*1 566 inferred further It can taken. that he had seen photograph
aas same witness had seen that the showing the record from the However, picture the other another location. parties picture take inter- much confusion and record discloses not in evidence. The taking concerning of the witness in the-examination ruptions produced in evidence. photograph assignment, errors claimed defendant’s specifications as to given, objections abstractly reasons
supra,, stated, so void as to are so found references to where made, rulings made, defective as to and so intelligent review to make an based record, impossible that it is brief. any presentation [Kilger in the defendant’s standpoint of Exchange Bank, (2d) 218; American 1 S. W. Sanko, v. v. Williams York, City New 280 720; Ins. Co. of S. W. Martin v. Continental 615; W. 122, 110 S. 131 Mo. 256 S. W. 120; Patterson, App. Blain v. App. 70, 154 Mo. Louis, Royal Zahm v. Fraternal Union of St. 502; 240 W. Robert- 374; Stewart, v. S. W. Thornton v. S. Gardner 645, 605; 220 Mo. Santhuff, 106 W. 208 Mo. son, v. Sanzenbacher S. 395; City Land 274, 119 S. v. Phoenix Dist. of Kansas W. School 332, 297 Mo. 249 W. Co., & Improvement S. 51.] discussed, matters As defendant rests its claim for reversal alone on supra, there but one course for to take. us
Judgment affirmed. All concur. In the Matter Botz, Botz, Respondent, of Lillian R. Lillian v. P. F. E. M. H. A. B. Garrett, Jr., B. Carruba, Deal, Lawrence, Constituting Gerald B. O ’Reilly, of and as Members Adjustment Board of Louis, and the of St. Municipal Appel Louis, Intervenor, Corporation, St. (2d) lants. 159 S. W. 367. Appeals. Opinion
St. Louis Court of filed March 1942. *2 568. respondent.
D. Calhoun Jones for *3 Joseph appel- Richardson for Holland, F. Oliver Senti Orville lants.
BENNICK, appeal judgment C.—This is an from the Circuit City Court of St. Louis the decision the Board of reversing Adjustment denying- re- of St. Louis spondent, Botz, operate Lillian for a to. lot for automobiles on certain land she owns in a which is located dwelling zoning district as established *4 160-185,
St. Louis. Revised of St. Code Louis [Secs. 1936.] ' parcel entire The land the respondent of owns is located on Avenue, fronting corner Magnolia northeast Grand of Boulevard and on Boulevard, extending eastwardly feet Grand between parallel -Court, lines for 270 feet to a de- primarily Alhambra street purposes, voted to residential east Grand which lies one block to-the of by Magnolia Avenue, Boulevard. The land is bounded on south the by by the north of a ten- equal depth, occupied on a lot which is story apartment Apartments, building the known Marmaduke as Boulevard, private which faces on the rear is a Grand and in of which garage only, fronting for tenants on Alhambra Court. provisions respect the of the zoning
Under ordinance with to use districts, respondent’s land, is, the west half that front- portion of the ing depth on Grand Boulevard and back to a of 135 feet extending Magnolia Avenue, district, on in while the east is located a commercial half, comprising Magnolia or rear Avenue remaining the 135 feet on extending Court, multiple is placed back to Alhambra in a dwell- ing district. balf of land appear, it such east rear presently will
As lot; parking a which charac- respondent desires to make use of as that district, a is not use, though permitted in commercial authorized ter of dwelling lying in a dis- in the by the ordinance case of land opera- a for Consequently, if is to have the trict. a portion a of land which lies parking upon tion of lot a district, upon theory it must either multiple dwelling of adoption time land at the of the nonconforming use such upon theory practical ordinance in or else that because unnecessary hardship compliance in a to be difficulties encountered adjustment, strict letter with the of the board of discharge proper the exercise of a sound and discretion it, special upon should have modified function conferred varied por- use such of the ordinance with operation permitted parking of a tion her land have so as to specific authorization-—and it, the lack of notwithstanding lot against such use—in that section prohibition therefore effectual to which (See. 164) defining the use of the ordinance character lawfully multiple dwelling in a district premises situated subjected. Inn, formerly by Mission property occupied preprohibition days, which fronted well-known landmark of the a eastwardly extended full width of the on Boulevard and Grand garden; was a beer
for 120 feet. To the rear of the Mission Inn some Magnolia lot, side, was on Avenue portion and in rear storage, repair, but not the garage which was' used for existence, automobiles, days least of its which, at at in the latter during At time gasoline supplies were sold. one and automobile on the prohibition golf course was conducted period miniature portion rear premises. rear for -the use of such portion of As appear during would premises parking purposes, Inn, have heyday patrons may sporadically of Mission certain lot; and, fact, during their as matter of parked automobiles permit, one hearing respondent’s application the course on he had himself followed members of board recalled practice he have parking automobile there when would his own clear,, however, rear Mission It seems that such occasion visit Inn. any apart time specifically set was never lot; respondent’s counsel himself or utilized as and indeed regardless expressly hearing stated at the before the board that formerly parked upon fact the lot that automobiles been had *5 Inn, patrons “apparently parking not for it was used as we wish to use it.”
