dissenting.
I respectfully dissent because I cannot agree with the majority opinion, which concludes the evidence herein to be competent and substantial enough to affirm the ruling of the respondent, Board of Zoning Adjustment of Kansas City, Missouri, hereinafter referred to as the Board.
This is an appeal stemming from action by the circuit court in upholding the ruling of the Board and of course, lies in the nature of review of an administrative hearing.
Before taking up the prime issue of competent and substantial evidence, it must be pointed out that legal nonconforming use, as applicable herein, is not an affirmative defense. The case cited in the majority opinion, Bartholomew v. Board of Zoning Adjustment, 307 S.W.2d 730 (Mo.App.1957), by virtue of its particular factual circumstances, placed the question of legal nonconforming use in the posture of an affirmative defense. Such is not the case herein, rather, appellant, as part of her case, had the burden of proof of that issue. This question, in the majority opinion, overlooks the point made regarding the notice of the Board hearing.
Appellant had made application for a certificate of legal nonconforming use. The failure of the City Codes Administrator to perform his duty, and hence to word the notice in such a manner that appellant’s use of her property was in violation of the zoning ordinances, did not, as properly contended by appellant, join the real issues in this case. The result, of course, is that the notice made it appear that the proceeding was one based upon citation for an unlawful use of property, when in reality, the issue was the entitlement or refusal of a certificate of legal nonconforming use.
Under the ordinances of the City of Kansas City, Missouri, the officer, known as the Codes Administrator, has certain prescribed duties to perform relating to application for a certificate of legal nonconforming use. That ordinance reads as follows:
“(8) Any existing nonconforming use established as such, prior to and existing continuously from June 4, 1933 to the effective date of this amendment, shall be presumed to be a legal nonconforming use.1
Any existing building, structure or use made nonconforming as to bulk or use by any amendment to this ordinance on or before the effective date of the amendment, shall have a period of one year from the date said building, structure or use is made nonconforming to obtain a certificate of occupancy from the commissioner of Buildings and Inspections as provided by Section 65.230(7)(c). The new nonconforming use shall be made a part of the record during the adoption of any such amendment and the owner of record of the property shall be notified of this requirement.
Within thirty (80) days after the effective date of any amendment of this ordinance, adopted after the effective date of this amendment, which shall render any *556 existing building, structure or use nonconforming as to bulk or use, the Director of City Development shall publish a public notice in a daily paper, twice, on two successive weeks, apprising all property owners and persons affected by the ordinance amendment, known or unknown, of the provisions of this section and the requirement that an application for a certificate of occupancy is required pursuant to this section within the one year period set forth in this section. The Director of City Development shall also send by certified mail return receipt requested, a copy of such public notice, to the property owners or persons affected, of every building, structure or use, actually known by the Director to be affected by the amendment to the ordinance resulting in nonconformity as to use or bulk, and shall post a copy of said public notice at two conspicuous places on the building, structure or use.
Each property owner or person affected shall make application for the certificate of occupancy upon such forms as the commissioner of Buildings and Inspections shall provide. The certificate of occupancy shall then be issued by the commissioner of Buildings and Inspections within two weeks after receipt of the application.
In other cases a certificate of occupancy shall be issued by the commissioner of Buildings and Inspections upon satisfactory proof being submitted by the applicant that the nonconformity as to bulk or use was legally established prior to the amendment of the ordinance creating the nonconformity as to bulk or.use. Satisfactory proof shall also be established that such nonconforming use has not been adversely ruled upon by the commissioner of Buildings and Inspections, the Board of Zoning Adjustment or by a court of competent jurisdiction. The commissioner of Buildings and Inspections shall receive all competent evidence submitted, shall have inspected the building, structure or use which is the subject of the application and shall render his decision in writing either granting or denying the certificate, which decision shall include the basis for this determination.
An appeal may be taken by the applicant or any interested party in accordance with the provisions of section 65.310 R.O.K.C.1956.
If no appeal is taken within 30 days from the date the decision of the commissioner of Buildings and Inspections is rendered, the decision of the commissioner shall become final and any certificate of occupancy issued shall establish the building, structure or use as a legal nonconforming use.
