MISSOURI COURT OF APPEALS
WESTERN DISTRICT
ANTIOCH COMMUNITY )
CHURCH, ) WD79676
)
Respondent, ) OPINION FILED:
v. )
) December 13, 2016
THE BOARD OF ZONING )
ADJUSTMENT OF THE CITY OF )
KANSAS CITY, MISSOURI, )
)
Appellant. )
Appeal from the Circuit Court of Clay County, Missouri
Honorable Janet Lodwick Sutton, Judge
Before Division One: Thomas H. Newton, P.J.,
Cynthia L. Martin, and Edward R. Ardini, Jr., JJ.
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
1
As the party aggrieved by an agency decision under Rule 84.05(e), the Church must file the first brief
and bears the burden of persuasion before this Court as we review the Board’s decision . See Versatile
Mgmt. Group v. Finke, 252 S.W.3d 227, 231 (Mo. App. E.D. 2008).
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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.
2
Judge Gabbert, who was appointed to the Missouri Court of Appeals for the Western District after
initially being assigned this case, has taken no part in its consideration.
2
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 hearin g 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
3
The supplemental petition added the City of Kansas City as a defendant and indicated that Kansas
City’s sign ordinance had been amended in 2015 to allow schools and churches on lots 15 acres or
larger, or 10 acres or larger if located on a major arterial road, to use digital signs. The Church, which
is on a lot smaller than 10 acres, urged the court to find that this ordinance unconstitutionally
discriminates against church advertising.
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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 abuse d 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
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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 ar ises,
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 modified by electronic processes.”
The Board contends that because a component of a sign that is digital is a “digital
sign” and a “digital sign” is specifically listed as a “sign type,” it lacked the authority
to grant the Church a variance to add a digital component to its sign. The Church
argues that the Board was asked to grant a variance as to that “requirement” in the code
which prohibits churches in residential zones from using a “digital or electronic
display” on a monument sign. Thus the “type” of sign was not at issue—the sign was
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a monument sign before the alteration; it was a monument sign with a digital display
after the alteration. We agree.
The code 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.” § 88-810. The part of the code that prohibits
a digital display on a monument sign is section 88-445-06-A-4, which allows a church
in a residential zone to have “[o]ne monument sign per street frontage which may not
exceed 32 square feet in area or 6 feet in height.” This section further states, “One sign
per lot 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.” Before the Church altered the sign in 2010, it was a monument sign. After
the Church altered the sign, it remained a monument sign by definition, albeit with a
digital display. Because the Board may grant variances as to sign “requirements,” and
the digital-display prohibition applying to churches in residential zones is simply a sign
“requirement,” the Board had the authority to grant the Church a variance from the
prohibition on “any form of digital or electronic display.”
As to whether the Board properly exercised its discretion in denying the
variance, the Church relied on the following as its practical difficulty necessitating a
deviation from the permitted use: (1) previously, messages could be changed in adverse
weather only by someone going outside and arranging the letters by hand to spell
words; (2) the manual letters were smaller and more difficult for motorists to read; and
(3) the Church would have wasted more than $11,000 if it must remove the digital
display and would have to spend additional funds to replace it with “an inferior wooden
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display.” The city’s Planning & Development Department staff presented no contrary
evidence, and took no position on the Church’s basis for the requested variance. And
in rejecting the requested variance, the Board made no findings to suggest that it
rejected the Church’s unopposed evidence of practical difficulty.
Under state law, zoning boards are permitted, where practical difficulties or
unnecessary hardships arise under an ordinance’s “strict letter,” to “vary or modify the
application of any of the regulations or provisions of such ordinance relating to the
construction or alteration of buildings or structures or the use of land so that the spirit
of the ordinance shall be observed, public safety and welfare secured and substantial
justice done. . . .” § 89.090.1(3) RSMo (2000, as supplemented). Kansas City’s code
sets forth similar parameters, adding that the variance s hould be “generally consistent
with all relevant purposes and intents of this zoning and development code.” § 88 -565-
06-B.
Our case law has summarized the factors considered under a practical -difficulty
analysis as follows:
(1) how substantial the variance is; (2) whether the variance will result in
a substantial change to the character of the neighborhood or create a
substantial detriment to adjoining properties; (3) whether the difficulty
can be obviated by some method, feasible for the applicant to pursue,
other than a variance; and (4) whether, in light of the manner in which the
difficulty arose and considering all relevant factors, the interests of justice
will be served by granting the variance.
Highlands Homes Ass’n, 306 S.W.3d at 566.
The Church argues that the variation was not substantial, because unlike
Highlands Homes Ass’n, which involved a variance to double the size of a cell-phone
tower, its change just altered the “insides” of a sign that otherwise remained the same.
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We agree. In the Church’s own words, the new sign, which retained the code-compliant
exterior framework, simply allows the church to “greatly increase the number of
messages it could share with the community” and makes “it easier (and safer) for
passing motorists to read the new larger messages.”
Regarding the second factor, the Church points to the commercial zones on each
side of the residential zone in which it is located and the four-lane roadway it abuts, as
well as the positive reviews given to its new sign by the local neighborhood association,
to support its argument that the sign does not effect a substantial change to the
neighborhood’s character or pose a substantial detriment to neighboring properties.
We find this evidence persuasive. The Church is on a busy roadway nestled in
the middle of considerable commercial development. Its sign does not substantially
change the character of the neighborhood, and no evidence was introduced to show a
substantial detriment to neighboring properties.
As to the feasibility of an alternative method, the Church contends that it lacks
a non-sign means of communicating the messages it posts on its signs. We agree that
other means of advertising or communication, such as fliers or paid advertisements,
would not be as effective as a sign in front of the Church. The Church argues as to the
fourth and final factor that the interests of justice would be served by granting the
variance. It is unnecessary to address this factor, and this point is granted.
Finally, because we have affirmed the circuit court’s judgment ordering the
Board to issue the requested variance, we do not address the Church’s second point on
appeal, which asserted a discriminatory application of the city code.
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Conclusion
The Board abused its discretion in denying Church’s variance request.
Accordingly, we reverse the Board’s decision and affirm the circuit court’s judgment.
/s/ THOMAS H. NEWTON
Thomas H. Newton, Presiding Judge
Martin and Ardini, JJ. concur.
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Antioch Community Church v. The Board of Zoning Adjustment of the City of Kansas City, Missouri
Combined Opinion