No. 31.

VILLAGE OF EUCLID et al. v. AMBLER REALTY COMPANY.

Decided November 22, 1926.

Argued January 27, 1926;

reargued October 12, 1926.

Mr. Justice Van Devanter, Mr. Justice McReyn­olds and Mr. Justice Butler, dissent.

Mr. James Metzenbaum for the appellants.

Mr. Newton D. Baker, with whom Mr. Robert M. Morgan was on the brief, for the appellee.

Mr. Justice Sutherland

delivered the opinion of the Court.

The Village of Euclid is an Ohio municipal corporation. It adjoins and practically is a suburb of the City of Cleve­land. Its estimated population is between 5,000 and 10,000, and its area from twelve to fourteen square miles, the greater part of which is farm lands or unimproved acreage. It lies, roughly, in the form of a parallelogram measuring approximately three and one-half miles each way. East and west it is traversed by three principal highways: Euclid Avenue, through the southerly border, St. Clair Avenue, through the central portion, and Lake Shore Boulevard, through the northerly border in close proximity to the shore of Lake Erie. The Nickel Plate railroad lies from 1,500 to 1,800 feet north of Euclid Ave­nue, and the Lake Shore railroad 1,600 feet farther to the north. The three highways and the two railroads are substantially parallel.

Appellee is the owner of a tract of land containing 68 acres, situated in the westerly end of the village, abutting on Euclid Avenue to the south and the Nickel Plate rail­road to the north. Adjoining this tract, both on the east and on the west, there have been laid out restricted resi­dential plats upon which residences have been erected.

On November 13, 1922, an ordinance was adopted by the Village Council, establishing a comprehensive zoning plan for regulating and restricting the location of trades, industries, apartment houses, two-family houses, single family houses, etc., the lot area to be built upon, the size and height of buildings, etc.

The entire area of the village is divided by the ordi­nance into six classes of use districts, denominated U-l to U-6, inclusive; three classes of height districts, denomi­nated H-l to H-3, inclusive; and four classes of area districts, denominated A-l to A-4, inclusive. The use districts are classified in respect of the buildings which may be erected within their respective limits, as follows: U-l is restricted to single family dwellings, public parks, water towers and reservoirs, suburban and interurban electric railway passenger stations and rights of way, and farming, non-commercial greenhouse nurseries and truck gardening; U-2 is extended to include two-family dwellings; U-3 is further extended to include apart­ment houses, hotels, churches, schools, public libraries, museums, private clubs, community center buildings, hospitals, sanitariums, public playgrounds and recrea­tion buildings, and a city hall and courthouse; U-4 is further extended to include banks, offices, studios, tele­phone exchanges, fire and police stations, restaurants, theatres and moving picture shows, retail stores and shops, sales offices, sample rooms, wholesale stores for hardware, drugs and groceries, stations for gasoline and oil (not exceeding 1,000 gallons storage) and for ice delivery, skating rinks and dance halls, electric substa­tions, job and newspaper printing, public garages for motor vehicles, stables and wagon sheds (not exceeding five horses, wagons or motor trucks) and distributing sta­tions for central store and commercial enterprises; U-5 is further extended to include billboards and advertising signs (if permitted), warehouses, ice and ice cream manu­facturing and cold storage plants, bottling works, milk bottling and central distribution stations, laundries, carpet cleaning, dry cleaning and dyeing establishments, blacksmith, horseshoeing, wagon and motor vehicle repair shops, freight stations, street car barns, stables and wagon sheds (for more than five horses, wagons or motor trucks), and wholesale produce markets and salesrooms; U-6 is further extended to include plants for sewage disposal and for producing gas, garbage and refuse incineration, scrap iron, junk, scrap paper and rag storage, aviation fields, cemeteries, crematories, penal and correctional in­stitutions, insane and feeble minded institutions, storage of oil and gasoline (not to exceed 25,000 gallons), and manufacturing and industrial operations of any kind other than, and any public utility not included in, a class U-l, U-2, U-3, U-4 or U-5 use. There is a seventh class of uses which is prohibited altogether.

Class U-l is the only district in which buildings are restricted to those enumerated. In the other classes the uses are cumulative; that is to say, uses in class U-2 include those enumerated in the preceding class, U-l; class U-3 includes uses enumerated in the preceding classes, U-2 and U-l; and so on. In addition to the enumerated uses, the ordinance provides for accessory uses, that is, for uses customarily incident to the principal use, such as private garages. Many regulations are pro­vided in respect of such accessory uses.

The height districts are classified as follows: In class H-l, buildings are limited to a height of two and one-­half stories or thirty-five feet; in class H-2, to four stories or fifty feet; in class H-3, to eighty feet. To all of these, certain exceptions are made, as in the case of church spires, water tanks, etc.

The classification of area districts is: In A-l districts, dwellings or apartment houses to accommodate more than one family must have at least 5,000 square feet for interior lots and at least 4,000 square feet for corner lots; in A-2 districts, the area must be at least 2,500 square feet for interior lots, and 2,000 square feet for corner lots; in A-3 districts, the limits are 1,250 and 1,000 square feet, respec­tively; in A-4 districts, the limits are 900 and 700 square feet, respectively. The ordinance contains, in great vari­ety and detail, provisions in respect of width of lots, front, side and rear yards, and other, matters, including restric­tions and regulations as to the use of bill boards, sign boards and advertising signs.

A single family dwelling consists of a basement and not less than three rooms and a bathroom. A two-family dwelling consists of a basement and not less than four living rooms and a bathroom for each family; and is further described as a detached dwelling for the occupa­tion of two families, one having its principal living rooms on the first floor and the other on the second floor.

Appellee’s tract of land comes under U-2, U-3 and U-6. The first strip of 620 feet immediately north of Euclid Avenue falls in class U-2, the next 130 feet to the north, in U-3, and the remainder in U-6. The uses of the first 620 feet, therefore, do not include apartment houses, hotels, churches, schools, or other public and semi-public buildings, or other uses enumerated in respect of U-3 to U-6, inclusive. The uses of the next 130 feet include all of these, but exclude industries, theatres, banks, shops, and the various other uses set forth in respect of U-4 to U-6, inclusive.*

Annexed to the ordinance, and made a part of it, is a zone map, showing the location and limits of the various use, height and area districts, from which it appears that the three classes overlap one another; that is to say, for example, both U-5 and U-6 use districts are in A-4 area districts, but the former is in H-2 and the latter in H-3 height districts. The plan is a complicated one and can be better understood by an inspection of the map, though it does not seem necessary to reproduce it for present purposes.

The lands lying between the two railroads for the entire length of the village area and extending some distance on either side to the north and south, having an average width of about 1,600 feet, are left open, with slight excep­tions, for industrial and all other uses. This includes the larger part of appellee’s tract. Approximately one-sixth of the area of the entire village is included in U-5 and U-6 use districts. That part of the village lying south of Euclid Avenue is principally in U-l districts. The lands lying north of Euclid Avenue and bordering on the long strip just described are included in U-l, U-2, U-3 and U-4 districts, principally in U-2.

The enforcement of the ordinance is entrusted to the inspector of buildings, under rules and regulations of the board of zoning appeals. Meetings of the board are pub­lic, and minutes of its proceedings are kept. It is author­ized to adopt rules and regulations to carry into effect provisions of the ordinance. Decisions of the inspector of buildings may be appealed to the board by any person claiming to be adversely affected by any such decision. The board is given power in specific cases of practical difficulty or unnecessary hardship to interpret the ordi­nance in harmony with its general purpose and intent, so that the public health, safety and general welfare may be secure and substantial justice done. Penalties are pre­scribed for violations, and it is provided that the various provisions are to be regarded as independent and the holding of any provision to be unconstitutional, void or ineffective shall not affect any of the others.

The ordinance is assailed on the grounds that it is in derogation of § 1 of the Fourteenth Amendment to the Federal Constitution in that it deprives appellee of lib­erty and property without due process of law and denies it the equal protection of the law, and that it offends against certain provisions of the Constitution of the State of Ohio. The prayer of the bill is for an injunction re­straining the enforcement of the ordinance and all at­tempts to impose or maintain as to appellee’s property any of the restrictions, limitations or conditions. The court below held the ordinance to be unconstitutional and void, and enjoined its enforcement. 297 Fed. 307.

Before proceeding to a consideration of the case, it is necessary to determine the scope of the inquiry. The bill alleges that the tract of land in question is vacant and has been held for years for the purpose of selling and developing it for industrial uses, for which it is especially adapted, being immediately in the path of progressive industrial development; that for such uses it has a market value of about $10,000 per acre, but if the use be limited to residential purposes the market value is not in excess of $2,500 per acre; that the first 200 feet of the parcel back from Euclid Avenue, if unrestricted in respect of use, has a value of $150 per front foot, but if limited to residential uses, and ordinary mercantile business be excluded therefrom, its value is not in excess of $50 per front foot.

It is specifically averred that the ordinance attempts to restrict and control the lawful uses of appellee’s land so as to confiscate and destroy a great part of its value; that is being enforced in accordance with its terms; that prospective buyers of land for industrial, commercial and residential uses in the metropolitan district of Cleveland are deterred from buying any part of this land because of the existence of the ordinance and the necessity thereby entailed of conducting burdensome and expensive litiga­tion in order to vindicate the right to use the land for lawful and legitimate purposes; that the ordinance con­stitutes a cloud upon the land, reduces and destroys its value, and has the effect of diverting the normal indus­trial, commercial and residential development thereof to other and less favorable locations.

The record goes no farther than to show, as the lower court found, that the normal, and reasonably to be ex­pected, use and development of that part of appellee’s land adjoining Euclid Avenue is for general trade and commercial purposes, particularly retail stores and like establishments, and that the normal, and reasonably to be expected, use and development of the residue of the land is for industrial and trade purposes. Whatever injury is inflicted by the mere existence and threatened enforce­ment of the ordinance is due to restrictions in respect of these and similar uses; to which perhaps should be added—if not included in the foregoing—restrictions in respect of apartment houses. Specifically, there is noth­ing in the record to suggest that any damage results from the presence in the ordinance of those restrictions relating to churches, schools, libraries and other public and semi­public buildings. It is neither alleged nor proved that there is, or may be, a demand for any part of appellee’s land for any of the last named uses; and we cannot assume the existence of facts which would justify an in­junction upon this record in respect of this class of restric­tions. For present purposes the provisions of the ordi­nance in respect of these uses may, therefore, be put aside as unnecessary to be considered. It is also unnecessary to consider the effect of the restrictions in respect of U-I districts, since none of appellee’s land falls within that class.

We proceed, then, to a consideration of those provisions of the ordinance to which the case as it is made relates, first disposing of a preliminary matter.

A motion was made in the court below to dismiss the bill on the ground that, because complainant [appellee] had made no effort to obtain a building permit or apply to the zoning board of appeals for relief as it might have done under the terms of the ordinance, the suit was pre­mature. The motion was properly overruled. The effect of the allegations of the bill is that the ordinance of its own force operates greatly to reduce the value of appel­lee’s lands and destroy their marketability for industrial, commercial and residential uses; and the attack is di­rected, not against any specific provision or provisions, but against the ordinance as an entirety. Assuming the premises, the existence and maintenance of the ordinance, in effect, constitutes a present invasion of appellee’s property rights and a threat to continue it. Under these circumstances, the equitable jurisdiction is clear. See Ter­race v. Thompson, 263 U. S. 197, 215; Pierce v. Society of Sisters, 268 U. S. 510, 535.

It is not necessary to set forth the provisions of the Ohio Constitution which are thought to be infringed. The question is the same under both Constitutions, namely, as stated by appellee: Is the ordinance invalid in that it violates the constitutional protection “to the right of property in the appellee by attempted regulations under the guise of the police power, which are unreason­able and confiscatory?”

Building zone laws are of modern origin. They began in this country about twenty-five years ago. Until recent years, urban life was comparatively simple; but with the great increase and concentration of population, problems have developed, and constantly are developing, which re­quire, and will continue to require, additional restrictions in respect of the use and occupation of private lands in urban communities. Regulations, the wisdom, necessity and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive. Such regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations, which, before the advent of automo­biles and rapid transit street railways, would have been condemned as fatally arbitrary and unreasonable. And in this there is no inconsistency, for while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise. But although a degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles, statutes and ordinances, which, after giving due weight to the new conditions, are found clearly not to conform to the Con­stitution, of course, must fall.

The ordinance now under review, and all similar laws and regulations, must find their justification in some aspect of the police power, asserted for the public welfare. The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation. It varies with circumstances and conditions. A regulatory zoning ordinance, which would be clearly valid as applied to the great cities, might be clearly invalid as applied to rural communities. In solv­ing doubts, the maxim sic utere tuo ut alienum non laedas, which lies at the foundation of so much of the common law of nuisances, ordinarily will furnish a fairly helpful clew. And the law of nuisances, likewise, may be consulted, not for the purpose of controlling, but for the helpful aid of its analogies in the process of ascertaining the scope of, the power. Thus the question whether the power exists to forbid the erection of a building of a partic­ular kind or for a particular use, like the question whether a particular thing is a nuisance, is to be determined, not by an abstract consideration of the building or of the thing considered apart, but by considering it in connection with the circumstances and the locality. Sturgis v. Bridge­man, L. R. 11 Ch. 852, 865. A nuisance may be merely a right thing in the wrong place,—like a pig in the parlor instead of the barnyard. If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control. Radice v. New York, 264 U. S. 292, 294.

There is no serious difference of opinion in respect of the validity of laws and regulations fixing the height of buildings within reasonable limits, the character of mate­rials and methods of construction, and the adjoining area which must be left open, in order to minimize the danger of fire or collapse, the evils of over-crowding, and the like, and excluding from residential sections offensive trades, industries and structures likely to create nuisances. See Welch v. Swasey, 214 U. S. 91; Hadacheck v. Los Angeles, 239 U. S. 394; Reinman v. Little Rock, 237 U. S. 171; Cu­sack Co. v. City of Chicago, 242 U. S. 526, 529-530.

Here, however, the exclusion is in general terms of all industrial establishments, and it may thereby happen that not only offensive or dangerous industries will be ex­cluded, but those which are neither offensive nor dan­gerous will share the same fate. But this is no more than happens in respect of many practice-forbidding laws which this Court has upheld although drawn in general terms so as to include individual cases that may turn out to be innocuous in themselves. Hebe Co. v. Shaw, 248 U. S. 297, 303; Pierce Oil Corp. v. City of Hope, 248 U. S. 498, 500. The inclusion of a reasonable margin to insure effective enforcement, will not put upon a law, otherwise valid, the stamp of invalidity. Such laws may also find their justification in the fact that, in some fields, the bad fades into the good by such insensible degrees that the two are not capable of being readily distinguished and separated in terms of legislation. In the light of these considerations, we are not prepared to say that the end in view was not sufficient to justify the general rule of the ordinance, although some industries of an innocent character might fall within the proscribed class. It can not be said that the ordinance in this respect “passes the bounds of reason and assumes the character of a merely arbitrary fiat.” Purity Extract Co. v. Lynch, 226 U. S. 192, 204. Moreover, the restrictive provisions of the ordinance in this particular may be sustained upon the principles applicable to the broader exclusion from resi­dential districts of all business and trade structures, presently to be discussed.

It is said that the Village of Euclid is a mere suburb of the City of Cleveland; that the industrial development of that city has now reached and in some degree extended into the village and, in the obvious course of things, will soon absorb the entire area for industrial enterprises; that the effect of the ordinance is to divert this natural devel­opment elsewhere with the consequent loss of increased values to the owners of the lands within the village bor­ders. But the village, though physically a suburb of Cleveland, is politically a separate municipality, with powers of its own and authority to govern itself as it sees fit within the limits of the organic law of its creation and the State and Federal Constitutions. Its governing au­thorities, presumably representing a majority of its inhab­itants and voicing their will, have determined, not that industrial development shall cease at its boundaries, but that the course of such development shall proceed within definitely fixed lines. If it be a proper exercise of the police power to relegate industrial establishments to local­ities separated from residential sections, it is not easy to find a sufficient reason for denying the power because the effect of its exercise is to divert an industrial flow from the course which it would follow, to the injury of the residential public if left alone, to another course where such injury will be obviated. It is not meant by this, however, to exclude the possibility of cases where the general public interest would so far outweigh the interest of the municipality that the municipality would not be allowed to stand in the way.

We find no difficulty in sustaining restrictions of the kind thus far reviewed. The serious question in the case arises over the provisions of the ordinance excluding from residential districts, apartment houses, business houses, retail stores and shops, and other like establish­ments. This question involves the validity of what is really the crux of the more recent zoning legislation, namely, the creation and maintenance of residential dis­tricts, from which business and trade of every sort, includ­ing hotels and apartment houses, are excluded. Upon that question, this Court has not thus far spoken. The decisions of the state courts are numerous and conflicting; but those which broadly sustain the power greatly out­number those which deny altogether or narrowly limit it; and it is very apparent that there is a constantly increas­ing tendency in the direction of the broader view. We shall not attempt to review these decisions at length, but content ourselves with citing a few as illustrative of all.

As sustaining the broader view, see Opinion of the Jus­tices, 234 Mass. 597, 607; Inspector of Buildings of Low­ell v. Stoklosa, 250 Mass. 52; Spector v. Building Inspec­tor of Milton, 250 Mass. 63; Brett v. Building Commis­sioner of Brookline, 250 Mass. 73; State v. City of New Orleans, 154 La. 271, 282; Lincoln Trust Co. v. Williams Bldg. Corp., 229 N. Y. 313; City of Aurora v. Burns, 319 Ill. 84, 93; Deynzer v. City of Evanston, 319 Ill. 226; State ex rel. Beery v. Houghton, 164 Minn. 146; State ex rel. Carter v. Harper, 182 Wis. 148, 157-161; Ware v. City of Wichita, 113 Kan. 153; Miller v. Board of Public Works, 195 Cal. 477, 486-495; City of Providence v. Stephens, 133 Atl. 614.

For the contrary view, see Goldman v. Crowther, 147 Md. 282; Ignaciunas v. Risley, 98 N. J. L. 712; Spann v. City of Dallas, 111 Tex. 350.

As evidence of the decided trend toward the broader view, it is significant that in some instances the state courts in later decisions have reversed their former deci­sions holding the other way. For example, compare State ex rel. Beery v. Houghton, supra, sustaining the power, with State ex rel. Lachtman v. Houghton, 134 Minn. 226; State ex rel. Roerig v. City of Minneapolis, 136 Minn. 479; and Vorlander v. Hokenson, 145 Minn. 484, denying it, all of which are disapproved in the Houghton case (p. 151) last decided.

The decisions enumerated in the first group cited above agree that the exclusion of buildings devoted to business, trade, etc., from residential districts, bears a rational rela­tion to the health and safety of the community. Some of the grounds for this conclusion are—promotion of the health and security from injury of children and others by separating dwelling houses from territory devoted to trade and industry; suppression and prevention of disorder; fa­cilitating the extinguishment of fires, and the enforcement of street traffic regulations and other general welfare or­dinances; aiding the health and safety of the community by excluding from residential areas the confusion and danger of fire, contagion and disorder which in greater or less degree attach to the location of stores, shops and fac­tories. Another ground is that the construction and re­pair of streets may be rendered easier and less expensive by confining the greater part of the heavy traffic to the streets where business is carried on.

The Supreme Court of Illinois, in City of Aurora v. Burns, supra, pp. 93-95, in sustaining a comprehensive building zone ordinance dividing the city into eight dis­tricts, including exclusive residential districts for one and two-family dwellings, churches, educational institutions and schools, said:

“The constantly increasing density of our urban pop­ulations, the multiplying forms of industry and the grow­ing complexity of our civilization make it necessary for the State, either directly or through some public agency by its sanction, to limit individual activities to a greater extent than formerly. With the growth and development of the State the police power necessarily develops, within reasonable bounds, to meet the changing conditions. . . .

“. . . The harmless may sometimes be brought with­in the regulation or prohibition in order to abate or destroy the harmful. The segregation of industries com­mercial pursuits and dwellings to particular districts in a city, when exercised reasonably, may bear a rational relation to the health, morals, safety and general welfare of the community. The establishment of such districts or zones may, among other things, prevent congestion of population, secure quiet residence districts, expedite local transportation, and facilitate the suppression of disorder, the extinguishment of fires and the enforcement of traffic and sanitary regulations. The danger of fire and the risk of contagion are often lessened by the exclusion of stores and factories from areas devoted to residences, and, in consequence, the safety and health of the community may be promoted.....

“. . . The exclusion of places of business from resi­dential districts is not a declaration that such places are nuisances or that they are to be suppressed as such, but it is a part of the general plan by which the city’s ter­ritory is allotted to different uses in order to prevent, or at least to reduce, the congestion, disorder and dangers which often inhere in unregulated municipal develop­ment.”

The Supreme Court of Louisiana, in State v. City of New Orleans, supra, pp. 282-283, said:

“In the first place, the exclusion of business establish­ments from residence districts might enable the munic­ipal government to give better police protection. Patrol­men’s beats are larger, and therefore fewer, in residence neighborhoods than in business neighborhoods. A place of business in a residence neighborhood furnishes an ex­cuse for any criminal to go into the neighborhood, where, otherwise, a stranger would be under the ban of suspicion. Besides, open shops invite loiterers and idlers to congre­gate; and the places of such congregations need police pro­tection. In the second place, the zoning of a city into residence districts and commercial districts is a matter of economy in street paving. Heavy trucks, hauling freight to and from places of business in residence districts, re­quire the city to maintain the same costly pavement in such districts that is required for business districts; where­as, in the residence districts, where business establishments are excluded, a cheaper pavement serves the purpose. . . .

“Aside from considerations of economic administration, in the matter of police and fire protection, street paving, etc., any business establishment is likely to be a genuine nuisance in a neighborhood of residences. Places of busi­ness are noisy; they are apt to be disturbing at night; some of them are malodorous; some are unsightly; some are apt to breed rats, mice, roaches, flies, ants, etc. . . .