Any o building, structure or use made nonconforming as to the provisions of this ordinance by any amendment thereof on or after the effective date of this amendment which fails to obtain the certificate of occupancy as provided in this section, shall be null, void and illegal and the continuance of such nonconforming building, structure or use shall be in violation of this ordinance and shall be prohibited.” 2
The majority opinion concludes that the failure of the Codes Administrator to perform his duty pursuant to the above-referred-to ordinance is beyond the scope of review by this court. In adopting such a position, the majority opinion overlooks parts of the evidence of the record which established that such action by the Codes Administrator is required by the ordinance to perform certain functions and that in this particular case the Codes Administrator failed to follow the ordinance. More importantly, by its conclusion, the majority opinion, for all intents and purposes, renders null and void Kansas City, Missouri Rev.Ordinance § 65.230(8).
As the evidence on the record shows, by testimony of the Codes Administrator himself, if any application for legal nonconforming use is confronted by a counter-affidavit, he (the Codes Administrator) takes no further action. By such a policy or practice, no validation of either the original *557application or the counter-affidavit ever occurs, and this is in direct violation of Kansas City, Missouri Rev.Ordinances, § 65.-230(8). One might speculate that the no further action taken by the Codes Administrator inferentially establishes validity in the opposing or counter-affidavit. The ordinance is specific as to what must be done, and to dismiss that requirement as not being within the scope of review by this court simply cannot be justified when upon the record this question was brought to the attention of the Board by the cross-examination of Codes Administrator. It is logical to infer that when the Codes Administrator took no further action after receiving the counter-affidavits, that those affidavits, unto themselves, were valid on their face. There is no evidence on the record to support the validity of the counter-affidavits.
Even with the violation of the above-referred-to ordinance aside, the evidence in this case simply is not competent and substantial enough to support the action of the Board.
Unlike the majority opinion, I feel it is of prime importance to specifically refer to the evidence in this case. As the majority opinion points out in Brooks v. General Motors Assembly Division, 527 S.W.2d 50, 53, “. . . the weight of the evidence is not the quantity or the amount thereof.” The majority opinion also includes the point made clear in Brooks v. General Motors Assembly Division, supra that the decision of the Board must be supported by competent and substantial evidence. The Brooks case also points out that if the evidence, even though competent and substantial, is not supportive of the decision of the administrative body, the decision cannot stand.
A review of the specific evidence in this case is a must and that review is set forth below under the evidence presented by the respective parties. Before presentment of specifics of the evidence, however, it must be pointed out that appellant herein had the burden of establishing a legal nonconforming use prior to or upon June 4, 1933 in conformity with the city zoning requirements. In addition, appellant carried the burden of showing consistent nonconforming use without interruption for periods of not more than twelve months or twenty four months.3 The period of interrupted use, referred to as abandonment of use, is unclear in this case because of the unclear reference made to the city ordinances. Whether one considers twelve months or twenty four months, the evidence presented by respondents fails to support an abandonment of use anyway, as will be seen in reference to the evidence.
One other factor must be mentioned which is not referred to in the majority opinion. The parties herein entered into a stipulation of facts. Within that stipulation, which is a part of the record, the parties agree that the issue is to be that of legal nonconforming use. This was expressed as item number 17 of the stipulation.
This case was argued twice before this court, once in division and later en banc. At neither time did either party make but a passing reference to the issue of discontinued use or abandonment of use of the premises owned by appellant.
That the respondents attempted to persuade the Board that the premises in question had not continuously been used as a multi-purpose dwelling is unquestioned. The issue is whether the evidence presented was competent and substantial in the proof of that claim.
APPELLANT’S EVIDENCE
Appellant Ruth Murphy, owner of the premises, appeared and testified under oath. She testified she has owned the property since 1959. She testified she first visited the property in 1925, that she was related to the owners of the property in 1930 and that said property had been used for and as a multiple-dwelling property since 1930.
In further support of her claim, she introduced, without objection, an affidavit of *558one Birdie Sharpies.4 That affidavit stated that relatives of Birdie Sharpies had owned the property since 1911 and that the property had been used as rental property since at least 1930 and continuously since then.
Appellant entered into evidence, without objection, the affidavit of Bea Billingsley (at the time of the hearing she was a resident of California) which established she had been a tenant in the premises from 1930 to 1952. In addition, the affidavit of a Della Hill established she was a tenant in said premises from 1932 to 1957. The record further establishes that the City Codes Administrator’s Index System showed a previous affidavit of a Raymond Shibelsky as a tenant in said premises from 1934 to 1961. A Luther Boyt testified at the hearing that he had been a tenant in the premises since 1966. He further testified that years earlier, while in high school, he had visited the property with his parents and had observed occupancy by tenants.
