State ex rel. Rybolt v. Easley

600 S.W.2d 601, 1980 Mo. App. LEXIS 3393
CourtMissouri Court of Appeals
DecidedMay 5, 1980
DocketNo. WD 30931
StatusPublished
Cited by4 cases

This text of 600 S.W.2d 601 (State ex rel. Rybolt v. Easley) 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
State ex rel. Rybolt v. Easley, 600 S.W.2d 601, 1980 Mo. App. LEXIS 3393 (Mo. Ct. App. 1980).

Opinion

MANFORD, Judge.

Appellants’ petition was in two counts. Count I was for a writ of certiorari pursuant to § 64.870, RSMo 1978.1 Count II was for declaratory judgment and injunction. Appellants sought to prevent respondents, members of the Boone County Board of Zoning Adjustment, from enforcing rules and regulations of the Board restricting the operation of a dog kennel within a particular designated zoning district. The case was tried to the court, which entered findings of fact and conclusions of law. Judgment was entered in favor of the Board. Review of this case is made upon both the facts and the law. The record of this case renders final disposition of the cause possible and this court, pursuant to Rule 84.14, may enter the judgment the trial court should have entered. The judgment is affirmed.

Appellants are individual citizens and residents of Boone County, Missouri. They operate a dog kennel upon their property. This operation involves the breeding, feeding and sale of six breeds of dogs. The district in which appellants live and operate their kennel is, by county rule and regulation, zoned A-2, an agricultural district.

An employee of the Board notified appellants that a citizen had complained of the dog kennel operation. The notice informed appellants that the kennel operation was a commercial operation and as such was prohibited in an A-2 district. Following this notice, appellants sought a waiver of the restriction, but the waiver was denied. This suit followed.

The only evidence presented upon trial was by appellants. The Boone County Zoning and Subdivision Regulations were introduced into the record. In addition, four witnesses testified concerning kennel operations, and the main import of the testimony was the necessity that someone be on the premises and care for the dogs in a kennel operation 24 hours per day. Aside from the day to day task of providing the dogs with food and water, the need for someone to be [603]*603present during the whelping 2 period was of extreme importance.

After the conclusion of the evidence and the opportunity for both parties to submit memoranda or briefs to the trial court, the trial court entered its memorandum opinion.3 In its memorandum opinion, the court made the following findings and conclusions:

“MEMORANDUM OPINION
Relators on July 7,1977, filed an application to the Boone County Board of Adjustment, hereinafter referred to as the Board, for a variance from the Boone County Zoning and Subdivision Regulations, hereinafter referred to as Zoning Ordinance, which prohibit the operation of a kennel in a A-2 Agricultural District. After notice and hearing on July 27, 1977, the Board denied Relators’ application for a waiver or variance. Relators filed a Petition for Writ of Certiorari in this Court on the 20th day of August, 1977, and were given leave to file a First Amended Petition on October 10,1977, and a Second Amended Petition on December 11, 1978. Relators have requested in Count II of their petition that this Court declare those sections of the Zoning Ordinance prohibiting operation of a kennel in an A-2 Agricultural District invalid and enjoin Respondents from interfering with Relators’ operation of such a kennel. Trial was held on February 22, 1979, and submitted for the filing of briefs. Relators, pursuant to Rule 73.01, have requested findings be made.
Now on this 16th day of April, 1979, the Court being duly advised finds that:
1.Relators are the owners of the following-described real property located in Boone County, Missouri:
the tract of land located in the SW Quarter (SW ¼) of Section Fifteen (15) township fifty (50) North, Range Twelve (12) West, containing twenty (20) acres, more or less, as shown by survey recorded in Book 414, page 201, records of Boone County, Missouri.
2. Said real property lies in an A-2 Agricultural District as established by the Zoning Ordinance, enacted pursuant to sections 64.850 and 64.885, RSMo., prior to the date Relators purchased said land.
3. The permitted uses of an A-2 Agricultural District are:
agricultural activities
single family dwelling on a tract of 2½ acres
park and forest preserve
bait house
church on tract of not less than 2½ acres
public or private school on tract of 2½ acres
greenhouse or nursery
The conditional uses of an A-2 Agricultural District are:
quarries, etc.
airport
privately owned recreational facility on a tract of 10 acres or more
new cemetery or enlargement of existing cemetery
farm implement sales and service and other agri-business uses oriented to the agricultural community
livestock sales barn and stockyard, provided that such activity is located at least 2,640 feet from an A-R RS, and/or RM zoning
water tower, sewage lagoon, mechanical treatment plant or sanitary landfill, were not approved under County Subdivision Regulations
Mobile Home Subdivisions
[Section 5, Paragraph A(2), Zoning Ordinance]
4. Relators operate a kennel for the breeding and raising of dogs on a commercial scale on the aforementioned land.
5. Operation of a kennel within an A-2 Agricultural District is neither a permitted nor a conditional use allowed by Zoning [604]*604Ordinance and is therefore prohibited [Section 4, Paragraph A(l)].
6. Relators have adduced no evidence whatsoever either before the Board or at trial that by reason of exceptional narrowness, shallowness, shape or topography or other extraordinary or exceptional situation or condition of a specific piece of property, that the application of the Zoning Ordinance would result in peculiar and exceptional difficulties or exceptional and demonstrable undue hardship to them [Section 64.870, 1(3), RSMo.].
7. The kennel operated by Relators constitutes a ‘commercial structure’ and the A-2 Agricultural District within which Re-lators operate their kennel is zoned for residential use within the meaning of Section 64.890, RSMo.
8. The operation of a kennel requires the operator or his employee to be on the premises or available and nearby 24 hours a day.
9. The Zoning Ordinance permits a kennel to be operated in C-G General Commercial District, M-L Limited Industrial District and M-G General Industrial District [Section 5, Paragraphs A(8), (10) and (11)].
10. Accessory dwelling units for occupancy by owner or employee are permitted in Commercial Districts [Section 6B(5), Zoning Ordinance], Dwellings for resident caretakers employed on the premises are permitted in Limited General Industrial Districts [Sections 5A(10)(e) and (ll)(b), Zoning Ordinance].
11.

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Bluebook (online)
600 S.W.2d 601, 1980 Mo. App. LEXIS 3393, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-rybolt-v-easley-moctapp-1980.