Opinion
No. 21819.
June 1, 1953.
APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY.
Joseph J. Kelly, Jr., William H. Woodson, and Spencer, Fane, Britt and Browne, Kansas City, for appellants.
George H. Maitland, Kansas City, for Jackson County Planning Commission and Jackson County Board of Zoning Adjustment.
J. Marcus Kirtley and James L. Gillham, Independence, for intervenor-respondent.
Upon application by the plaintiffs the trial court granted its writ of certiorari to review the records and to take further evidence in the matter of an order of the defendants, members of the Jackson County Board of Zoning Adjustment, wherein that Board had granted the application of James E. Fortmeyer for a permit to build a drive-in theater on certain land owned by him in said county. The applicant Fortmeyer was permitted to intervene as a defendant. Upon a hearing the trial court denied and dismissed the plaintiffs' petition. The plaintiffs have appealed.
The land in question is approximately a 55-acre tract located, generally, between U.S. Highway 24 on the north, and Bundschu Road on the south, about four miles east of Independence. It is vacant, is used for agricultural purposes, and is zoned as District "D" (agriculture) under the Zoning Order of Jackson County. The surrounding tracts are mostly used for agricultural purposes and are similarly zoned in District "D".
In December, 1950, Fortmeyer applied to the Jackson County Planning Commission for a special permit to use his tract for a drive-in theater. Upon a hearing the Commission denied his application. Thereafter he obtained a hearing of the application before the Jackson County Board of Zoning Adjustment, which consisted of the three incumbent judges of the Jackson County Court, Section 64.120 RSMo 1949, V.A.M.S. At that hearing there were many persons present who testified for or against the application, some being property owners, others merely nearby residents, some representing large tracts and some small. There was a substantial conflict in the testimony of those for and against the project. In the course of that hearing one member of the Board filed a statement of his policy as to such applications, which was ordered filed in the proceeding. That statement, while asserting the rights of individual applicants to have their applications heard on the merits, expressed reluctance to the granting of further applications for drive-in theaters in the county where there was no showing that arrangements had been made by the applicants with the State Highway Patrol for satisfactory and adequate traffic control. In the present application, however, correspondence was shown the Board, wherein arrangements for traffic control had been approved as satisfactory by the State Highway Patrol. The member of the Board filing the memorandum of "policy" and one other, voted in favor of the present application and the third member voted against it. The permit was issued for a period not to exceed five years.
The petition for certiorari alleged that many witnesses favoring the permit and heard by the Board were not qualified to be heard; that the proposed drive-in theater would exceed in height the maximum allowed by the Zoning Order and regulations in effect in said county; that the order of the Board granting the permit was illegal, conflicting and arbitrary, depriving the plaintiffs of their rights without notice and due process of laws that the proposed structure would be offensive and obnoxious to plaintiffs and their neighbors; that the only possible and proper use of the Fortmeyer tract was for agricultural or residential purposes.
The answer of the defendant members of the Board was in the nature of a denial of the controverted facts. The intervenor Fortmeyer filed answer in which he alleged the action of the Board was proper and could not be reversed by the Circuit Court, and denied the controversial allegations of the petition. At the trial, by stipulation, a transcript of the testimony of the many witnesses, pro and con, heard by the Board, was introduced and considered in evidence. Also the complete transcript of all the proceedings before the Board was introduced. By way of additional evidence the trial court heard expert testimony as to the height, other dimensions and features of the proposed drive-in theater, and substantial conflicting evidence was heard as to the effect of the proposed project on the market and sales values of the tracts of land in the vicinity. The plan of the proposed structure showed that the housing for the screen of the theater would be 74 feet in height and 64 feet in width. Other evidence showed that such structures necessarily require a height of not less than 50 feet. Defendants admitted at the trial that the theater contemplated would have a screen in excess of 35 feet in height. That fact is also admitted in respondents' brief on appeal.
Plaintiffs' first point on appeal is that the Circuit Court in certiorari proceedings has power to set aside the action of the County Board of Zoning Adjustment if upon a review thereof it appears that the action of the Board is illegal. This authority is plainly given by Section 64.120, subd. 3 RSMo 1949, V.A.M.S.
