Court of Appeals of Missouri, Southern District, Second Division
JANET DAILEY, CLINT SMITH, SHARON K. JOBE and DONALD W. INGRUM, CO-TRUSTEES of the WILLIAM and JANET DAILEY TRUST, Relators/Petitioners-Respondents,
BOARD OF ADJUSTMENT of the CITY OF BRANSON, MISSOURI, and the CITY OF BRANSON, MISSOURI, Defendants/Respondents-Appellants
APPEAL FROM THE CIRCUIT COURT OF TANEY COUNTY. Honorable Mark E. Orr, Circuit Judge.
ROBERT H. HANDLEY, Lee's Summit, MO, for Appellants.
DONALD W. INGRUM, Branson, MO, for Respondents.
DON E. BURRELL, J., OPINION AUTHOR, JEFFREY W. BATES, P.J., CONCURS, GARY W. LYNCH, J., CONCURS.
DON E. BURRELL, J.
The Board of Adjustment of the city of Branson (" the Board" ) and the city of Branson (" City" ) appeal the judgment of the circuit court that: (1) reversed the Board's decision to deny a sign permit (" the permit" ) sought by Janet Dailey, Clint Smith, Sharon K. Jobe and Donald W. Ingrum (as co-trustees of the William and Janet Dailey Trust (" the Trustees" )); and (2) ordered City to issue the permit.
The permit would allow the Trustees to reconstruct a " grandfathered"  billboard (" the Billboard" ) that was struck by a tornado in February 2012. The Trustees submitted an application for the permit to City's Planning and Development Department (" the Department" ) in August 2012. The Department denied the permit on the ground that the Billboard had lost its status as a legal non-conforming sign.
Because we review the decision of the Board " rather than of the circuit court," the Trustees -- as the aggrieved party -- filed the appellant's brief as required by Rule 84.05(e). See Arens v. City of St. Louis, 872 S.W.2d 631, 635 (Mo. App. E.D. 1994) (" [o]n appeal, we review the findings and conclusions of the [b]oard, rather than that of the trial court" ).
The Trustees first contend that City and the Board erred by " ignor[ing] the plain language of Chapter 70 of the Branson Municipal Code [" Code" ] in that they arbitrarily created their own personal, subjective standard to govern the repair of damaged nonconforming signs." Second, the Trustees contend that the denial of the permit was " not based on competent and substantial evidence" because the Trustees " presented the only material and uncontroverted evidence that the [Billboard] could be repaired for less than [50%] of the replacement cost pursuant to [s]ection 70-17(a)(2) of the . . . Code."
Finding no merit in either point, we reverse the trial court's judgment and remand the matter for the entry of a judgment affirming the decision of the Board.
Applicable Principles of Review and Governing Law
The scope of our review is limited to determining " '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.'" State ex rel. Teefey v. Bd. of Zoning Adjustment of Kansas City, 24 S.W.3d 681, 684 (Mo. banc 2000) (quotation omitted). " Only where the board exceeds its authority should the reviewing court hold the board's ruling to be illegal and void." Baumer v. City of Jennings, 247 S.W.3d 105, 111 (Mo. App. E.D. 2008).
An applicant appealing the denial of a sign permit has " the burden of proof before the Board[.]" Drury Displays, Inc. v. Bd. of Adjustment of City of St. Louis, 832 S.W.2d 330, 331 (Mo. App. E.D. 1992) (applicant " omitted proof of an essential element of its case by failing to introduce the ordinance into evidence" ).
It is the duty of the board of adjustment to find and determine the facts and in so doing to [weigh] the evidence presented to it. It may disregard and disbelieve evidence which in its judgment is not credible even though there is no countervailing evidence to dispute or contradict it.
Veal v. Leimkuehler, 249 S.W.2d 491, 496 (Mo. App. St.L.D. 1952).
" This Court reviews the correct interpretation of an ordinance de novo and applies the same rules that are used in interpreting a state statute." Sunswept Props., LLC v. Ne. Pub. Sewer Dist., 298 S.W.3d 153, 159 (Mo. App. E.D. 2009).
Facts and Procedural Background
Pertinent Provisions of the Code
A public hearing was held on the Trustees' appeal of the Department's denial of the permit by the Board on November 29, 2012. At the hearing, a copy of the Code was received into evidence by the Board. Chapter 70 of the Code addresses " SIGNS[.]" Section 70-2 defines a " [ s ] ign " as " any device or structure designed to inform or attract the attention of persons who are not on the premises on which the device or structure is located." Under the Code, a " [ s ] ign, freestanding, means a sign which is supported by one or more uprights, poles, or braces affixed to the ground, not attached to the principal building or structure." A free-standing sign (in even the most permissive of the commercial " overlay zones" described in Code Chapter 70) is limited to " 30 feet in height" and " 300 square feet in sign area." Sections 70-13(a)(1) & (2), (c)(1) & (2) and (c)(5)(a) & (b). A " [s]ign, off-premises, means any sign relating to products, services, uses, or enterprises sold or offered at a location other than the premises where the sign is located."
The definition for " [r]epair, renewal, refurbishment and restoration " provides: " These words shall be synonymous and may be used interchangeably. Their meaning is 'to restore to a former, better state, and resembling the original design and construction as closely as possible' when describing a damaged sign or a sign in disrepair." A permit is required " for the construction, installation or repair of all signs" under Code section 70-6(5). The permit provision also addresses " [ a ] nchoring [,]" and Code section 70-6(2)(b) states that " [a]ll freestanding . . . signs shall have self-supporting structures erected on and permanently attached to concrete foundations." A provision incorporated into the Code in 1998, section 70-19, addresses
" Off-premises signs" and provides: