Dempsey v. Boys' Club of the City of St. Louis, Inc.

No. 38488 (Mo. Ct. App. August 30, 1977)

ELR Digest

The Missouri Court of Appeals remands a decision of the St. Louis Board of Adjustment granting demolition permits for nine buildings in the Soulard Historic District. The record must clearly show that it is economically impractical to rehabilitate the buildings and that the landowner can make no reasonable economic use of the property before demolition permits may be granted.

The Boys' Club of St. Louis acquired the properties in question with the intention of demolishing the buildings on them for the purpose of expanding its adjacent athletic field. At the hearing on the permit application, testimony was received from an architect (who had surveyed the area but had not gone inside the buildings) and from the activity director of the Boys' Club as to the dilapidated condition of the buildings. Evidence was also submitted detailing the costs which had been incurred in purchasing and rehabilitating other old buildings in the district.

The Board of Adjustment made findings on the condition of each of the buildings and decided that rehabilitation would be possible but impracticable under the circumstances. It then overruled a previous denial of the permits by the Building Commissioner and ordered the demolition permits to be issued to the Boys' Club.

The court of appeals finds no evidentiary basis for several of the findings of the Board of Adjustment and rules that the conclusory statements by the witnesses were insufficient to support the Board's decision.

The development plan for the Soulard Historic District provides that:

No building or structure shall be demolished and no permit shall be issued for demolition of any such building or structure unless the Landmarks and Urban Design Commission and the Community Development Agency both shall find that the building or structure is in such a state of deterioration and disrepair or is so unsound structurally as to make rehabilitation impracticable.

These standards "must be interpreted to authorize the demolition when the condition of the structure is such that the economics of restoration preclude the landowner from making any reasonable economic use of the property." Lafayette Park Baptist Church v. Scott, 553 S.W.2d 856 (Mo. App. 1977).

Boys' Club, Inc. is not entitled to a permit to demolish the buildings without a showing that the cost of rehabilitation would preclude it from making any reasonable use of the properties. The evidence does not show that the costs associated with the restoration of these buildings are in any way comparable to those incurred in the rehabilitation of the other old buildings in the area, nor does it show what rents could be obtained or what the market value of the property after rehabilitation might be.

The Board's conclusions indicate that it considered rehabilitation technologically infeasible because of the present condition of the buildings. While economic factors were considered, the record does not contain evidence sufficient to support a finding of economic infeasibility. Therefore, the decision of the Board should not stand.

The court recognizes that denying the Boys' Club's request may practically deprive the organization of the benefits of ownership, either because the remaining commercial value is foreign to the operational setup of the club or because the club may be financially unable to rehabilitate the property. However, the Boys' Club has not raised the question of the constitutionality of such a deprivation. On the question of constitutionality, see First Presbyterian Church of York v. City Council of York, 360 A.2d 257 (Pa. Comm. 1976).

The full text of this opinion is available from ELR (12 pp. $1.50, ELR Order No. C-1143).

Counsel for Appellants
J. Peter Schmitz, Mary Stake Hawker
Schmitz & Fisher
Suite 940, Paul Brown Bldg., St. Louis MO 63101
(314) 231-3480

Counsel for Amicus Curiae Lafayette Square Restoration Committee, Inc.
Peter J. Wunderlich
Smith & Wunderlich
4054 Lindell Blvd., St. Louis MO 63108
(314) 534-4400

Counsel for Respondents
John C. Pleban
100 N. Broadway, Suite 1600, St. Louis MO 63101
(314) 231-8700

Houser, J., with Simeone, C.J., and Stockard, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]