“If the municipal council deemed any of the reasons which have been suggested, or any other substantial reason, a sufficient reason for adopting the ordinance in question, it is not the province of the courts to take issue with the council. We have nothing to do with the ques­tion of the wisdom or good policy of municipal ordinances. If they are not satisfying to a majority of the citizens, their recourse is to the ballot—not the courts.”

The matter of zoning has received much attention at the hands of commissions and experts, and the results of their investigations have been set forth in comprehen­sive reports. These reports, which bear every evidence of painstaking consideration, concur in the view that the segregation of residential, business, and industrial build­ings will make it easier to provide fire apparatus suitable for the character and intensity of the development in each section; that it will increase the safety and security of home life; greatly tend to prevent street accidents, es­pecially to children, by reducing the traffic and resulting confusion in residential sections; decrease noise and other conditions which produce or intensify nervous disorders; preserve a more favorable environment in which to rear children, etc. With particular reference to apartment houses, it is pointed out that the development of de­tached house sections is greatly retarded by the coming of apartment houses, which has sometimes resulted in destroying the entire section for private house purposes; that in such sections very often the apartment house is a mere parasite, constructed in order to take advantage of the open spaces and attractive surroundings created by the residential character of the district. Moreover, the coming of one apartment house is followed by others, interfering by their height and bulk with the free circu­lation of air and monopolizing the rays of the sun which otherwise would fall upon the smaller homes, and bring­ing, as their necessary accompaniments, the disturbing noises incident to increased traffic and business, and the occupation, by means of moving and parked automobiles, of larger portions of the streets, thus detracting from their safety and depriving children of the privilege of quiet and open spaces for play, enjoyed by those in more favored localities,—until, finally, the residential character of the neighborhood and its desirability as a place of detached residences are utterly destroyed. Under these circum­stances, apartment houses, which in a different environ­ment would be not only entirely unobjectionable but highly desirable, come very near to being nuisances.

If these reasons, thus summarized, do not demonstrate the wisdom or sound policy in all respects of those restric­tions which we have indicated as pertinent to the inquiry, at least, the reasons are sufficiently cogent to preclude us from saying, as it must be said before the ordinance can be declared unconstitutional, that such provisions are clearly arbitrary and unreasonable, having no sub­stantial relation to the public health, safety, morals, or general welfare. Cusack Co., v. City of Chicago, supra, pp. 530-531; Jacobson v. Massachusetts, 197 U. S. 11, 30-31.

It is true that when, if ever, the provisions set forth in the ordinance in tedious and minute detail, come to be concretely applied to particular premises, including those of the appellee, or to particular conditions, or to be considered in connection with specific complaints, some of them, or even many of them, may be found to be clearly arbitrary and unreasonable. But where the equitable remedy of injunction is sought, as it is here, not upon the ground of a present infringement or denial of a specific right, or of a particular injury in process of actual execu­tion, but upon the broad ground that the mere existence and threatened enforcement of the ordinance, by mate­rially and adversely affecting values and curtailing the opportunities of the market, constitute a present and irreparable injury, the court will not scrutinize its provi­sions, sentence by sentence, to ascertain by a process of piecemeal dissection whether there may be, here and there, provisions of a minor character, or relating to mat­ters of administration, or not shown to contribute to the injury complained of, which, if attacked separately, might not withstand the test of constitutionality. In respect of such provisions, of which specific complaint is not made, it cannot be said that the land owner has suffered or is threatened with an injury which entitles him to challenge their constitutionality. Turpin v. Lemon, 187 U. S. 51, 60. In Railroad Commission Cases, 116 U. S. 307, 335-337, this Court dealt with an analogous situa­tion. There an act of the Mississippi legislature, regu­lating freight and passenger rates on intrastate railroads and creating a supervisory commission, was attacked as unconstitutional. The suit was brought to enjoin the commission from enforcing against the plaintiff railroad company any of its provisions. In an opinion delivered by Chief Justice Waite, this Court held that the chief purpose of the statute was to fix a maximum of charges and to regulate in some matters of a police nature the use of railroads in the state. After sustaining the con­stitutionality of the statute “in its general scope” this Court said: “Whether in some of its details the statute may be defective or invalid we do not deem it necessary to inquire, for this suit is brought to prevent the com­missioners from giving it any effect whatever as against this company.” Quoting with approval from the opin­ion of the Supreme Court of Mississippi it was further said: “Many questions may arise under it not necessary to be disposed of now, and we leave them for considera­tion when presented.” And finally: “When the com­mission has acted and proceedings are had to enforce what it has done, questions may arise as to the validity of some of the various provisions which will be worthy of consideration, but we are unable to say that, as a whole, the statute is invalid.”

The relief sought here is of the same character, namely, an injunction against the enforcement of any of the re­strictions, limitations or conditions of the ordinance. And the gravamen of the complaint is that a portion of the land of the appellee cannot be sold for certain enumer­ated uses because of the general and broad restrain of the ordinance. What would be the effect of a restraint imposed by one or more of the innumerable provisions of the ordinance, considered apart, upon the value or marketability of the lands is neither disclosed by the bill nor by the evidence, and we are afforded no basis, apart from mere speculation, upon which to rest a conclusion that it or they would have any appreciable effect upon those matters. Under these circumstances, therefore, it is enough for us to determine, as we do, that the ordi­nance in its general scope and dominant features, so far as its provisions are here involved, is a valid exercise of authority, leaving other provisions to be dealt with as cases arise directly involving them.

And this is in accordance with the traditional policy of this Court. In the realm of constitutional law, espe­cially, this Court has perceived the embarrassment which is likely to result from an attempt to formulate rules or decide questions beyond the necessities of the immediate issue. It has preferred to follow the method of a gradual approach to the general by a systematically guarded ap­plication and extension of constitutional principles to par­ticular cases as they arise, rather than by out of hand attempts to establish general rules to which future cases must be fitted. This process applies with peculiar force to the solution of questions arising under the due process clause of the Constitution as applied to the exercise of the flexible powers of police, with which we are here concerned.

Decree reversed.

*

The court below seemed to think that the frontage of this prop­erty on Euclid Avenue to a depth of 150 feet came under U-l district and was available only for single family dwellings. An examination of the ordinance and subsequent amendments, and a comparison of their terms with the maps, shows very clearly, however, that this view was incorrect. Appellee’s brief correctly interpreted the ordi­nance: “The northerly 500 feet thereof immediately adjacent to the right of way of the New York, Chicago & St. Louis Railroad Com­pany under the original ordinance was classed as U-6 territory and the rest thereof as U-2 territory. By amendments to the ordinance, a strip 630 [620] feet wide north of Euclid Avenue is classed as U-2 territory, a strip 130 feet wide next north as U-3 territory and the rest of the parcel to the Nickel Plate right of way as U-6 territory.”

Supreme Court of Missouri. En Banc.

No. 50381.

Carl O. HOFFMANN, Jr., and Mrs. Geraldine St. Denis, Appellants, v. Robert KINEALY, Martin Beffa, Clarence Ax, Rudolph Beuc and Leo Maginn, con­stituting the Board of Adjustment of the City of St. Louis, Missouri, Respondents.

May 10, 1965.

All concur, except HYDE, J., who dis­sents in separate dissenting opinion filed.

Claude W. McElwee, St. Louis, for ap­pellants.

Thos. J. Neenan, City Counselor, John J. Fitzgibbon, Thomas F. McGuire, Assoc. City Counselors, St. Louis, for respondents.

A. P. STONE, Jr., Special Judge.

This is an appeal by Carl O. Hoffmann, Jr., and Mrs. Geraldine St. Denis (herein called relators), the owners of two adjoin­ing lots (frequently referred to as the lots) In the 3100 block of Pennsylvania in the City of St. Louis, from the judgment of the Circuit Court of the City of St. Louis af­firming, upon review by certiorari [V.A. M.S. § 89.110], a decision of the board of adjustment sustaining a decision of the building commissioner which denied relators’ application for a certificate of occu­pancy of the lots for a pre-existing lawful nonconforming use, to wit, for the open storage of lumber, building materials and construction equipment.

The lots have an aggregate width of 52 1/2 feet, north and south, are 125 feet deep, east and west, and front on the west side of Pennsylvania, a north-south street, in a block bounded on the east by Pennsyl­vania, on the north by Juniata, on the west by Minnesota, and on the south by Wyo­ming. An east-west alley runs along the south side of the lots, and a north-south alley runs along their rear. Portions of the block, i.e., (1) that portion in which the lots are located, which is east of the north-south alley and fronts on Pennsyl­vania, and (2) that portion south of the east-west alley and fronting on Wyoming, are in a “B” two-family dwelling district, while the remainder of the block, i.e., that portion which is west of the north-south alley (and thus on the opposite side of the alley behind the lots) and fronts on Min­nesota is in a “J” industrial district and is used for the operation of a planing mill and for open storage of lumber. A small build­ing housing the general offices of Hoffmann Construction Company, relators’ business in connection with which the lots have been used, is located in the “B” two-family dwelling district on the south side of the east-west alley and just across the alley from the lots.

The exhibits presented at the hearing be­fore the board of adjustment, and brought to us with the transcript on appeal, indi­cate that there are fourteen buildings in the same portion of the block in which the lots are situate, including a tavern on the southwest corner of Pennsylvania and Juniata, one three-family residence, eleven other residences, and at the rear of one residence a building identified on a plat as used for “tractor parts”; ten buildings in that portion of the block south of the east-­west alley, including a grocery store on the northwest corner of Pennsylvania and Wyoming, eight residences (all owned by relators), and at the rear of one residence the above-mentioned office building of Hoffmann Construction Company; and that, on the other three corners of the in­tersection of Pennsylvania and Wyoming, there are two taverns and a cleaning and pressing shop.

Counsel for the city conceded at the hear­ing before the board of adjustment, and the subsequent finding of the board (not here disputed) was, that the lots were be­ing used at the time of hearing for the open storage of lumber, building materials and construction equipment and that (in the language of the board’s finding) “these premises have been used for this same pur­pose continuously since the year 1910.” The front end of the lots is “landscaped” with a hedge and shrubbery, and the area used for open storage is enclosed with a high fence.

The first comprehensive zoning ordi­nance of the City of St. Louis became ef­fective in 1926. On April 25, 1950, nu­merous sections of the zoning code were amended by Ordinance 45309. Section 5 A 1 of that ordinance provided that “No building or land shall be used for a use other than those permitted in the district in which such premises are located unless . . . such use existed prior to the ef­fective date of this ordinance.” Section 5 B of the same ordinance, insofar as here material, provided that “The use of land within any dwelling district . . . for purposes of open storage . . . which do not conform to the provisions of this ordinance shall be discontinued within six (6) years from the effective date of this ordinance.”

About six years and three months later, to wit, on July 24, 1956, Ordinance 48007 was enacted, amending that portion of Sec­tion 5 B of Ordinance 45309, with which we are here concerned, to read as follows: “The use of land within any dwelling dis­trict for the purpose of open storage is hereby prohibited.”

On April 12, 1961, Ordinance 50547 was approved amending Ordinance 45309, as amended, by repealing several sections, in­cluding Section 5 thereof, and enacting in lieu thereof several new sections. How­ever, Section 5 A 1 as it appeared in Ordi­nance 45309 and Section 5 B as it appeared in Ordinance 48007 were carried forward verbatim in Ordinance 50547.

In May 1961 the provisions of Sections 5 A 1 and 5 B were codified in Sections 903.010 and 903.030 of “The Zoning Code” as a part of “The Revised Code of the City of St. Louis, 1960,” in the following language:

Section 903.010. “No building or land shall be used for a use other than those permitted in the district in which such premises are located unless (a) such use is permitted by other provisions of this Chap­ter or by Chapter 915 (Use, Height, and Area Exceptions) or Chapter 916 (Board of Adjustment); or (b) such use existed prior to April 25, 1950.”

Section 903.030. “The use of land with­in any dwelling district for the purpose of open storage is prohibited.”

After relators had been notified on De­cember 7, 1962, to cease the use of the lots for open storage, they filed with the building commissioner on December 21, 1962, an application for a certificate of oc­cupancy of the lots for a pre-existing lawful nonconforming use, to wit, for the open storage of lumber, building materials and construction equipment. From the decision of the building commissioner denying that application, relators appealed to the board of adjustment which, after a public hear­ing and the taking of evidence, sustained the decision of the building commissioner. Upon review by certiorari, the circuit court accorded the parties a trial on the merits, considered the full record of prior proceed­ings including exhibits, and affirmed the findings and decision of the board of adjust­ment.

Relators’ petition in the circuit court, upon which the writ of certiorari was issued, charged that Section 903.030 of the zoning code was unconstitutional, null and void and was of no effect as to relators’ lots because, by prohibiting continuance of the pre-existing lawful nonconforming use of the lots, said section would impair, restrict and deprive relators of vested property fights and thereby would take and damage relators’ private property for public use without just compensation in violation of Article 1, Section 26, Missouri Constitution of 1945, V.A.M.S. Likewise, that is the es­sence of relators’ complaint upon this ap­peal.

Respondents’ position is that, under the statutory grant of police power in municipal zoning and planning [V.A.M.S. §§ 89.020 and 89.040], the city was empowered to en­act on April 25, 1950, Section 5 B of Ordi­nance 45309, a so-called “amortization” or “toleration” provision which required dis­continuance within six years thereafter of the nonconforming use of land within any dwelling district for purposes of open stor­age, and that, such six-year “amortization” or “toleration” period having run in April 1956, the subsequent absolute prohibition of said nonconforming use of land by Ordi­nance 48007 enacted on July 24, 1956, there­after reenacted by Ordinance 50547 on April 12, 1961, and codified in Section 903.030, was valid.

Relators reply that their right to continue their pre-existing lawful nonconforming use actually was taken, notwithstanding the fact that such taking was delayed, and that the constitutional interdiction against the taking of private property for public use without just compensation [Art. 1, Sec. 26, Mo. Const. of 1945] is absolute and subject to no exception as to a delayed or postponed tak­ing. There has been and is no suggestion that relators’ use of their lots constituted a nuisance.

The parties thus present, as a matter of first impression in the appellate courts of this state, the constitutionality of the “amor­tization” or “toleration” technique of elimi­nating pre-existing lawful nonconforming uses. It may be observed preliminarily that, although the six-year amortization provision in Section 5 B of Ordinance 45309 enacted in 1950 was not carried forward in Ordi­nance 48007 enacted in 1956 after the six-­year term had run or in the 1960 codifica­tion in effect when this proceeding was in­stituted, we are of the opinion that the va­lidity of Section 903.030 of the 1960 codifi­cation should be determined in the light of the 1950 ordinance. 82 C.J.S. Statutes § 386, p. 914; Powell v. Utz, D.C.Wash., 87 F.Supp. 811, 815(6). See State v. Ward, 328 Mo. 658, 668-669, 40 S.W.2d 1074, 1078 (10, 11); Bear Lake & River Waterworks & Irrigation Co. v. Garland, 164 U.S. 1, 4, 11-13, 17 S.Ct. 7, 8, 9, 41 L.Ed. 327, 328, 332. So holding, we proceed to the basic question of constitutionality.

Of course, it has long been settled that a comprehensive zoning ordinance op­erating prospectively, which has a sub­stantial relationship to the public health, safety, morals or general welfare and is not unreasonable or discriminatory, is valid as a proper exercise of the police power. State ex rel. Oliver Cadillac Co. v. Christo­pher, 317 Mo. 1179, 298 S.W. 720, error dis­missed 278 U.S. 662, 49 S.Ct. 17, 73 L.Ed. 569; Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016. This is so even though, in restricting future uses, any such ordinance may impose hardship and inflict economic loss upon some property owners, for it is recognized that “[e]very valid exer­cise of the police power is apt to affect the property of some one adversely.” Flora Realty & Inv. Co. v. City of Ladue, 362 Mo. 1025, 1040, 246 S.W.2d 771, 779, appeal dis­missed 344 U.S. 802, 73 S.Ct. 41, 97 L.Ed. 626; Downing v. City of Joplin, Mo., 312 S.W.2d 81, 85.

In earlier days of zoning legislation, it generally was recognized and conceded that termination of pre-existing lawful noncon­forming uses would be unconstitutional.1 The expressions by way of dicta in our cases suggest that this has been taken for granted in Missouri. In Women’s Christian Ass’n. of Kansas City v. Brown, 354 Mo. 700, 709­710, 190 S.W.2d 900, 906, involving an at­tempted change of nonconforming use from a riding academy to a dance hall, this court said that: “Nonconforming uses, existing at the commencement of zoning, are of course permitted to continue as vested rights. Zoning Law and Practice, Smith, § 85.” (All emphasis herein is ours.) The Enabling Act, under which the applicable Zoning Order of Jackson County had been enacted, specifically provided that “[t]he powers by this act given shall not be exer­cised so as to deprive the owner, lessee or tenant, of any existing property of its use or maintenance for the purpose to which it is then lawfully devoted . . . ” [Laws of 1941, p. 485], but that statute was not cit­ed in connection with the quoted statement, which was immediately followed by this il­luminating commentary upon the theory of zoning: “‘Within a period of another twenty years, a large number of such “non­conforming” uses will have disappeared, either through the necessity of enlargement and expansion which invariably is forbidden or limited by ordinance, or by the owners realizing that it is unwise and uneconomic to be located in a district which probably is not suitable for the nonconforming pur­pose, or by obsolescence, destruction by fire or by the elements or similar inability to be used; so that many of these nonconform­ing uses will “fade out,” with a resulting substantial and definite benefit to all com­munities.’ The Law of Zoning, Metzenbaum, p. 288.”

When the same factual situation was pre­sented a second time in Brown v. Gambrel, 358 Mo. 192, 198, 213 S.W.2d 931, 935(1), this court said, with respect to the prior lawful use of the building as a public stable or riding academy, that “[s]uch use of such building was a priorly vested right of which the county by the institution (April 26, 1943) of its zoning plan could not deprive appellants. Zoning Law and Practice, Smith, Sec. 85, p. 108; Women’s Christian Ass’n. of Kansas City v. Brown, supra; In re Botz, 236 Mo.App. 566, 159 S.W.2d 367­; Laws of Missouri, 1941, page 485

In State ex rel. Capps v. Bruns, Mo.App., 353 S.W.2d 829, relator sought a writ of mandamus directing issuance to him of a license to operate a junk yard, a pre-existing nonconforming use of his land. The Kan­sas City Court of Appeals wrote: “‘The general rule is that nonconforming struc­tures and uses existing at the time of the effective date of a zoning ordinance or re­striction may be continued’. [8] McQuillin, Municipal Corporations, 3d Ed., page 464. Such use and the operation of such a busi­ness was continuance of a vested right of which the city could not deprive plaintiff. See Brown et al v. Gambrel et al, 358 Mo. 192, 213 S.W.2d 931, 935. In addition, Gen­eral Ordinance 3162, Sec. 11-21, City of St. Joseph, squarely authorizes such continuing nonconforming use.” 353 S.W.2d at 830. Again, the court pointed out: “In our case we have an applicant who for twenty years has conducted a junk yard at this particular location. He has a vested right which zon­ing ordinances could not abrogate.” 353 S.W.2d at 831. Later in the opinion, we find this gratuitous observation, without dis­cussion or citation of authority: “Many [?] ordinances limit the life of nonconforming uses to a period of years and such ordi­nances have been approved. There are apparently no such ‘tolerance period’ ordi­nances involved in our case.” 353 S.W.2d at 832.

In considering their appellate jurisdiction in Bartholomew v. Board of Zoning Adjust­ment, Mo.App., 307 S.W.2d 730, 732, the Kansas City Court of Appeals stated: “Plaintiffs do not question the general con­stitutionality of the zoning law. It is rath­er their position that under the facts here, they proved a lawful nonconforming use amounting to a vested right, which both constitutions will preserve. If the evidence discloses such proof this court will protect such right and defendants do not contend otherwise.” These statements from Bar­tholomew, supra, were quoted with approval by this court in a discussion of appellate jurisdiction in Dunbar v. Board of Zoning Adjustment, Mo., 380 S.W.2d 442, 444, where property owners were complaining of deprivation of “prior vested property rights.”

So much for the dicta in this state. Ob­viously, none of the cited Missouri cases reached or ruled the basic question before us here, but they indicate, so we think, that heretofore the validity of pre-existing law­ful nonconforming uses has been recognized in this jurisdiction, as elsewhere.

Certainly, the spirit of zoning ordi­nances always has been and still is to di­minish and decrease nonconforming uses [Brown v. Gambrel, supra, 358 Mo. at 199, 213 S.W.2d at 935-936; 8 McQuillin, Mu­nicipal Corporations (3d Ed.), § 25.183, p. 473], and to that end municipalities have employed various approved regulatory methods such as prohibiting the resumption of a nonconforming use after its abandon­ment or discontinuance, prohibiting the re­building or alteration of nonconforming structures or structures occupied for non­conforming uses, and prohibiting or rigidly restricting a change from one nonconform­ing use to another. 2 Rathkopf, The Law of Zoning and Planning, Ch. 62, pp. 62-2 to 62-4 (1960). Even so, pre-existing lawful nonconforming uses have not faded out or eliminated themselves as quickly as had been anticipated, so zoning zealots have been casting about for other methods or techniques to hasten the elimination of noncon­forming uses. In so doing, only infrequent use has been made of the power of eminent domain, primarily because of the expense of compensating damaged property owners,2 but increasing emphasis has been placed upon the “amortization” or “tolerance” technique which conveniently bypasses the troublesome element of compensation.

