Opinion
No. 21324.
December 4, 1950.
APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY, JAMES W. BROADDUS, J.
Ben W. Swofford, Laurence R. Smith and Swofford, Schroeder Shankland, all of Kansas City, for appellants.
Floyd R. Gibson, David R. Hardy, William A. Cameron and Sebree, Shook, Hardy Hunter, all of Kansas City, for respondents.
This is an appeal from a judgment affirming a decision and award of the Jackson County Board of Zoning Adjustment.
Mr. Swofford was, long prior to 1943, the owner of a tract of land located outside the limits of Kansas City, in Jackson County, which was subdivided and platted for sale as homesites and as business lots. The subdivision is known as Eastwood Hills. The various lots and parcels of land, constituting the subdivision, were offered for sale. A large portion thereof has been sold, and is built up with homes and business structures.
Eastwood Hills lies north of U.S. Highway 50, east of and adjacent to the city limits. Sni-A-Bar Road meanders through it. The portion with which we are here concerned is known as Eastwood Plaza, and is bounded on the south by Highway 50, on the east by a railway line and on the north and west by Sni-A-Bar Road, which extends from the highway in a northerly and easterly direction. The situation is well illustrated by a plat, which was in evidence.
Eastwood Plaza was originally platted for business, and a large portion of the southern part thereof, abutting and fronting on Highway 50, is now occupied by taverns, filling stations, and other business. However, none of this property was ever zoned prior to 1943. The lots which are the subject of this controversy are known as Lots 3 to 8, inclusive, fronting north on Sni-A-Bar Road. They lie north of Lots 10 to 13, inclusive, which front Highway 50 and are zoned for business purposes. To the west of Lot 3, across a 20 foot roadway, lies Lot 2, which is directly north of Lot 1. Lots 1 and 2 are the westernmost lots of the subdivision, lie nearest the intersection of the highway and Sni-A-Bar Road, and are zoned for business.
In 1943 a master zoning plan for Jackson County was adopted, under which all property lying within 200 feet of Highway 50, at this point, was zoned for business. Consequently, all lots facing Highway 50 in Eastwood Plaza were zoned for business and the line thus established also cuts through the lots here involved, from east to west, at approximately the center line thereof. The south portion of said lots are, therefore, zoned for business and the north portion for residence purposes. Thereafter, Mr. Swofford contracted to sell these lots to a Mr. Ashton for a consideration of $5000, conditioned upon their being re-zoned for business purposes, it being Ashton's intention to construct thereon a tourist court for the accommodation of transients. Messrs. Ashton and Swofford filed a re-zoning application with the zoning commission, which application was approved and sent to the Jackson County Board of Zoning Adjustment. The Board, after a hearing, denied the application. Ashton and Swofford, hereafter referred to as relators, caused the removal of the controversy to Circuit Court by writ of certiorari. There, Eastwood Hills Community Association, its membership being composed of residents of the area, was permitted to intervene and will be known herein as intervenor. The action of the Board of Zoning Adjustment, hereafter referred to as Board, was affirmed. This appeal follows.
The Board could have granted the application in such a case as this, or could have refused to grant same, in the exercise of a sound discretion vested in it, based on the evidentiary facts and the applicable law. The Circuit Court had no power to substitute its discretion for the discretion of the Board of Adjustment. Berard v. Board of Adjustment of City of St. Louis, Mo.App., 138 S.W.2d 731, 734.
However, relators contend that the action of the Board was arbitrary and capricious and, therefore illegal and void. This contention must, necessarily, be based on the theory that the Board's order was not supported by substantial evidence.
It is contended that the Board heard no legal evidence in opposition to the application for re-zoning but was unduly influenced by a "mob" of some 100 Protestants, residents of Eastwood Hills, who advanced on the Board en masse at the hearing.
The record of the Board, made at the hearing, discloses that no sworn testimony was offered, either by relators or by protesting property owners of Eastwood Hills. The attorney for relator "read the law to the court" and stated the general object and purpose of relators in asking the re-zoning. On behalf of protesting home owners, Irl Schweiger, president of Intervenor and a home owner of the district, living directly across Sni-A-Bar Road from the lots, acted as spokesman. There is no showing, either in the records of the Board or in evidence offered before the Circuit Court, that the hearing was conducted in a disorderly manner, or that all parties were not permitted to offer evidence and make full statements without interruption. True, the hearing was informal; but there is no showing that the hearing was not conducted in accordance with its rules which the Board is authorized to enact under the provisions of Section 12, page 487, Laws Missouri 1941, R.S. 1949, § 64.120.