In building 1937 the had Mission Inn was torn which housed down, building a in for shortly place thereafter was erected & This which on occupancy building, an A. market. faces by P. Boulevard, Grand to the rear extends for the full of 120 distance occupied, northwardly feet that the Mission Inn had but extends along Grand Boulevard for width, leaving a distance in feet space a of 75 feet in width store between the and the building Apartments Marmaduke which at present parking a is utilized as space This, for automobiles of customers course, store. is in the front portion respondent’s a land which zoned in is district, commercial that portion so the use such of the premises for purposes entirely permissible is under the quite unsatisfactory respondent herself, but an who insists that unnecessary hardship thereby imposed compelled her to use her frontage valuable parking space Grand Boulevard rather relatively than the much portion premises less valuable of her which on fronts Alhambra Court to the rear.
Being putting desirous of her frontage Boulevard Grand to a more productive use, respondent, 14, 1939, building on June applied to the permit commissioner for a operate parking lot the east rear on half property of her fronting Court, on Alhambra which property, recalled, it will be dwelling- zoned in multiple district within which the ordinance does not authorize the use of a parking lot such proposes as to maintain. Her purpose provide is to a lot for the accommodation of the customers store, of the A. & P. lot, according to the statement of hearing counsel at board, before the expectation was ‘1 ’’ about 50 to 60 cars parked would be at various times. building commissioner permit upon to issue the refused ground that the a parking maintenance of did conform to permitted uses multiple dwelling in a district, whereupon respondent appealed adjustment, to the board hearing before held- was arguments pro respect made question and con with to the whether a respondent., should be issued to taking After the appeal consideration, under the board voted u- nanimously deny appeal, or, words, in other to take refused jurisdiction it, upon ground over presented properly legislative was matter, and not a matter for the board adjustment to decide. What the was undoubtedly board meant in its of existing conditions, any difficulty view practical unnecessary hardship way carrying out the strict letter ordinance was not respondent alone, confined to well extended as but all the other neighborhood owners of property in the which was zoned as respondent’s property zoned, relief which event come, all, should if from the board of aldermen an form of amendment adjustment the ordinance, from the board of through a variation or modification of the of the ordinance to the use respondent’s property of so much individual lay as a multiple dwelling district. *6 enabling provides any person aggrieved act
Tbe statute or adjustment the decision of the of obtain review of by a board legality by proceeding of decision in certiorari sued in such- out county city which property the circuit of the the affected court (Mo. Ann., 7265, p. R. S. Mo. 1939 sec. located.. Stat. [Sec. 5858).] case, upon ground following appeal In this the denial of her the question presented legislative that the a matter was matter and not adjustment decide, for a writ respondent the board of to sued out Louis, in the court certiorari Circuit Court of the of St. adjustment thereafter the ease remanded to the board of with direc- appeal tions to hear and determine on merits.. the its Subsequently, court, in accordance with the directions of the circuit adjustment hearing on the board of set the matter down for a merits, and, by parties, consent of took the under submission the ease [adduced Again previous hearing. the the upon evidence granted permit of whether be her was should again by board, appeal (by considered denied was concurring members, absent), being votes of four member this time one ground granting lessen that the would hazard, improve property values, congestion the fire lessen on land, promote general welfare. board,
It is to’be with the strict borne mind that the confronted lots, zoning specifically letter of the that parking ordinance authorized, thereby were excluded from situated in a- land dwelling district, considering standpoint was the matter from by whether, in the exercise of the conferred it both discretion ordinance, vary modify application statute it should respondent-’s the ordinance in a variation or individual case. Such respecting modification of the strict letter the ordinance the use spirit land is authorized “so shall observed, public safety justice and welfare secured and substantial done;” light and when the decision of the in the board read by considerations which the ordinance circumscribe tbe statute and discretion, exercise of the board’s it what the board is evident that concluded that a variation or modification of permit respondent ordinance so as maintain a to dwelling on land in a multiple situated district would not be an secure the observance public safety welfare, justice or’ proper do regard rights might of all who affected persons granting permit.
For a respondent- second time sued out a writ of certiorari legality circuit court review the of the -decision of the board of adjustment, prior hearing of the case the Louis St. prayed right adopt and was allowed the to intervene and adjust- theretofore made tbe writ on behalf of the board of return ment. court, hearing' circuit before
At course had adjustment, up made before the board the record both sides *7 controversy introduced the permits the additional evidence as statute appears it the be done in cases where court that to additional necessary disposition the the proper evidence of matter.
