Murphy v. Board of Zoning Adjustment of Kansas City

TURNAGE, Judge. Ruth Murphy was denied a certificate of occupancy which would allow property at 18-20 Janssen Place in Kansas City to be occupied by eleven living units. She appealed this decision of the commissioner of buildings and inspections to the Board of Zoning Adjustment. The Board conducted a full hearing at which evidence was adduced by Murphy and by residents of Jans-sen Place who opposed the granting of the certificate. The Board upheld the denial of the certificate of occupancy. Murphy brought certiorari in the circuit court and that court affirmed the Board. On this appeal, Murphy contends the Board’s decision was based upon hearsay evidence and not upon substantial and competent evidence upon the whole record; the Board erred in admitting evidence; the Board failed to give proper notice of the hearing; the commissioner of buildings and inspection failed to make a required inspection; and the Board’s decision was against the .weight of the evidence. Affirmed. — 551 — This case was argued and submitted to a division of this court and an opinion adopted. That opinion was withdrawn and the case was reargued and submitted to an expanded panel. Murphy filed an affidavit with the Board and testified in person. In her affidavit she stated the property at 18-20 Janssen Place had two buildings — a main building with 30 rooms and 12 baths, of brick and masonry construction, and a carriage house of brick and masonry construction, built in an “L” shape, about 63 X 60 feet. She stated the non-conforming use was established prior to June 4, 1933, the date the Kansas City zoning ordinance in question was adopted, with two living units on the first floor in the main building, three rental units on the second floor and two rental units on the third floor. The carriage house had four rental units. She stated this multiple living unit occupancy continued without interruption from 1933 to the date of the hearing held by the Board in 1976. In her testimony before the Board, Murphy stated the house was built by Pickering, her great uncle, and she first went to the house in 1925. She stated that at least since September, 1930, the carriage house had been occupied by four apartments and the main house had two living units on the first floor, three on the second floor, and rental units on the third floor. Murphy also introduced the affidavit of Birdie Sharpies who was deceased at the time of the hearing. This affidavit stated that since 1930 there were rental units in the main building on all three floors and in the carriage house and there had been no abandonment of this rental occupancy. Murphy also introduced the affidavit of Mrs. Pickering which stated that before and since 1930 the buildings had been occupied by tenants of her deceased husband and herself. Murphy also introduced the affidavit of Bea Billingsley which stated she had lived at the property from 1938 to 1952 and during that entire time the main building and carriage house had been occupied by rental tenants. The affidavit stated the carriage house had always had four units. The affidavit of Della Hill was introduced by Murphy which stated she lived on the property from 1932 to 1957. She lived in an apartment in the carriage house and there were various other units in the carriage house and the main house. Luther Boyt testified before the Board on behalf of Murphy. He stated he was at that time living in the main house at 20 Janssen Place and he used to live in the carriage house. He stated he started living there in 1966, but first became familiar with the property in 1955. He knew there were other people living there because he saw them and talked with them. With this testimony Murphy rested her presentation. On behalf of the opponents, Donald Chisholm, an attorney in Kansas City, testified that he first became involved with 20 Janssen Place in 1957 when he was contacted by an attorney in Iowa after the death of a Dr. Kinney. He stated there was nothing to be done at that time concerning the property because it was in the joint names of Dr. Kinney and his wife. When Mrs. Kinney died in September, 1958, he handled her estate. He learned from the abstracts that the Kinneys had owned the property since 1935. He stated the gross estate was valued at about $2,400,000. He made a visit to the property with the inventory appraisers from the probate court and went through the main building and the carriage house to make a room-by-room inventory. He stated the inventory covered twenty-one pages, including one page of antiques and valuable oriental rugs. He stated in 1958 Mrs. Hill, who apparently was the Della Hill mentioned in the affidavit introduced by Murphy, was a long time acquaintance and former employee of the Kinneys and with her husband, occupied an apartment in the main house which was a caretaker’s apartment. He said there was one apartment in the carriage house which had customarily been used by a gardener. He stated there were no tenants in the house when Mrs. Kinney died and no tenants occupied the property during the course of the administration of Mrs. Kinney’s estate from September, 1958, to April, — 552 — 1959. He stated when he went through both buildings he did not find any evidence of any units for rental purposes nor did he hear any reference to rental units existing on the property. He stated the whole house was furnished with lovely furniture. John Thornberry testified that he had lived across the street from 20 Janssen Place since 1942. He stated when he moved into his home the Kinneys had just moved to Iowa and left 20 Janssen Place permanently. He said Mr. and Mrs. Hill lived in the main house and a man named Curtis was the yard man and he lived in the garage or carriage house. Mr. Thornberry stated he did not see or know or hear of any rental use of the property from 1942 until Mrs. Murphy acquired her ownership.1 Mrs. Hetzel stated she moved into Jans-sen Place in June, 1955, and lived directly across the street and one house over from 20 Janssen Place. She stated she had a child in the years 1957 and 1958, and was home most of