The north part of these lots was, at the time of the hearing, in Zone A. The south half thereof was zoned for business. Relators sought to have them transferred to Zone F in their entirety. If it could be said that no legal evidence was offered to justify a refusal to transfer, then, by the same token, relators offered no legal evidence in support of their petition; and they were the movants.
However, all interested parties were given full opportunity to be heard in the Circuit Court; and much evidence, on both sides of the question, was heard. This was proper in order to determine whether or not the Board had acted illegally. Berard v. Board, supra. But in a judicial review of the act of an administrative tribunal charged with the performance of a particular function, the tribunal may not be convicted of having reached an arbitrary, capricious and illegal decision, if its decision was based on substantial evidence and the correct principle of law was applied to the facts found to exist. In re Botz, 236 Mo.App. 566, 159 S.W.2d 367, 372. That is but to say that the court may not substitute its judgment, its discretion, for that of the Board; and that is the law.
On behalf of relators there was testimony to the effect that these lots are practically without value for residence purposes because Lot 2, adjacent thereto, on the west, is zoned for business, and the lots adjoining, to the south, are already devoted to business. This testimony came from a relator who is to receive a commission on the sale to Ashton if the lots are re-zoned.
There was testimony on behalf of respondents, from a lawyer who owns his home in Eastwood Hills, to the effect that the construction of a tourist court on these lots would adversely affect the value of the homes already built in that area. The witness stated that the homes were desirable largely because the entire area in which they are located is a wooded section, secluded by trees and shrubbery from the traffic on Highway 50, and from the various business houses located thereon; that a rustic motif prevails throughout the area; that there are no business houses in the area; or along Sni-A-Bar Road; that this situation would be changed by the construction of a tourist court on these lots at the gateway of the area; that such a business would bring transients to a strictly residential community, which has no immediate police protection; that the school bus which carries the children of the neighborhood stops opposite these lots prior to going on to Highway 50, and some children would have to board the bus at this point. He also gave it as his opinion that the lots are suitable for residential purposes. There were a number of other prospective witnesses present, residents of the area, some living within 1000 feet of the lots. It was conceded that their testimony would be cumulative of that given by the above-mentioned witness and, upon the suggestion of the trial judge, they were not placed on the stand.
The above testimony, together with plats and pictures in evidence, constitutes substantial evidence from which it might be found that property values of the many residential sites of the area would be lowered if the lots were re-zoned so as to permit the construction of a tourist court thereon; that general welfare would not be promoted thereby.
True, the evidence on behalf of relators was to the effect that the lots are without value except for business purposes, and that a tourist court would not detract from the value and desirability of the existing residence property. From all of the evidence the Board could reasonably have found that damages to the property of the home owners of the area, where homes now exist, would far exceed the benefits to relators, if the petition were granted. We think it was within the discretion of the Board to decide the matter as it did decide it, and that its decision is supported by substantial evidence. Apparently the trial court entertained our view in this regard. We rest this decision on the authority of In re Botz, supra.
Relator's contention to the effect that, as the property is presently zoned, it is wholly without value for either residential or business purposes, cannot be sustained. The lots in their entirety can be used for residential purposes, even though only the south half thereof can be used for business. Perhaps they are not as desirable, or as valuable, for residence purposes as others might be. Perhaps they are not as valuable for business purposes as are those in the area fronting on the highway. They may be more valuable for business purposes; but they are of some value for residence purposes, according to substantial evidence. The matter of the value of the lots for a non-conforming use is not, per se, sufficient justification for extending Zone F so as to include them. 168 A.L.R. pp. 30, 31.
The trial court saw the witnesses and heard them testify and we cannot say that his judgment is clearly erroneous. See Gershon v. Ashkanazie, 239 Mo.App. 1012, 199 S.W.2d 38, 40.
The judgment should be affirmed.
BOUR, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. The judgment is affirmed.
DEW, P. J., and CAVE, J., concur.
BROADDUS, J., not sitting.