“Stated in its simplest terms, amortiza­tion contemplates the compulsory termina­tion of a non-conformity at the expiration of a specified period of time, which period is equaled (sic) to the useful economic life of the non-conformity.” Katarincic, Elimi­nation of Non-Conforming Uses, Buildings, and Structures by Amortization—Concept v. Law, 2 Duquesne Univ.L.Rev. 1. “The basic idea is to determine the remaining normal useful life of a pre-existing noncon­forming use. The owner is then allowed to continue his use for this period and at the end must either conform or eliminate it.” Note, 44 Cornell L.Q. 450, 453 (1959). Courts approving the amortization tech­nique as a valid exercise of the police power rationalize their holdings in this fashion: “The distinction between an ordinance re­stricting future uses and one requiring the termination of present uses within a reason­able period of time is merely one of degree, and constitutionality depends on the relative importance to be given to the public gain and to the private loss. Zoning as it affects every piece of property is to some extent retroactive in that it applies to property al­ready owned at the time of the effective date of the ordinance. The elimination of exist­ing uses within a reasonable time does not amount to a taking of property nor does it necessarily restrict the use of property so that it cannot be used for any reasonable purpose. Use of a reasonable amortization scheme provides an equitable means of rec­onciliation of the conflicting interests in satisfaction of due process requirements. As a method of eliminating existing non­conforming uses it allows the owner of the nonconforming use, by affording an oppor­tunity to make new plans, at least partially to offset any loss he might suffer. If the amortization period is reasonable the loss to the owner may be small when com­pared with the benefit to the public.” City of Los Angeles v. Gage, 127 Cal.App.2d 442, 274 P.2d 34, 44; Grant v. Mayor and City Council of Baltimore, 212 Md. 301, 129 A.2d 363, 368.

Several cases 3 in other jurisdictions have approved the termination of pre-existing nonconforming uses by the amortization technique. However, there are a number of decisions 4 to the opposite effect, and it may be fairly said that there is “a decided lack of accord” in this area. 58 Am.Jur., Zoning, § 148 (1964-65 Supp., p. 146); annotation 42 A.L.R.2d 1146.

With respect to some of the cases (listed in footnote 3) in which the amortization technique has been employed, brief com­ments may not be inappropriate. As other courts have observed, the opinions in State ex rel. Dema Realty Co. v. McDonald, 168 La. 172, 121 So. 613, and State ex rel. Dema Realty Co. v. Jacoby, 168 La. 752, 123 So. 314, exhibit “a confusion between the ob­jects of zoning and nuisance regulation” [Jones v. City of Los Angeles, 211 Cal. 304, 295 P. 14, 21; James v. City of Greenville, 227 S.C. 565, 88 S.E.2d 661, 671], and cer­tainly the same properly may be said with respect to Livingston Rock & Gravel Co. v. County of Los Angeles, 43 Cal.2d 121, 272 P.2d 4, where, under a rezoning ordinance providing an “automatic exception” to per­mit continuance of certain nonconforming uses but authorizing the revocation of any such exception where that could be done without impairment of “constitutional rights,” it was found by the planning com­mission that “‘use of the property with a cement batching plant thereon’ was ‘being exercised in such a manner as to be detri­mental to public health, and so as to be a nuisance.’” 272 P.2d at 7. Referring to the Dema Realty Company cases, supra, one writer has offered this caustic criticism: “The Louisiana decisions in this field . . . sound more like Cossack interpretations of Muscovite ukases than utterances of a court operating under the benign provisions of the Magna Carta.” Fratcher, Constitutional Law—Zoning Ordinances Prohibiting Re­pair of Existing Structures, 35 Mich.L.Rev. 642, 644 (1937). And in Grant v. Mayor and City Council of Baltimore, supra, 129 A.2d at 367, it was frankly conceded that the opinions in the Dema Realty Company cases, supra, and in Standard Oil Co. v. City of Tallahassee, 5 Cir., 183 F.2d 410, were “not particularly persuasive in their reasoning,” although the court was “im­pressed” with the decisions in Livingston Rock & Gravel Co. v. County of Los An­geles, supra, and City of Los Angeles v. Gage, supra. With respect to Standard Oil Co. v. City of Tallahassee, supra, a perspica­cious student has pointed out that: “Dis­continuance was required in spite of the fact that many ‘of the residences [in the area] are far below standard and many of them shacks. . . .’ [87 F.Supp. 145, 149 (D.C.Fla.1949)] Thus, it would seem, the court was sanctioning the use of ‘amorti­zation’ provisions to redevelop an unsightly area.” Note, 44 Cornell L.Q. 450, 455 (1959).

In Harbison v. City of Buffalo, 4 N.Y.2d 553, 176 N.Y.S.2d 598, 152 N.E.2d 42, fre­quently cited by advocates of the amortiza­tion technique, only two judges concurred in the principal opinion while the additional two included in the bare majority of four concurred in result “upon the principles stat­ed in People v. Miller, 304 N.Y. 105, 108, 109, 106 N.E.2d 34, 35, 36.” 176 N.Y.S.2d at 616, 152 N.E.2d at 54. The “principles stated” in People v. Miller, supra, were that “nonconforming uses or structures, in exist­ence when a zoning ordinance is enacted, are, as a general rule, constitutionally pro­tected and will be permitted to continue, notwithstanding the contrary provisions of the ordinance” [106 N.E.2d at 35(1)]; that, however, “the enforcement of a zoning reg­ulation against a prior nonconforming use will be sustained where the resulting loss to the owner is relatively slight and insubstan­tial” [106 N.E.2d at 35(3)]; that the princi­ple permitting continuance of pre-existing nonconforming uses was “clearly inapplica­ble to a purely incidental use of property for recreational or amusement purposes only”; and that “an inconsequential use as that here involved—the harboring of pigeons as a hobby—[did] not amount to a ‘vested right’” protected against termination by an amended zoning ordinance. 106 N.E.2d at 36. The author of a comprehensive note on Harbison v. City of Buffalo, supra, ap­propriately suggests that, since two of the four judges constituting the majority in that case concurred only in result on the basis of People v. Miller, supra, “it is doubtful if the Court of Appeals as a whole intended to move too far away from that decision and its fundamental principle that a prior non­conforming use can be terminated only where it is insubstantial.” Note, 44 Cornell L.Q. 450, 457.

But, although the holdings in other jurisdictions may, in some instances, be en­lightening and persuasive, it is neither our duty nor our inclination to rule a question of first impression in this state simply by counting foreign cases and then falling off the judicial fence on the side on which more cases can be found. Rather, our concern should be and is to determine the basic con­stitutional right of the matter, as we see it. Property is defined as including not only ownership and possession but also the right of use and enjoyment for lawful purposes.5 In fact, “[t]he substantial value of property lies in its use.”6 It follows that: “'[t]he constitutional guaranty of protection for all private property extends equally to the en­joyment and the possession of lands. An arbitrary interference by the government, or by its authority, with the reasonable enjoyment of private lands is a taking of private property without due process of law, which is inhibited by the Constitution.’ Tiedeman’s Limitation of Police Powers, § 122.” Ex parte Davis, 321 Mo. 370, 375, 13 S.W.2d 40, 41. See 1 Lewis, Eminent Domain (3d Ed.), § 65, p. 56.

Counsel for instant respondents would support and justify the amortization provision under consideration as constitut­ing reasonable and permissible regulation of the use of property. Of course, every com­prehensive zoning ordinance limits and thereby regulates the use of property pro­spectively. But we cannot embrace the doctrine espoused by advocates of the amortization technique that there is no material distinction between regulating the future use of property and terminating pre­existing lawful nonconforming uses.

The amortization provision under review would terminate and take from in­stant relators the right to continue a law­ful nonconforming use of their lots which has been exercised and enjoyed since 1910—­a right of the character to which the courts traditionally have referred as a “vested right.”7 To our knowledge, no one has, as yet, been so brash as to contend that such a pre-existing lawful nonconforming use properly might be terminated immediately. In fact, the contrary is implicit in the amor­tization technique itself which would vali­date a taking presently unconstitutional by the simple expedient of postponing such taking for a “reasonable” time. All of this leads us to suggest, as did the three dissent­ing justices in Harbison v. City of Buffalo, supra, 152 N.E.2d at 49, that it would be a strange and novel doctrine indeed which would approve a municipality taking pri­vate property for public use without com­pensation if the property was not too valu­able and the taking was not too soon, and prompts us to repeat the caveat of Mr. Jus­tice Holmes in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416, 43 S.Ct. 158, 160, 67 L.Ed. 322, 326, 28 A.L.R. 1321, that “[w]e are in danger of forgetting that a strong public desire to improve the public condi­tion is not enough to warrant achieving the desire by a shorter cut than the constitution­al way of paying for the change.” In this connection, we note also the terse comment of Chief Judge Hutcheson dissenting in Standard Oil Co. v. City of Tallahassee, supra, 183 F.2d at 414, “that even in this age of enlightenment the Constitution still protects the citizen against arbitrary and unreasonable action” and that the majority opinion in that case left him “in no doubt” but that “a good general principle, the pub­lic interest in zoning, [had] been run into the ground, the tail of legislative confisca­tion by caprice [had] been permitted to wag the dog of judicial constitutional protec­tion.”

It has been suggested that perhaps some distinction should be made between the termination of pre-existing nonconform­ing uses of land and the termination of such uses of buildings, and that it might be con­stitutionally permissible to terminate uses in the first category but not in the second. However, such distinction would be not only illogical but also in utter disregard of the economic realities of modern urban life, for the use of vacant land often is more valu­able than the use of buildings. E.g., older buildings frequently are torn down to make the underlying land available for more profitable uses such as used car lots or park­ing lots. In City of Seattle v. Martin, 54 Wash.2d 541, 342 P.2d 602 (1959), involving an ordinance which limited application of the amortization technique to nonconform­ing uses of vacant land, defendant’s counsel, in his unavailing plea of unconstitutionality, with understandable cynicism pointed out that: “A watchmaker in a $400.00 building could continue [a pre-existing nonconform­ing use]. A used car lot or a parking lot with no office would have to stop. If [de­fendant] had a $100.00 office building per­haps [he] could continue. Such distinctions are not reasonable.” Katarincic, op. cit. supra, at p. 34. And the commentator, al­though of the amortization school, observes in the same vein as defendant’s counsel that limitation of the ordinance to nonconform­ing uses of vacant land “suggests that the ordinance was motivated by aesthetic con­siderations” and that “[i]t would be difficult to imagine that a use would become any less or more compatible if it takes place in or outside a building.” Katarincic, op. cit. supra, at p. 34.

In a bold, critical student note inspired by City of Seattle v. Martin, supra, the author thought that the decision in that case might “seem mild in view of the facts of the case” and the attitude of some courts as exempli­fied by the comment of the Supreme Court of Louisiana in State ex rel. Dema Realty Co. v. Jacoby, supra, 123 So. at 317, that “[d]efendant's drug store is a small one, and it is obvious that one year affords ample time within which to liquidate the business and close it.” Note, 35 Wash.L.Rev. 213, 218 (1960). But, as the author continued, it is important that the courts be aware of the direction in which the amortization tech­nique takes them. “There are small drug stores, small junk yards, and small depart­ment stores. ‘Small’ is a relative term, and the generally proposed test of balancing the hardship on the individual with the benefit to the public is capable of extension to big­ger businesses and property investments. . . . Might not the test of the Martin case disclose that the public benefit in at­tracting industry and locating it in a well planned and desirable section of the city outweigh the hardship on the farmer who has to leave — especially if it is only a ‘small’ farm? . . . Whatever the policy result desired, would it not be better that our court clearly articulate its policy reasoning and at least compensate a property owner for a taking of his rights?” Note, 35 Wash.L. Rev. at 218-219.

In declining to adopt the suggestion that there may be some valid distinction between the termination of pre-existing lawful non­conforming uses of land and the termina­tion of such uses of buildings, we have not overlooked the discussion in the case of In re Botz, 236 Mo.App. 566, 159 S.W.2d 367, which did not concern the termination of pre-existing lawful nonconforming uses by the amortization technique but which per­tained only to a provision of the then effec­tive St. Louis zoning ordinance permitting the owner of a building to change from one pre-existing lawful nonconforming use “to another nonconforming use of the same or a more restricted classification,” if no struc­tural alterations were made. 236 Mo.App. at 574, 159 S.W.2d at 371. That the court, by way of dicta, thought it reasonable that the Board of Aldermen had not seen fit to extend to owners of land the same right to change from one nonconforming use to another is not, to us, persuasive here.

Although the record before us leaves much to be desired by way of detail, it is sufficient for the purposes of this opinion to say that the record adequately shows that instant relators’ use of their lots may not be brushed aside and disregarded as “rela­tively slight and insubstantial.” Contrast People v. Miller, supra, 106 N.E.2d at 35, 36, involving the harboring of pigeons as a hobby. In our view of the matter, termina­tion of relators’ pre-existing lawful non­conforming use of their lots for the open storage of lumber, building materials and construction equipment would constitute the taking of private property for public use without just compensation in violation of Article 1, Section 26, Missouri Constitution of 1945—a taking not to be justified as an exercise of the police power which is always subject to, and may never transcend, con­stitutional rights and limitations. Pan­handle Eastern Pipe Line Co. v. State High­way Com’n. of Kansas, 294 U.S. 613, 622, 55 S.Ct. 563, 567, 79 L.Ed. 1090, 1097, rehear­ing denied 295 U.S. 768, 55 S.Ct. 652, 79 L.­Ed. 1709; Women’s Kansas City St. An­drew Soc. v. Kansas City, Mo., 8 Cir., 58 F.2d 593, 598(3); James v. City of Green­ville, 227 S.C. 565, 88 S.E.2d 661, 668; Con­nor v. Township of Chanhassen, 249 Minn. 205, 81 N.W.2d 789, 797(19); 16 C.J.S. Constitutional Law § 196, pp. 946-951.

Accordingly, the judgment of the circuit court is set aside and the cause is remanded with directions to enter judgment ordering respondents, constituting the board of ad­justment of the City of St. Louis, to issue, or cause to be issued, to relators a certificate of occupancy for continuance of the pre­existing lawful nonconforming use of rela­tors’ lots for the open storage of lumber, building materials and construction equip­ment.

1

Jones v. City of Los Angeles, 211 Cal. 304, 295 P. 14, 17-18; People v. Miller, 304 N.Y. 105, 106 N.E.2d 34, 35(1); City of Aurora v. Burns, 319 Ill. 84, 149 N.E. 784, 788-789; Katarincic, Elim­ination of Non-Conforming Uses, Build­ings, and Structures by Amortization—­Concept v. Law, 2 Duquesne Univ.L.Rev. 1, 2-3 (1963); note, 8 Okla.L.Rev. 239 (1955); note, 9 U.Chi.L.Rev. 477, 483-­484 (1942); 2 Rathkopf, The Law of Zoning and Planning, Oh. 62, p. 62-1 (1960).

2

Katarincic, op. cit. supra note 1, at 4-5; note, 44 Cornell L.Q. 450, 453 (1959); comment, 1951 Wis.L.Rev. 685, 696; note, 102 U.Pa.L.Rtev. 91, 93 (1953). See Grant v. Mayor and City Council of Baltimore, 212 Md. 301, 129 A.2d 363, 365-366.

3

State ex rel. Dema Realty Co. v. Mc­Donald, 168 La. 172, 121 So. 613, certio­rari denied 280 U.S. 556, 50 S.Ct. 16, 74 L.Ed. 612 (termination of a retail grocery store within one year approved in four to three decision); State ex rel. Dema Realty Co. v. Jacoby, 168 La. 752, 123 So. 314 (termination of “a small retail drug store” within one year approved in six to one decision); Standard Oil Co. v. City of Tallahassee, 5 Cir., 183 F.2d 410, certiorari denied 340 U.S. 892, 71 S.Ct. 208, 95 L.Ed. 647 (discontinuance within ten years of filling station constructed during year prior to enactment of “amortization” ordinance approved in two to one decision); Livingston Rock & Gravel Co. v. County of Los Angeles, 43 Cal.2d 121, 272 P.2d 4 (termination of right to operate cement batching plant within thirteen months approved in four to three decision); City of Los Angeles v. Gage, 127 Cal.App.2d 442, 274 P.2d 34 (termination of wholesale and retail plumbing supply business within five years approved); Harbison v. City of Buffalo, 4 N.Y.2d 553, 176 N.Y.S.2d 598, 152 N.E.2d 42 (discontinuance of junk yard within three years approved in four to three decision); Spurgeon v. Board of Com’rs. of Shawnee County, 181 Kan. 1008, 317 P.2d 798 (discon­tinuance of automobile wrecking business within two years approved); City of Seattle v. Martin, 54 Wash.2d 541, 342 P.2d 602 (termination within one year of use of vacant lot for repairing con­struction equipment approved); Grant v. Mayor and City Council of Baltimore, supra, 129 A.2d 363 (removal of bill­boards, which may be in a somewhat dif­ferent category, within five years ap­proved).

4

City of Akron v. Chapman, 160 Ohio St. 382, 116 N.E.2d 697, 42 A.L.R.2d 1140 (discontinuance of junk yard with­in one year disapproved); James v. City of Greenville, 227 S.C. 565, 88 S.E.2d 661 (discontinuance of trailer court with­in one year disapproved); City of Corpus Christi v. Allen, 152 Tex. 137, 254 S.W.­2d 759 (discontinuance of automobile wrecking yard within one year disap­proved); Concord Township v. Cornog, 9 Pa.Dist.Co.R.2d 79, 48 Mun.L.Rev. 202 (Pa.1954) (removal of free-standing ad­vertising signs within six months dis­approved). See Jones v. City of Los An­geles, 211 Cal. 304, 295 P. 14; O’Connor v. City of Moscow, 69 Idaho 37, 202 P.­2d 401, 9 A.L.R.2d 1031; Stoner McCray System v. City of Des Moines, 247 Iowa 1313, 78 N.W.2d 843, 58 A.L.R.2d 1304; Town of Somers v. Camarco, 308 N.Y. 537, 127 N.E.2d 327.

5

Terrace v. Thompson, 263 U.S. 197, 215, 44 S.Ct. 15, 17-18, 68 L.Ed. 255, 274; City of Akron v. Chapman, supra note 4, 116 N.E.2d at 700; O’Connor v. City of Moscow, supra note 4, 202 P.2d at 404(3); Spann v. City of Dallas, 111 Tex. 350, 235 S.W. 513, 514(1), 19 A.L.R. 1387.

6

City of Akron v. Chapman, supra note 4, 116 N.E.2d at 700; Spann v. City of Dal­las, supra note 5, 235 S.W. at 514-515; O’Connor v. City of Moscow, supra note 4, 202 P.2d at 404.

7

Women’s Christian Ass’n. of Kansas City v. Brown, 354 Mo. 700, 709, 190 S.W.2d 900, 906; Brown v. Gambrel, 358 Mo. 192, 213 S.W.2d 931, 935; State ex rel. Capps v. Bruns, Mo.App., 353 S.W.­2d 829, 830, 831; Bartholomew v. Board of Zoning Adjustment, Mo.App., 307 S.W.­2d 730, 732; Des Jardin v. Town of Greenfield, 262 Wis. 43, 53 N.W.2d 784, 787 (1); Richards v. City of Pontiac, 305 Mich. 666, 9 N.W.2d 885, 888(7).

HYDE, Judge

(dissenting).

I respectfully dissent from the opinion of Stone, Special Judge, herein and state the following views as to the situation in­volved. All that is involved in this case is whether the City may prohibit open storage on vacant land in residence dis­tricts after allowing a six-year period for discontinuance. My view is that this is a reasonable exercise of the police power. It is well established that the test of valid­ity of the exercise of the police power is reasonableness, 11 Am.Jur. 1073 et seq., Constitutional Law, Secs. 302-307; 16 C.J.S. Constitutional Law, § 198, p. 951. All zoning is based on reasonable exercise of the police power; that is, it must have a reasonable relation to public health, safety or welfare.

In the leading case of Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 115, 71 L.Ed. 303, the Court said that zoning and “all similar laws and regulations, must find their justification in some aspect of the police power, asserted for the public welfare.” The court point­ed out the following reasons for this use of the police power: “[T]he segregation of residential, business and industrial build­ings will make it easier to provide fire ap­paratus suitable for the character and in­tensity of the development in each section; that it will increase the safety and secur­ity of home life, greatly tend to prevent street accidents, especially to children, by reducing the traffic and resulting confusion in residential sections, decrease noise and other conditions which produce or intensify nervous disorders, preserve a more favor­able environment in which to rear chil­dren.”

The court also stated: “Until recent years, urban life was comparatively sim­ple; but, with the great increase and con­centration of population, problems have de­veloped, and constantly are developing, which require, and will continue to re­quire, additional restrictions in respect of the use and occupation of private lands in urban communities. Regulations, the wis­dom, necessity, and validity of which, as applied to existing conditions, are so ap­parent that they are now uniformly sus­tained, a century ago, or even half a cen­tury ago, probably would have been reject­ed as arbitrary and oppressive. Such regu­lations are sustained, under the complex conditions of our day, for reasons anal­ogous to those which justify traffic regu­lations, which, before the advent of auto­mobiles and rapid transit street railways, would have been condemned as fatally ar­bitrary and unreasonable. And in this there is no inconsistency, for, while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world it is impossible that it should be otherwise.”

In view of these applicable principles, it does not seem reasonable to say that the existence of a particular use of vacant land when a zoning ordinance is adopted gives the owner a vested right to continue it in perpetuity, especially the right to pile material on vacant ground. The St. Louis Court of Appeals In re Botz, 236 Mo.App. 566, 159 S.W.2d 367, 372, points out sound reasons for making a distinction between land and buildings in permitting a non­conforming use, saying: “A building rep­resents an investment in the improvement of the land upon which it is erected; and if regard were not had for the reasonable protection of such investment, then the or­dinance would frequently be confiscatory with respect to its application to particular structures. Not only is a building erected with a view to its adaptation to a specific form of use which is to be made of it, but it is often difficult, if not impossible, to convert it to an entirely different form of use. Consequently, where the building is only adaptable to nonconforming uses, the ordinance grants the special privilege, where no structural alterations are in­volved, of changing from one nonconform­ing use to another of the same or a more restricted classification, and also allows the recommencement of a definite nonconform­ing use which has been previously discon­tinued. Not so, however, in the case of land, where the owner has made no in­vestment in its improvement, and where, in most instances, he would be expected to suffer no hardship if compelled to con­form to the strict letter of the zoning plan with respect to the use to which his land might be subjected.”