the time and was out of doors with her children a lot. She stated she talked with the caretakers who lived in the house, and on one occasion went through the house with her husband. She stated at that time the house was filled with beautiful furniture and there was only one kitchen. She went into the garage and it had a space on the ground floor big enough to accommodate two or three cars, with a turntable built in the floor to turn the cars around. She stated no one lived in the garage except the caretaker who lived upstairs. She stated the carriage house or garage did not consist of four apartments. Mrs. Hetzel stated she was familiar with the property for at least three years and about three years after first going through the house, she went through as a prospective buyer. During her second tour through the house it still had only one kitchen. After she looked at the house as a prospective buyer, she saw some additions put on the house. Doris Parker testified that she looked at the property as a prospective buyer in 1957 with a real estate saleslady. She stated the downstairs was very well furnished, but there was no furniture at all upstairs. She saw only one kitchen in the entire house and that was on the first floor. George Tucker testified that he lived at 80 Janssen Place and offered some testimony concerning city directories, which was objected to. However, he did state that he had seen 20 Janssen Place turned into a multi-family use in 1960 when he started to see an increase in the number of people there.2 Mrs. Murphy testified in rebuttal that she built an exterior stairway in 1959 after she had acquired the property for her mother and sister. . She stated she acquired the property in her own name in 1961. Murphy first contends the decision of the Board was based on hearsay and other improperly admitted evidence which did not — 553 — amount to substantial and competent evidence sufficient to support a finding that Murphy had failed to establish a lawful non-conforming use of the property by eleven living units. It should first be observed that the burden to prove a lawful non-conforming use was upon Murphy. Bartholomew v. Board of Zoning Adjustment, 307 S.W.2d 730, 733[7] (Mo.App.1957). To constitute a lawful non-conforming use the ordinance requires that the property must have been used for eleven living units from 1933 to 1976 without a continuous twelve-month interruption. Bartholomew further holds that hearsay evidence and conclusions based upon hearsay will not qualify as competent and substantial evidence upon the whole record to support a final decision by the Board. 307 S.W.2d 733[6]. In examining the record to determine if the decision of the Board is supported by substantial and competent evidence upon the whole record, this court “must view the record in a light most favorable to the findings of the tribunal considering the favorable inferences which the tribunal had a right to draw from the evidence before it, . . . ” Brooks v. General Motors Assembly Division, 527 S.W.2d 50, 53 (Mo.App.1975). Article 5, Section 22 (now Section 18) of the Constitution, sets out the scope of review and requires that the decision of the Board be supported by competent and substantial evidence upon the whole record. Of course, this court may not substitute its judgment for that of the Board. Brooks at page 53. In stating the evidence presented to the Board, set out above, this court has not included the evidence introduced by the opponents consisting of hearsay by way of affidavits of people not present and testimony regarding the contents of city directories. Anomalous as it may seem, Murphy introduced a number of affidavits, as already mentioned, but strenuously objected to the introduction of any affidavits on the part of opponents. This court purposely omitted any reference, in the statement of facts contained herein, to that evidence which Murphy contends was hearsay or otherwise inadmissible. It is apparent from the facts already stated that the decision of the Board rested upon much more than hearsay, irrelevant or other improperly admitted evidence as Murphy contends. There was competent and substantial evidence from which the Board could have found that even if the property were used for eleven living units in 1933, such use was interrupted for more than twelve continuous months between 1942 and 1960. Thornberry testified the property was not used by tenants between 1942 and the time when Murphy acquired her ownership, which was 1959 when she acquired the property for her mother and sister. Tucker testified tenant use started in 1960. A fair inference from the testimony of Mrs. Hetzel indicated non-tenant use between 1955 and 1958. This was corroborated by Mrs. Parker in her observation of the property in 1957, and by Chisholm as to the period from September, 1958, to April, 1959. It is true Mr. Thornberry and Mr. Tucker did not state they had actually been in the buildings at 20 Janssen Place, however, “[probative circumstantial evidence is sufficient to establish facts, . . . ” State v. Morris, 359 Mo. 194, 221 S.W.2d 206, 209[5-7] (Mo.1949). Certainly their evidence that they lived in the neighborhood and did not see any outward evidence of the property being occupied by tenants until 1959 or 1960 was circumstantial evidence from which the Board could infer that such use was not in fact being made of the property between 1942 and 1959. In view of all of the evidence, direct and circumstantial, summarized herein, it cannot be said that the decision of the Board was based upon hearsay or other improperly admitted evidence. Murphy next complains that the Board failed to exclude hearsay evidence offered by the opponents. In Bartholomew this court reviewed a record which revealed the Board had received improper evidence. This court noted such evidence was hearsay and should not have been received and would not be considered by the court in its review. This court has followed the same — 554 — procedure and has reviewed the evidence without reference to the evidence to which Murphy objects. While such evidence should not have been received by the