State Ex Rel. Sander v. Board of Adjustment of the City of Creve Coeur

60 S.W.3d 14, 2001 Mo. App. LEXIS 1648, 2001 WL 1117538
CourtMissouri Court of Appeals
DecidedSeptember 25, 2001
DocketED 78934
StatusPublished
Cited by7 cases

This text of 60 S.W.3d 14 (State Ex Rel. Sander v. Board of Adjustment of the City of Creve Coeur) 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. Sander v. Board of Adjustment of the City of Creve Coeur, 60 S.W.3d 14, 2001 Mo. App. LEXIS 1648, 2001 WL 1117538 (Mo. Ct. App. 2001).

Opinion

MARY K HOFF, Justice.

The Board of Adjustment of the City of Creve Coeur (Board) appeals from the circuit court’s judgment and order (judgment) reversing Board’s denial of a variance from a zoning ordinance setback requirement for property owned by Robert L. Sander, Connie Sander, Frocena M. Coukoulis, the Donald R. SteUing Revocable Living Trust, and Joann Scholl (Property Owners). We reverse the circuit court’s judgment and remand to the circuit court for entry of a judgment affirming Board’s decision denying the variance request. 1

Property Owners own lots in the CB, Core Business District of the City of Creve Coeur (City) near and along North New Balias Road, and had entered into contracts for the sale of those lots for the development of a commercial office building. The proposed buyer sought a variance from a setback requirement in a City Zoning Ordinance providing that, for property in the CB, Core Business District, “[a] minimum of 50% of the building elevation parallel to the street right-of-way must be located fifteen (15) feet from the right-of-way.” Section 2 of City’s Ordinance 2080 amending Section 26-43.5(d)l of City’s Zoning Ordinance, effective November 9, 1999. Specifically, the proposed buyer requested approval of a 234 foot variance from the 15 foot maximum setback requirement, so that the building elevation parallel to North New Balias Road would be 249 feet, rather than 15 feet, from the North New Balias Road right-of-way.

Board conducted a hearing on the variance request. City’s Planning Director presented City’s position that the variance request did not satisfy the relevant factors in City’s Zoning Ordinance and should be denied. City’s Community Development Director also made a presentation regarding the purpose and intent of Ordinance 2030 and its amendments of City’s Zoning Ordinance, including the setback requirement in City’s CB, Core Business District which was the subject of the variance request. Additionally, City’s Planning Director introduced a copy of City’s Zoning Ordinance, City’s Code of Ordinances, City’s Ordinance 2030, and the staff files pertaining to this variance application and Ordinance 2030. An architect for the proposed buyer made a presentation in favor of the variance request and in particular about how the request satisfied the pertinent factors set forth in City’s Zoning Ordinance. Board also heard from one of the Property Owners, the Vice President of the proposed buyer, and three individuals who owned various pieces of property on North New Balias Road adjacent to and near the property subject to the variance request. The transcript reflects no objection to any of the testimony and evidence introduced during Board’s hearing. After considering the presentations and asking questions, Board members voted three-to- *16 two to approve the variance request, which is deemed a denial of the variance request due to the absence of the minimum of four votes of approval required by Section 89.090.2 RSMo Cum.Supp.1999.

Property Owners filed a petition for writ of certiorari in the circuit court. The circuit court reversed Board’s denial and directed Board to enter an order granting the variance request. This appeal followed.

By their two points, Property Owners contend Board erred because competent and substantial evidence did not support the denial of the requested variance under Section 26-118.4 of City’s Zoning Ordinance and because Board ignored the requirements for area variances set forth in Section 26-118.5 of City’s Zoning Ordinance. Additionally, in their two points, Property Owners urge there is substantial and competent evidence in the record to support the granting of the requested variance under Sections 26-118.4 and 26-118.5 of City’s Zoning Ordinance.

For this appeal, we review Board’s findings and conclusions, instead of those issued by the circuit court. State ex rel. Teefey v. Board of Zoning Adjustment of Kansas City, Missouri, 24 S.W.3d 681, 684 (Mo. banc 2000); Housing Auth of St. Charles, Missouri v. Board of Adjustment of St. Charles, Missouri, 941 S.W.2d 725, 726 (Mo.App. E.D.1997). We are limited to determining whether Board’s decision is supported by competent and substantial evidence on the whole record or is “arbitrary, capricious, unreasonable, unlawful, or in excess of its jurisdiction.” State ex rel. Teefey, 24 S.W.3d at 684 (internal quotation marks omitted) (quoting Hutchens v. St. Louis County, 848 S.W.2d 616, 617 (Mo.App. E.D.1993)). In this case, we will discuss only the evi-dentiary basis of Board’s decision because that is the focus of both points raised by Property Owners. In ascertaining whether substantial evidence exists to support Board’s decision, we view the evidence, and reasonable inferences from the evidence, in the light most favorable to Board’s decision. Id; Behrens v. Ebenrech, 784 S.W.2d 827, 828 (Mo.App. E.D. 1990). Importantly, Board may consider the hearsay testimony of city staff members and city staff reports received without objection. Housing Auth. of St. Charles, Missouri, 941 S.W.2d at 726-27.

In their first point, Property Owners urge there was no substantial and competent evidence to support denial of the variance request under City Zoning Ordinance Section 26.118.4. That Section provides:

The Board of Adjustment shall not grant a variance as authorized herein unless it shall, in each case, make specific written findings of fact directly based upon the particular evidence presented to it that support all of the following conclusions:
(a) The variance requested arises from a condition which is unique to the property in question and which is not ordinarily found in the same zoning district;
(b) The variance requested is because of a unique hardship not created by the applicant nor owner of the property;
(c) The granting of the variance shall not adversely affect adjacent property owners or residents;
(d) The strict application of the provisions of this Chapter from which a variance is requested, will cause severe practical difficulty or extreme hardship for the property owner represented in the application;
(e) The variance desired will not adversely affect the public health, safety, order, convenience, or general welfare of the community; and
*17 (f) Granting the variance desired will not violate the general spirit and intent of this Chapter.

By its clear language, this section does not permit Board to grant a variance unless Board finds support for each of six specified factors.

Having viewed the evidence in a light most favorable to Board’s decision, we conclude the Board could properly decide one or more of these six ordinance factors were not supported.

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Bluebook (online)
60 S.W.3d 14, 2001 Mo. App. LEXIS 1648, 2001 WL 1117538, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-sander-v-board-of-adjustment-of-the-city-of-creve-coeur-moctapp-2001.