         In the Missouri Court of Appeals
                 Eastern District
                                             DIVISION III

MARTIN C. HECK, Jr., and VICTORIA )                               No. ED101157
HECK d/b/a PACIFIC MOBILE MANOR, )
                                  )
      Appellants,                 )                               Appeal from the Circuit Court
                                  )                               of Franklin County
vs.                               )
                                  )                               Honorable Isidore I. Lamke
CITY OF PACIFIC and CITY OF       )
PACIFIC BOARD OF ZONING           )
ADJUSTMENT,                       )
                                  )
      Respondents.                )                               FILED: October 28, 2014

                                               Introduction

        Appellants Martin C. Heck, Jr. and Victoria Heck (“the Hecks”) appeal from the

judgment of the Circuit Court of Franklin County affirming the decision of the City of Pacific

Board of Zoning Adjustment (“the BZA”). The Hecks sought a variance from the City of Pacific

Ordinance Section 400.240(D)(3) (“Section 400.240(D)(3)”), which prohibits the placement of a

new manufactured home1 in an existing manufactured home park unless the new manufactured

home is placed at least twenty feet from any other home or structure. The BZA denied the

variance, and thereafter the Hecks filed a writ of certiorari in the circuit court. The circuit court

affirmed the decision of the BZA. On appeal, the Hecks argue that the spacing requirements of


1
 Manufactured homes were formerly known as mobile homes and are still commonly referred to as mobile homes.
We use both terms interchangeably throughout the opinion.
Section 400.240(D)(3) may not be enforced within their mobile home park because they hold a

legal nonconforming use for their entire mobile home park. Because the record does not inform

this Court that the BZA properly considered whether the mobile home park operated by the

Hecks was a lawful continuing nonconforming use, we reverse and remand this matter to the

BZA for a hearing on the issue of whether the Hecks have a lawful continuing nonconforming

use of the mobile home park.

                                 Factual and Procedural History

       The Hecks own a tract of land in the City of Pacific (“City”) and operate a mobile home

park known as Pacific Mobile Home Manor (“Pacific Manor”) on that tract. The Hecks have

operated Pacific Manor on this tract of land since approximately 1983. Within Pacific Manor is

a mobile home pad with an address designated as 303 South Second Street (“the Pad”). The Pad

is positioned fourteen feet and ten inches from the mobile home pad directly to its south and

fourteen feet and eight inches from the mobile home pad directly to its north. The Hecks

previously rented the Pad to renters who owned their own mobile home. Two years after those

renters moved out, the Hecks sought to install a new mobile home of the same size on the vacant

Pad. City informed the Hecks that the new mobile home could not be placed upon the Pad

unless they first obtained a variance from City’s pad spacing ordinance, which requires twenty

feet of space between each mobile home. The applicable ordinance provides:

       D. Standards for Existing Manufactured Homes.

       3. No manufactured home shall be placed in any manufactured home park
       existing on the effective date of this Chapter as a replacement to any existing
       manufactured home unless said manufactured home is placed at least twenty (20)
       feet from any other manufactured home or any other structure.




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Section 400.240(D)(3). The effective date of the ordinance is July 2, 1996. City of Pacific

Ordinance Section 400.240(D)(1). In accord with the City’s directive, the Hecks applied to City

for a variance to reduce the twenty-foot spacing requirement.

       City Zoning Officer Dave Myers (“the Zoning Officer”) denied the application and the

Hecks appealed to the BZA. The BZA held a public hearing on the matter on June 23, 2010. At

the hearing, the Zoning Officer testified that the spacing reduction sought by the Hecks poses a

life safety concern because “the spread of fire in a mobile home is greatly accelerated due to

construction, material and type of construction. The separation of these units is essential for that

purpose.” The Zoning Officer further testified that strict application of the spacing requirement

would oblige the Hecks to restructure the layout of the mobile home park, and that certain lots

would not be usable until the new configuration was completed. The Zoning Officer also

testified that there is no common ground at Pacific Manor, so the space between mobile homes is

the only area for green space.