The landmark opinion of this Court, State ex rel. Oliver Cadillac Co. v. Chris­topher, 317 Mo. 1179, 298 S.W. 720, up­held zoning in this state for the first time as a valid exercise of the police power and held the zoning regulations established for the City of St. Louis were not arbitrary and unreasonable. The dissenting opinion therein made the following argument: “The present opinion extends the police power to the destruction of private prop­erty and private rights. Under its defini­tion of police power, there is no limit to the taking of property. Under its broad doctrine of police power, the city author­ities could take the whole of a person’s property, if it so desired, and that too without a cent of compensation. If the police power authorizes the taking of a part of the property for public use, by the same token, title as well as use of the prop­erty could be taken.” This is essentially the same argument made by appellants in this case.

As pointed out in City of Los Angeles v. Gage, 127 Cal.App.2d 442, 274 P.2d 34, 44, as follows: “The distinction between an ordinance restricting future uses and one requiring the termination of present uses within a reasonable period of time is mere­ly one of degree, and constitutionality de­pends on the relative importance to be given to the public gain and to the private loss. Zoning as it affects every piece of property is to some extent retroactive in that it ap­plies to property already owned at the time of the effective date of the ordinance.”

It is not necessary in this case to consider any amortization principal as to buildings or even land without buildings which has been improved for a particular use such as a paved parking lot. Prohibiting use of va­cant unimproved land in residential districts for open storage seems to me to be a very different situation from removal or aban­donment of use of buildings or other im­provements on land. It requires no destruc­tion or costly conversion of buildings but only finding another location for the stored material and hauling it away. This may be a matter of degree but degree is a ma­terial consideration in determining reason­ableness of the exercise of police power. High piles of stored material are not con­ducive to the maintenance or development of a good residential environment not only because they are unsightly but also because they could provide a lurking place for thieves and other criminals and also could attract children who might be injured play­ing there. See Hull v. Gillioz, 344 Mo. 1227, 130 S.W.2d 623, 627, and cases cited. While such open storage has not been classified as a nuisance, it thus has some of the un­desirable characteristics of nuisance in a residential district. See 84 A.L.R.2d 654 and cases cited which have applied nuisance principles to a lawful business not a nui­sance per se because of location in a resi­dential district. Therefore, I would hold the ordinance in this case, for termination of open storage in residential districts after six years, a reasonable exercise of the police power and valid.

Supreme Court of Missouri, En Banc.

No. 67396.

Jon MATTHEW, Appellant, v. Elton SMITH, et al., Members of the Board of Zoning Adjustment, etc., James Brandt and Susan Brandt, Re­spondents.

March 25, 1986.

HIGGINS, C.J., and BILLINGS and DONNELLY, JJ., concur.

ROBERTSON, J., concurs in result in separate opinion filed.

RENDLEN, J., concurs in result and con­curs in separate concurring in result opin­ion of ROBERTSON, J.

BLACKMAR, J., concurs in separate opinion filed and concurs in separate con­curring in result opinion of ROBERTSON, J.

Jon A. Matthew, North Kansas City, for appellant.

Thomas E. Barzee, Jr., S. Preston Wil­liams, North Kansas City, for respondents.

WELLIVER, Judge.

This is an appeal from a circuit court judgment affirming the Board of Zoning Adjustment’s decision to grant Jim and Su­san Brandt a variance. The Brandts pur­chased a residential lot containing two sep­arate houses upon a tract of land zoned for a single-family use. The court of appeals reversed the circuit court judgment, and the case was then certified to this Court by a dissenting judge. We reverse and re­mand.

The Brandts own a tract of land compris­ing one and one-half plotted lots. When they purchased the property in March of 1980, there already were two houses on the land, one toward the front of Erie Street and one in the rear. Each of the buildings is occupied by one residential family as tenants of the Brandts. The two houses apparently have been used as separate resi­dences for the past thirty years, with only intermittent vacancies. The property is zoned for Single Family Residences. At the suggestion of a city official, the Brandts applied for a variance which would allow them to rent both houses with a single family in each house. After some delay, including two hearings by the Board of Zoning Adjustment of Kansas City, the Board granted the application. Appellant, Jon Matthew, a neighboring landowner challenged the grant of the variance and sought a petition for certiorari from the Board’s action. § 89.110, RSMo 1978. The circuit court affirmed the Board’s order; on appeal, the court of appeals held that the Board was without authority to grant the requested variance. A dissenting judge certified the case to this Court.

Prompted by the persuasive opinions of both the majority of the Western District and the dissenting judge who certified the case to this Court, we believe that a review of the applicable law is warranted.

Zoning law developed during the early part of this century as a mechanism for channeling growth.1 Zoning acts authorize municipalities to pass ordinances, which designate the boundaries for districts and which define the allowable land uses in such districts. Board of Zoning Adjust­ments (Appeals) were created to review specific applications of the zoning ordi­nances.

Under most zoning acts, these boards have the authority to grant variances from the strict letter of the zoning ordinance. The variance procedure “fulfil[s] a sort of ‘escape hatch’ or ‘safety valve’ function for individual landowners who would suffer special hardship from the literal application of the ... zoning ordinance.” City & Bor­ough of Juneau v. Thibodeau, 595 P.2d 626, 633 (Alaska 1979). See also A. Rath­kopf, 3 The Law of Zoning and Planning § 38 (1979); N. Williams, 5 American Plan­ning Law § 129.05 (1985); Greenawalt v. Zoning Board of Adj. of Davenport, 345 N.W.2d 537, 541 (Iowa 1984); Ouimette v. City of Somersworth, 119 N.H. 292, 402 A.2d 159, 161 (1979); Otto v. Steinhilber, 282 N.Y. 71, 24 N.E.2d 851, 852 (1939); Packer v. Hornsby, 221 Va. 117, 267 S.E.2d 140, 142 (1980). It is often said that “[t]he variance provides an administrative alter­native for individual relief that can avoid the damage that can occur to a zoning ordinance as a result of as applied taking litigation.” D. Mandelker, Land Use Law, at 169 (1982). The general rule is that the authority to grant a variance should be exercised sparingly and only under excep­tional circumstances. See e.g., A. Rath­kopf, supra, § 37.06, at 69; Ivancovich v. City of Tucson Bd. of Zoning Adj., 22 Ariz.App. 530, 529 P.2d 242, 247 (1974); Lovely v. Zoning Bd. of Appeals of City of Presque Isle, 259 A.2d 666 (Me.1969); Brown v. Beuc, 384 S.W.2d 845, 851 (Mo.­App.1964); Kensington South v. Zoning Bd. of Adj., 80 Pa.Cmwlth. 546, 471 A.2d 1317, 1319 (1984).

Both the majority of courts and the com­mentators recognize two types of varianc­es: an area (nonuse) variance and a use variance.

The two types of variances with which cases are customarily concerned are “use” variances and “nonuse variances.” The latter consist mostly of variances of bulk restrictions, of area, height, density, setback, side line restrictions, and restric­tions coverning miscellaneous subjects, including the right to enlarge noncon­forming uses or to alter nonconforming structures.

As the name indicates, a use variance is one which permits a use other than one of those prescribed by the zoning ordi­nance in the particular district; it per­mits a use which the ordinance prohibits. A nonuse variance authorizes deviations from restrictions which relate to a per­mitted use, rather than limitations on the use itself, that is, restrictions on the bulk of buildings, or relating to their height, size, and extent of lot coverage, or mini­mum habitable area therein, or on the placement of buildings and structures on the lot with respect to required yards. Variances made necessary by the physi­cal characteristics of the lot itself are nonuse variances of a kind commonly termed “area variances.”

A. Rathkopf, supra, § 38.01. Many zoning acts or ordinances expressly distinguish be­tween the two types of variances. N. Wil­liams, supra, § 129.07, at 17. When the distinction is not statutory, “the courts have always distinguished use from area variances.” D. Mandelker, Land Use Law, at 167. (1982). Some jurisdictions, wheth­er by express statutory directive or by court interpretation, do not permit the grant of a use variance. D. Mandelker, Land Use Law, at 168; N. Williams, supra, § 132, at 31. E.G., Wells v. Zoning Bd. of Appeals, 180 Conn. 193, 429 A.2d 467, 469-­70 (1980).

Past decisions in this State have placed Missouri within those jurisdictions not per­mitting a use variance.2 This line of cases would suggest that the Brandts are not entitled to the variance. They seek a vari­ance to use the property in a manner not permitted under the permissible uses estab­lished by the ordinance. The ordinance clearly permits only the use of the property for a single family residence. § 8.A(1) North Kansas City Zoning Ordinance. The applicant is not seeking a variance from the area and yard restrictions which are no doubt violated because of the existence of the second residence. § 8.B-G North Kan­sas City Zoning Ordinance. Such an area variance is not necessary because the appli­cant has a permissible nonconforming structure under the ordinance. § 5.B North Kansas City Zoning Ordinance.

Commentators, however, have ques­tioned the rationale underlying the Missou­ri cases. See e.g., A. Rathkopf, supra, § 37.02, at 25 n. 4; N. Williams, supra § 132.02, at 33-4. These past cases, begin­ning with State ex rel. Nigro v. Kansas City, 325 Mo. 95, 27 S.W.2d 1030 (Mo. banc 1930), are based upon the premise that the granting of a use variance would be an unconstitutional delegation of power to the Board to amend the ordinance. See gener­ally Mandelker, “Delegation of Power and Function In Zoning Administration,” 1963 Wash. U.L.Q. 60, 68-71. This view has long since been repudiated by most juris­dictions, and it is contrary to the express language of § 89.090, RSMo 1978, which grants the Board the “power to vary or modify the application of any of the regula­tions or provisions of such ordinance relat­ing to the use, construction or alteration of buildings or structures, or the use of land” (emphasis added). We, therefore, hold that under the proper circumstances an appli­cant may obtain a use variance.

Section 89.090, RSMo 1978 delegates to the Board of Adjustment the power to grant a variance when the applicant estab­lishes “practical difficulties or unnecessary hardship in the way of carrying out the strict letter of such ordinance ... so that the spirit of the ordinance shall be ob­served, public safety and welfare secured and substantial justice done.” Missouri lifted this language out of the 1920 amend­ment to the General City Law of New York, which provided:

Where there are practical difficulties in the way of carrying out the strict letter of such ordinance, the board of zoning appeals shall have the power to vary or modify the application of any of the reg­ulations or provisions of such ordinance relating to the use, construction or alter­ation of buildings or structures, or the use of land, so that the spirit of the ordinance shall be observed, public safe­ty and welfare secured and substantial justice done.

The New York statute served as the first general model for other jurisdictions; soon thereafter, however, many states adopted the Standard Zoning Act that had been prepared in the early 1920’s under the ae­gis of the United States Department of Commerce. Section 7 of the Act provides:

To authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to spe­cial conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.

See N. Williams, supra, § 130.01, at 21. The standards set forth in these two mod­els, however, only became meaningful after being interpreted by the courts.3 See N. Williams, supra, § 181.02, at 28.

Almost all jurisdictions embellished the general concepts of “unnecessary hard­ship” or “practical difficulties” by further defining the conditions an applicant must satisfy before obtaining a variance. Quite often, local zoning ordinances “summarize that case law by spelling out the same more specific standards in the ordinance, for the convenience of everybody.” N. Wil­liams, supra, § 131.02, at 28. The North Kansas City Ordinance, for example, pro­vides in part:

Section 27. Board of Adjustment.

A. Purpose. The board of adjustment may grant variances from the provisions of this ordinance in harmony with its general purpose and intent and may vary them only in specific instances herein­after set forth. The board of adjust­ment, based on standards hereafter pre­scribed and after hearing, may decide that there are practical difficulties or particular hardship in the way of carry­ing out the strict letter of these regula­tions. The concurring vote of four mem­bers of the board shall be necessary to reverse any order, requirement or deci­sion of the party appealed from or to issue an order or variance or to decide in favor of an appellant.

B. Standards.

1. The board of adjustment may vary the provisions of this ordinance as autho­rized in this section, but only when it shall have made findings based upon evi­dence presented to it in the following specific cases:

(a) That the property in question can­not yield a reasonable return if permitted to be used only under the conditions al­lowed by the regulations governing the district in which it is located;

(b) That the plight of the owner is due to unique circumstances; and

(c) That the variance, if granted, will not alter the essential character of the locality.

Local ordinances may further define the power of the Board of Adjustment to grant a variance,4 but they may not conflict with the statutory criteria and how courts have interpreted those criteria. This explains why courts examine a Board’s decision un­der the standard expressed in the statute and established through case law. See generally N. Williams, supra, §§ 131.-­01, .02.

Unfortunately, any attempt to set forth a unified structure illustrating how all the courts have treated these conditions would, according to Professor Williams, prove un­successful. Williams observes that the law of variances is in “great confusion” and that aside from general themes any further attempt at unifying the law indicates “ei­ther (a) [one] has not read the case law, or (b) [one] has simply not understood it. Here far more than elsewhere in American planning law, muddle reigns supreme.” N. Williams, supra, § 129.01, at 12. Yet, four general themes can be distilled from vari­ance law and indicate what an applicant for a variance must prove:

(1) relief is necessary because of the unique character of the property rather than for personal considerations; and

(2) applying the strict letter of the ordi­nance would result in unnecessary hard­ship; and the

(3) imposition of such a hardship is not necessary for the preservation of the plan; and

(4) granting the variance will result in substantial justice to all.

See A. Rathkopf, supra, § 37.06; N. Wil­liams, supra, § 129.06. Although all the requirements must be satisfied, it is gener­ally held that “‘[u]nnecessary hardship’ is the principal basis on which a variance is granted.” D. Mandelker, Land Use Law, at 167. See also A. Rathkopf, supra, § 38.02, at 17; N. Williams, supra, § 129.-­06, at 15.

Before further examining the contours of unnecessary hardship, jurisdictions such as Missouri that follow the New York mod­el rather than the Standard Act need to address the significance of the statutory dual standard of “unnecessary hardship” or “practical difficulties.” Generally, this dual standard has been treated in one of two ways. On the one hand, many courts view the two terms as interchangeable. D. Hagman, Urban Planning & Land Develop­ment Control Law § 111, at 205 (1975). See also A. Rathkopf, supra, § 37.02, at 24. E.g., McClurkan v. Bd. of Zoning Appeals, 565 S.W.2d 495, 497 (Tenn.App.­1977); Currey v. Kimple, 577 S.W.2d 508 (Tex.Ct.Civ.App.1978). On the other hand, a number of jurisdictions follow the ap­proach of New York, the jurisdiction where the language originated, and hold that “practical difficulties” is a slightly lesser standard than “unnecessary hardship” and only applies to the granting of an area variance and not a use variance.5 D. Man­delker, Land Use Law, at 167; A. Rath­kopf, supra, § 38.01, at § 38.05. E.G., Pu­ritan-Greenfield Improvement Associa­tion v. Leo, 7 Mich.App. 659, 153 N.W.2d 162, 166 (1967); Village Bd. of Fayetteville v. Jarrold, 53 N.Y.2d 254, 440 N.Y.S.2d 908, 423 N.E.2d 385 (1981); Kisil v. City of Sandusky, 12 Ohio St.3d 30, 465 N.E.2d 848, 851 (1984). See also Ivancovich v. City of Tucson Bd. of Adj., 22 Ariz.App. 530, 529 P.2d 242, 250 (1974); Monaco v. District of Columbia, Etc., 409 A.2d 1067, 1072 (C.D.App.1979); Metropolitan Bd. of Zoning v. McDonald’s Corp. 481 N.E.2d 141, 146 (Ind.App.1985) (statutorily re­quired). The rationale for this approach is that an area variance is a relaxation of one or more incidental limitations to a permit­ted use and does not alter the character of the district as much as a use not permitted by the ordinance.

In light of our decision to permit the granting of a use variance, we are per­suaded that the New York rule reflects the sound approach for treating the distinction between area and use variances. To obtain a use variance, an applicant must demon­strate, inter alia, unnecessary hardship; and, to obtain an area variance, an appli­cant must establish, inter alia, the exist­ence of conditions slightly less rigorous than unnecessary hardship.6

While today we enter a field not yet developed by case law in our own jurisdic­tion, other jurisdictions provide some guidence for determining what is required to establish unnecessary hardship when granting a use variance. It is generally said that Otto v. Steinhilber, 282 N.Y. 71, 24 N.E.2d 851, 853 (1939) contains the clas­sic definition of unnecessary hardship:

Before the Board may exercise its discre­tion and grant a variance upon the ground of unnecessary hardship, the record must show that (1) the land in question cannot yield a reasonable return if used only for a purpose allowed in that zone; (2) that the plight of the owner is due to unique circumstances and not to the general conditions in the neighbor­hood which may reflect the unreason­ableness of the zoning ordinance itself; and (3) that the use to be authorized by the variance will not alter the essential character of the locality.

Quite often the existence of unnecessary hardship depends upon whether the land­owner can establish that without the vari­ance the property cannot yield a reasonable return. “Reasonable return is not maxi­mum return.” Curtis v. Main, 482 A.2d 1253, 1257 (Me.1984). Rather, the land­owner must demonstrate that he or she will be deprived of all beneficial use of the property under any of the permitted uses:

A zoning regulation imposes unnecessary hardship if property to which it applies cannot yield a reasonable return from any permitted use. Lack of a reasonable return may be shown by proof that the owner has been deprived of all beneficial use of his land. All beneficial use is said to have been lost where the land is not suitable for any use permitted by the zoning ordinance.

Greenawalt v. Zoning Bd. of Adj., of Dav­enport, 345 N.W.2d 537 (Iowa 1984) at 542-43 (quoting 3 Anderson, American Law of Zoning, § 18.17 (1968)). See also A. Rathkopf, supra, § 38.02, at 38-18; Ivan­covich v. City of Tucson Bd. of Adj., 22 Ariz.App. 530, 529 P.2d 242, 250 (1974); Grillo v. Zoning Bd. of Appeals of West Haven, 4 Conn.App. 205, 493 A.2d 275 (1985) (same standard, but for area vari­ance); Van Landschoot v. City of Mendota Heights, 336 N.W.2d 503, 509 (Minn.­1983); Williams v. Town of Oyster Bay, 32 N.Y.2d 78, 295 N.E.2d 788, 790-91 (1973); Valley View Civic Ass’n v. Zoning Bd. of Adj., 501 Pa. 550, 462 A.2d 637, 640 (1983); Kensington South v. Zoning Bd. of Adj., 80 Pa.Cmwlth. 546, 471 A.2d 1317, 1319 (1984); Xanthos v. Bd. of Adj. of Salt Lake City, 685 P.2d 1032 (Utah 1984). Most courts agree that mere conclusory and lay opinion concerning the lack of any reasonable return is not sufficient; there must be actual proof, often in the form of dollars and cents evidence. See generally A. Rathkopf, supra, § 37.06, § 38.03; Si­mone v. Bd. of Appeal of Haverhill, 6 Mass.App. 601, 380 N.E.2d 718 (1978); Pu­ritan-Greenfield Imp. Ass’n v. Leo, 7 Mich.App. 659, 153 N.W.2d 162 (1967); Ga­glione v. DiMuro, 478 A.2d 573, 578 (R.I.­1984). In a well-reasoned opinion, Judge Meyer of the New York Court of Appeals stated:

Whether the existing zoning permits of a reasonable return requires proof from which can be determined the rate of re­turn earned by like property in the com­munity and proof in dollars and cents form of the owner’s investment in the property as well as the return that the property will produce from the various uses permissible under the existing clas­sification.

N. Westchester Prof. Park v. Town of Bed­ford, 60 N.Y.2d 492, 470 N.Y.S.2d 492, 458 N.E.2d 809, 814 (1983). Such pronounce­ments and requirements of the vast majori­ty of jurisdictions illustrate that, if the law of variances is to have any viability, only in the exceptional case will a use variance be justified.

The record before this Court is fraught with personality conflicts and charges of bias on the part of one of the Board members.7 Also, the record is with­out sufficient evidence to establish unnec­essary hardship.8 The only evidence in the record is the conclusory opinion of Brandt that they would be deprived of a reason­able return if not allowed to rent both houses. No evidence of land values was offered; and, no dollars and cents proof was presented to demonstrate that they would be deprived of all beneficial use of their property. Appellant, in fact, was not permitted to introduce such evidence. The Board, therefore, was without authority to grant a use variance upon this record.

The record, however, indicates that the Brandts may be entitled to a nonconform­ing use under the ordinance. A noncon­forming use differs from a variance. Non­conforming uses are those that are in exist­ence prior to and at the time of adoption of the zoning ordinance and which have been maintained from that time to the present. See Missouri Rock, Inc. v. Winholtz, 614 S.W.2d 734, 739 (Mo.App.1981). See gener­ally D. Mandelker, Land Use Law, at 130-­135. The North Kansas City Zoning Ordi­nance provides:

Any nonconforming building, structure or use which existed lawfully at the time of the adoption of this ordinance and which remains nonconforming, and only such building, structure or use which shall become nonconforming upon the adoption of this ordinance or any subse­quent amendment thereto, may be con­tinued in accordance with the regulations which follow.

§ 5.B North Kansas City Zoning Ordi­nance. The ordinance further provides that one loses the right to a nonconforming use if the property is abandoned as a non­conforming use for a period of more than six months. § 5.C(4). The record indicates that a city official, based upon what was apparently scant evidence, suggested to the Brandts that they may have lost their right to a nonconforming use. There is no sub­stantial evidence in this record indicating the length of time the property may have been unoccupied. Nothing in the record indicates whether the Brandts may have been refurbishing the property or looking for tenants during any such time. Nothing suggests that the Brandts intended to abandon their nonconforming use during the period of time the property may have been unoccupied. See generally D. Man­delker, Land Use Law, at 134; N. Williams, supra, at § 115.03 (1965). Both the trial court and counsel for the Board suggest that the Brandts “may very well have a valid nonconforming use of the premises in question.” We do not believe that any­thing in the record indicates that the Brandts have waived their right to or aban­doned their claim of a nonconforming use.

