St. Louis County v. Taggert

866 S.W.2d 181, 1993 Mo. App. LEXIS 1870, 1993 WL 498659
CourtMissouri Court of Appeals
DecidedDecember 7, 1993
DocketNo. 63894
StatusPublished
Cited by7 cases

This text of 866 S.W.2d 181 (St. Louis County v. Taggert) 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
St. Louis County v. Taggert, 866 S.W.2d 181, 1993 Mo. App. LEXIS 1870, 1993 WL 498659 (Mo. Ct. App. 1993).

Opinion

REINHARD, Judge.

This is an action to enforce St. Louis County’s zoning ordinance. Plaintiff sought to [182]*182enjoin defendants from conduct alleged to be prohibited in a district zoned “Residential R-4”. Plaintiff filed a four count petition alleging defendants had violated the county zoning ordinance by: (I) parking and/or storing commercial vehicles on the residential property; (II) storing commercial equipment and supplies on their property; (III) failing to keep their property free of litter; and (IV) using unpaved areas of their land for parking. The trial court directed verdicts in defendants’ favor on counts I, III and IV, and entered judgment for plaintiff on count II. Plaintiff appeals the court’s ruling on count I only. We reverse, and remand with instructions.

Defendants own and reside on property in St. Louis County zoned “Residential R-4”. Don Dickey, a “Zoning and Minimum Housing Inspector” with the County, testified that he conducted three inspections of defendants’ residence. Each time, Dickey saw, inter alia, one or two diesel tandem dump trucks parked on defendants’ residential land. One truck was maroon and the other blue, and each bore the logo “Taggert Hauling”. Dickey testified that on one occasion, Michael Taggert told him the trucks were used for hauling gravel.

This case involves a separate county enforcement action from our previous holding involving these parties. See St. Louis County v. Taggert, 809 S.W.2d 476 (Mo.App.1991). There, plaintiff sought to enjoin the defendants from storing commercial vehicles on their residential property. The trial court found no evidence that the commercial vehicles were being stored, and refused to allow plaintiff, at the close of the its case, to amend its petition to allege improper “parking” instead of improper “storing”.1 We affirmed, holding, inter alia, that plaintiff was not entitled to amend its petition in order to conform to evidence that the vehicles had been parked, rather than stored, in violation of the zoning ordinance. The instant case, as noted, involves a separate enforcement action and evidence gathered postdates the previous action.

The issue in this case is whether defendants’ parking of their dump trucks is an accessory use within the County’s zoning ordinance. The trial court concluded that there was no evidence that the trucks were being used other than for transportation, and that such parking was permissible because the zoning ordinance did not “bar[ ] the parking of commercial vehicles on the premises.” Plaintiff asserts the trial court misconstrued the zoning ordinance. We agree.

The principles of construction we use in interpreting a zoning regulation are as follows:

(1) The determination of what uses are permitted under a zoning ordinance must be made on the basis of the wording of a particular ordinance and the context in which it occurs;
(2) The basic rule of statutory construction is to seek the intention of the legislators and, if possible, to effectuate that intention;
(3) Legislative intent must be ascertained by giving the word an ordinary, plain and natural meaning, by considering the entire act and its purposes and by seeking to avoid an unjust, absurd, unreasonable or oppressive result;
(4) Zoning ordinances, being in derogation of common law property rights, are to be strictly construed in favor of the property owner against the zoning authority;
(5) Where a term in a zoning ordinance is susceptible of more than one interpretation, the courts are to give weight to the interpretation that, while still within the confines of the term, is least restrictive upon the rights of the property owner to use his land as he wishes;
(6) The interpretation placed upon a zoning ordinance by the body in charge of its enactment and application is entitled to great weight.

Cunningham v. Bd. of Alderman of Overland, 691 S.W.2d 464, 467-68 (Mo.App.1985).

[183]*183The zoning ordinance in the instant case is an example of permissive zoning. See, e.g., St. Charles County v. McPeak, 730 S.W.2d 611, 612 (Mo.App.1987). It provides: “[t]he use and development of land and structures within any zoning district are limited to those developments set forth in those sections of this Chapter applicable to such district.” § 1003.050.2

A permissive zoning ordinance is drawn to show those uses which are permits ted for a particular district, and any use which is not expressly permitted in a given zone or district is thereby excluded from it. State ex rel. Barnett v. Sappington, 266 S.W.2d 774, 777 (Mo.App.1954). Permitted uses may be explicitly expressed or may belong to a group of uses in genetically expressed categories. State ex rel. St. Charles County v. Samuelson, 730 S.W.2d 607, 609 (Mo.App.1987). Section 1003.117.2 identifies ten permitted land uses in a “Residential R-4” district: (1) Churches; (2) Day care homes; (3) Single family dwellings; (4) Home occupations; (5) Libraries; (6) Local public facilities; (7) Parks, parkways and playgrounds; (8) Police and fire stations; (9) Schools; and (10) Schools on tracts of land of at least five acres. Defendants concede that commercial vehicle parking is not expressly permitted in the ordinance but contend that such use is accessory to the residential use.

In determining whether use is accessory or incidental to a primary use, the decision must be made on the basis of the particular zoning ordinance and the context in which it occurs. Schaefer v. Neumann, 561 S.W.2d 416, 424 (Mo.App.1978). Section 1003.117.4 governs accessory uses in districts zoned “Residential R-4”. It provides, in relevant part:

Subject to compliance with the procedures of this section, accessory buildings, structures and uses are permitted in conjunction with a permitted land use or development or (unless restricted by applicable condition) a conditional land use or development when such accessory building, structure or use is customarily found in conjunction with the primary use, is a reasonably necessary incident to the primary use, is clearly subordinate to the primary use, and serves only to further the successful utilization of the primary use.... (Emphasis added).

Plaintiff states that “[n]owhere in [St. Louis County’s zoning ordinance] is parking and/or storing commercial vehicles [in R-4 residential districts] approved.” Thus, plaintiff argues, as St. Louis County is a permissive zoning jurisdiction, such an activity must be deemed prohibited. Defendants rely on the absence of an express provision relating to parking as a permitted use in § 1003.117.2, reasoning that all parking is an accessory land use.

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Cite This Page — Counsel Stack

Bluebook (online)
866 S.W.2d 181, 1993 Mo. App. LEXIS 1870, 1993 WL 498659, Counsel Stack Legal Research, https://law.counselstack.com/opinion/st-louis-county-v-taggert-moctapp-1993.