FROM THE CIRCUIT COURT OF CLAY COUNTY, MISSOURI HONORABLE
JANET LODWICK SUTTON, JUDGE
DENVIR STITH, JUDGE
Community Church appeals the decision of the Board of Zoning
Adjustment of the City of Kansas City, Missouri, (BZA)
denying the Church a nonuse zoning variance for a digital
display on a sign it erected in front of the church building.
This Court agrees the BZA erred in concluding it had no
authority to grant the Church's requested variance.
Contrary to its conclusion that the addition of digital
lettering meant the sign no longer qualified as a monument
sign as required under the Kansas City zoning and development
code, this Court holds the sign remained a monument sign; it
simply became a monument sign with digital lettering. The
BZA, therefore, had authority to grant a variance if the
other requirements for a variance were met. But this Court
affirms because the record supports the BZA's decision
that the Church did not show "practical
difficulties" in operating without the variance.
FACTUAL AND PROCEDURAL BACKGROUND
Community Church is located in the northern part of Kansas
City, Missouri, on Antioch Road. Traffic is heavy on Antioch
Road, a major thoroughfare with almost 14, 000 vehicles
passing by the Church daily. While other parts of Antioch
Road are commercially developed, the church building is
situated on a one-mile stretch of Antioch Road passing
through a residential area zoned for single-family homes. The
church building is immediately surrounded by single-family
homes in all directions and, when standing on the church lot,
one can see only single-family homes. But commercially zoned
areas, including stores and gas stations, are located
approximately half of a mile to both the north and south of
than 60 years ago, the Church placed a brick
"monument" sign with a 36" x 42" manual
display in front of the church building and perpendicular to
Antioch Road. Like similar monument signs in front of
churches everywhere, the sign was used to display messages
about such matters as the name of the pastor and the time for
Sunday services. The sign worked by opening the glass front
and forming the message by hanging changeable individual
letters on rows of cup hooks behind the glass.
2010, using $11, 426 from the bequest of a church member, the
Church upgraded its monument sign to include a digital
display in place of the individual removable hanging letters.
The Church says this allowed it to increase the number of
messages it could display while simultaneously making the
messages easier and safer for motorists to view. This also
allowed the church members to change the messages
electronically from inside the church building, without the
need for someone to go outside, open up the sign window, and
replace the changeable lettering by hand. The Church credits
the digital display for attracting several new members.
Church sought neither a permit nor a variance prior to its
2010 installation of the digital lettering on its monument
sign. While Kansas City's zoning and development code
permits institutions (such as schools and churches) located
in residential areas to have monument signs, until 2015
institutions in residential zones could have only "[o]ne
monument sign per street frontage which … may include
changeable copy, but the changeable copy feature must use
direct human intervention for changes and may not include any
form of digital or electronic display." Kansas City,
Mo., Zoning and Development Code §
88-445-06-A-4 (2011). Beginning in 2015, an exception
was adopted for institutions located on property of more than
10 to 15 acres,  but the Church's property was too
small to qualify under this provision. Kansas City, Mo.,
Zoning and Development Code § 88-445-11-B(2)
one year after the Church added the digital display to its
monument sign, Kansas City issued a citation to the Church
for violating section 88-445-06-A-4(a). The Church appealed
the citation to the BZA, but before the appeal could be
heard, the Church filed an application with the BZA for a
variance "to allow [a] digital display on [the] existing
monument sign." The Church relied in part on section
88-445-12 of the zoning code, which provides, in relevant
part, that the BZA "may grant variances to the
requirements for signs, except as to type and
number." Id. (emphasis added).
public hearing, the BZA rejected the Church's request for
a variance because it determined the addition of a digital
display would change the "type" of sign from a
monument sign to a digital sign in violation of section
88-445-12 of the zoning code. The BZA also said it denied the
variance because it found even if the addition of a digital
display did not change the sign "type, " the Church
"failed to establish [the] undue hardship or practical
difficulty" necessary for granting a
had put the Church's appeal of the citation for violating
the sign ordinance on hold while the variance request was
being considered, as the parties agreed granting the variance
would have mooted the citation. Once the variance was denied,
the BZA held a hearing on the Church's appeal of the
zoning violation citation at which the Church claimed that if
residential zoning prohibited it and other churches of its
size from using digital signs, then the zoning
unconstitutionally deprived the Church of the opportunity to
express religious messages to the public. The BZA found
against the Church on the citation.