At this juncture, appellant’s evidence could be summarized as positive, direct and substantial evidence that on or prior to June 4, 1933 and continuously since then, the property had been in use as a multiple-dwelling residential property.
RESPONDENT’S EVIDENCE
In opposition, five witnesses appeared. In addition, over objection, an affidavit of one Robert Olson was introduced. Of particular import was the part of the Olson affidavit which contained a statement of what Olson's mother had told him (Olson) about the property. This was hearsay upon hearsay since the record showed that Olson, at the time, was living in and was a resident of the area. On appeal, respondents do not dispute the inadmissibility of the Olson affidavit, but be that as it may, the fact remains the affidavit and the reference statements made by Olson’s mother were, in fact, presented to the Board.
Donald Chisholm was called to testify. He stated he acted as legal counsel for the estate of one of the previous owners. In his capacity as counsel for the estate, he visited the property in late 1958. He testified he saw no tenants and that in April 1959, as attorney with assistance from a realty agent, sold the property. The sum total of time of his connection with the property was no more than seven months. His testimony consisted of the inventory of furnishings in the premises. The record reveals he was asked the following questions:
“MR. KUMIN: Sir, may I ask you first, you went out to the house on that occasion, you saw the furniture. Now, do you have any personal knowledge as to whether or not that furniture located there, had been located there for any substantial period of time before or whether back in 1957 that property and the furniture was moved from Iowa back to the premises for a short period of time?
MR. CHISHOLM: I have no knowledge
******
MR. KUMIN: You don’t know for a fact that it was just there just a week prior to the time?
MR. CHISHOLM: It didn’t appear to have been moved during the last week, but I have no knowledge of this.”
At this juncture, it can be concluded that respondents’ testimony amounted to the testimony of Mr. Chisholm, who visited the premises on only one occasion and who was attorney for the decedent’s estate for not more than seven months. His testimony does not reveal any first hand observation of tenants or lack thereof, except for the one-time visit when he made the furniture inventory.
At this point, appellant was permitted to resume the witness chair and she explained the presence of the furniture referred to by Mr. Chisholm. Appellant advised the Board the furniture was part of the property left in the estate of the owner and the furniture was removed from the residence of the deceased owner in Iowa to the premises in question in these proceedings.
*559The proceedings before the Board then took on a rather unusual form in that Mr. John Thornberry presented a narrative statement which read as follows,
“MR. THORNBERRY: No, sir. I want to introduce some more [testimony]. In the first place, I think the Kinneys bought the property in 1935 and lived there until they sold it, or it was sold in the estate. Consequently, I am relatively sure, that they must have had adequate furniture because we moved, the Thorn-berrys moved in there in 1942, when the Kinneys had just then moved up to Iowa for part time, having left the place permanently, and Mr. Hill and Mrs. Hill were staying there as a secretary and supervisor of the place, and they had a man named Curtis who was the yard man living in the garage, so there is no evidence whatsoever from 1942 on that the place was rented out to anybody and was in use by these caretakers, and after the property was sold to Kinney there was obviously no use of it as such, until he could have left the premises because he was much to [sic] well off to be renting rooms to anybody or operating a business there.”
This narration was objected to. Following this, Mr. Thornberry narrated again, this time saying (with interruptions of statements of the Chairman of the Board and applicant’s counsel),
“MR. THORNBERRY: I was curious about the affidavit from Bea Billingsley as to what relationship she is in this situation and her age.
CHAIRMAN: Mr. Thornberry, I think the relationship be in order but as to age, I think that would not be proper so I would like to ask Mr. Kumin here the relationship.
MR. KUMIN: Mrs. Billingsley was simply a resident there, there is no blood relationship whatsoever with the owner of the property.”
At this point in the hearing, a Mrs. Bette Hetzel took the stand. Her testimony was to the effect that she had been a resident near the questioned premises since 1957 or 1958. During that time, she would take her small children and walk about the neighborhood. She talked with the caretaker of the questioned premises. She testified she was inside the premises on one occasion. Her recollection of the premises was that of a big beautiful lovely home with one kitchen. In 1957,1958 or 1960 (this witness, from the record, appeared confused as to the exact dates) she saw many changes come over the property, such as the renewal of some of the cement, “the garage doors go down and commence to build up” and other changes.
On cross-examination, after denying any personal animosity toward appellant, witness Hetzel testified,
“MR. KUMIN: Are you, or have you ever opposed the rezoning of that property?
MRS. HETZEL: Very definitely.”
Then, further in her testimony upon cross-examination, the record reveals the following:
“MR. KUMIN: It was my impression that you said there was no tenants?