The judgment of the circuit court is re­versed 9 and the cause is remanded back to the circuit court with directions that the cause be remanded back to the Board of Adjustment with directions that the appli­cants be permitted to present evidence war­ranting the grant of a variance and to amend their application to claim a noncon­forming use of the premises and for such hearing and decision as may be required consistent with this opinion.

1

Los Angeles and Boston are formative exam­ples of zoning, but, as Professors Mandelker and Cunningham observe, "New York City was the first American municipality to adopt a compre­hensive ‘zoning’ ordinance of the modern type.” D. Mandelker & R. Cunningham, Planning and Control of Land Development. 199 (1979). See e.g., Welch v. Swasey, 214 U.S. 91, 29 S.Ct. 567, 53 L.Ed. 923 (1909); Ex parte Quong Wo, 161 Cal. 220, 118 P. 714 (1911). The New York Resolution of 1916, and the Enabling Act of 1917, was upheld in Lincoln Trust Co. v. Wil­liams Bldg. Corp., 229 N.Y. 313, 128 N.E. 209 (1920). By the mid 1920s, zoning became more widely adopted, but the constitutionality of zon­ing laws remained unclear until Village of Eu­clid v. Ambler Realty Co. 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). Cf. Washington ex rel. Seattle Trust Co. v. Roberge, 278 U.S. 116, 49 S.Ct. 50, 73 L.Ed. 210 (1928); Nectow v. City of Cambridge, 277 U.S. 183, 48 S.Ct. 447, 72 L.Ed. 842 (1928).

2

Treatise writers observe that Missouri cases establish that a use variance is not authorized. A. Rathkopf, supra, § 37.02 at 25; N. Williams, supra, § 132.02, at 33. See e.g., State ex rel. Nigro v. Kansas City, 325 Mo. 95, 27 S.W.2d 1030, (1930); Rosedale-Skinker Imp. Ass’n v. Bd. of Adj. of St. Louis, 425 S.W.2d 929 (Mo.1968); State v. Kinealy, 402 S.W.2d 1, 5 (Mo.App.1966); State ex rel. Sheridan v. Hudson, 400 S.W.2d 425 (Mo.App.1966); Brown v. Beuc, 384 S.W.2d 845, 851 (Mo.App.1964); Bartholomew v. Bd. of Zon­ing Adj., 307 S.W.2d 730 (Mo.App.1958).

3

Initially, these statutes were challenged as constituting an overly vague delegation of legis­lative power. The majority of jurisdictions re­jected such challenges, noting that courts would add further substance to the general language. See generally N. Williams, supra, § 132.02,. at 29. See also Puritan-Greenfield Imp. Ass'n v. Leo, 7 Mich.App. 659, 153 N.W.2d 162, 167 n. 16 (1967).

4

Some courts, however, have held that such ordinances may not vary from the statutory language. See N. Williams, supra, § 131.02. Our statute requires that the ordinance be in harmony with the "general purpose and intent of the statute and be "in accordance with [the] general or specific rules of the statute." § 89.-­080, RSMo 1978.

5

In City of Bor. of Juneau v. Thibodeau, 595 P.2d 626 (Alaska (1979), the court observed that in those cases adopting the "practical difficul­ties” test for area variances the standards (prac­tical difficulties or unnecessary hardship) were phrased in the disjunctive, but when phrased in the conjunctive both standards must be satis­fied.

6

Because the case law in this state focuses on the granting of area variances and does not reflect the widely held approach for defining unnecessary hardship, these cases still establish the guidelines for when an area variance may be granted due to “practical difficulties,” regard­less of the language used therein. E.g., Brown v. Beuc, 384 S.W.2d 845 (Mo.App.1964).

7

We need not reach appellant’s charge of bias. Suffice it to say, that the Board acts as a quasi-­judicial body and must assure a fair and impar­tial hearing. See generally D. Mandelker, Land Use Law, at 184-85; A. Rathkopf, supra, § 37.-­02, at 35; § 37.07, at 90.

8

The Constitution requires that the decision of the Board be reviewed to determine if it is authorized by law and supported by competent and substantial evidence. Mo. Const, art. V, § 18. When the Brandts initially applied for a variance and a hearing was held, there were no minutes of the proceeding and the circuit court had to send the case back to the Board before it could review the Board's order. Nothing in the record indicates why this occurred, but the stat­ute expressly requires that such minutes be tran­scribed:

* * * All meetings of the board shall be open to the public. The board shall keep minutes of its proceedings, ... All testimony, objec­tions thereto and rulings thereon, shall be taken down by a reporter employed by the board for that purpose.

§ 89.080, RSMo 1978. Compliance with this requirement is necessary if there is to be any meaningful review exercised by the circuit court upon the issuance of a writ of certiorari, which may:

If, upon the hearing, it shall appear to the court that testimony is necessary for the prop­er disposition of the matter, it may take addi­tional evidence or appoint a referee to take such evidence as it may direct and report the same to the court with his findings of fact and conclusions of law, which shall constitute a part of the proceeding upon which a determi­nation of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for re­view.

§ 89.110, RSMo 1978. Cf. Board of Zoning Ad­justment v. Mayfair Homes 634 S.W.2d 246, 248-­49 (Mo.App.1982); Volkman v. City of Kirk­wood, 624 S.W.2d 58, 59 n. 1 (Mo.App.1981). Although the circuit court does not exercise de novo review, the statute nonetheless contem­plates a meaningful review that may extend beyond the record before the Board. While not deciding the point, it might be noted that both the ordinance and a growing number of juris­dictions suggest that the Board should issue findings of fact. See generally D. Mandelker, Land Use Law, at 172; H. Nichols, Powers & Duties of the Zoning Bd. of Adj., printed in 1975 Institute on Planning, Zoning & Eminent Do­main 121; N. Williams, supra, § 129.06, at 16; Fields v. Kodiak City Council, 628 P.2d 927, 932-34 (Alaska 1981); Topanga Ass’n. Scenic Com. v. County of Los Angeles, 11 Cal.3d 506, 113 Cal.Rptr. 836, 522 P.2d 13 (1974); Packer v. Hornsby, 221 Va. 117, 267 S.E.2d 140, 142 (1980). But cf. Mullen v. City of Kansas City, 557 S.W.2d 652, 654 (Mo.App.1974).

9

That part of the judgment denying appellant costs and damages is affirmed.

ROBERTSON, Judge,

concurring in re­sult.

I concur in the result reached by the principal opinion; however, I disagree with the reasoning by which the opinion reaches that result.

The property for which the variance is sought in the present case is improved with two single-family dwellings. The house nearest the street is the original dwelling on the parcel. The other house is a renova­tion of, and addition to, the former garage, located on the back of the parcel. The zoning ordinance in question defines “lot” as follows:

A parcel of land occupied by, or intended for occupancy by, one principal building, unified groups [sic] of buildings for prin­cipal use, and having access to a public street. A lot may be one or more platted lots, or tracts as conveyed, or parts thereof.

North Kansas City Code, Appendix A § 3(7), p. 477.

In the applicable zone, the “permitted uses” are defined to include “dwellings, one-family.” Id. §§ 7, 8, pp. 489-91. The zoning ordinance defines the pertinent “[l]ot area per family” as follows:

Every dwelling hereafter constructed, re­constructed, moved or altered shall pro­vide a lot area of not less than three thousand eight hundred fifty square feet per family.

Id. § 8, pp. 491-92. The property on which the two houses are situated apparently con­tains approximately one and one-half times the number of square feet required for a single one-family residence.1

The back house was built several decades prior to the enactment of the zoning ordi­nance. However, there is some question whether occupancy of both houses as sin­gle-family dwellings would be acceptable under the ordinance as a pre-existing non­conforming use, since there may have been a lapse in occupancy terminating that sta­tus. The property owner therefore re­quested and obtained a variance to excuse strict compliance with the requirements of the zoning ordinance.

In its analysis prefatory to concluding that the judgment must be reversed, the principal opinion proceeds on the assump­tion that the variance requested here would be characterized under the “New York model” as a “use” variance, rather than a “non-use” or “area” variance. In distin­guishing between the two, the discussion quoted by the principal opinion from Rathkopf's Law of Zoning and Planning is ap­ropos, with the addition of the sentence which follows the quoted language.

The two types of variances with which cases are customarily concerned are “use” variances and “nonuse variances.” The latter consist mostly of variances of bulk restrictions, of area, height, density, setback, side line restrictions, and restric­tions covering miscellaneous subjects, in­cluding the right to enlarge nonconform­ing uses or to alter nonconforming struc­tures.

As the name indicates, a use variance is one which permits a use other than the one of those prescribed by the zoning ordinance in the particular district; it permits a use which the ordinance pro­hibits. A nonuse variance authorizes de­viations from restrictions which relate to a permitted use, rather than limitations on the use itself, that is, restrictions on the bulk of buildings, or relating to their height, size, and extent of lot coverage, or minimum habitable area therein, or on the placement of buildings and struc­tures on the lot with respect to required yards. Variance made necessary by the physical characteristics of the lot itself are nonuse variances of a kind commonly termed “area variances.” These may consist of a variance of the minimum required area of lot for a permitted use, (the most common “area” vari­ance) or a variance of the required width of the lot or its frontage on a street.

Rathkopf, 3, The Law of Zoning and Plan­ning, § 38.01, pp. 38-1, -2 (1979) [emphasis added].

That part of the variance which alters the requirement imposed by § 3 that each lot on which principal residences are locat­ed have “access to a public street” is equiv­alent to a requirement that a lot have “frontage on a street.” Such a variance is therefore an “area” variance. Id. That part of the variance which alters the re­quirement that principal residences in the zone occupy a minimum of 3,850 square feet is also clearly an area variance. Hoff­man v. Harris, 17 N.Y.2d 138, 216 N.E.2d 326, 269 N.Y.S.2d 119 (1966).

The North Kansas City Zoning Ordinance defines “use” as

The purpose or activity for which the land or building thereon is designed, ar­ranged or intended, or for which it is occupied or maintained.

North Kansas City Code, Appendix A § 3(7), p. 481. In the context of multiple-­family dwellings, the New York Court of Appeals stated that

... in an area zoned for apartment hous­es, to seek a variance of height, floor area, and density is to seek an area vari­ance because the essential use of a land is not being changed. In such a situa­tion, the essential use remains the same (apartments), although the particulars (height, lot area, floor area ratio) of said use may be different.

Wilcox v. Zoning Board of Appeals, 17 N.Y.2d 249, 217 N.E.2d 633, 270 N.Y.S.2d 569, 572 (1966).

In Hoffman, two residences were situ­ated on one parcel of land comprising just over two acres. The land was zoned for single-family residences, with a lot area requirement of two acres per residence. One of the residences had been the main house of a larger estate, and the other had been the “gatehouse.” At the time the zoning ordinance came into effect, the gate­house had been occupied by the gardener for the main house, a permitted “accesso­ry” use in the zoning district. Subsequent­ly, however, the gatehouse was rented to a family who were not employed in the main house. Such a use was not a pre-existing nonconforming use, and a variance was therefore requested to excuse compliance with the zoning ordinance. The Board of Zoning Appeals granted the variance and the Court of Appeals affirmed, holding that the variance sought was an “area” vari­ance rather than a “use” variance, and that proof of “practical difficulties” alone was therefore sufficient. Id., 216 N.E.2d at 330, 269 N.Y.S.2d at 124; see also Rath­kopf, supra at p. 38-47 (citing Hoffman as a case to be “looked to for guidance” on the question of establishing “practical diffi­culties”). Hoffman is indistinguishable from the present case, and clearly estab­lishes that the variance involved here is an “area” variance under the New York mod­el.2

Because the present case does not in­volve a “use” variance, it is not necessary to address, as the principal opinion does, whether Missouri has historically rejected variances of that type. This Court has never held that “use” variances are prohib­ited, notwithstanding proof of “unneces­sary hardship,” although two Court of Ap­peals cases have arguably so held. State ex rel. Meyer v. Kinealy, 402 S.W.2d 1 (Mo.App.1966); State ex rel. Sheridan v. Hudson, 400 S.W.2d 425 (Mo.App.1966); contra, Beckmeyer v. Beuc, 367 S.W.2d 9 (Mo.App.1963).

Both the Meyer and Sheridan cases at­tribute their holdings to this Court’s opin­ion in State ex rel. Nigro v. Kansas City, 325 Mo. 95, 27 S.W.2d 1030 (Mo. banc 1930). In that case, a variance was sought to construct and use for retail business purposes a new building, to be situated on one corner of an intersection, on property zoned for residential purposes. The basis for the owner’s request was that the other three corners of the intersection were zoned for businesses, that new residential development in the area would create more need for retail businesses, and that denial of the variance would deprive him of poten­tial profits. The circuit court reversed the zoning board’s denial of the variance, and this Court reversed the circuit court’s judg­ment, holding that the evidence did not demonstrate “practical difficulties” or “un­necessary hardship” within the meaning of both the zoning ordinance and the relevant statute, so as to authorize a variance. This Court also commented that

if in a specific case the enforcement of a regulation according to its strict letter would cause unnecessary hardship and the board can by varying or modifying the application of the regulation obviate the hardship and at the same time fully effectuate the spirit and purpose of the ordinance, they are authorized to so vary or modify the application. But the board can in no case relieve from a substantial compliance with the ordinance; their ad­ministrative discretion is limited to the narrow compass of the statute; they can­not merely pick and choose as the individ­uals of whom they will or will not require a strict compliance with the ordinance.

Id. 27 S.W.2d at 1032. This Court also stated that, rather than seeking to estab­lish the statutory standards for a variance, the landowner was in fact asking the board of zoning appeals to “rezone” property, which the board was not empowered to do. Id. Nothing in the Nigro opinion requires the conclusion that “use” variances are cat­egorically prohibited under the statutory standard.3

Notwithstanding that the variance in­volved here is an “area” variance rather than a “use” variance, the ordinance itself requires proof which is similar to the “un­necessary hardship” standard as it is de­scribed by the principal opinion. Under the ordinance, the board is authorized to grant a variance only if it is demonstrated “[t]hat the property in question cannot yield a reasonable return if permitted to be used only under the conditions allowed by the regulations governing the district in which it is located....” North Kansas City Ordi­nance, Appendix A, § 27(B)(1)(a). It is the application of this standard that requires that the judgment in the present case be reversed and remanded.

As the principal opinion notes, proof un­der the “reasonable return” standard can­not be made by mere lay opinion, without a showing of the facts upon which such an opinion could be based. Such evidence was not before the board in the present case, and was in fact rejected when offered. In light of this deficiency, the board’s decision was unlawful, and the judgment affirming that decision must be reversed. Remand is advisable, however, to permit the land­owners to submit proof under this standard if available.

I therefore concur in the principal opin­ion only to the extent of the result reached.

1

The testimony and the parties refer to the property as constituting one and one-half "lots.” The ordinance contains a provision that, in sin­gle-family zoning districts, dwellings are to be "located on a lot,” and that "there shall be no more than one principal building on one lot except as may be approved in the planned zon­ing process." Id. § 4(C), p. 483. Since the definition of “lot” applicable under the zoning ordinance has no relation to platted lots, and pertains only to parcels occupied by "one princi­pal building,” this provision is superfluous and adds nothing to the pertinent zoning restric­tions. Furthermore, since the term “lot" refers to no other particular standard, it may be pre­sumed that the "lot" referred to is the "lot area” required for a single-family dwelling.

2

Were the variance involved here actually a "use" variance, the ordinance would appear to prohibit it under any circumstance. The ordi­nance conditions the authority of the board to grant a variance on proof “[t]hat the variance, if granted, will not alter the essential character of the locality.” North Kansas City Code, Appen­dix A § 27(B)(1)(c). This language is presum­ably derived from Wilcox, supra, which de­scribed an “area” variance as one involving "no change in the essential character of the zoned district." Id. 217 N.E.2d at 634, 270 N.Y.S.2d at 571. However, since the variance here is not a "use” variance, this problem is not before us.

3

The remaining cases cited by the principal opinion in footnote 2 do not address the prohi­bition of "use” variances. Two of them concern “area” variances. Rosedale-Skinker Improve­ment Assn., Inc. v. Bd. of Adj. of St. Louis, 425 S.W.2d 929 (Mo. banc 1968); Brown v. Beuc, 384 S.W.2d 845 (Mo.App.1964). The third held that a board of zoning adjustment was not au­thorized to grant a "use" variance on the ground of financial hardship. Bartholomew v. Bd. of Adj. of Kansas City, 307 S.W.2d 730, 733 (Mo.­App.1957).

BLACKMAR, Judge,

concurring.

The property owner has laid the founda­tion for the grant of a variance by showing that two separate houses were located on a single lot at the time the zoning ordinance was adopted. There would be a substantial waste if habitable structures were required to be torn down. This showing should permit the Board to find, in its discretion, after hearing all evidence, that the tests of “unnecessary hardship” and “practical dif­ficulties” are met.

Rate of return is an important considera­tion. Although initial cost may not be a controlling circumstance in determining the base from which reasonable return is to be calculated, it is a starting point. The Board was plainly wrong in denying the plaintiff the right to inquire about the ini­tial cost. This error taints the hearing, and the order based on it cannot stand.

I concur, therefore, in the judgment of reversal and remand to the Board.

Supreme Court of Missouri, Division No. 2.

No. 54911.

STATE of Missouri ex rel. Dimiter STOY­ANOFF and Joan T. Stoyanoff, his wife, Respondents, v. Robert BERKELEY, Building Commissioner, City of Ladue, Missouri, Appellant.

Sept. 14, 1970.

Motion for Rehearing or to Transfer to Court En Banc Denied Oct. 12, 1970.

BARRETT and STOCKARD, CC, con­cur.

DONNELLY, P. J., MORGAN and FINCH, JJ., and JENSEN, Special Judge, concur.

Cupples, Cooper & Haller, Ronald L. Cupples, Gary H. Sokolik, Clayton, for (relators) respondents.

Willson, Cunningham & McClellan, J. H. Cunningham, Jr., St. Louis, for appellant.

PRITCHARD, Commissioner.

Upon summary judgment the trial court issued a peremptory writ of mandamus to compel appellant to issue a residential building permit to respondents. The trial court’s judgment is that the below-men­tioned ordinances are violative of Section 10, Article I of the Constitution of Mis­souri, 1945, V.A.M.S., in that restrictions placed by the ordinances on the use of prop­erty deprive the owners of their property without due process of law. Relators’ pe­tition pleads that they applied to appellant Building Commissioner for a building per­mit to allow them to construct a single family residence in the City of Ladue, and that plans and specifications were sub­mitted for the proposed residence, which was unusual in design, “but complied with all existing building and zoning regula­tions and ordinances of the City of Ladue, Missouri.” 

It is further pleaded that relators were refused a building permit for the construc­tion of their proposed residence upon the ground that the permit was not approved by the Architectural Board of the City of Ladue. Ordinance 131, as amended by Ordinance 281 of that city, purports to set up an Architectural Board to approve plans and specifications for buildings and struc­tures erected within the city and in a pre­amble to “conform to certain minimum architectural standards of appearance and conformity with surrounding structures, and that unsightly, grotesque and unsuitable structures, detrimental to the stability of value and the welfare of surrounding property, structures and residents, and to the general welfare and happiness of the community, be avoided, and that appropri­ate standards of beauty and conformity be fostered and encouraged.” It is asserted in the petition that the ordinances are in­valid, illegal and void, “are unconstitu­tional in that they are vague and provide no standard nor uniform rule by which to guide the architectural board,” that the city acted in excess of statutory powers (§ 89.020, RSMo 1959, V.A.M.S.) in en­acting the ordinances, which “attempt to allow respondent to impose aesthetic stand­ards for buildings in the City of Ladue, and are in excess of the powers granted the City of Ladue by said statute.”

Relators filed a motion for summary judgment and affidavits were filed in op­position thereto. Richard D. Shelton, Mayor of the City of Ladue, deponed that the facts in appellant’s answer were true and correct, as here pertinent: that the City of Ladue constitutes one of the finer sub­urban residential areas of Metropolitan St. Louis, the homes therein are consider­ably more expensive than in cities of com­parable size, being homes on lots from three fourths of an acre to three or more acres each; that a zoning ordinance was enacted by the city regulating the height, number of stories, size of buildings, per­centage of lot occupancy, yard sizes, and the location and use of buildings and land for trade, industry, residence and other pur­poses; that the zoning regulations were made in accordance with a comprehensive plan “designed to promote the health and general welfare of the residents of the City of Ladue,” which in furtherance of said objectives duly enacted said Ordinances numbered 131 and 281. Appellant also asserted in his answer that these ordi­nances were a reasonable exercise of the city’s governmental, legislative and police powers, as determined by its legislative body, and as stated in the above-quoted preamble to the ordinances. It is then pleaded that relators’ description of their proposed residence as “‘unusual in design’ is the understatement of the year. It is in fact a monstrosity of grotesque design, which would seriously impair the value of property in the neighborhood.”

The affidavit of Harold C. Simon, a de­veloper of residential subdivisions in St. Louis County, is that he is familiar with relators’ lot upon which they seek to build a house, and with the surrounding houses in the neighborhood; that the houses therein existent are virtually all two-story houses of conventional architectural de­sign, such as Colonial, French Provincial or English; and that the house which relators propose to construct is of ultra­modern design which would clash with and not be in conformity with any other house in the entire neighborhood. It is Mr. Simon’s opinion that the design and appearance of relators’ proposed residence would have a substantial adverse effect upon the market values of other residen­tial property in the neighborhood, such average market value ranging from $60,000 to $85,000 each.

