Section 6.12 Permitted Uses

• Library: Local Government Deskbook (2017 Ed.)

B. (§6.12) Permitted Uses

Permitted uses are those set forth in each district. They may be carried on by the property owner as a matter of right, subject only to compliance with the applicable bulk, height, and area restrictions. Wolfner v. Bd. of Adjustment of City of Frontenac, 672 S.W.2d 147 (Mo. App. E.D. 1984). Unlawful denial of a building permit to a property owner for construction of a permitted use is subject to mandamus and, depending on the irrationality of the government action, could result in a claim for damages under 42 U.S.C. § 1983. SeeChesterfield Dev. Corp. v. City of Chesterfield, 963 F.2d 1102, 1104–05 (8^th Cir. 1992) (citing the concurring opinion in Lemke v. Cass County., Nebraska, 846 F.2d 469, 470–71 (8^th Cir. 1987), and adopting a standard that “substantive-due-process claims should be limited to ‘truly irrational’ governmental actions” in the context of land use disputes). See alsoLittlefield v. City of Afton, 785 F.2d 596 (8^th Cir. 1986), the holding of which was limited by Chesterfield, 963 F.2d 1104, n.2.

Generally, any use not expressly permitted in a district is deemed excluded. State ex rel. Barnett v. Sappington, 266 S.W.2d 774 (Mo. App. W.D. 1954). But the sometimes antiquated language and terms used in ordinances to describe permitted uses often require construction. In these instances, courts will give great weight to the interpretation given by the local governmental body. Coots v. J.A. Tobin Constr. Co., 634 S.W.2d 249 (Mo. App. W.D. 1982). At the same time, ambiguous provisions are construed against the zoning authority and in favor of the rights of the property owner. Cunningham v. Bd. of Aldermen of City of Overland, 691 S.W.2d 464 (Mo. App. E.D. 1985).

In addition to the expressly permitted uses, accessory uses and structures may be allowed. These are uses customarily incidental and subordinate to the principal permitted use, e.g., home occupations or offices. Whether these accessory uses are allowed turns on the language of the particular ordinance and the facts and circumstances of the use. Schaefer v. Neumann, 561 S.W.2d 416 (Mo. App. E.D. 1977).

In Taylor v. City of Pagedale, 746 S.W.2d 576 (Mo. App. E.D. 1987), the court held that a car wash was a permitted use under a provision of the zoning ordinance that allowed for the “storage or care” of vehicles by garages. The court appeared to be influenced by evidence that the City had previously issued permits to other car washes located in the same zoning...