At the hearing, judgment the conclusion court entered its board adjustment; the decision of the of and from reversing the entered, judgment city joint the board perfected so and the have their appeal to this court the usual course. before this court is whether the lower court committed reversing adjustment.
error in the of decision the board of the Before lower court was entitled to hold that the board il- had respondent’s application legally denied for a to maintain a parking that of her which lies a dwelling district, things conclusively one of two have appeared— must either that such use the land of was as a continuation ^permissible a nonconforming existing of lawful rise at the time the adoption of ordinance; the of or else that the enforcement the of strict letter of respondent’s the ordinance unnecessary ease would cause hardship which could obviated, the board and should have in a proper exercise discretion, varying of administrative modifying ap- the plication ordinance, fully the while at the effectuating same time ordinance, securing public the the safety welfare, and rights doing justice parties to the of all might whose affected. interests be provides (Sec. 168) While the ordinance that the use lawful existing adoption
land at the the time of may the ordinance con- though tinue even provisions such use does conform to not ordinance, respondent makes contention specific no that the non- conforming land, which proposes use she to make is, that parking it, maintenance a lot upon at existed the time of the adoption contrary, of the .ordinance. On the already as we have indicated, counsel, hearing at board, before the expressly admitted, disclosed, in accord with what the evidence that even though, during the time of operation Inn, of Mission there was a garage on the rear of the lot parked there, and automobiles ap- “ it not parently was used for as we wish to it.” use What is merely always does insist the land has been used purposes; for commercial she therefore contends that since such use, may been, commercial whatever have a constituted nonconform- ing adoption use at time of the placing ordinance the rear half of her in multiple dwelling district, land she should now be permitted, nonconforming ordinance, under use section of subject particular portion of her land commercial use though now proposes, coneededly
which she even such use at time identical with use was made of the land adoption of the ordinance. support contention, respondent of her In second counts paragraph buildings, of Section in the case provides that distinguished land, existing the lawful building as from of a use amendment, may adoption, change time though such pro- continue even use does not conform the ordinance, also are visions of but that if no structural alterations changed made, nonconforming building use of to another nonconforming the same a more use of restricted classification. Still any provides building further the ordinance which has been de- signed .purpose, and erected definite used for such purpose passage permitted before shall be use, though nonconforming, continued for such even and this not- withstanding lapse having time existed between discontinuance of its use recommencement same. *8 plain language section, arrangement
The of the with its coupled dealing separate paragraphs, and first with non- two distinct nonconforming conforming the second uses land and with uses buildings, controversy leaves no room for reasonable but permitting change nonconforming another, from one to provision a use subsequent resumption nonconforming of a definite use once or abandoned, purposely buildings is limited to the use of erected before ordinance, and to the the enactment of the does not extend use a Indeed, logical land. there is unimproved very sound reason making represents A an building such distinction. investment erected; it improvement of the land is and if investment, protection of regard were not had for the reasonable such confiscatory frequently respect be with to then the ordinance would only building a application particular structures. Not is erected to specific form of use which to adaptation a view to its to is be with difficult, if it, impossible, to it to but is often convert made of Consequently, building where the of use. entirely different form an grants nonconforming uses, adaptable the ordinance only is to involved, are privilege, where no structural alterations special nonconforming use of the from one to another same or changing classification, and also allows the recommencement of more restricted previously which has been nonconforming use discontinued. a definite land, however, where the owner has no in the case of made so, Not instances, where, in most he would improvement, in its investment compelled if to hardship to conform the strict suffer no expected to respect use which his zoning with to the to land plan letter subjected. might comprehensive zoning plan necessarily underlying spirit extension, nonconforming restriction, than the rather
implies land, therefore to whatever extent the particular use of act fails express contrary, make provision to to the a condition that the lawful nonconforming at existing adoption use of land the time of the of the to contemplate only ordinance continue must be held a con- substantially tinuation of same use which existed the time of adoption and not some other and different kind nonconforming might use which the owner of land subsequently advantageous. profitable find to be or In this instance the land in question admittedly used at the adoption time of the it, ordinance as proposes how use and conse- quently she not entitled to a to maintain a nonconforming virtue of provision use ordinance. brings
This us then legitimate of whether there awas basis the lower court to conclude that the guilty board had been aof refusing abuse of its discretion in vary modify manifest application of the ordinance respondent’s pro- posed use of the rear her premises as a parking lot. we already pointed out,