MRS. HETZEL: No, I didn’t say there was no tenants. I said there was no one renting apartments in there, because there was one, one, one kitchen in there. I remember well.”
At this point, this witness was questioned on the accuracy of her recollection of dates as to when the property was sold and when she went through the property in person. She placed the sale in 1960 and her visit through the premises in 1957 or 1958.
At this point, the record shows witness Chisholm in the premises on one occasion, the sale of the property in 1959, witness Hetzel's statement that there were no apartment renters (but she did not say there were no tenants) and witness Hetzel’s recollection of the exact configuration of the internal parts of the property. Due to memory lag, however, she could not put the dates of her visit to the premises and the sale of the premises in their proper sequence.
Then, for respondent, witness Doris Parker took the stand. This witness was asked if she had ever lived in the questioned *560premises and she answered yes. Her testimony, however, was not that she ever lived in the premises, rather, in 1957 she toured the premises as a potential purchaser. On cross-examination, this witness asserted repeatedly the property was for sale in 1957. This, at best, served only to contradict the testimony of witness Chisholm, who testified to the date of 1958. Witness Parker added further that there was only one kitchen in the premises.
The majority opinion concludes that respondent’s witness Tucker testified to multiple use of the premises commencing in 1960. This is an erroneous conclusion or assumption in the majority opinion not supported by the evidence. The sum total of Tucker’s testimony was his having looked at city directories for the years 1915-1925 (these directories were at the public library) and his conclusion that these directories proved single family use. That testimony fails to support the conclusion declared in the majority opinion and that evidence should have been discarded completely as a most blatant form of hearsay.
The evidence of the record does not establish that witness Hetzel indicated nonuse between 1955-1958, because she was not even a resident of the area until 1957. Further, her testimony conflicted as to the dates of 1957-58 or 1960 and failed to establish one way or another if there were tenants in the premises in conformity with the city ordinances. In fact, she testified she did not “say there were no tenants
As to the Thornberry testimony, rather than establishing nonmultiple use (because he testified he was never inside the premises), it was premised upon Thornberry’s conclusion that since the owner was wealthy, the owner would not rent his premises. This is established in his testimony within this dissent.
Respondents then called witness George Tucker. This evidence is not of particular import on the merits of the issue herein, but serves to illustrate the nature and manner of the entire .hearing on this issue. Mr. Tucker’s testimony, being brief, is set forth herein.
“MR. TUCKER: My name is George Tucker, I live at 80 Janssen Place. When this place—
MRS. HAUSER: Have you been sworn?
MR. TUCKER: Yes, I have been sworn. When it came up for — when we first found out about the nonconforming use for number 20 Janssen Place, I went down to the City library and went through the old city directories from 1910, ’15, 1920. Basically, the City Directory showed that it was a single family with caretaker until 1957, ’58, when it actually changed when it turned to multifamily it was 1960. When we started to see an increase in the number of people in number 20 Janssen Place.
CHAIRMAN: And that is all your testimony?
MR. TUCKER: (Nodded head).
CHAIRMAN: Does counsel have any questions?
MR. KUMIN: First, I want to object to the testimony. He is attempting to introduce something that he had absolutely nothing to do with the preparation of. He cannot testify as to its accuracy, that it was any exception to the hearsay rule which is applicable to administrative hearing, and therefore must object to that testimony being considered by the Board.
CHAIRMAN: You are objecting to the fact that he personally verified the city directory’s information that was obtained from the city directories?
MR. KUMIN: He has simply taken something from the city directory but he is incapable of testifying that that is accurate or an accurate portrayal of the premises. I think that any of you could take notice that if you refuse to turn in information they show you as not being there or that it is not being occupied. He canfiot testify that that was accurately prepared and that accurately portrays what was in existence at that time.
CHAIRMAN: The chair overrules the objection, taking note of the fact that the value of the city directories to its accuracy, and so forth. Objection overruled.”
*561This concluded the evidence for respondents, except for a narrative declaration made by witness Thornberry, which in the opinion of this writer, reflects the underlying struggle presenting itself before the Board, both prior to and at the time of the hearing.