Church filed a petition for writ of certiorari in the Clay
County circuit court as to both the BZA's denial of the
variance request and its decision on the appeal of the
citation. The petition was later supplemented to include a
second count asking the court to find the zoning code's
prohibition against digital monument signs unconstitutionally
discriminates against churches because it permits digital
signs only on property larger than 10 to 15 acres, and most
churches are located on smaller lots. The supplemental
petition attempted to add the City of Kansas City as a
defendant, but before service was made on the city the
circuit court ruled in the Church's favor on its claim
the BZA erred in denying the variance.
circuit court found in favor of the Church on two grounds:
(1) the addition of digital lettering was not a change in
sign type so the BZA had the authority to grant the variance;
and (2) the Church adequately established the existence of
"practical difficulties" so the denial of the
variance was not supported by competent and substantial
evidence. Because the circuit court found in favor of the
Church on these grounds, it entered judgment for the Church
without reaching the issues raised in the appeal of the
citation. As Kansas City had not been made a party, and as
the court had resolved the case on other grounds, the court
also did not reach any issue regarding the constitutional
validity of the sign requirement the Church sought to raise
in its unserved supplemental petition. The BZA appealed.
After decision by the court of appeals, this Court granted
transfer. Mo. Const. art. V, § 10; Rule
STANDARD OF REVIEW
appellate court "reviews the findings and conclusions of
the BZA and not the judgment of the trial court."
State ex rel. Teefey v. Bd. of Zoning Adjustment of
Kansas City, 24 S.W.3d 681, 684 (Mo. banc 2000). The
scope of this Court's review is governed by article V,
section 18 of the Missouri Constitution, which provides
judicial review of an agency decision "shall include the
determination whether the [decision is] authorized by law,
and in cases in which a hearing is required by law, whether
the [decision is] supported by competent and substantial
evidence upon the whole record." This means the
"scope of judicial review of the decisions of the board
of adjustment in a zoning proceedings is limited to a
determination of whether the ruling is authorized by law and
is supported by competent and substantial evidence upon the
whole record." Rosedale-Skinker Improvement
Ass'n v. Bd. of Adjustment of City of St. Louis, 425
S.W.2d 929, 936 (Mo. banc 1968); see also Matthew v.
Smith, 707 S.W.2d 411, 418 (Mo. banc 1986).
question whether the decision is authorized by law is a legal
question this Court determines de novo. Teefey, 24 S.W.3d at
684. Determining whether the decision is supported by
competent and substantial evidence "does not mean that
the reviewing court may substitute its own judgment on the
evidence for that of the administrative tribunal."
Mann v. Mann, 239 S.W.2d 543, 544 (Mo. App. 1951).
Rather, "an appellate court must view the evidence and
reasonable inferences therefrom in a light most favorable to
the decision." Teefey, 24 S.W.3d at 684. The burden is
on the party seeking the variance to demonstrate it should be
granted. Baumer v. City of Jennings, 247 S.W.3d 105,
113-14 (Mo. App. 2008); USCOC of Greater Mo. v. City of
Ferguson, Mo., 583 F.3d 1035, 1043 (8th Cir. 2009)
(Missouri places the burden of demonstrating a practical
difficulty on the party requesting the variance).
extent Highlands Homes Association v. Board of
Adjustment, 306 S.W.3d 561, 565 (Mo. App. 2009),
State ex rel. Branum v. Board of Zoning Adjustment of
City of Kansas City, Mo., 85 S.W.3d 35, 39 n.1 (Mo.
App. 2002), Hutchens v. St. Louis County, 848 S.W.2d
616, 617 (Mo. App. 1993), and similar cases suggest the
"competent and substantial evidence" standard is
used only when reviewing use variances, and an abuse of
discretion standard is used when reviewing nonuse variances,
they are incorrect and should no longer be followed.