Plaintiffs' second point is that the action of the Board of Zoning Adjustment in permitting the Fortmeyer application was illegal, and that the judgment of the Circuit Court affirming such action was erroneous. For their first ground to sustain this point the plaintiffs assert that the evidence clearly shows that the applicant Fortmeyer cannot use his land in the manner which would conform to the zoning laws, orders and regulations in effect in Jackson County under the permit granted him, and does not intend to do so. This requires a consideration of the statutes, zoning orders and regulations affecting the proposed permit.
It is not disputed that as of April 26, 1943, and under the authority of the statutes, Sections 64.010 to 64.160 RSMo 1949, V.A.M.S., the County Court of Jackson County entered its order known as the Zoning Order of Jackson County, Missouri, whereby it established districts "A" to "J", inclusive, each allocated to certain prescribed use. Under said statutory authority, the three judges of the County Court were constituted as the Jackson County Board of Zoning Adjustment. Section 5, Paragraph 2 of the Zoning Order, provides that "no * * * structure shall be erected * * * to exceed the height * * * limit herein established for the district in which such * * * structure is situated". Among the various districts established in the Zoning Order is that created in Section 9 as District "D", designated as "Agricultural District". Among the certain structures designated as permissible in District "D", drive-in theaters are not named. One of the regulations contained in Section 9, affecting District "D", is the following: "Height. No building shall exceed thirty-five (35) feet or two and one-half stories".
Section 14 of the Zoning Order reads as follows: "Any of the following uses may be located in any district by special permission of the Board, after public hearing, provided that in their judgment such use will not seriously injure the appropriate use of neighboring property, and will conform to the general intent and purpose of this Order; and further provided that such uses may be granted with a time limitation, and shall comply with the height and area regulations of the district in which they may be located:". (Italics supplied.) Following that clause are various specific uses named, among which, by amendment, the words: "4. Drive-in theaters" were added.
However, Section 17 provides for certain exceptions to the regulations pertaining to the height of buildings in the various districts and provides in paragraph (3) that in District "D", among certain other districts, the following uses are so excepted: "Parapet walls and false mansards shall not extend more than six (6) feet above the height limit. Flagpoles, chimneys, cooling towers, finals, gas tanks, grain elevators, stacks, silos, storage towers, radio towers, ornamental towers, monuments, cupolas, domes, spires, standpipes, and necessary mechanical appurtenances may be erected as to height in accordance with existing or hereafter adopted orders of the County Court of Jackson County, Missouri, except that in Districts `A', `B', and `C', * * *", etc. (Italics supplied.)
Regarding the enforcement of the Zoning Order and the issuance of permits thereunder, Section 21 of the Zoning Order provides, among other things, that: "No building or other structure shall be erected, * * without first obtaining a permit from the Zoning Engineer to be issued in accordance with the terms of this Order. No permit shall be issued unless there shall first be filed in the office of the Zoning Engineer, * * a plan * * *; and no permit shall be issued by said Engineer unless such plan or information shall show that such building or structure is to conform in all particulars with the provisions of this Order".
It is the contention of the plaintiffs that even though drive-in theaters are included among the special uses which, by special permit of the Board, might be permitted in any of the districts, that the same authority, namely Section 14, above quoted, limits such special permits not only to a time limitation, but to uses which "shall comply with the height and area regulations of the district in which they may be located". They argue, therefore, that under Section 14, the permit in question could not be so allowed because the proposed structure would admittedly be in excess of 35 feet in height, the maximum of height allowed for structures in District "D", for which the regulations nowhere make exception as to drive-in theaters.
The defendants advance the theory that the specified types of structures enumerated in Paragraph (3) of Section 17, which are designated as exceptions to the maximum height regulations in all districts, although not expressly including drive-in theaters, are merely general or generic terms used to set up the standard upon which to determine whether such exceptional height would be allowed; that the addition of "Drive-in theaters" in Section 14, pertaining to special classes authorized by special permits, necessarily implies the authority of the Zoning Board to allow permits for such structures for a height in excess of the maximum for other structures in the same district. They contend that by a consideration of the entire Zoning Order it is clear the Board fully contemplated the height of the proposed Drive-in theater and properly interpreted its power to permit the same under Sections 9, 14 and 17.