       Mr. Heck testified that he was under the impression that he already had a variance for the

Pad because the pad and mobile home on the pad was permitted when he bought the mobile

home park in 1983. With respect to having to restructure the layout of Pacific Manor, Mr. Heck

testified: “I mean I can’t really move all the trailers out and get rid of them and totally

reorganize that all. So I’m just trying to maintain the property and keep it as nice as I can.” At

the conclusion of the hearing, the BZA voted to deny the variance.

       The Hecks subsequently filed a writ of certiorari in the Franklin County Circuit Court for

review of the BZA’s decision. The circuit court upheld the decision of the BZA. This appeal

follows.




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                                         Points on Appeal

       In their first point on appeal, the Hecks assert that the decision of the BZA is not

authorized by law and not supported by competent and substantial evidence because Pacific

Manor and the concrete pads therein existed prior to City’s 1996 ordinance requiring twenty feet

between mobile homes. Accordingly, the Hecks contend that the entire mobile home park is a

lawful nonconforming use to which the ordinance cannot be applied. In their second point on

appeal, the Hecks assert that the decision of the BZA is not authorized by law and not supported

by competent and substantial evidence because the Hecks’ nonconforming business of a mobile

home park existed prior to City’s 1996 ordinances and the Hecks never terminated their lawful

nonconforming use.

                                        Standard of Review

       Appellate review of a trial court’s decision on a board of adjustment decision requires the

appellate court to independently review the original decision of the board of adjustment, not the

trial court's decision. State ex rel. Teefey v. Bd. of Zoning Adjustment of Kansas City, 24

S.W.3d 681, 684 (Mo. banc 2000). During its review, the appellate court must determine

whether the board’s action is supported by competent and substantial evidence upon the whole

record or whether it is arbitrary, capricious, unreasonable, unlawful, or in excess of its

jurisdiction. Id. The reviewing court should hold the board’s decision to be illegal and void only

if the BZA exceeded the authority granted to it. Id. In determining whether substantial evidence

exists to support the decision of the board, we view the evidence, and its reasonable inferences,

in a light most favorable to the board findings. Ogawa v. City of Des Peres, 745 S.W.2d 238,

242 (Mo. App. E.D. 1987).




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                                           Discussion

       The Hecks argue that the BZA erred in ruling that Section 400.240(D)(3) applies to

Pacific Manor because Pacific Manor in its present configuration and spacing of pads preexisted

the enactment of Section 400.240(D)(3) and therefore they possess a legal nonconforming use

for the mobile home park. The Hecks maintain that their preexisting use extends to their mobile

home park as a whole and not on a “per pad” basis. Accordingly, the Hecks argue that the

spacing requirement in Section 400.240(D)(3) may not be imposed on the property when merely

one mobile home is replaced within the mobile home park. The Hecks also assert that because

their business of operating a mobile home park preexisted the enactment of Section

400.240(D)(3), City cannot lawfully apply the spacing requirements to Pacific Manor. The

Hecks assert that to do so would unlawfully interfere with their nonconforming use rights to

continue to operate their business.

       The term “nonconforming use” means a use of land that lawfully existed prior to the

enactment of a zoning ordinance and which is maintained after the effective date of the

ordinance even though not in compliance with use restrictions. Storage Masters-Chesterfield,

L.L.C. v. City of Chesterfield, 27 S.W.3d 862, 865 (Mo. App. E.D. 2000). A nonconforming use

is a vested property right that may not be abrogated by a zoning ordinance. City of Sugar Creek

v. Reese, 969 S.W.2d 888, 891 (Mo. App. W.D. 1998). “Zoning ordinances must permit

continuation of nonconforming uses in existence at the time of enactment to avoid violation of

constitutional provisions preventing the taking of private property without compensation.” Id.

