had no power to do; and it next sought to have enacted by the city council an ordinance effecting the desired re-zoning or change in use. In this procedure plaintiff was again opposed by interested parties, and section 5 of the Enabling Act, pursuant to which the defendant's zoning ordinance was enacted, provided that, while the regulations, restrictions, and boundaries originally established could be amended, supplemented, changed, modified, or repealed, yet in case "of a protest against such change duly signed and acknowledged by the owners of ten per cent. or more, either of the areas of the land (exclusive of streets and alleys) included in such proposed change or within an area determined by lines drawn parallel to and one hundred and eighty-five (185') feet distant from the boundaries of the district proposed to be changed, such amendment shall not become effective except by the favorable vote of three-fourths of all the members of the legislative body of such municipality." Section 7263, Revised Statutes Missouri 1929. There having been such a protest, the favorable vote of 5 to 4 which the ordinance effecting the change desired by plaintiff received was insufficient, and it failed of enactment. Plaintiff then commenced the suit in the federal District Court, 54 F.(2d) 1071, which has resulted in this appeal.

We shall use the term "Board of Zoning Appeals" to cover also the "Board of Adjustment."

As the main question before this court is the reasonableness of defendant's ordinance in its proscription of the particular use which plaintiff desires to make of property zoned in a class U-1 use district, it is necessary to describe in some detail the locus in its relation to the district in which it has been zoned.

As before pointed out, the locus is situated on Forty-Fifth street between Rockhill road and Oak street. The numbered streets in Kansas City run east and west, and Forty-Fifth street, after crossing Rockhill road as it proceeds westward, "dead-ends" into Oak street. The distance...