Missouri's constitution specifically mandates the
standard of review for variances is whether the decision is
supported by competent and substantial evidence. It does not
distinguish between types of variances, and this Court has no
authority to depart from that standard. Mo. Const. art. V,
§ 18; Matthew, 707 S.W.2d at 418 n.8.
GRANT OF A VARIANCE ALLOWING DIGITAL LETTERING ON A MONUMENT
SIGN WAS AUTHORIZED BY LAW
88-810 defines "Sign Type" as a "group or
class of signs that are regulated, allowed or not allowed in
this code as a group or class." It then lists and
defines several possible sign types, such as monument signs,
wall signs, digital signs, and electronic signs. Id.
suggests it had no authority to grant the Church's
request for a variance. In support, the BZA argues because
digital signs are defined as signs having digital lettering,
this means the Church's addition of digital lettering to
its monument sign must have changed the sign type from a
monument sign to a digital sign. And, the BZA notes, section
88-445-12 prohibits it from granting a variance changing the
sign type. The BZA concludes this means it was without
authority to grant the Church a variance to add digital
lettering to its monument sign.
Church counters that the type of lettering on a sign is not
included in the zoning code's definition of what type of
sign is a "monument sign." It is correct. Section
88-810 defines a "monument sign" as a "sign
placed upon a base that rests upon the ground where the width
of the base of the sign is a minimum of 75 percent of the
width of the longest part of the sign." The Church's
sign fit within this definition of "monument sign"
both before and after the change in the lettering from manual
to digital, for the zoning code's definition of
"monument sign" does not include any language about
what kind of lettering is required on a monument sign. It is
a different section of the zoning code - section
88-445-06-A-4(a) - that prohibits "any form of digital
or electronic display" on monument signs in residential
areas. The digital lettering, not barred by the definition of
monument sign, simply makes the Church's sign one that
fails to comply with one of the other requirements a monument
sign should meet.
BZA's narrower interpretation of what constitutes a
monument sign appears to be premised on the belief a sign can
be of only one sign type at a time, which would mean a
monument sign, by definition, cannot include a digital
display as the zoning code provides that a sign with a
digital display is a digital sign. The language of the zoning
code does not support the BZA's premise.
Court interprets ordinances using "the same general
rules of construction as are applicable to the statutes of
the state." Fleming v. Moore Bros. Realty Co.,
251 S.W.2d 8, 15 (Mo. 1952). When interpreting a statute,
"no portion of [it] is read in isolation, but rather is
read in context to the entire statute, harmonizing all
provisions." Aquila Foreign Qualifications Corp. v. Dir.
of Revenue, 362 S.W.3d 1, 4 (Mo. banc 2012). This means
the definition of monument sign in section 88-810 must be
harmonized with other sections of the zoning code.
at the zoning code as a whole, it is evident the sign types
set out in the code are inherently overlapping. For example,
section 88-445-06-A-4(b) includes "wall signs"
among the type of signs allowed in residential areas but then
regulates their use of digital lettering. While wall signs
with digital lettering may fit within the definition of
digital signs, the zoning code does not preclude them from
also being wall signs.
section 88-445-08-A(3) of the zoning code recognizes monument
signs may have digital lettering and remain monument signs.
It provides that, in certain non-residential districts,
"Electronic, digital, or motorized monument signs are
permitted" so long as they comply with certain
additional requirements. Section 88-445-08-A(3) thereby
expressly permits monument signs to have electronic, digital,
or motorized components in non-residential districts.
Addition of an electronic, digital, or motorized component,
therefore, cannot preclude a sign from being of the monument
sign type. See Briggs v. State Farm Fire & Cas.
Co.,680 S.W.2d 444, 445 (Mo. App. 1984) ("An
adjective modifies a noun to denote a quality of the
thing named, or to indicate its quantity or extent.")
(emphasis added). To accept the BZA's argument that the
addition of a digital component to a ...