As a part of the affidavit of Russell H. Riley, consultant for the city planning and engineering firm of Harland Bartholomew & Associates, photographic exhibits of homes surrounding relators’ lot were at­tached. To the south is the conventional frame residence of Mrs. T. R. Collins. To the west is the Colonial two-story frame house of the Lewis family. To the north­east is the large brick English Tudor home of Mrs. Elmer Hubbs. Immediately to the north are the large Colonial homes of Mr. Alex Cornwall and Mr. L. Peter Wetzel. In substance Mr. Riley went on to say that the City of Ladue is one of the finer residential suburbs in the St. Louis area with a minimum of commercial or industrial usage. The development of res­idences in the city has been primarily by private subdivisions, usually with one main lane or drive leading therein (such as Lorenzo Road Subdivision which runs north off of Ladue Road in which relators’ lot is located). The homes are considerably more expensive than average homes found in a city of comparable size. The ordi­nance which has been adopted by the City of Ladue is typical of those which have been adopted by a number of suburban cities in St. Louis County and in similar cities throughout the United States, the need therefor being based upon the pro­tection of existing property values by pre­venting the construction of houses that are in complete conflict with the general type of houses in a given area. The in­trusion into this neighborhood of relators’ unusual, grotesque and nonconforming structure would have a substantial adverse effect on market values of other homes in the immediate area. According to Mr. Riley the standards of Ordinance 131, as amended by Ordinance 281, are usually and customarily applied in city planning work and are: “(1) whether the proposed house meets the customary architectural requirements in appearance and design for a house of the particular type which is proposed (whether it be Colonial, Tudor English, French Provincial, or Modern), (2) whether the proposed house is in gen­eral conformity with the style and design of surrounding structures, and (3) wheth­er the proposed house lends itself to the proper architectural development of the City; and that in applying said standards the Architectural Board and its Chair­man are to determine whether the proposed house will have an adverse affect on the stability of values in the surrounding area.”

Photographic exhibits of relators’ pro­posed residence were also attached to Mr. Riley’s affidavit. They show the residence to be of a pyramid shape, with a flat top, and with triangular shaped windows or doors at one or more corners.

Although appellant has briefed the point that it is a constitutional exercise of the police power for the Legislature to au­thorize cities to enact zoning ordinances, it is apparent that relators do not contest that issue. Rather, relators’ position is that “the creation by the City of Ladue of an architectural board for the purpose of pro­moting and maintaining ‘general conformi­ty with the style and design of surround­ing structures’ is totally unauthorized by our Enabling Statute.” (§§ 89.020, 89.040, RSMo 1959, V.A.M.S.) It is further con­tended by relators that Ordinances 131 and 281 are invalid and unconstitutional as be­ing an unreasonable and arbitrary exer­cise of the police power (as based entirely on aesthetic values); and that the same are invalid as an unlawful delegation of legislative powers (to the Architectural Board).

Section 89.020 provides: “For the pur­pose of promoting health, safety, morals or the general welfare of the community, the legislative body of all cities, towns, and vil­lages is hereby empowered to regulate and restrict the height, number of stories, and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts, and other open spac­es, the density of population, the preserva­tion of features of historical significance, and the location and use of buildings, structures and land for trade, industry, residence or other purposes.” Section 89.040 provides: “Such regulations shall be made in accordance with a comprehen­sive plan and designed to lessen congestion in the streets; to secure safety from fire, panic and other dangers; to promote health and the general welfare; to provide ade­quate light and air; to prevent the over­crowding of land; to avoid undue concen­tration of population; to preserve features of historical significance; to facilitate the adequate provision of transportation, water, sewerage, schools, parks, and other public requirements. Such regulations shall be made with reasonable considera­tion, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view to conserving the values of buildings and en­couraging the most appropriate use of land throughout such municipality.” (Italics added.)

Relators say that “Neither Sections 89.­020 or 89.040 nor any other provision of Chapter 89 mentions or gives a city the au­thority to regulate architectural design and appearance. There exists no provision pro­viding for an architectural board and no entity even remotely resembling such a board is mentioned under the enabling leg­islation.” Relators conclude that the City of Ladue lacked any power to adopt Ordi­nance 131 as amended by Ordinance 281 “and its intrusion into this area is wholly unwarranted and without sanction in the law.” As to this aspect of the appeal rela­tors rely upon the 1961 decision of State ex rel. Magidson v. Henze, Mo.App., 342 S.W.2d 261. That case had the identical question presented. An Architectural Con­trol Commission was set up by an ordinance of the City of University City. In its re­port to the Building Commissioner, the Architectural Control Commission disap­proved the Magidson application for per­mits to build four houses. It was comment­ed that the proposed houses did not provide for the minimum number of square feet, and “In considering the existing character of this neighborhood, the Commission is of the opinion that houses of the character proposed in these plans are not in harmony with and will not contribute to nor protect the general welfare of this neighborhood” (loc. cit. 264) i The court held that § 89.­020, RSMo 1949, V.A.M.S., does not grant to the city the right to impose upon the landowner aesthetic standards for the buildings he chooses to erect.

As is clear from the affidavits and at­tached exhibits, the City of Ladue is an area composed principally of residences of the general types of Colonial, French Pro­vincial and English Tudor. The city has a comprehensive plan of zoning to maintain the general character of buildings therein. The Magidson case, supra, did not con­sider the effect of § 89.040, supra, and the italicized portion relating to the character of the district, its suitability for particular uses, and the conservation of the values of buildings therein. These considerations, sanctioned by statute, are directly related to the general welfare of the community. That proposition has support in a number of cases cited by appellant. State ex rel. Carter v. Harper, Building Commissioner, 182 Wis. 148, 196 N.W. 451, 454, quotes Chicago B. & Q. Ry. Co. v. People of State of Illinois ex rel. Drainage Commissioners, 200 U.S. 561, 26 S.Ct. 341, 50 L.Ed. 596, 609, “‘We hold that the police power of a state embraces regulations designed to pro­mote the public convenience or the general prosperity, as well as regulations designed to promote the public health, the public morals or the public safety.’” In Marrs v. City of Oxford (D.C.D.Kan.) 24 F.2d 541, 548, it was said, “The stabilizing of prop­erty values, and giving some assurance to the public that, if property is purchased in a residential district, its value as such will be preserved, is probably the most cogent reason back of zoning ordinances.” See also People v. Calvar Corporation et al., Sup., 69 N.Y.S.2d 272, 279 (aff’d 286 N.­Y. 419, 36 N.E.2d 644); Kovacs v. Cooper, Judge, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513, 526; Wulfsohn v. Burden, 241 N.Y. 288, 150 N.E. 120, 122 [3], 43 A.L.R. 651; and Price et al. v. Schwafel (Cal.), 92 Cal.­App.2d 77, 206 P.2d 683, 685. The preamble to Ordinance 131, quoted above in part, demonstrates that its purpose is to conform to the dictates of § 89.040, with reference to preserving values of property by zoning procedure and restrictions on the use of property. This is an illustration of what was referred to in Deimeke v. State High­way Commission, Mo., 444 S.W.2d 480, 484, as a growing number of cases recognizing a change in the scope of the term “general welfare.” In the Deimeke case on the same page it is said, “Property use which offends sensibilities and debases property values affects not only the adjoining property owners in that vicinity but the general pub­lic as well because when such property values are destroyed or seriously impaired, the tax base of the community is affected and the public suffers economically as a result.”

Relators say further that Ordi­nances 131 and 281 are invalid and uncon­stitutional as being an unreasonable and ar­bitrary exercise of the police power. It is argued that a mere reading of these ordi­nances shows that they are based entirely on aesthetic factors in that the stated pur­pose of the Architectural Board is to main­tain “conformity with surrounding struc­tures” and to assure that structures “con­form to certain minimum architectural standards of appearance.” The argument ignores the further provisos in the ordi­nance : “ * * * and that unsightly, gro­tesque and unsuitable structures, detrimen­tal to the stability of value and the welfare of surrounding property, structures, and residents, and to the general welfare and happiness of the community, be avoided, and that appropriate standards of beauty and conformity be fostered and encourag­ed.” (Italics added.) Relators’ proposed residence does not descend to the “‘patent­ly offensive character of vehicle grave­yards in close proximity to such high­ways’” referred to in the Deimeke case, supra (444 S.W.2d 484). Nevertheless, the aesthetic factor to be taken into account by the Architectural Board is not to be con­sidered alone. Along with that inherent factor is the effect that the proposed resi­dence would have upon the property values in the area. In this time of burgeoning urban areas, congested with people and structures, it is certainly in keeping with the ultimate ideal of general welfare that the Architectural Board, in its function, preserve and protect existing areas in which structures of a general conformity of architecture have been erected. The area under consideration is clearly, from the record, a fashionable one. In State ex rel. Civello v. City of New Orleans, 154 La. 271, 97 So. 440, 444, the court said, “If by the term ‘aesthetic considerations’ is meant a regard merely for outward appearances, for good taste in the matter of the beauty of the neighborhood itself, we do not ob­serve any substantial reason for saying that such a consideration is not a matter of gen­eral welfare. The beauty of a fashionable residence neighborhood in a city is for the comfort and happiness of the residents, and it sustains in a general way the value of property in the neighborhood.” See also People v. Stover, 12 N.Y.2d 462, 240 N.Y.S.­2d 734, 191 N.E.2d 272, 274 [3]; State ex rel. Saveland Park Holding Corp. v. Wie­land, 269 Wis. 262, 69 N.W.2d 217, 222; Reid v. Architectural Board of Review of the City of Cleveland Heights, 119 Ohio App. 67, 192 N.E.2d 74, 77; and Oregon City v. Hartke, 240 Or. 35, 400 P.2d 255, 261, for pronouncements of the principle that aesthetics is a factor to be considered in zoning matters.

In the matter of enacting zoning ordinances and the procedures for deter­mining whether any certain proposed struc­ture or use is in compliance with or offends the basic ordinance, it is well settled that courts will not substitute their judgments for the city’s legislative body, if the result is not oppressive, arbitrary or unreasonable and does not infringe upon a valid pre­existing nonconforming use. Landau et al. v. Levin, 358 Mo. 77, 213 S.W.2d 483, 485 [2-4]; Flora Realty & Investment Co. v. City of Ladue, 362 Mo. 1025, 246 S.W.2d 771, 777 [1]; Wrigley Properties, Inc. et al. v. City of Ladue, Mo., 369 S.W.2d 397, 400 [2-4], The denial by appellant of a building permit for relators’ highly modern­istic residence in this area where tradition­al Colonial, French Provincial and English Tudor styles of architecture are erected does not appear to be arbitrary and unrea­sonable when the basic purpose to be served is that of the general welfare of persons in the entire community.

In addition to the above-stated purpose in the preamble to Ordinance 131, it estab­lishes an Architectural Board of three members, all of whom must be architects. Meetings of the Board are to be open to the public, and every application for a building permit, except those not affecting the out­ward appearance of a building, shall be sub­mitted to the Board along with plans, ele­vations, detail drawings and specifications, before being approved by the Building Com­missioner. The Chairman of the Board shall examine the application to determine if it conforms to proper architectural stand­ards in appearance and design and will be in general conformity with the style and design of surrounding structures and con­ducive to the proper architectural develop­ment of the city. If he so finds, he ap­proves and returns the application to the Building Commissioner. If he does not find conformity, or has doubt, a full meet­ing of the Board is called, with notice of the time and place thereof given to the ap­plicant. The Board shall disapprove the application if it determines the proposed structure will constitute an unsightly, grotesque or unsuitable structure in appear­ance, detrimental to the welfare of sur­rounding property or residents. If it can­not make that decision, the application shall be returned to the Building Commissioner either with or without suggestions or rec­ommendations, and if that is done without disapproval, the Building Commissioner may issue the permit. If the Board’s dis­approval is given and the applicant refuses to comply with recommendations, the Building Commissioner shall refuse the per­mit. Thereafter provisions are made for an appeal to the Council of the city for re­view of the decision of the Architectural Board. Ordinance 281 amends Ordinance 131 only with respect to the application ini­tially being submitted to and considered by all members of the Architectural Board.

Relators claim that the above pro­visions of the ordinance amount to an un­constitutional delegation of power by the city to the Architectural Board. It is ar­gued that the Board cannot be given the power to determine what is unsightly and grotesque and that the standards, “whether the proposed structure will conform to proper architectural standards in appear­ance and design, and will be in general con­formity with the style and design of sur­rounding structures and conducive to the proper architectural development of the City * * * ” and “the Board shall disap­prove the application if it determines that the proposed structure will constitute an un­sightly, grotesque or unsuitable structure in appearance, detrimental to the welfare of surrounding property or residents * *," are inadequate. First cited is State ex rel. Continental Oil Company v. Waddill, Mo., 318 S.W.2d 281, which held an ordinance provision unconstitutional which clothed the City Planning Committee with arbi­trary discretion without a definite standard or rule for its guidance, following the gen­eral rule in Lux v. Milwaukee Mechanics’ Ins. Co., 322 Mo. 342, 15 S.W.2d 343, 345. In the Lux case, as well as in State ex rel. Ludlow v. Guffey, Mo., 306 S.W.2d 552, exceptions to the general rule were stated to be “in situations and circumstances where necessity would require the vesting of discretion in the officer charged with the enforcement of an ordinance, as where it would be either impracticable or impos­sible to fix a definite rule or standard, or where the discretion vested in the officer relates to the enforcement of a police regu­lation requiring prompt exercise of judg­ment” (306 S.W.2d 557). The ordinance here is similar to the ordinance in the Guffey case wherein it was held that general standards of the ordinance were sufficient. Although it was said that neither of the above-stated exceptions applied in the Guf­fey case, the impracticality of setting forth a completely comprehensive standard in­suring uniform discretionary action by the city council was discussed. It was held that the general standards were sufficient and that the procedure for determining whether the proposed filling station would or would not promote the “health, safety, morals or general welfare of the communi­ty” or would or would not adversely affect “the character of the neighborhood, traffic conditions, public utility facilities and other matters pertaining to the general welfare” (306 S.W.2d 558) was sufficient to provide against the exercise of arbitrary and uncon­trolled discretion by the city council. Here, as in the Guffey case, the procedures are for public hearings with notice to the appli­cant, not only by the Architectural Board but also by the City Council on appeal on the factual issues to be determined under the ordinance. An applicant’s rights are safeguarded in this respect, and thus dis­tinguished is the ordinance which was con­demned in State ex rel. Magidson v. Henze, supra. Otherwise, in the respect that the Magidson case did not consider the purpose of § 89.040, supra, it should no longer be followed. Ordinances 131 and 281 are suf­ficient in their general standards calling for a factual determination of the suitabili­ty of any proposed structure with refer­ence to the character of the surrounding neighborhood and to the determination of any adverse effect on the general welfare and preservation of property values of the community. Like holdings were made in­volving Architectural Board ordinances in State ex rel. Saveland Park Holding Corp. v. Wieland, 269 Wis. 262, 69 N.W.2d 217, and Reid v. Architectural Board of Review of the City of Cleveland Heights, 119 Ohio App. 67, 192 N.E.2d 74, supra.

The judgment is reversed.

PER CURIAM.

The foregoing opinion by PRITCHARD, C., is adopted as the opinion of the Court.

Division One.

[No. 29148-3-I.

M. Bruce Anderson, et al, Appellants, v. The City of Issaquah, Respondent.

May 24, 1993.]

Rebekah R. Ross, Dennis D. Reynolds, and Williams, Kast­ner & Gibbs, for appellants.

Wayne D. Tanaka and Ogden Murphy Wallace, for respon­dent.

Linda M. Youngs on behalf of American Institute of Archi­tects, amicus curiae.

Kennedy, J.

Appellants M. Bruce Anderson, Gary D. LaChance, and M. Bruce Anderson, Inc. (hereinafter referred to as Anderson), challenge the denial of their application for a land use certification, arguing, inter alia, that the building design requirements contained in Issaquah Municipal Code (IMC) 16.16.060 are unconstitutionally vague. The Superior Court rejected this constitutional challenge. We reverse and direct that Anderson's land use certification be issued.1

The City of Issaquah cross-appeals, contending the trial court erroneously granted summary dismissal of its affirma­tive defenses. Anderson contends the cross appeal is wholly frivolous and seeks an award of reasonable attorney fees incurred in responding thereto. We affirm the trial court's summary dismissal of the affirmative defenses. We resolve our considerable doubts with respect to sanctions in favor of the City of Issaquah and deny Anderson's request for attor­ney fees.

Facts

Anderson owns property located at 145 N.W. Gilman Boule­vard in the city of Issaquah (City). In 1988, Anderson applied to the City for a land use certification to develop the property. The property is zoned for general commercial use. Anderson desired to build a 6,800-square-foot commercial building for several retail tenants.

After obtaining architectural plans, Anderson submitted the project to various City departments for the necessary approvals. The process went smoothly until the approval of the Issaquah Development Commission (Development Com­mission) was sought. This commission was created to admin­ister and enforce the City's land use regulations. It has the authority to approve or deny applications for land use certifi­cation.

Section 16.16.060 of the IMC enumerates various building design objectives which the Development Commission is required to administer and enforce. Insofar as is relevant to this appeal, the Development Commission is to be guided by the following criteria:

IMC 16.16.060(B). Relationship of Building and Site to Adjoining Area.

1. Buildings and structures shall be made compatible with adjacent buildings of conflicting architectural styles by such means as screens and site breaks, or other suitable methods and materials.

2. Harmony in texture, lines, and masses shall be encour­aged.

IMC 16.16.060(D). Building Design.

1. Evaluation of a project shall be based on quality of its design and relationship to the natural setting of the valley and surrounding mountains.

2. Building components, such as windows, doors, eaves and parapets, shall have appropriate proportions and relationship to each other, expressing themselves as a part of the overall design.

3. Colors shall be harmonious, with bright or brilliant colors used only for minimal accent.

4. Design attention shall be given to screening from public view all mechanical equipment, including refuse enclosures, electrical transformer pads and vaults, communication equip­ment, and other utility hardware on roofs, grounds or buildings.

5. Exterior lighting shall be part of the architectural concept. Fixtures, standards and all exposed accessories shall be har­monious with the building design.

6. Monotony of design in single or multiple building projects shall be avoided. Efforts should be made to create an interesting project by use of complimentary details, functional orientation of buildings, parking and access provisions and relating the devel­opment to the site. In multiple building projects, variable siting of individual buildings, heights of buildings, or other methods shall be used to prevent a monotonous design.

As initially designed, Anderson's proposed structure was to be faced with off-white stucco and was to have a blue metal roof. It was designed in a "modern" style with an unbroken "warehouse" appearance in the rear, and large retail-style windows in the front. The City moved a Victorian era resi­dence, the "Alexander House", onto the neighboring property to serve as a visitors' center. Across the street from the Anderson site is a gasoline station that looks like a gasoline station. Located nearby and within view from the proposed building site are two more gasoline stations, the First Mutual Bank Building built in the "Issaquah territorial style", an Elks hall which is described in the record by the Mayor of Issaquah as a "box building", an auto repair shop, and a veterinary clinic with a cyclone-fenced dog run. The area is described in the record as "a natural transition area between old downtown Issaquah and the new village style construc­tion of Gilman [Boulevard]."

The Development Commission reviewed Anderson's appli­cation for the first time at a public hearing on December 21, 1988. Commissioner Nash commented that "the facade did not fit with the concept of the surrounding area." Commis­sioner McGinnis agreed. Commissioner Nash expressed con­cern about the building color and stated that he did not think the building was compatible with the image of Issa­quah. Commissioner Larson said that he would like to see more depth to the building facade. Commissioner Nash said there should be some interest created along the blank back wall. Commissioner Garrison suggested that the rear facade needed to be redesigned.2

At the conclusion of the meeting, the Development Com­mission voted to continue the hearing to give Anderson an opportunity to modify the building design.

On January 18, 1989, Anderson came back before the Devel­opment Commission with modified plans which included changing the roofing from metal to tile, changing the color of the structure from off-white to "Cape Cod" gray with "Tahoe" blue trim, and adding brick to the front facade. During the ensuing discussion among the commissioners, Commissioner Larson stated that the revisions to the front facade had not satisfied his concerns from the last meeting. In response to Anderson's request for more specific design guidelines, Commissioner McGinnis stated that the Development Commission had "been giving direction; it is the applicant's responsibility to take the direction/suggestions and incorporate them into a revised plan that reflects the changes." Commissioner Larson then sug­gested that "[t]he facade can be broken up with sculptures, benches, fountains, etc." Commissioner Nash suggested that Anderson "drive up and down Gilman and look at both good and bad examples of what has been done with flat facades."

As the discussion continued, Commissioner Larson stated that Anderson "should present a [plan] that achieves what the Commission is trying to achieve through its comments/suggestions at these meetings" and stated that "architectural screens, fountains, paving of brick, wood or other similar method[s] of screening in lieu of vegetative landscaping are examples of design suggestions that can be used to break up the front facade." Commissioner Davis objected to the front facade, stating that he could not see putting an expanse of glass facing Gilman Boulevard. "The building is not compat­ible with Gilman." Commissioner O'Shea agreed. Commis­sioner Nash stated that "the application needs major changes to be acceptable." Commissioner O'Shea agreed. Commis­sioner Nash stated that "this facade does not create the same feeling as the building/environment around this site."

Commissioner Nash continued, stating that he "person­ally like[d] the introduction of brick and the use of tiles rather than metal on the roof." Commissioner Larson stated that he would like to see a review of the blue to be used: "Tahoe blue may be too dark." Commissioner Steinwachs agreed. Commissioner Larson noted that "the front of the building could be modulated [to] have other design tech­niques employed to make the front facade more interesting."

With this, the Development Commission voted to continue the discussion to a future hearing.

On February 15, 1989, Anderson came back before the Development Commission. In the meantime, Anderson's architects had added a 5-foot overhang and a 7-foot accent overhang to the plans for the front of the building. More brick had been added to the front of the building. Wood trim and accent colors had been added to the back of the building and trees were added to the landscaping to further break up the rear facade.

