Williams v. Department of Building Development Services of City of Springfield

192 S.W.3d 545, 2006 Mo. App. LEXIS 766, 2006 WL 1460574
CourtMissouri Court of Appeals
DecidedMay 30, 2006
DocketNo. 27330
StatusPublished
Cited by6 cases

This text of 192 S.W.3d 545 (Williams v. Department of Building Development Services of City of Springfield) 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
Williams v. Department of Building Development Services of City of Springfield, 192 S.W.3d 545, 2006 Mo. App. LEXIS 766, 2006 WL 1460574 (Mo. Ct. App. 2006).

Opinion

KENNETH W. SHRUM, Presiding Judge.

This case involves the Springfield, Missouri, zoning code and its application to an auto salvage business owned by Larry Williams (“Plaintiff’). A .1995 zoning [547]*547change would have prevented further use by Plaintiff of his land for a salvage yard but for the “grandfather” provision. Because Plaintiff had conducted a salvage yard at this site before rezoning, he was able to continue the business after rezoning as a “legal nonconforming” use. With the property in that status, Plaintiff added to his building without a permit in 1997. Thereon, the Department of Building Development Services (“DBDS”) declared the property a nuisance and ruled Plaintiff could no longer operate his business under the “nonconforming use” zoning provision.

The decision of the DBDS was affirmed at every stage, i.e., before Springfield’s Board of Adjustment (“Board”) and by the circuit court. Plaintiffs appeal to this court followed. We affirm.

This court reviews the decision of the Board, not the judgment of the circuit court. Wolfner v. Board of Adjustment of City of Warson Woods, 114 S.W.3d 298, 301[1] (Mo.App.2003). Moreover, “[t]he scope of our review of a board of adjustment decision is limited to determining whether the decision was authorized by law and supported by competent and substantial evidence upon the whole record.” Id. at 301[2]. Although the interpretation of a city ordinance is a question of law, the interpretation given to the language by the body in charge of its enactment and application is also entitled to great weight. HHC Medical Group, P.C. v. City of Creve Coeur Bd. of Adjustment, 99 S.W.3d 68, 71 (Mo.App.2003).

In April 1969, the property where Plaintiff operated his business was zoned “M-2, heavy manufacturing” which permitted salvage yards. Zoning ordinance amendments adopted in March 1995 reclassified Plaintiffs property to “HM, heavy manufacturing.” That classification permitted “junk, scrap, salvage or automobile wrecking yards but only if they [were] located more than 500 feet from a residential district.” There is no dispute that Plaintiffs property violated the distance requirement imposed by the March 1995 zoning change. Similarly, there is no dispute that Plaintiff operated his salvage business at this site for many years before rezoning; consequently, he could have a salvage business at that location after rezoning because of the “legal nonconforming use” provisions of City’s ordinance.1

In 1997, Plaintiff decided to add to his building, but failed to get a building permit for the new construction. Sometime later, DBDS received a complaint about the addition. Thereon, DBDS notified Plaintiff that such construction without a permit constituted a nuisance in violation of the City’s code. Plaintiff candidly admits that adding to his building without getting a permit was a nuisance violation.2

Under the zoning ordinances, Plaintiffs legal nonconforming use was terminated due to the nuisance violation.3 DBDS notified Plaintiff of its decision, required him [548]*548to cease his business operations within 30 days, and notified the City’s business licensing department for possible revocation.

During the review hearing before the Board, Plaintiff testified as to why he believed the DBDS erred. He asserted that his business operations could not be considered a “nonconforming use” because he was never notified that the zoning ordinances were amended, i.e., he was never notified that his salvage business became a nonconforming use when his land was rezoned. The Board rejected Plaintiffs reasoning and the appeals followed.

The essence of Plaintiffs sole point on appeal is an issue of notice. Plaintiff argues that when the zoning change was enacted in 1995, the City, the Board, or DBDS was required to send him written notice that his business operations constituted a legal nonconforming use. Essentially, he claims that as a prelude to classifying his property as “nonconforming,” the City had to give him written notice that his continued use of his property as an auto salvage business (after the 1995 rezoning) would be a “legally nonconforming” use; he was never given such notice before the “nuisance” adjudication; and, as a consequence, the City could not prevent him from continuing to operate a salvage yard under the “legal nonconforming” use exception, given the fact that he had removed the offending building addition. We disagree.

“The term ‘nonconforming use’ means a use of land which lawfully existed prior to the enactment of a zoning ordinance and which is maintained after the effective date of the ordinance even though not in compliance with the new use restrictions.” Rose v. Board, of Zoning Adjustment Platte County, 68 S.W.3d 507, 515 (Mo.App.2001). The prior use establishes a vested property right, and a new or modified ordinance may not be applied to require cessation of that use. Storage Masters-Chesterfield, L.L.C. v. City of Chesterfield, 27 S.W.3d 862, 865[8] (Mo.App.2000).

“The theory behind the nonconforming use doctrine is that applying new zoning restrictions to established uses of land would constitute a taking of private property without just compensation or due process.” Id. at 866. As such, the prior use which is now considered “nonconforming” is deemed legal or lawful and is allowed to continue albeit in violation of current zoning laws. Rose, 68 S.W.3d at 515; Storage Masters-Chesterfield, 27 S.W.3d at 865-66; Outcom, Inc. v. City of Lake St. Louis, 996 S.W.2d 571, 575 (Mo.App.1999).

Sections 89.050 and 89.060 provide for notice and hearing requirements to interested parties before a zoning regulation can be enacted or amended.4 Moore v. City of Parkville, 156 S.W.3d 384, 389 (Mo.App.2005). Plaintiff has never claimed that City’s zoning ordinances failed to meet the statutorily mandated notice and hearing standards for zoning amendments, nor has he ever argued that the procedure established by City’s ordinances for zoning change was not followed in this instance.5 Accordingly, once the [549]*549ordinances were validly enacted, Plaintiff was deemed to have notice of the existence and content of those regulations. Schnuck Markets, Inc. v. City of Bridgeton, 895 S.W.2d 168, 168 (Mo.App.1995); Rose v. City of Riverside, 827 S.W.2d 737, 738 (Mo.App.1992). Succinctly stated, “[e]very property owner in a city is charged with notice of the city’s zoning ordinances.” 101A C.J.S. Zoning and Land Planning, § 16 (2005).

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Bluebook (online)
192 S.W.3d 545, 2006 Mo. App. LEXIS 766, 2006 WL 1460574, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-department-of-building-development-services-of-city-of-moctapp-2006.