730 S.W.2d 607 | Mo. Ct. App. | 1987
This is an action to enforce a Zoning Order. Plaintiff, St. Charles County (County), sought to enjoin defendant, Herbert Samuelson (Samuelson), from conduct alleged to be prohibited in a district zoned agricultural. The trial court entered judgment for Samuelson. The County appeals. We reverse and remand with directions.
Samuelson owns and resides on a parcel of land zoned “A-2, Agricultural”, under the County’s Zoning Order.
The trial court found Samuelson did “own and operate an asphalt paving business”. The court did not, however, determine whether Samuelson was or was not operating his asphalt paving business on his land. What the court did find, was: “the activity actually complained of ... consisted of the storage of trucks and equipment of an asphalt paving business and their movement to and from [Samuelson’s] property”. The court also found “the asphalt is obtained from an asphalt company at a separate business and at a separate location”. To prohibit this activity, on the record before it, the court concluded, “would be arbitrary and unreasonable and therefore unenforceable”.
The Zoning Order in question is an example of permissive zoning. See, e.g. State ex rel. Barnett v. Sappington, 266 S.W.2d 774, 776 (Mo.App.1954). The Order divides St. Charles County into approximately 21 districts and expressly prescribes the uses permitted within the districts. Table of Contents, St. Louis County Zoning Order.
Admittedly, the Zoning Order does not expressly and explicitly permit an “asphalt paving business” nor does it expressly and explicitly permit “the storage or parking of trucks used in the asphalt paving business”. This does not mean neither one nor both of these uses are completely prohibited. Both of these uses would be allowed in the “M-2 Heavy Industrial district” which permits “any use”, except for certain conditional uses, and two of these conditional uses are “(n) Petroleum or asphalt refining” and “(o) Petroleum products terminal”. Moreover, Samuelson’s “storage of asphalt trucks”, as found by the court, is permitted in an “M-l Light Industrial district” which permits “(c) Bus, rail or truck terminal and moving, transfer or storage plants” and “(p) Sales area and bulk storage yard or warehouse for such materials as: asphalt, ... building materials, ... contractors’ equipment ..., machinery ... tar, tar or creosoted products....” Thus, the Zoning Order does permit Samuelson’s operation in districts other than agricultural.
In addition, we do not agree with the trial court’s conclusion that Samuelson’s operation is permitted in an “A-l or A-2 Agricultural district”, nor do we agree with the reasoning the court used to reach that conclusion. First, to show the agricultural district permits uses comparable to
The court also noted the commercial enterprises which are in fact permitted, and it reasoned these enterprises would involve use of “heavy equipment coming in and out”. Simply stated, this is no more than saying a truck is a truck is a truck. That is not persuasive. If the County wanted to permit any and all “storage” of trucks, it would have said so.
Admittedly, there must be an interpretation of this Zoning Order as with any zoning ordinance. It simply comes down to where the line should be drawn. There is no evidence here demonstrating the similarity between those vehicles used in farming and Samuelson’s vehicles. Moreover, the trial court was not asked to take judicial notice of this alleged similarity as a recognized or commonly accepted fact. Given the trial court’s logic, we can envision the agricultural district in question interpreted to permit any truck or piece of heavy equipment. To us, this is nothing more than a judicial redrafting of the Zoning Order to fit'the needs perceived by the court rather than those perceived by the County. The best that can be said for Samuelson is the meaning of the Zoning Order may be fairly debatable. If so, we cannot substitute our opinion for that of the County Court, the legislative body that passed the Order. Vaterott v. City of Florissant, 462 S.W.2d 711, 713 (Mo.1971).
Moreover, the maxims used by the court do not strengthen its reasoning.
Accordingly, we reverse and remand this cause and direct the trial court to enter an appropriate order enjoining defendant Herbert Samuelson from storing or parking the trucks and equipment used in his asphalt paving business on the land in question.
. The legislative body in St. Charles County is the County Commission. Its enactments are designated "Orders" rather than "Ordinances”.
. The trial court noted permissive uses in an A-2 district include "apiaries, aviaries, fish hatcheries, and fur farming or the raising of fur-bearing animals”, "kennels", "privately operated recreational facilities including a lake, swimming pools, tennis court or riding stable", “golf course and club house”, "ferry landings and boat docks”, "sewage treatment plants, oxidation basins and related facilities, water supply plants, pumps, reservoirs, wells and elevated storage tanks ..." and conditional uses include "logging operations, sawmills, and mill storage of lumber”, "airports” and "landing fields”.
The court, however, did not specifically note the permitted use of agricultural farming and the vehicles and machinery “incidental to ... agricultural uses”.
. All Section references are to the Zoning Order in issue, which was admitted into evidence at trial.
. The trial court does not state whether it is using “storage” as a term of art. This Court has held "storage" is a term of art when used in a zoning ordinance and it has a meaning distinct from the term “parking”. See, e.g., St. Louis County v. Pfitzner, 657 S.W.2d 262, 264 (Mo.App.1983).
. These maxims are:
“If public interest served by the zoning is greatly outweighed by the detriment to private interest, the zoning is considered arbitrary and unreasonable and, therefore, violation of due process.”
“Mandatory injunction is harsh remedy to be granted by court only when right thereto is clearly established and should never be granted on doubtful proof.”
“Injunctive relief appeals to the sound discretion of the court and is to be applied with the utmost caution and exercised with great discretion and only when necessity requires, particularly where it is sought to enjoin the use of property in a legitimate business.”
"The court’s discretion is to be exercised in accordance with well settled equitable principles and in light of all facts and circumstances of the case.”