Anderson explained the plans still called for large, floor to ceiling windows as this was to be a retail premises: "[A] glass front is necessary to rent the space ...". Commissioner Steinwachs stated that he had driven Gilman Boulevard and taken notes. The following verbatim statement by Stein­wachs was placed into the minutes:

"My General Observation From Driving Up and Down Gilman Boulevard".

I see certain design elements and techniques used in various combinations in various locations to achieve a visual effect that is sensitive to the unique character of our Signature Street. I see heavy use of brick, wood, and tile. I see minimal use of stucco. I see colors that are mostly earthtones, avoiding extreme contrasts. I see various methods used to provide mod­ulation in both horizontal and vertical lines, such as gables, bay windows, recesses in front faces, porches, rails, many ver­tical columns, and breaks in roof lines. I see long, sloping, conspicuous roofs with large overhangs. I see windows with panels above and below windows. I see no windows that extend down to floor level. This is the impression I have of Gilman Boulevard as it relates to building design.

Commissioner Nash agreed stating, "[T]here is a certain feeling you get when you drive along Gilman Boulevard, and this building does not give this same feeling." Commissioner Steinwachs wondered if the applicant had any option but to start "from scratch". Anderson responded that he would be willing to change from stucco to wood facing but that, after working on the project for 9 months and experiencing total frustration, he was not willing to make additional design changes.

At that point, the Development Commission denied Ander­son's application, giving four reasons:

1. After four [sic] lengthy review meetings of the Development Commission, the applicant has not been sufficiently respon­sive to concerns expressed by the Commission to warrant approval or an additional continuance of the review.

2. The primary concerns expressed relate to the building archi­tecture as it relates to Gilman Boulevard in general, and the immediate neighborhood in particular.

3. The Development Commission is charged with protecting, preserving and enhancing the aesthetic values that have established the desirable quality and unique character of Issaquah, reference IMC 16.16.010C.[3]

4. We see certain design elements and techniques used in vari­ous combinations in various locations to achieve a visual effect that is sensitive to the unique character of our Signa­ture Street. On Gilman Boulevard we see heavy use of brick, wood and tile. We see minimal use of stucco. We see various methods used to provide both horizontal and verti­cal modulation, including gables, breaks in rooflines, bay windows, recesses and protrusions in front face. We see long, sloping, conspicuous roofs with large overhangs. We see no windows that extend to ground level. We see brick and wood panels at intervals between windows. We see earthtone colors avoiding extreme contrast.

Anderson, who by this time had an estimated $250,000 into the project, timely appealed the adverse ruling to the Issaquah City Council (City Council). After a lengthy hear­ing and much debate, the City Council decided to affirm the Development Commission's decision by a vote of 4 to 3.

The City Council considered formal written findings and conclusions on April 3, 1989. The City Council verbally adopted its action on that date but required that certain changes be made to the proposed findings and conclusions. Those changes were made and the final findings and conclu­sions were signed on April 5, 1989 (backdated to April 3). On April 5, a notice of action was issued to Anderson, stat­ing that he had 14 days from the date of that notice in which to file any appeal.

Thirteen days later, on April 18, 1989, Anderson filed a complaint in King County Superior Court. The lawsuit was initially brought in the names of M. Bruce Anderson and Gary D. LaChance. At this time, LaChance still owned the property. On June 19, 1989, LaChance sold the property to M. Bruce Anderson, Inc. The complaint was amended by stipulation to add the corporation as a party plaintiff, with­out prejudice to the City's right to argue that the corporation had been an indispensable party before the sale closed. The Washington State Attorney General was not named as a defendant. On August 28, 1990, prior to trial, the Attorney General was served.4 The Attorney General declined the opportunity to participate in the action and waived notice of any further proceedings.

In responding to the action, the City interposed affirma­tive defenses, alleging that the complaint had been filed 1 day past the 14-day deadline established by IMC 1.32.040; and that Anderson had failed to name an indispensable party, the Attorney General. Later, the City argued that M. Bruce Anderson, Inc., should have been joined initially. Prior to trial, these affirmative defenses were stricken, fol­lowing the grant of Anderson's request for summary judg­ment thereon.

Following trial, the court dismissed Anderson's complaint, rejecting the same claims now raised in this appeal.

Discussion

1. Cross Appeal.

We first address the issues raised in the cross appeal, as a ruling in favor of the City on those issues would obviate Anderson's appeal.

By bringing the cross appeal the City has come within a hair's breadth of incurring sanctions under RAP 18.9 (frivo­lous appeal). We exercise our discretion and deny Anderson's request for sanctions primarily because the City is techni­cally correct that, under Birch Bay Trailer Sales, Inc. v. Whatcom Cy., 65 Wn. App. 739, 829 P.2d 1109, review denied, 119 Wn.2d 1023 (1992) and DiGiovanni v. Tukwila, 54 Wn. App. 627, 774 P.2d 1244 (1989), review denied, 114 Wn.2d 1001 (1990), the date of the City's "decision" was April 3, 1989, rather than April 5, 1989, when the formal written findings and conclusions were actually signed.5 But see North St. Ass'n v. Olympia, 96 Wn.2d 359, 361, 369-70, 635 P.2d 721 (1981) (30-day period in which to file a petition for writ of review did not commence to run from date of oral decision but rather from date of official notice of decision), disapproved on other grounds in Sidis v. Brodie/Dohrmann, Inc., 117 Wn.2d 325, 815 P.2d 781 (1991).

Although the issue here raised is not in and of itself frivolous, we hold that the City waived the right to argue this issue when, on April 5, 1989, it sent Anderson a notice stating that Anderson had 14 days from the date of that notice to file an appeal.6 Therefore, we need not decide the issue and decline to do so.

The City's claim that M. Bruce Anderson, Inc., should have been named as a party plaintiff at a time before the corporation purchased the property here in issue is wholly frivolous. A property owner in an action such as this is a necessary and indispensable party, Veradale Vly. Citizens’ Planning Comm. v. Board of Cy. Comm'rs, 22 Wn. App. 229, 232-33, 588 P.2d 750 (1978), but the Anderson corporation did not become the owner of this property until June 1989.7 We hold that the corporation did not become an indispens­able party until it purchased the property, by which time M. Bruce Anderson, Inc., had been joined as a party. See CR 15(c).

Finally, the City argues that Anderson's failure to promptly serve the Attorney General is fatal to the claim. RCW 7.24.110 does require that the Attorney General be served, although no time limit is stated. In Kendall v. Doug­las, Grant, Lincoln & Okanogan Cys. Pub. Hosp. Dist. 6, 118 Wn.2d 1, 11-12, 820 P.2d 497 (1991), our Supreme Court affirmed the dismissal of a claim which challenged the facial constitutionality of a state statute because the Attorney General had never been served. In Leonard v. Seattle, 81 Wn.2d 479, 503 P.2d 741 (1972), an assistant attorney gen­eral, although that office had never been served, appeared specially at trial and testified that the Attorney General's office was (at that time) being served with more than 250 such cases a year and that, had the Attorney General's office been served in that case, it would have waived any right to participate in the litigation. Leonard, 81 Wn.2d at 482-83. The Leonard court held that, although service upon the Attorney General is jurisdictional in a general sense, such service is subject to waiver by the Attorney General and had been waived in that case. Leonard, 81 Wn.2d at 482.

In Zimmer v. Seattle, 19 Wn. App. 864, 869-70, 578 P.2d 548 (1978), the Attorney General was served, although it is not clear from the decision just when this was done. The Attorney General's office waived the opportunity to participate. This court noted that "the attorney general is not obliged to appear" and he or she may waive the requirement of service. Zimmer, 19 Wn. App. at 869-70 (citing Leonard, 81 Wn.2d at 482).

We hold that the Attorney General's pretrial waiver of the statutory opportunity to intervene is dispositive of this issue. Leonard clearly controls. If the Attorney General may waive the total failure to serve, he or she most certainly can waive "late" service.8

Because "all doubts as to whether [an] appeal is frivo­lous should be resolved in favor of the appellant", Millers Cas. Ins. Co. v. Briggs, 100 Wn.2d 9, 15, 665 P.2d 887 (1983) (quoting Streater v. White, 26 Wn. App. 430, 435, 613 P.2d 187, review denied, 94 Wn.2d 1014 (1980)), we resolve the close issue of whether the cross appeal is wholly frivolous in favor of the City. Accordingly, we deny Anderson's request for sanctions for a frivolous cross appeal.

2. Constitutionality of IMC 16.16.060 (Building Design Provisions).

[A] statute which either forbids or requires the doing of an act in terms so vague that men [and women] of common intelli­gence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.

Connally v. General Constr. Co., 269 U.S. 385, 391, 70 L. Ed. 322, 46 S. Ct. 126 (1926). See also State v. Reader's Digest Ass'n, Inc., 81 Wn.2d 259, 273, 501 P.2d 290 (1972), appeal dismissed, 411 U.S. 945 (1973); Burien Bark Supply v. King Cy., 106 Wn.2d 868, 871, 725 P.2d 994 (1986). In the field of regulatory statutes governing business activities, statutes which employ technical words which are commonly under­stood within an industry, or which employ words with a well-settled common law meaning, generally will be sus­tained against a charge of vagueness. Reader's Digest Ass’n, 81 Wn.2d at 273-74. The vagueness test does not require a statute to meet impossible standards of specificity. Chicago, M., St. P. & P.R.R. v. State Human Rights Comm'n, 87 Wn.2d 802, 805, 557 P.2d 307 (1976).

In the area of land use, a court looks not only at the face of the ordinance but also at its application to the person who has sought to comply with the ordinance and/or who is alleged to have failed to comply. Burien Bark Supply, 106 Wn.2d at 871; Grant Cy. v. Bohne, 89 Wn.2d 953, 955, 577 P.2d 138 (1978). The purpose of the void for vagueness doc­trine is to limit arbitrary and discretionary enforcements of the law. Burien Bark Supply, 106 Wn.2d at 871.

Looking first at the face of the building design sections of IMC 16.16.060, we note that an ordinary citizen reading these sections would learn only that a given building project should bear a good relationship with the Issaquah Valley and surrounding mountains; its windows, doors, eaves and parapets should be of "appropriate proportions", its colors should be "harmonious" and seldom "bright" or "brilliant"; its mechanical equipment should be screened from public view; its exterior lighting should be "harmonious" with the building design and "monotony should be avoided." The proj­ect should also be "interesting". IMC 16.16.060(D)(l)-(6). If the building is not "compatible" with adjacent buildings, it should be "made compatible" by the use of screens and site breaks "or other suitable methods and materials." "Harmony in texture, lines, and masses [is] encouraged." The landscap­ing should provide an "attractive . . . transition" to adjoining properties. IMC 16.16.060(B)(l)-(3).

As is stated in the brief of amicus curiae,9 we conclude that these code sections "do not give effective or meaningful guidance" to applicants, to design professionals, or to the public officials of Issaquah who are responsible for enforcing the code. Brief of Amicus Curiae, at 1. Although it is clear from the code sections here at issue that mechanical equip­ment must be screened from public view and that, probably, earthtones or pastels located within the cool and muted ranges of the color wheel are going to be preferred, there is nothing in the code from which an applicant can determine whether his or her project is going to be seen by the Devel­opment Commission as "interesting" versus "monotonous" and as "harmonious" with the valley and the mountains. Neither is it clear from the code just what else, besides the valley and the mountains, a particular project is supposed to be harmonious with, although "[h]armony in texture, lines, and masses" is certainly encouraged. IMC 16.16.060(B)(2).10

In attempting to interpret and apply this code, the com­missioners charged with that task were left with only their own individual, subjective "feelings" about the "image of Issaquah" and as to whether this project was "compatible" or "interesting". The commissioners stated that the City was "making a statement" on its "signature street"11 and invited Anderson to take a drive up and down Gilman Boulevard and "look at good and bad examples of what has been done with flat facades." One commissioner drove up and down Gilman, taking notes, in a no doubt sincere effort to define that which is left undefined in the code.12

The point we make here is that neither Anderson nor the commissioners may constitutionally be required or allowed to guess at the meaning of the code's building design require­ments by driving up and down Gilman Boulevard looking at "good and bad" examples of what has been done with other buildings, recently or in the past. We hold that the code sections here at issue are unconstitutionally vague on their face. The words employed are not technical words which are commonly understood within the professional building design industry. Neither do these words have a settled com­mon law meaning.

As they were applied to Anderson, it is also clear the code sections at issue fail to pass constitutional muster. Be­cause the commissioners themselves had no objective guide­lines to follow, they necessarily had to resort to their own subjective "feelings". The "statement" Issaquah is apparently trying to make on its "signature street" is not written in the code. In order to be enforceable, that "statement" must be written down in the code, in understandable terms.13 See, e.g., Morristown Road Assocs. v. Mayor & Common Coun. & Planning Bd., 163 N.J. Super. 58, 394 A.2d 157 (1978). The unacceptable alternative is what happened here. The com­missioners enforced not a building design code but their own arbitrary concept of the provisions of an unwritten "state­ment" to be made on Gilman Boulevard. The commissioners' individual concepts were as vague and undefined as those written in the code. This is the very epitome of discretionary, arbitrary enforcement of the law.

Councilwoman McHenry said it very well during the appeal to the City Council:

[M]aybe we haven't done a good job in . . . communicating what kind of image we want. We all want an image. I bet you if I stated my image it would be certainly different from every­one of you here and everyone in the audience. . . . [I]f we want a specific design, I agree with proponent's counsel, and that is that we come up with a specific district design . . . We don't have such a design requirement. So we all have to rely on some gut feel. And often times this gut feel gets us into trouble because it could be misinterpreted or misconstrued . . .[.]

Although the City argues that its code is not unconstitu­tionally vague, it primarily relies upon the procedural safe­guards contained in the code. Because aesthetic considera­tions are subjective in concept, the City argues that they cannot be reduced to a formula or a number. The vagueness test does not require a statute to meet impossible standards of specificity. Chicago, M., St. P. & P.R.R. v. State Human Rights Comm'n, 87 Wn.2d at 805.

As well illustrated by the appendices to the brief of amicus curiae, aesthetic considerations are not impossible to define in a code or ordinance.14 Moreover, the procedural safeguards contained in the Issaquah Municipal Code (pro­viding for appeal to the City Council and to the courts) do not cure the constitutional defects here apparent. The City relies heavily upon Barry & Barry, Inc. v. Department of Motor Vehicles, 81 Wn.2d 155, 500 P.2d 540 (1972), appeal dismissed, 410 U.S. 977 (1973) and argues that, under that case, a city need only provide standards and guidelines that define in very general terms what is to be done, and by whom, together with sufficient procedural safeguards to con­trol arbitrary administration. See also State ex rel. Standard Mining & Dev. Corp. v. Auburn, 82 Wn.2d 321, 510 P.2d 647 (1973) (applying Barry to an Auburn zoning ordinance).

In Barry, the Washington Supreme Court decided first that the Washington Legislature had indeed delegated to the Director of the Department of Motor Vehicles the authority to promulgate a schedule of maximum fees which could be charged by employment agencies. The second question before the court was whether this was an unconstitutional delega­tion of legislative authority because of the absence of ade­quate legislative standards. The court held that it was not. "[T]he best way to work out policy is often for the legislative body to avoid generalization and to assign to an administra­tive agency the task of working out such policy on a case-by-­case basis." Barry, 81 Wn.2d at 160 (citing 1 K. Davis, Ad­ministrative Law Treatise § 2.08 (1958)).

It is clear, however, that the Barry court did not have in mind judicial approval of the kind of ad hoc case-by-case policymaking which Anderson experienced before the Issa­quah Development Commission:

The non-delegation doctrine can and should be altered to turn it into an effective and useful judicial tool. Its purpose should no longer be either to prevent delegation of legislative power or to require meaningful statutory standards; its pur­pose should be the much deeper one of protecting against unnecessary and uncontrolled discretionary power. . . . The focus of judicial inquiries thus should shift from statutory standards to administrative safeguards and administrative standards. As soon as that shift is accomplished, the protec­tions should grow beyond the non-delegation doctrine to a much broader requirement, judicially enforced, that as far as is practicable administrators must structure their discretion­ary power through appropriate safeguards and must confine and guide their discretionary power through standards, prin­ciples, and rules.

Barry, 81 Wn.2d at 161 (quoting 1 K. Davis, Administrative Law Treatise § 2.00 (Supp. 1970)). In Barry, the Legislature authorized the Director of the Department of Motor Vehicles to adopt a uniform fee schedule, not to decide fee issues arbitrarily on a case-by-case basis. The Director was required to establish and publish the uniform standards, principles, and rules by which all employment agencies would be gov­erned. Barry does not suggest that an administrative agency acting in the absence of clear legislative guidelines may arbi­trarily impose vague, unarticulated and unpublished stan­dards upon the public.

In Standard Mining & Dev. Corp., the Supreme Court dealt with the comprehensive plan and certain zoning regu­lations adopted by the City of Auburn to govern special use permits for gravel pit operations. The appellant mining com­pany argued that the zoning regulation governing special use permits was invalid in that it contained no standards to guide the city council in formulating the conditions which shall attach to such permits. The Supreme Court responded to this argument as follows:

As we recently indicated in Barry & Barry, Inc. v. Depart­ment of Motor Vehicles, 81 Wn.2d 155, 500 P.2d 540 (1972), the specification of standards is not always appropriate in admin­istrative actions. The function of prescribing the conditions under which a special use permit may be enjoyed is one to which this principle is applicable. Only rarely will the environ­mental factors affecting different special use applications be the same. Generally speaking, the conditions imposed must necessarily differ from case to case. This does not mean that the applicant is denied due process of law or the equal protec­tion of the laws—so long as he is granted a hearing, a right of appeal, and a chance to show that the conditions are unrea­sonable, that is, unnecessarily burdensome or unrelated to the purpose which they are legitimately designed to serve.

Standard Mining & Dev. Corp., 82 Wn.2d at 330-31.

The Standard Mining court pointed out that Auburn's comprehensive plan dealt extensively with the numerous deposits of sand and gravel located within the Auburn city limits and that an applicant may appeal the imposition of conditions placed on a special use permit on the basis that the conditions are unduly burdensome or not reasonably cal­culated to achieve the purposes set forth in the comprehen­sive plan. Standard Mining & Dev. Corp., 82 Wn.2d at 331-­32. Issaquah argues that Anderson is in the same position and, accordingly, that Standard Mining dictates that we must affirm. We disagree and hold that the principles of Barry as applied in Standard Mining do not apply to the code sections here at issue. Instead, we adopt the approach of the New Jersey court in Morristown Road Assocs., 163 N.J. Super, at 67-68. A design review ordinance must con­tain workable guidelines. Too broad a discretion permits determinations based upon whim, caprice, or subjective con­siderations.

Certainly, the IMC grants Anderson the right to appeal the adverse decision of the Development Commission. But just as IMC 16.16.060 provides no standards by which an applicant or the Development Commission or the City Council can determine whether a given building design passes muster under the code, it provides no ascertainable criteria by which a court can review a decision at issue, regardless of whether the court applies the arbitrary and capricious standard as the City argues is appropriate or the clearly erroneous standard as Anderson argues is appropriate. Under either standard of review, the appellate process is to no avail where the statute at issue contains no ascertainable standards and where, as here, the Development Commission was not empowered to adopt clearly ascertainable standards of its own.15 The proce­dural safeguards provided here do not save the ordinance.

Anderson has argued strenuously in this appeal that a municipality has no power to deny a proposed development for aesthetic reasons alone. Anderson argues this issue is "settled" by Washington case law. See Polygon Corp. v. Seat­tle, 90 Wn.2d 59, 70, 578 P.2d 1309 (1978); Duckworth v. Bonney Lk., 91 Wn.2d 19, 30, 586 P.2d 860 (1978); Victoria Tower Partnership v. Seattle, 59 Wn. App. 592, 603, 800 P.2d 380 (1990) (holding a city can consider aesthetic impacts only "along with other adverse impacts"), review denied, 116 Wn.2d 1012 (1991). Relying on these same cases, the City argues that, although Anderson's land use certification admittedly was denied solely on the basis of aesthetics, IMC 16.16 is valid because aesthetic concerns are only one of the bases contained in the code for the exercise of police power relating to land use. The amicus points out that the modern view is that aesthetics alone will justify a regulation, pro­vided that there are adequate standards and they are appro­priately applied. See 1 A. & D. Rathkopf, Zoning and Plan­ning § 14.02[4] (1986).

We believe the issue of whether a community can exert control over design issues based solely on accepted commu­nity aesthetic values is far from "settled" in Washington case law. The possibility certainly has not been foreclosed by our Supreme Court. See Polygon, 90 Wn.2d at 70 ("While this court has not held that aesthetic factors alone will support an exercise of the police power, such considerations taken together with other factors can support such action."). See also Duckworth, 91 Wn.2d at 30 ("While we have indicated that aesthetic considerations alone may not support invoca­tion of the police powers . . .". (Italics ours.))

Clearly, however, aesthetic standards are an appro­priate component of land use governance. Whenever a com­munity adopts such standards they can and must be drafted to give clear guidance to all parties concerned. Applicants must have an understandable statement of what is expected from new construction. Design professionals need to know in advance what standards will be acceptable in a given com­munity. It is unreasonable to expect applicants to pay for repetitive revisions of plans in an effort to comply with the unarticulated, unpublished "statements" a given community may wish to make on or off its "signature street". It is equally unreasonable, and a deprivation of due process, to expect or allow a design review board such as the Issaquah Development Commission to create standards on an ad hoc basis, during the design review process.

Conclusion

It is not disputed that Anderson's project meets all of the City's land use requirements except for those unwritten and therefore unenforceable requirements relating to building design which the Development Commission unsuccessfully tried to articulate during the course of several hearings. We order that Anderson's land use certification be issued, pro­vided however, that those changes which Anderson agreed to through the hearing before the City Council may validly be imposed.