As have practical there difficulty where unnecessary hardship way of carrying out the strict letter specific case, ordinance in a power has the vary board modify provisions relating to the spirit use of land “so that the of the ordinance observed, shall be ’’ safety public and welfare justice secured and substantial done. How- ever, the board can no relieve from a compliance case ordinance; with the and its administrative discretion is confined within compass narrow allows variation or modification to be made in the case particular property of a owner in the event that such variation or modification at same time fully effectuates purpose ex ordinance. rel. v. City, Kansas [State *9 95, (2d) 1030; 325 Mo. W. Adjustment 27 S. Berard Board v. of of (Mo. App.), (2d) of St. Louis 138 S. W. 731.] judicial In a review of the act or decision of an administrative charged with by performance tribunal which is law a particular the of function, the tribunal not be convicted having of reached an arbitrary, capricious, illegal result, and if its upon decision was based evidence, principle applied substantial and the correct of law to was. the facts which were found exist. v. Security Social [Howlett Commission, 784, 806, (2d) 347 Mo. 149 W. S. 810.] bar, beyond question In the we it the ease at think refusal of vary the board to the of the ordinance so as to respondent parking upon portion maintain a lot her of premises multiple dwelling amply supported located in a district by noise, substantial evidence. The board of course had in mind fumes, dust, necessarily operation confusion and which attend injurious lot, properly parking of a took into account the con- work inevitably conditions sequences which such would it neighborhood. It also had before property residential around entrances to congestion in and traffic likelihood local unit necessarily interfere with the impede and would lot enginehouse is situated department fire in its use of the of question. appreciated that property in It no doubt east just portion her valuable Grand use of a certain respondent’s forced a considerable frontage purposes imposed parking Boulevard respondent’s own ber, it have concluded that hardship upon but must interest, community’s or outweigh the difficulties did not personal parking casting of the inconveniences of warrant respondent Magnolia residents so that Alhambra Court and Avenue in her use of that freed of such inconveniences herself could be which faced Grand Boulevard. property financial find it much to her own Undoubtedly would the rear advantage if be allowed to convert she should profit and such fact alone could parking lot, into but half of respect with application of ordinance varying no excuse for might subjected. difficulties which her land Practical the use to the strict letter hardship way carrying out unnecessary power factors call play of the ordinance are the into in a modify application of the ordinance vary the board to allowed, may be specific case, a variation or modification but before spirit of at the time observe the secure must same justice welfare, to the public safety and do substantial neighborhood. residents property other owners and zoning object purpose comprehensive plan The ultimate or districts all uses of a similar is to confine within established zones industrial; residential, commercial, or and the classification, whether diminish, underlying plan must therefore be to such a zoning extend, uses of nonconforming property affected however, is non- Respondent’s application, to extend ordinance. dis- establishing parking dwelling lot in a conformity by provided for, lots, being specifically from which trict Not was there substantial thereby effectually excluded. are respondent’s application, denial of support the board’s evidence to granting the application how the it is difficult to see indeed but compliance with contemplated have ever could which the board lacked the respondent’s part, without on ordinance vary modify the letter of power to ex property. rel. v. Kansas individual respondent’s the use [State Adjustment Louis, St. City, supra; Berard v. Board supra.] *10 board, may decision of court, in review of the its The board, or, in a case where for that of the own discretion substitute entry an permissible, direct of such findings are fact different
5,77 in first opinion order as in its' should have entered bo.ard contrary, expressly of the court is limited power instance. On the illegality decision, which the board’s end to the correction of in necessary disposition such the case as empowered to make City, supra, illegality. in ex v. correct the rel. Kansas order [State Adjustment City Louis, supra; v. Board of St. State Berard (Mo. 685; Superior ex Holekamp App.), (2d) rel. v. Press S. W. City (Mo. App.), (2d) Brick Co. v. Louis S. W. St. 290.] bar, arbitrary, capricious, In decision was the case at the board’s illegal, but instead was based a deliberate exercise a sound designed administrative observe of the ordi- discretion safety nance, justice. public welfare, secure do so, reversing de- This circuit court was error board, judgment cision from which it follows that circuit court should itself reversed cause remanded with arid judgment directions up affirming to enter a new the decision of the board. The Commissioner recommends. so
PER foregoing opinion C., adopted CURIAM:—The Benniok, opinion as judgment is, court. circuit court accordingly, reversed and cause remanded accordance with Hughes, J., recommendations of the P. Commissioner. and McGtMen Anderson, JJ., concur. of Missouri,
State the relation and to the use of Arthur H. Bader, Louis, Excise Commissioner of the St. Relator, Judge Flynn, v. William B. of the Circuit Court Respondent. Louis, (2d) St. 159 S. W. 379. Appeals. Opinion
St. Louis Court of filed March 1942.