Long v. Board of Adjustment

856 S.W.2d 390, 1993 Mo. App. LEXIS 1008, 1993 WL 239165
CourtMissouri Court of Appeals
DecidedJuly 6, 1993
DocketNo. WD 47164
StatusPublished
Cited by3 cases

This text of 856 S.W.2d 390 (Long v. Board of Adjustment) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Long v. Board of Adjustment, 856 S.W.2d 390, 1993 Mo. App. LEXIS 1008, 1993 WL 239165 (Mo. Ct. App. 1993).

Opinion

LOWENSTEIN, Chief Judge.

This is an appeal by a landowner whose request for a use variance was denied by the City of Columbia and its Board of Adjustment (Board) created under §§ 89.080-89.090, RSMo 1986.1 The landowner/appellant, Ewell Long, owns the property at 1702 University, which on the outside looks like a single family dwelling. However, the previous owner had divided the house into four rental units as early as 1955. In 1964, the owner constructed an addition to the house and converted it into a five-unit rental establishment. The building is located close to the University of Missouri campus, Stephens College and a hospital.

Long purchased the property in December 1971, and continued to rent out the five units. A portion of the parcel of land where the house is located was and remains to this day zoned for a single family dwelling, R-l. For some reason, the city split-zoned the 1.33 acre lot well before this lawsuit. Again, the portion of the lot where the house is located is zoned R-l. The balance of the lot, which is vacant, is zoned for medium density multiple family residences, R-3. A steep ravine or divide runs through the parcel of land and serves as the zoning line of demarcation. Both portions of the appellant’s total parcel are located within their respective districts. Also, both parcels are in proximity to a district with a greater allowed density, R-4. In sum, three zoning areas are in close proximity to the appellant’s house.

There is evidence the R-l property had been used as a multiple family dwelling for approximately 36 years prior to Long’s 1991 hearing before the Board. Apparently, all that time Long’s use and the prior owner’s use of the property violated the zoning density restrictions. In 1971, when Long purchased the property, his vendor showed him evidence of a Columbia business license for the five units and a “Certificate of Compliance with the Rental Housing Conservation Law.” Long maintains both documents on a current basis and pays real estate taxes based on a commercial rate. Before buying the land, Long never verified the zoning.

In April 1991, the city of Columbia advised Long he could no longer use the property for anything other than a single family dwelling. Long then filed with the Board an application for a use variance and requested permission for a use other than the one proscribed by the zoning ordinance in the particular district. A variance permits a use the ordinance does not allow. A Board may grant a variance only to alleviate an unnecessary hardship. Matthew v. Smith, 707 S.W.2d 411, 414-13 (Mo. banc 1986).

At the Board’s hearing, Long’s expert witness, John Kirby, a state certified general appraiser with M.A.I. and S.R.A. designations, valued the property at $117,000 as a five-unit apartment dwelling. Long paid $45,000 for the property in 1971. Sold “as is,” without the purchaser renovating the [392]*392house into a single family unit, the value would be $70,900. Kirby opined that if Long converted the property to single family unit, it would cost $30,000; however, Long could then sell the property for $116,-000. Kirby stated the current use of the residence as rental units would not adversely affect the neighboring residential parcels if the existing use were allowed to continue.

In two weeks, opponents to Long’s use variance request collected about 118 signatures. Many neighbors testified of efforts made by Long to disguise the existence of the property as a five-unit dwelling. They also complained of excessive noise and trash around the building. Former councilman Clyde Wilson told of a complaint made to the city in 1977 about the zoning problem. In November 1977, a city official sent a letter to Long about the zoning violation. Long tacitly admitted he received the letter from the city and his then attorney contacted city officials, but nothing ever happened. In February 1978, the city mailed a second letter and a city inspector visited the property. According to Wilson, “There’s no further record that we could find of any kind of complaint at this time.” Other than the dates just given, the city’s documentation of events or occurrences is nil. The city maintained no record of when the property first received R-l zoning.

The Board denied Long’s request on a 3-2 vote. The Board made no findings or conclusions. The Circuit Court of Boone County affirmed.

The standard of review of this board decision denying the variance request is that this court will affirm the decision if it is authorized by law and supported by competent and substantial evidence upon the whole record. Slate v. Boone County Bd. of Adjustment, 810 S.W.2d 361, 363 (Mo.App.1991). This court views the evidence, and its reasonable inferences, in a light most favorable to the Board’s findings. Ogawa v. City of Des Peres, 745 S.W.2d 238, 242 (Mo.App.1987).

The variance procedure is a safety valve for landowners who would suffer “special hardship” from literal application of zoning ordinances. Matthew, 707 S.W.2d at 413. As a general rule, variances should be exercised sparingly and granted only under exceptional circumstances. Id. The pre-1992 version of § 89.090 delegated to the board of adjustment the power to grant a variance from the permitted use of a zoning ordinance when the applicant faces “practical difficulties or unnecessary hardship” in carrying out the strict letter so that the spirit of the ordinance is secured, public safety and welfare secured, and substantial justice done. § 89.090.1(3); Id. at 414. An applicant for a use variance must meet four requirements. State ex rel. Tucker v. McDonald, 793 S.W.2d 616, 617 (Mo.App.1990). “First, the applicant must suffer unnecessary hardship in carrying out the strict letter of the ordinance. Second, the applicant must prove that relief is necessary because of the unique character of the property. Third, the variance may not destroy the preservation of the plan, and fourth, granting the variance will result in substantial justice for all.” Id. at 617, citing Matthew, 707 S.W.2d at 415-16.

The first prong of Matthew is often the most important and determinative of cases like the one at bar. To obtain a use variance, an applicant bears the burden, Holly Inv. Company v. Board of Zoning Adjustment, 771 S.W.2d 949, 951 (Mo.App.1989), to demonstrate an “unnecessary hardship” as defined in Matthew, 707 S.W.2d at 416-17: 1) the land in question cannot yield a reasonable return if used only for a purpose allowed in that zone; 2) the owner’s plight is due to unique circumstances and not to general neighborhood conditions; and 3) the grant of a variance would not alter the essential character of the locality. The landowner must bear the burden of proving an unnecessary hardship on the basis of economics — can someone like Long demonstrate that without the variance he or she cannot make a reasonable return on the property. Failing to satisfy this prong negates a review of the other factors.

The court will now examine the economic hardship on Long of having to conform to the R-l ordinance.

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Related

State ex rel. Branum v. Board of Zoning Adjustment
85 S.W.3d 35 (Missouri Court of Appeals, 2002)
State ex rel. Klawuhn v. Board of Zoning Adjustment of St. Joseph
952 S.W.2d 725 (Missouri Court of Appeals, 1997)
Wells & Highway 21 Corp. v. Yates
897 S.W.2d 56 (Missouri Court of Appeals, 1995)

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856 S.W.2d 390, 1993 Mo. App. LEXIS 1008, 1993 WL 239165, Counsel Stack Legal Research, https://law.counselstack.com/opinion/long-v-board-of-adjustment-moctapp-1993.