Scholfield and Grosse, JJ., concur.

1

Anderson raises additional issues which we need not address in view of our determination that the land use certification was denied based on an unconstitu­tionally vague ordinance which was applied in an ad hoc manner.

2

The minutes of this and the other commission hearings for this project reflect that parking, signs, building security, and landscaping were also dis­cussed. We include here only those comments contained in the various minutes which relate to building design.

3

IMC 16.16.010(C) provides that one of the purposes of the code is "[t]o pro­tect, preserve and enhance the social, cultural, economic, environmental and aesthetic values that have established the desirable quality and unique charac­ter of Issaquah[.]"

4

Anderson was/is challenging the constitutionality of an Issaquah city ordinance. RCW 7.24.110 provides that when declaratory relief is sought that a municipal ordinance is unconstitutional, the Attorney General shall be served and shall be entitled to be heard. The statute does not require that the Attorney General be named as a party.

5

IMC 1.32.040 requires that any appeal to the superior court be filed within 14 days of the City Council's "decision".

6

The existence of this notice was not revealed to this court by the City. Ander­son pointed it out in the reply brief responding to the cross appeal.

7

The City also failed to point out this relevant fact to this court. Anderson pointed it out in the reply brief. This court is not favorably impressed by the City's lack of candor.

8

We do not hold that the service here was "late". The statute does not require that the Attorney General be named as a party and no deadline for service is contained in ROW 7.24.110.

9

The amicus curiae is the Seattle Chapter of the American Institute of Archi­tects, the Washington Council of the American Institute of Architects, and the Washington Chapter of the American Society of Landscape Architects.

10

Apparently a particular building need not be particularly compatible with the design of an adjacent building in that it can be "made compatible" by the use of "screens and site breaks". IMC 16.16.060(B)(1).

11

The term "signature street" is not defined in the ordinance here at issue.

12

Although Commissioner Steinwachs stated that he saw heavy use of brick, wood and tile, minimal use of stucco, many gables, bay windows, and long, sloping vertical roofs, it is clear from the record that also to be seen on Gilman Boulevard are a number of approved and completed projects that do not bear these characteristics. Examples include a Schuck's Auto Supply store at 607 N.W. Gilman Boulevard; a strip mall known as Town and Country Square at 1135 Gilman Boulevard; a Mobil gasoline station located at 55 N.W. Gilman Boulevard and a Skipper's restaurant located at the southeast corner of Front Street and Gilman Boulevard.

13

We reject the City's argument that Issaquah's comprehensive plan and its 1-90 subarea amendment when read in conjunction with IMC 16.16.060 fills in the constitutional gap. The comprehensive plan contains only very general statements of policy, criteria, and goals. By the terms of the plan, the City stated its intention to enact and enforce specific regulations in order to carry out the comprehensive plan. It is one of these regulations that is at issue here.

14

Appendix A to the brief of amicus curiae is a portion of the design objectives plan for entryway corridors for Bozeman, Montana. Appendix B is a portion of the development code for San Bernardino, California. Both codes contain exten­sive written criteria illustrated by schematic drawings and photographs. The illustrations clarify a number of concepts which otherwise might be difficult to describe with the requisite degree of clarity.

15

We do not decide whether such authority could have been delegated to this commission. Such authority was not delegated here.

Missouri Court of Appeals, Eastern District, Division Three.

No. 51415.

CITY OF LADUE, Plaintiff-Respondent, v. Joan K. HORN and E. Terrence Jones, Defendants-Appellants.

Nov. 4, 1986.

Motion for Transfer to Supreme Court Denied Dec. 10, 1986.

Motion for Transfer to Supreme Court Overruled Feb. 17, 1987.

PUDLOWSKI, P.J., and KAROHL, J., concur.

Frank Susman, Clayton, for defendants-­appellants.

F. Douglas O’Leary, St. Louis, for plain­tiff-respondent.

CRANDALL, Judge.

Defendants, Joan Horn and E. Terrence Jones, appeal from the judgment of the trial court in favor of plaintiff, City of Ladue (Ladue), which enjoined defendants from occupying their home in violation of Ladue’s zoning ordinance and which dis­missed defendants’ counterclaim. We af­firm.

The case was submitted to the trial court on stipulated facts. Ladue’s Zoning Ordi­nance No. 1175 was in effect at all times pertinent to the present action. Certain zones were designated as one-family resi­dential. The zoning ordinance defined fam­ily as: “One or more persons related by blood, marriage or adoption, occupying a dwelling unit as an individual housekeeping organization.” The only authorized acces­sory use in residential districts was for “[a]ccommodations for domestic persons employed and living on the premises and home occupations.” The purpose of Ladue’s zoning ordinance was broadly stated as to promote “the health, safety, morals and general welfare” of Ladue.

In July, 1981, defendants purchased a seven-bedroom, four-bathroom house which was located in a single-family resi­dential zone in Ladue. Residing in defend­ants’ home were Horn’s two children (aged 16 and 19) and Jones’s one child (age 18). The two older children attended out-of-­state universities and lived in the house only on a part-time basis. Although de­fendants were not married, they shared a common bedroom, maintained a joint check­ing account for the household expenses, ate their meals together, entertained together, and disciplined each other’s children.1 Ladue made demands upon defendants to va­cate their home because their household did not comprise a family, as defined by Ladue’s zoning ordinance, and therefore they could not live in an area zoned for single-­family dwellings. When defendants re­fused to vacate, Ladue sought to enjoin defendants’ continued violation of the zon­ing ordinance.2 Defendants counter­claimed, seeking a declaration that the zon­ing ordinance was constitutionally void. They also sought attorneys’ fees and costs. The trial court entered a permanent injunc­tion in favor of Ladue and dismissed de­fendants’ counterclaim. Enforcement of the injunction was stayed pending this ap­peal.

Preliminarily, we note that the ordi­nance in question clearly restricts the use of the property rather than the character of the structure. Compare Blevins v. Barry-Lawrence County Ass’n. for Re­tarded Citizens, 707 S.W.2d 407 (Mo. banc 1986). It is therefore a legal impossibility to uphold the validity of the ordinance and, at the same time, permit defendants to occupy their residence.

In Missouri, the scope of appel­late review in zoning matters is limited; and the reviewing court may not substitute its judgment for that of the zoning authori­ty. Plaas v. Lehr, 538 S.W.2d 919, 921 (Mo.App.1976). A zoning ordinance is pre­sumed valid. Deacon v. City of Ladue, 294 S.W.2d 616, 624 (Mo.App.1956). The legislative body is vested with broad discre­tion and the appellate court cannot inter­fere unless it is shown that the legislative body has acted arbitrarily. Id. “If the council’s action is fairly debatable, the court cannot substitute its opinion.” Vat­terott v. City of Florissant, 462 S.W.2d 711, 713 (Mo.App.1971).

In addition to our scope of review in zoning matters, we are guided by our scope of review in a court-tried case. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Here, the parties did not request, nor did the trial court make, findings on any con­troverted fact issues. See Rule 73.01(a)(2). We therefore assume that all factual deter­minations were made consistent with the trial court’s judgment. Weiss v. Fayant, 606 S.W.2d 440, 443 (Mo.App.1980).

Capsulated, defendants’ attack on La­due’s ordinance is three-pronged. First, the zoning limitations foreclose them from exercising their right to associate freely with whomever they wish. Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984). Second, their right to privacy is violated by the zoning restrictions. Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). Third, the zoning classification dis­tinguishes between related persons and un­related persons. United States Dept. of Agriculture v. Moreno, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973). Defend­ants allege that the United States and Mis­souri Constitutions grant each of them the right to share his or her residence with whomever he or she chooses. They assert that Ladue has not demonstrated a compel­ling, much less rational, justification for the overly proscriptive blood or legal rela­tionship requirement in its zoning ordi­nance.

Defendants posit that the term “family” is susceptible to several meanings. They contend that, since their household is the “functional and factual equivalent of a nat­ural family,” the ordinance may not pre­clude them from living in a single-family residential Ladue neighborhood. See, e.g., McMinn v. Town of Oyster Bay, 66 N.Y.2d 544, 498 N.Y.S.2d 128, 488 N.E.2d 1240 (Ct.App.1985). Defendants argue in their brief as follows:

The record amply demonstrates that the private, intimate interests of Horn and Jones are substantial. Horn, Jones, and their respective children have historically lived together as a single family unit. They use and occupy their home for the identical purposes and in the identical manners as families which are biological­ly or maritally related.

To bolster this contention, defendants elab­orate on their shared duties, as set forth earlier in this opinion. Defendants ac­knowledge the importance of viewing them­selves as a family unit, albeit a “conceptual family” as opposed to a “true non-family,” in order to prevent the application of the ordinance.3

The fallacy in defendants’ syllogism is that the stipulated facts do not compel the conclusion that defendants are living as a family. A man and woman living togeth­er, sharing pleasures and certain responsi­bilities, does not per se constitute a family in even the conceptual sense. To approxi­mate a family relationship, there must exist a commitment to a permanent relationship and a perceived reciprocal obligation to support and to care for each other. See, e.g., State ex rel. Ellis v. Liddle, 520 S.W.2d 644, 650 (Mo.App.1975). Only when these characteristics are present can the conceptual family, perhaps, equate with the traditional-family. In a traditional family, certain of its inherent attributes arise from the legal relationship of the family mem­bers. In a non-traditional family, those same qualities arise in fact, either by ex­plicit agreement or by tacit understanding among the parties.

While the stipulated facts could arguably support an inference by the trial court that defendants and their children comprised a non-traditional family, they do not compel that inference. Absent findings of fact and conclusions of law, we cannot assume that the trial court’s perception of defend­ants’ familial status comported with de­fendants’ characterization of themselves as a conceptual family. In fact, if a finding by the trial court that defendants’ living arrangement constituted a conceptual fami­ly is critical to a determination in defend­ants’ favor, we can assume that the court’s finding was adverse to defendants’ posi­tion. Ordinarily, given our deference to the decision of the trial court, that would dispose of this appeal. We decline, how­ever, to restrict our ruling to such a nar­row basis. We therefore consider the broader issues presented by the parties. We assume, arguendo, that the sole basis for the judgment entered by the trial court was that defendants were not related by blood, marriage or adoption, as required by Ladue’s ordinance.

We first consider whether the ordinance violates any federally protected rights of the defendants. Generally, federal court decisions hold that a zoning classification based upon a biological or a legal relation­ship among household members is justifi­able under constitutional police powers to protect the public health, safety, morals or welfare of the community. See P. Rohan, Zoning and Land Use Controls, § 3.04[2][a] (1986).

More specifically, the United States Supreme Court has developed a two-tiered approach by which to examine legislation challenged as violative of the equal protec­tion clause. If the personal interest affect­ed by the ordinance is fundamental, “strict scrutiny” is applied and the ordinance is sustained only upon a showing that the burden imposed is necessary to protect a compelling governmental interest. If the ordinance does not contain a suspect class or impinge upon a fundamental interest, the more relaxed “rational basis” test is applied and the classification imposed by the ordinance is upheld if any facts can reasonably justify it. McGowan v. Mary­land, 366 U.S. 420, 426, 81 S.Ct. 1101,1105, 6 L.Ed.2d 393 (1961). Defendants urge this court to recognize that their interest in choosing their own living arrangement in­exorably involves their fundamental rights of freedom of association and of privacy.

In Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926) and in Nectow v. City of Cambridge, 277 U.S. 183, 48 S.Ct. 447, 72 L.Ed. 842 (1928), the United States Supreme Court also established the due process parame­ters of permissible legislation. The ordi­nance in question must have a “foundation in reason” and bear a “substantial relation to the public health, the public morals, the public safety or the public welfare in its proper sense.” Nectow, 277 U.S. at 187-­88, 48 S.Ct. at 448 (quoting Euclid, 272 U.S. at 395, 47 S.Ct. at 121).

In the Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974), the court addressed a zoning regula­tion of the type at issue in this case. The court held that the Village of Belle Terre ordinance involved no fundamental right, but was typical of economic and social leg­islation which is upheld if it is reasonably related to a permissible governmental ob­jective. Id. at 7-8, 94 S.Ct. at 1540. The challenged zoning ordinance of the Village of Belle Terre defined family as:

One or more persons related by blood, adoption or marriage, living and cooking together as a single housekeeping unit [or] a number of persons but not exceed­ing two (2) living and cooking together as a single housekeeping unit though not related by blood, adoption, or mar­riage ....

The court upheld the ordinance, reasoning that the ordinance constituted valid land use legislation reasonably designed to maintain traditional family values and pat­terns.

The importance of the family was re­affirmed in Moore v. City of East Cleve­land, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977), wherein the United States Supreme Court was confronted with a housing ordinance which defined a “fami­ly” as only certain closely related individu­als. Consequently, a grandmother who lived with her son and two grandsons was convicted of violating the ordinance be­cause her two grandsons were first cousins rather than brothers. The United States Supreme Court struck down the East Cleveland ordinance for violating the free­dom of personal choice in matters of mar­riage and family life. The court distin­guished Belle Terre by stating that the ordinance in that case allowed all individu­als related by blood, marriage or adoption to live together; whereas East Cleveland, by restricting the number of related per­sons who could live together, sought “to regulate the occupancy of its housing by slicing deeply into the family itself.” Id. at 498, 97 S.Ct. at 1935. The court pointed out that the institution of the family is protected by the Constitution precisely be­cause it is so deeply rooted in the American tradition and that “[o]urs is by no means a tradition limited to respect for the bonds uniting the members of the nuclear fami­ly.” Id. at 504, 97 S.Ct. at 1938.

Here, because we are dealing with economic and social legislation and not with a fundamental interest or a suspect classifi­cation, the test of constitutionality is whether the ordinance is reasonable and not arbitrary and bears a rational relation­ship to a permissible state objective. Belle Terre, 416 U.S. at 7-8, 94 S.Ct. at 1540. “[E]very line drawn by a legislature leaves some out that might well have been includ­ed. That exercise of discretion, however, is a legislative, not a judicial, function.” Id. at 8, 94 S.Ct. at 1540. (footnote omitted).

Ladue has a legitimate concern with laying out guidelines for land use addressed to family needs. “It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people.” Id. at 9, 94 S.Ct. at 1541. The question of whether Ladue could have cho­sen more precise means to effectuate its legislative goals is immaterial. Ladue’s zoning ordinance is rationally related to its expressed purposes and violates no provi­sions of the Constitution of the United States. Further, defendants’ assertion that they have a constitutional right to share their residence with whomever they please amounts to the same argument that was made and found unpersuasive by the court in Belle Terre.

We next consider whether the Ladue or­dinance violates any rights of defendants protected by the Missouri Constitution. Defendants rely on several Missouri cases which they allege have “expanded the defi­nition of ‘family.’” We disagree with de­fendants’ conclusion.

In State ex rel. Ellis v. Liddle, 520 S.W.2d 644 (Mo.App.1975), the zoning ordi­nance divided the term “family” into two distinct categories, as follows:

First, “one or more persons related by blood, marriage, or adoption living to­gether in one dwelling unit” in a “com­mon household” including servants, guests, boarders, roomers or lodgers. The ordinance places no limitation on the number of such persons occupying the dwelling unit. Second, persons “not re­lated by blood, marriage, or adoption”. Such occupancy may not exceed 10 per­sons in any one dwelling unit.

Id. at 650. Given this definition, the court permitted the operation of a group home for six to eight juvenile boys and two “teaching parents” in a single-family resi­dential neighborhood in Maryville, Missou­ri. The court stated that it was clear that, “both under the specific terms of the ordi­nance and under common law” (emphasis added), the operation of the group home did no violence to the single-family residence requirement.

In City of Vinita Park v. Girls Shelter-­care, Inc., 664 S.W.2d 256 (Mo.App.1984), this court allowed the use of a single-fami­ly residence as a girls’ group home operat­ed by the Juvenile Court of St. Louis Coun­ty in the City of Vinita Park. The Vinita Park Zoning Ordinance defined family as “[o]ne or more persons related by blood or marriage occupying a premises and living as a single housekeeping unit.” Id. at 258. The housing ordinance contained a more expansive definition of family:

[A]n individual or married couple and the children thereof and no more than two other persons related directly to the indi­vidual or married couple by blood or mar­riage and not more than three persons not related by blood or marriage living together as a single housekeeping unit in a dwelling unit.

Id. at 259 n. 1.

The court stated that, although the group did not “conform to the letter of either of the ordinances which defines family,” it did conform to “the spirit of the ordinances.” Id. at 259. (emphasis add­ed). After addressing the “family” issue, the court addressed what it referred to as the “pivotal issue” of the case concerning what limitations there are on the power of a municipality to zone public uses. The court held that “the leasing of the premises pursuant to the statutory authority for the county and juvenile court to establish a group home is a governmental function (use) and thereby immune from the City of Vinita Park’s zoning ordinance.” Id. at 262.

In both of these cases, the reviewing court looked to the definition of family as set forth in the ordinance. Defendants’ argument that these cases “expand” the definition of family is unpersuasive. The clear implication of these cases is that the appellate court will give deference to a zoning ordinance, particularly when there is no overriding governmental interest or statutory authority to negate the legisla­tive prerogative to define family based upon biological or legal relationships.

For purposes of its zoning code, Ladue has in precise language defined the term family. It chose the definition which com­ports with the historical and traditional no­tions of family; namely, those people relat­ed by blood, marriage or adoption. That definition of family has been upheld in nu­merous Missouri decisions. See, e.g., Lon­don v. Handicapped Facilities Board of St. Charles County, 637 S.W.2d 212 (Mo.­App.1982) (group home not a “family” as used in restrictive covenant); Feely v. Birenbaum, 554 S.W.2d 432 (Mo.App.1977) (two unrelated males not a “family” as used in restrictive covenant); Cash v. Catholic Diocese, 414 S.W.2d 346 (Mo.App.­1967) (nuns not a “family” as used in a restrictive covenant).

Decisions from other state jurisdictions have addressed identical constitutional challenges to zoning ordinances similar to the ordinance in the instant case. The re­viewing courts have upheld their respective ordinances on the ground that maintenance of a traditional family environment consti­tutes a reasonable basis for excluding uses that may impair the stability of that envi­ronment and erode the values associated with traditional family life.4

The essence of zoning is selec­tion; and, if it is not invidious or discrimi­natory against those not selected, it is proper. Town of Durham v. White Enter­prises, Inc., 115 N.H. 645, 348 A.2d 706 (1975). There is no doubt that there is a governmental interest in marriage and in preserving the integrity of the biological or legal family. There is no concomitant gov­ernmental interest in keeping together a group of unrelated persons, no matter how closely they simulate a family. Further, there is no state policy which commands that groups of people may live under the same roof in any section of a municipality they choose.

The stated purpose of Ladue’s zoning ordinance is the promotion of the health, safety, morals and general welfare in the city. Whether Ladue could have adopted less restrictive means to achieve these same goals is not a controlling factor in considering the constitutionality of the zoning ordinance. Rather, our focus is on whether there exists some reasonable basis for the means actually employed. In mak­ing such a determination, if any state of facts either known or which could reason­ably be assumed is presented in support of the ordinance, we must defer to the legisla­tive judgment. We find that Ladue has not acted arbitrarily in enacting its zoning ordi­nance which defines family as those related by blood, marriage or adoption. Given the fact that Ladue has so defined family, we defer to its legislative judgment.

The judgment of the trial court is af­firmed.

1

Most of these facts are derived from the depo­sition of Joan K. Horn. The stipulation of facts submitted to the trial court provided, inter alia, “That the deposition of Joan K. Horn on file with the court is submitted and maybe [sic] considered by the court along with the facts herein." For the purpose of this opinion we will assume that the facts were not only “con­sidered,” but believed to be true by the trial court.

2

Although Ladue’s Zoning Ordinance provides for enforcement by fine, courts of equity have jurisdiction to enjoin any use of property which is in violation of a city’s zoning ordinance. See, e.g., City of Kansas City v. Mary Don Co., 606 S.W.2d 411, 415 (Mo.App.1980); City of St. Louis v. Friedman, 216 S.W.2d 475, 479 (Mo.1948).

3

The distinction between “conceptual” or "non­traditional” families and true non-families may well be a distinction without a difference, the distinction resting in speculation and stereotypi­cal presumptions. Further, recognition of the conceptual family suffers from the defect of commanding inquiry into who are the users rather than focusing on the use itself. See gen­erally Note, City of Santa Barbara v. Adamson: An Associational Right of Privacy and the End of Family Zones, 69 Calif.L.Rev. 1052, 1068-70 (1981).

4

See, e.g., City of White Plains v. Ferraioli, 34 N.Y.2d 300, 357 N.Y.S.2d 449, 313 N.E.2d 756 (1974) (married couple, their two children and 10 foster children not a family under city’s ordinance); Rademan v. City and County of Denver, 186 Colo. 250, 526 P.2d 1325 (1974) (two married couples living as a "communal family” not a family); Town of Durham v. White Enter­prises, Inc., 115 N.H. 645, 348 A.2d 706 (1975) (student renters not a family); Prospect Gardens Convalescent Home, Inc. v. City of Norwalk, 32 Conn.Sup. 214, 347 A.2d 637 (1975) (nursing home employees living together not a family). See generally Annot., 12 A.L.R. 4th 238 (1985). A number of jurisdictions have found restrictive zoning ordinances invalid. See, e.g., City of Des Plaines v. Trottner, 34 Ill.2d 432, 216 N.E.2d 116 (1970) (ordinance with restrictive definition of family violates authority delegated by state leg­islature in the enabling statute); City of Santa Barbara v. Adamson, 27 Cal.3d 123, 164 Cal. Rptr. 539, 610 P.2d 436 (1982) (zoning ordi­nance limiting the number of unrelated persons who could live together, but not related persons, did not further legislative goals); Charter Town­ship of Delta v. Dinolfo, 419 Mich. 253, 351 N.W.2d 831 (1984) (restrictive definition of fam­ily not rationally related to achieving township’s goals).