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Antioch Community Church v. Board of Zoning Adjustment of City of Kansas City

Court of Appeals of Missouri, Western District, First Division

December 13, 2016


         Appeal from the Circuit Court of Clay County, Missouri Honorable Janet Lodwick Sutton, Judge

          Before: Thomas H. Newton, P.J., Cynthia L. Martin, and Edward R. Ardini, Jr., JJ.

          Thomas H. Newton, Presiding Judge

         The Kansas City, Missouri, Board of Zoning Adjustment (Board) appeals a Clay County Circuit Court judgment finding that it abused its discretion in failing to grant Antioch Community Church a variance from the city's sign ordinance. The Church contends that the Board abused its discretion because the evidence showed practical difficulties if the Church were required to remove the digital component of its sign and that the requested variance was insubstantial.[1] In the alternative, the Church contends that the Board violated its First Amendment rights by favoring less-protected commercial speech over more-protected non-commercial speech in applying the city's sign ordinance. We reverse the Board's decision and affirm the circuit court's judgment.[2]

         The Church is in Kansas City, Missouri, on Antioch Road, a four-lane roadway, between I-35 and Vivion Road. The Church property sits within a sizable single-family residential zone that is bookended by commercial areas zoned B4 (the most intense business district), UR (urban residential), D (downtown), and M (industrial), where digital signs are allowed. Nearly 14, 000 vehicles travel this section of Antioch Road each day. The Church has long had a monument sign perpendicular to the road to post messages and information about its activities by means of letters hung from cup hooks. The monument sign, which complied in all respects with the city's Zoning and Development Code, dates to 1956 when a second church building was constructed adjacent to the original building. It consisted of glass display cases surrounded by a brick framework. After receiving a legacy gift, Church members decided to swap the cup hooks for a digital system that would allow more frequent informational updates in a larger font with significantly less effort. Unaware that a Kansas City sign ordinance prohibited digital signs on church property in residential zones, they installed the sign in 2010, without seeking a permit or variance, at a cost in excess of $11, 000. The digital component of the sign replaced the display cases that had contained the cup hooks and letters; no changes were made to the brick surround.

          About a year after the Church installed the digital sign and in response to an anonymous complaint, Kansas City issued a notice of violation to the Church, citing section 88-445-06-A-4 of the Kansas City Zoning and Development Code, which states that a church in a residential zone may have a monument sign, but that sign "may not include any form of digital or electronic display." The Church appealed the citation, and before the appeal was heard, filed an application for variance with the Board at city staff's recommendation. The appeal was placed on hold pending a decision on the variance. The city's Planning & Development Department staff prepared a report, taking no position on the Church's basis for the request, but contending that the Board lacked the authority to grant the variance. The Board conducted a hearing on the variance request in February 2012 and denied it without a written decision. Thereafter, the Church's appeal of the citation was continued, and the city's Planning & Development Department staff issued a new report, again stating that the Board lacked the authority to grant a variance. The Board conducted a hearing on the appeal in March 2012 and denied the appeal without a written decision.

         The Church then filed a petition for writ of certiorari against the Board in Clay County Circuit Court, seeking review of the variance and appeal denials. The circuit court issued the writ, and the Board filed a response. The circuit court granted the Church's request to file a supplemental writ petition, and the day after it did so, issued a judgment, ordering the Board to issue the variance.[3] The court dismissed as moot both the Church's challenge to the Board's ruling on the citation appeal and the constitutional issue raised in the Church's supplemental writ petition. The Board filed this appeal.

         Legal Analysis

         In the first point, the Church argues that the Board abused its discretion in denying its request for a non-use variance to allow the Church to install and use a digital display on its existing monument sign. According to the Church, the un-contradicted evidence before the Board established that the church faced practical difficulties in conveying its messages to the community without a digital display and “the requested variance was insubstantial, would not change the neighborhood, was the only feasible alternative, and was in the interest of justice.”

         As noted above, where the circuit court reverses the decision of an administrative agency, we review the agency's decision. Versatile Mgmt. Group v. Finke, 252 S.W.3d 227, 232 (Mo. App. E.D. 2008). "We presume that the agency's decision is correct. And, as is the general rule when a judgment is presumed correct, the burden to show otherwise falls on the party challenging the decision." Id.

         Similarly, as to a zoning-variance dispute, "[w]e review the decision of the Board, not the decision of the trial court." Highlands Homes Ass'n v. Bd. of Adjustment, 306 S.W.3d 561, 565 (Mo. App. W.D. 2009). An applicant for a non-use variance, which involves a requested deviation from a restriction related to a permitted use, must show that it faces "practical difficulties." Id. "[W]hether practical difficulties exist is a factual matter." Id. (quoting Baumer v. City of Jennings, 247 S.W.3d 105, 113 (Mo. App. E.D. 2008)). And, as such, the matter is consigned to the Board's discretion; we reverse for an abuse of discretion only. See State ex rel. Branum v. Bd. of Zoning Adjustment, 85 S.W.3d 35, 39 (Mo. App. W.D. 2002). Where a question of law arises, we exercise our independent judgment. State ex rel. Columbus Park Cmty. Council v. Bd. of Zoning Adjustment, 864 S.W.2d 437, 440 (Mo. App. W.D. 1993).

         Because the question of the Board's authority to grant a variance under these circumstances has been raised, we address that issue first. The Board argues that it is prohibited under the city's Zoning and Development Code from granting any variance as to the "type" of sign allowed by the code. City code section 88-445-12 specifically addresses sign variances and states, in relevant part, "The Board of Zoning Adjustment may grant variances to the requirements for signs, except as to type and number." Section 88-445-12 defines "sign type" as follows:

A group or class of signs that are regulated, allowed, or not allowed in this code as a group or class. Sign types include, but are not limited to, pole signs, monument signs, oversized monument signs, outdoor advertising signs, wall signs, projecting signs, roof signs, ornamental tower signs, electronic or digital or motorized signs, banner signs, and temporary signs.

Section 88-810 defines "digital sign" as "[a] sign or component of a sign that uses changing lights to form a message or series of messages that are electronically programmed or ...

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