“MR. THORNBERRY: One other facet and then we will be ready to close our part. Quite sometime ago, Mr. Tucker, Mr. Costlelight, Mr. Hetzel began an effort to work themselves and Janssen Place into the strain of a historical site recognition. After surveying that possibility they did prepare such documents and Mr. Tucker had that submitted to the city for its approval and sent it on to the state where it was approved and it is now in Washington and Congressman Bolling says it will probably take another sixty days before final decision. It seems to us that what is going on in city with the people departing for the suburban areas that every effort should be made to maintain the quality of life such as in Janssen Place and has been in there for a good many years, rather than permit it to deteriorate by overloading it with numbers of smaller apartments or rooming situations and number of cars in the street. There is a valuable asset, historically, esthetically, and economically and in Swift Avenue of Dallas, and a similar situation in St. Louis just recently portrayed here by people who have had first hand experience, they have demonstrated how all these values coming out that it is economically wise to create these historical areas and to have proper zoning protecting it. Had the zoning been insisted upon, had it been kept up, Janssen Place would have been in better today as far as the economics situation is concerned. But it obviously will affect the surrounding territory and help to improve it too, and we need the tax base and we cannot afford to throw that away. I hope you will give full consideration to the esthetic and historic values as well as the economic situation that has been created by this overloading by this violation of the Zoning Ordinances as they stand.
CHAIRMAN: That concludes your testimony?
MR. THORNBERRY: Yes.
MR. KUMIN: I am sorry to belabor the point, gentlemen, but again for the record I must object and have stricken out all of his testimony that he just gave, none of it is in any way relevant to the only issue here today, which is, has my client established a legal nonconforming prior use. This is not a request for rezoning. The esthetic, economic and other values and considerations which I appreciate are very valuable at a rezoning hearing, are not for consideration as the Zoning Ordinances of Kansas City, Missouri, state in such a fashion that if she establishes by a burden of proof that she has a legal nonconforming use, it is mandatory that the Certificate be granted, it is not discretionary upon such things as the community feelings. This is a legal right under what has commonly, has been referred to as the grandfather clause. What I am respectfully saying I don’t think that is appropriate for consideration by the Board.
CHAIRMAN: Objection has been noted and you are overruled and the Board will take into consideration that which you stated. Any further testimony? Does anyone have anything further to state before we complete the case?”
It is from the foregoing that this court concludes in the majority opinion that there was competent and substantial evidence to uphold the ruling of the Board. The evidence upon the record simply fails to uphold the majority opinion.
Appellant’s evidence, presented by both personal witness and proper affidavit, clearly established a legal nonconforming use as of June 4, 1933 and a continuous use of the property in conformity with the city ordinances.
On the other hand, if as concluded in the majority opinion the hearsay evidence, by way of affidavits and testimony of the contents of city directories is excluded, the sum total of respondents’ evidence does not, by *562substantial and competent evidence, establish that the use of the property, effective June 4, 1933, was not then a legal nonconforming use. Moreover, the remainder of respondents’ evidence fails to establish that interruption, nonuse or abandonment ever occurred, much less whether such abandonment continued as required under the ordinance for a continuous period of twelve months or more.5
When reviewed in total, by virtue of the stipulation agreed to by the parties, abandonment was really never an issue before this court, but assuming for purposes of argument that abandonment was an issue pursuant to the city ordinances, such abandonment, under the ordinances, had to be shown to be continuous for a period of twelve months or more. There was no evidence of a direct, substantial or competent nature to establish abandonment of use as prescribed under the ordinances.
The majority opinion concludes the only evidence in support of appellant’s position was the affidavit of appellant herself. The evidence on the record, as pointed out herein, refutes that conclusion on the face of the record.
While it is true that the laws of our state support the rule that credibility of witnesses is a matter for the trier of fact, and by virtue of the rulings and the trial court herein, the evidence must be reviewed in a light most favorable to those lower rulings, the majority opinion merely concludes there was competent and substantial evidence to support the finding by the Board. The only thing wrong with this conclusion is the evidence on the record fails to support the conclusion.
The decision of the trial court should be reversed and this cause should be remanded to the Board of Zoning Adjustment with directions to forthwith issue a certificate of legal nonconforming use to the favor of appellant. Such ruling is the only one possible and is supported by the evidence before this court.
. See also Kansas City, Missouri Rev. Ordinances, Chapter 65, § 65.230(7)[a], [b] and [c].
. Kansas City, Missouri Rev. Ordinances, Chapter 65, § 65.230(8).
. See Kansas City, Missouri Rev. Ordinances, Chapter 65, § 65.230(7)[a], [b] and [c].
. Birdie Sharpies was deceased at the time of the hearing.
. See Kansas City, Missouri Rev. Ordinances, Chapter 65, § 65.230(7)[a], [b], and [c].