At the same time, our Supreme Court has recognized that the spirit of zoning ordinances always

has been and still is to diminish and decrease nonconforming uses. Hoffmann v. Kinealy, 389

S.W.2d 745, 750 (Mo. banc 1965). Accordingly, Missouri courts have allowed municipalities to



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regulate and limit nonconforming uses by various means 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. City of Sugar

Creek, 969 S.W.2d at 891. The party claiming the vested property right has the burden of

proving the existence of a prior nonconforming use. Storage Masters-Chesterfield, 27 S.W.3d at

865. Typically, the existence of a nonconforming use is asserted as an affirmative defense when

an action is brought by a zoning authority to enforce a zoning ordinance. 1 Mo. Prac., Methods
                                                                   2
of Prac.: Transact. Guide § 12.7 (4th ed. updated 2013).

        City of Pacific Ordinance Section 400.240(D)(1) provides that “Lots with manufactured

homes located within the City of Pacific in existence as of the effective date of this Chapter, July

2, 1996, may remain as legal non-conforming uses subject to the terms of Section 400.270 of this

Chapter.”3 Thus, lawful uses existing at the time Section 400.240(D)(3) was passed are not

abrogated by the ordinance. The record before us contains substantial evidence that the Hecks

operated Pacific Manor in its current configuration beginning in 1983. The continued operation

of Pacific Manor as a lawful nonconforming use was, therefore, not abolished by Section

400.240(D)(3), which became effective in July 1996. See City of Sugar Creek, 969 S.W.2d at

893.

        City argues on appeal that even if the present configuration and spacing of pads in Pacific

Manor was a lawful nonconforming use following the enactment of the 1996 zoning ordinance,

that lawful nonconforming use has since been extinguished by alteration, abandonment, or both.

2
  A confusing procedural posture is presented in this case due to the fact that the action before the BZA was
initiated by the Hecks’ application for a variance even though the record supports a finding that the operation of
Pacific Manor was a lawful pre-existing use to the zoning changes enacted by City in 1996. The record shows that
the Hecks did so at the direction of City officials.
3
  City of Pacific Ordinance Section 400.270, inter alia, regulates changes between nonconforming uses.

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First, City argues that the zoning code prohibits the alteration of any structure that is devoted to a

nonconforming use unless the replacement structure complies with the most current zoning

regulations. City suggests that moving the old mobile home off the Pad constitutes a structural

alteration. Second, City asserts that a nonconforming use which has been abandoned cannot

thereafter be reestablished. Because the Pad sat vacant without a mobile home for two years,

City maintains on appeal that the Hecks lost their right to continue their nonconforming use of

the mobile home park through abandonment.

       The record before us, while lacking in many respects, indicates that the Hecks operated

Pacific Manor with less than twenty-foot spacing between the mobile home prior to 1996 and

thus Pacific Manor enjoyed the status of a legal nonconforming use after the enactment of

Section 400.240(D)(3). However, it is clear from the record that the BZA did not analyze or

even consider the issue of whether the Hecks have the right to continue their nonconforming use,

or whether the Hecks lost their legal property right to continue the nonconforming use due to

their action or inaction. While the City argued the issue of abandonment and/or alteration before

the trial court review of the BZA decision, and now on appeal, the argument was not presented

before the BZA. We find no discussion in the record of whether the BZA considered the Hecks’

use of Pacific Manor as a whole or on a “per pad” basis, nor any discussion or analysis of any

alteration or abandonment of the Heck’s use of Pacific Manor after 1996 that would potentially

allow City to diminish or eliminate Hecks’ nonconforming use under the principles discussed in

Hoffmann v. Kinealy. Instead, the BZA solely determined whether to grant the Hecks a variance

from the spacing requirements of Section 400.240(D)(3). A nonconforming use differs from a

variance. If in fact the Hecks have continued their lawful nonconforming use for Pacific Manor,

the spacing requirements of Section 400.240(D)(3) do not apply and no variance is needed.



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