Board, it is not considered by this court in the determination that the decision of the Board is supported by substantial and competent evidence. Murphy next complains about the notice given of the hearing to be held by the Board of Adjustment. The notice stated: “Appeal from decision by the codes administration property is in violation of the zoning ordinance.” Section 65.330 of the ordinances of Kansas City requires the notice to set forth the general purpose of a hearing to be held by the Board. Murphy argues that this notice would simply advise that a hearing was to be held to determine if the property was in conformity with the applicable two-family zoning. Murphy contends the notice did not advise all interested parties of the true purpose of the hearing, which was to determine whether or not there was a legal non-conforming use under which this property could be occupied by eleven living units. Murphy has not cited any authority in support of her contentions. The notice did appear to at least advise of the general purpose of the hearing and that was to determine whether the use of this property was in violation of the zoning ordinance. Non-conforming use is an affirmative defense which may be asserted against a contention that property is being used contrary to an applicable zoning ordinance. Bartholomew at 733[7]. Thus, thé ultimate question was whether or not the property was in violation of the applicable zoning ordinance with Murphy asserting the affirmative defense of non-conforming use. She does not claim she was deprived of any evidence available to her by reason of the wording of the notice. In short, no prejudice is claimed or shown resulting from the claimed deficiency in the notice. The notice was sufficient to comply with the requirements of the ordinance. Murphy contends the commissioner of buildings and inspection failed to conduct an investigation of her claim of non-conforming use in violation of an ordinance requiring such investigation. The commissioner denied the certificate of occupancy and Murphy thereafter appealed to' the Board of Adjustment. On that appeal the matter was heard de novo. In that situation only the procéedings before the Board are open for review on this appeal. Davis v. O’Bryant, 175 S.W. 931, 932[2, 3] (Mo.1915). Further, the constitution authorizes this court only to review the decision of the Board to determine if its finding is supported by substantial and competent evidence upon the whole record. Any failure on the part of the commissioner to make an investigation prior to the hearing conducted by the Board is beyond the scope of review of this court. Murphy contends the decision of the Board was against the great weight of the credible evidence. This court may review the Board’s findings and set aside the decision of the Board even if supported by competent and substantial evidence if such decision is found to be contrary to the overwhelming wéight of the evidence. Brooks at page 53. But, as Brooks points out, “the weight of the evidence is not the quantity or the amount thereof. Rather it is the weight and probative value; its effect in inducing belief.” A review of the evidence before the Board fails to convince this court that the Board’s decision is against the great weight of the evidence. While it is true there were certain inconsistencies in the testimony and some of the witnesses may have been contradictory in some respects, still the credibility of the witnesses was for the Board to determine. Mo. Church of Scientology v. State Tax Comm., 560 S.W.2d 837, 843[7, 8] (Mo. banc 1977). The only evidence offered in support of Murphy’s contention that the property had been used for eleven living units for forty-three years was the affidavit of Murphy herself.3 The evidence in opposition thereto — 555 — was substantial and competent. Viewing the evidence as this court must, in the light most favorable to the findings of the Board and considering that the credibility of the witnesses is for the Board’s determination, it cannot be said the finding and decision of the Board is unsupported by substantial and competent evidence nor against the weight of the credible evidence. This court finds the decision of the Board was supported by ample evidence that a lawful non-conforming use of 20 Janssen Place without a continuous twelve-month interruption was not shown. The judgment is affirmed. WASSERSTROM, C. J., and DIXON and KENNEDY, JJ., concur. MANFORD, J., dissents in separate dissenting opinion. PRITCHARD and SOMERVILLE, JJ., dissent and concur in dissenting opinion of MANFORD, J. Footnotes [1] After Thornberry made a statement an objection was made that his testimony went beyond what he had seen and was not based on fact. The dissent fails to note that the following then occurred: “CHAIRMAN: Excuse me, Mr. Thornberry, clarify counsel’s objections, as to the time you actually occupied, I believe you occupied the premises? “MR. THORNBERRY: At 20? No, I never occupied any premises at 20. I just knew of the people who lived there because I lived across the street at 61 Janssen Place from 1942 until now. I live there now. “CHAIRMAN: So will you state for the record to response [sic] to counsel’s objections that you were speculating, that you had no personal knowledge. Did you have personal knowledge? “MR. THORNBERRY: I would say that I had personal knowledge of this, I did not see, or know of, or hear of any rental- use of that property after 1942 until Mrs. Murphy acquired it.” [Murphy supplied this date as 1959.] [2] After referring to city directories, Tucker testified, “. . when it actually changed when it turned to multi-family it was 1960. When we started to see an • increase in the number of people in Number 20 Janssen Place.” An objection was directed only at his reference to information contained in the city directories. No objection was directed at his clear statement that he first observed multifamily use of this property in 1960. [3] The only live witnesses on behalf of Murphy were herself and Boyt. None of the affidavits stated the number of rental units in the house and carriage house, nor did Boyt.