It appears evident that at the hearing before the Zoning Board of Adjustment in question the members thereof were sitting in their capacity as members of the Board and not as members of the County Court of Jackson County. They were as much bound by the Zoning Order of the county as the applicant and other members of the public. There appears no authority for the Zoning Board of Adjustment to amend the Zoning Order or any of its regulations then in effect. Section 64.110, supra. The Board may adopt rules of procedure consistent with the Zoning regulations. Section 64.120. Section 20 of the Zoning Order provides for amendments of the regulations only by the County Court and, upon notice and a hearing thereof and upon a unanimous vote. Certainly, then, the granting by the Board of a special permit for a drive-in theater which did not conform to the height regulations pertaining to District "D", cannot be considered as an amendment of the Order. Neither does the record here show any attempt by the County Court in the present proceeding, to adopt or change the Order in respect to height maximums in the manner required by Section 20, or otherwise.
It is true that Section 64.120, supra, setting forth the duties of the Board, provides that: "(3) In passing upon appeals, where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of such order, which difficulties or hardship constitute an unreasonable deprivation of use as distinguished from merely granting a privilege, the board may vary or modify the application of any of the regulations or provisions so the intended purpose of the regulation shall be strictly observed, public safety and welfare secured and substantial justice done." We do not find that this statute is applicable to the controversy in question and the defendants do not so contend.
Upon the face of the uncontroverted facts it would appear then, that the Board has issued a permit for the proposed structure in District "D", a district limited to specified agricultural uses which do not expressly include a drive-in theater, and that the Zoning Order declares that no structure in that district shall exceed 35 feet in height; that the proposed drive-in theater is intended to be 74 feet in height, or admittedly in excess of 35 feet; that provision is made by Section 14 of the Zoning Order for a special permit for a special use in any district if it will not injure the appropriate use of the neighboring property and will conform to the general intent and purpose of the Order, will be limited as to time and " shall comply with the height and area regulations of the district in which they may be located"; and that although, among the various uses prescribed for which such special permits under such conditions may be granted are "Drive-in theaters", it appears further by Section 17, paragraph 3, that no exception as to height is expressly made as to drive-in theaters.
From the pertinent provisions of the Zoning Order and regulations we are unable to find any authority for the Board of Zoning Adjustment to grant in District "D", wherein the maximum height of all buildings is fixed at 35 feet, a special permit for a drive-in theater, the proposed height of which is 74 feet, or concededly in excess of the maximum of 35 feet, for the reason that such structure would not conform to the height regulations of that district. By way of analogy, in a matter of a change from a nonconforming use to another nonconforming use under the Jackson County Zoning Order, the Supreme Court said in Women's Christian Association v. Brown, 354 Mo. 700, 706, 190 S.W.2d 900, 904: "Where the zoning regulations expressly permit, within certain limitations, an existing non-conforming use to be changed to another non-conforming use, changes which do not come within the prescribed limitations will be denied."
Even assuming defendants' theory that a drive-in theater over 35 feet high would by implication be included with the uses specified in Section 17, paragraph 3 as exceptions to the maximum height regulations for the particular district, it will be noted that the same paragraph provides that the structures named "may be erected as to height in accordance with existing or hereafter adopted orders of the County Court of Jackson County, Missouri * * *". (Italics supplied.) Thus it appears that while the County Court has included drive-in theaters as one use for which, under existing height regulations, a special permit may be granted in any district, it has not "adopted" any regulation permitting any drive-in theater, expressly named or implied, exceeding the existing maximum height of 35 feet in District "D".
We believe, therefore, that the Zoning Board exceeded its authority in granting the permit, and that its order granting the same was illegal.
Appellants' second ground for its contention that the permit was illegal is that the action of the Board was inconsistent, arbitrary and capricious, considering its action on other similar applications for drive-in theaters in the vicinity, and considering the "policy" statement made by one member of the Board and who, however, voted for the instant application. The "policy" statement of one of the members of the Board is not necessarily inconsistent with his vote on the application at hand, when the explanatory parts thereof are considered. Neither can the conduct of the Board in the present proceeding be judged by the facts and circumstances governing it in other and previous applications for different locations. We find no merit in the point made.
Lastly, appellants assert that the permit was not and the structure will not be in accordance with the intent and purpose of the Zoning Order in Jackson County and is therefore illegal. This we cannot say, as a matter of law, but confine our conclusions to the express requirements of the Zoning Order as hereinbefore stated.
The judgment and decree of the Circuit Court are reversed and the cause is remanded with directions to enter a decree reversing the order of the Jackson County Board of Zoning Adjustment and directing it to deny the application in question.
All concur.