Antioch Cmty. Church v. Bd. of Zoning Adjustment of Kan. City

• Decision Date: 03 April 2018
• Docket Number: No. SC 96215,SC 96215
• Parties: ANTIOCH COMMUNITY CHURCH, Respondent, v. BOARD OF ZONING ADJUSTMENT OF the CITY OF KANSAS CITY, Missouri, Appellant.
• Court: Missouri Supreme Court

543 S.W.3d 28

ANTIOCH COMMUNITY CHURCH, Respondent,

v.BOARD OF ZONING ADJUSTMENT OF the CITY OF KANSAS CITY, Missouri, Appellant.

No. SC 96215

Supreme Court of Missouri, en banc.

Opinion issued April 3, 2018

The church was represented by Bernard J. Rhodes of Lathrop & Gage LLP in Kansas City, (816) 292-2000.

The city’s zoning adjustment board was represented by M. Margaret Sheahan Moran of the city attorney’s office in Kansas City, (816) 513-3140.

Laura Denvir Stith, Judge

Antioch 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.

I. FACTUAL AND PROCEDURAL BACKGROUND

Antioch 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 the Church.

More 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.

In 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.

The 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).¹ Beginning in 2015, an exception was adopted for institutions located on property of more than 10 to 15 acres,² 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) (2015).

Approximately 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).

After a 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 variance.³

The BZA 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.

The 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.

The 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 83.02.

II. STANDARD OF REVIEW

An 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).

The 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).

To the 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...