THE STATE OF MISSOURI, ex rel.,      )
CUSHMAN PROPERTIES, LLC, and,        )
CUSHMAN REAL ESTATE MANAGEMENT, LLC, )
                                     )
                    Respondents,     )
                                     )
      vs.                            ) No. SD33271
                                     )
BOARD OF ADJUSTMENT OF THE           ) FILED: November 19, 2014
CITY OF BRANSON, MISSOURI,           )
                                     )
                    Appellant.       )

             APPEAL FROM THE CIRCUIT COURT OF TANEY COUNTY

                              Honorable Mark E. Orr, Judge

AFFIRMED

       Citing § 70-17 of the city’s sign code, Branson’s Board of Adjustment denied

Cushman’s request to upgrade a backlit billboard to a digital sign face. Upon judicial

review, the circuit court reversed and ordered the Board to grant the request. The

Board appeals.1 We affirm the circuit court’s judgment in Cushman’s favor.


1
 Because we review the decision of the Board, not of the circuit court, Rule 84.05(e) required
Cushman to file the appellant’s brief here. Bd. of Alderman of Cassville v. Bd. of Adjustment of
Cassville, 364 S.W.3d 246, 248 (Mo.App. 2012).
                                     Background

      Relevant facts are not in dispute. Branson adopted a sign code (“Code”) that

restricted “off-premise” signs; i.e., those promoting something not offered or sold at

the premises where the sign is located.

      Cushman’s off-premise sign predated the Code, which treats such signs as

“legal nonconforming”:

          • “nonconforming” – the sign lawfully existed before the Code limited
            off-premise signs;2 and

          • “legal” – the Code grandfathered nonconforming signs subject to Code
            § 70-17 limitations, including:

                 o Code § 70-17(a)(1) – no nonconforming sign “may be enlarged or
                   altered in any way which increases its nonconformity ....”

                 o Code § 70-17(b)(2) – a legal nonconforming sign loses its status
                   if its “structure or size … is altered in any way except towards
                   compliance with this chapter. This does not refer to change of
                   copy, graphics, or normal maintenance.”

      Actions leading to the Board’s involvement, and ultimately to this appeal,

were succinctly summarized in two paragraphs of the Board’s written decision:

              [Cushman’s] permit request included provisions to renovate the
          existing off-premise sign. The current sign includes a twelve by
          eighteen foot (12’ x 18’) backlit billboard and a four by fourteen foot
          (4’ x 14’) message board. [Cushman] desired to replace the backlit
          portion with a digital face sign, which will require some electrical
          modifications because the digital sign requires more electricity than
          the current backlit sign.

             [Cushman’s] permit request was denied by the Department
          Director, Jim Lawson, because the proposed change to replace the
          existing backlit sign with a digital display would significantly
2
  “Nonconforming use” means a land use lawfully predating a zoning ordinance “and which is
maintained after the effective date of the ordinance even though not in compliance with use
restrictions.” State ex rel. Dierberg v. Bd. of Zoning Adjustment, 869 S.W.2d 865, 868
(Mo.App. 1994).


                                            2
          enhance the sign’s capabilities by allowing for dynamic advertising
          through changing copy animation, etc., versus the current stationary
          advertising copy. Such an enhancement would increase the sign’s
          degree of nonconformity, thus violating Branson's Municipal Code
          Section 70-17(a)(1) which states: “No such nonconforming sign may
          be enlarged or altered in any way which increases its
          nonconformity.”

      Cushman appealed to the Board, which held a public hearing, received

documentary evidence, and heard from Cushman representatives and the City’s Mr.

Lawson. Three of five Board members voted in Cushman’s favor, but the Code

required four votes to reverse Mr. Lawson’s decision. The Board’s written decision

stated that Cushman had failed to show that its proposal would meet “the standards

of Section 70-17” for three reasons:

          [Cushman’s] sign was not in the spirit of section 70-17, in that it
          would change the face of the billboard to allow for multiple
          advertisements to be presented, as compared to the current status of
          only one advertisement. Also, that the sign would likely require
          modernized electronics to be installed in order to support a
          modernized electronic billboard. Finally that the requested sign
          improvements would extend the life of the non-conforming use.

      Cushman sought RSMo § 89.110 judicial review. The circuit court overturned

the Board’s decision as unsupported by law because Code § 70-17 does not prohibit

the requested improvements, and arbitrary and capricious because the City has

allowed others to convert signs from manually changeable to electronically

changeable. The Board now appeals.

                               Principles of Review

      We review the Board’s decision to determine whether it “is supported by

competent and substantial evidence upon the whole record or whether the decision




                                         3
is arbitrary, capricious, unreasonable, unlawful, or in excess of [the Board’s]

jurisdiction.” Bd. of Alderman, 364 S.W.3d at 248.

         Our review is de novo because the Board’s decision involved legal

interpretation and the application of law to undisputed facts. BT Residential,

LLC v. Bd. of Zoning Adjustment, 392 S.W.3d 18, 21 (Mo.App. 2012).

         Permit issuance is ministerial, not discretionary, and cannot be refused when

applicable requirements are met.            Curry Inv. Co. v. Bd. of Zoning

Adjustment, 399 S.W.3d 106, 109 (Mo.App. 2013).

                                         Analysis

                       The Board’s Written Decision and Code § 70-17

         Two principles of construing zoning ordinances are “(1) the determination

of what uses are permitted must be made on the basis of the wording of the

particular ordinance, and (2) zoning ordinances, being in derogation of

common law property rights, are to be strictly construed in favor of the

property owner against the zoning authority.” Rice v. Bd. of Adjustment, 804

S.W.2d 821, 823 (Mo.App. 1991). See also Coots v. J. A. Tobin Const. Co., 634

S.W.2d 249, 251 (Mo.App. 1982), which describes the latter proposition as “widely

accepted.”

         These principles doom the Board’s stated reasons for denying Cushman’s

request, i.e., multiple advertisements, modernized electronics, or a potentially longer

nonconforming use. Code § 70-17, which we quote in full below,3 bars none of these.



3
    Sec. 70-17. - Nonconforming signs.


                                            4
                                  Other Board Arguments

      Perhaps recognizing this problem, the Board now asserts that its decision

actually was (or could have been) based on sign restrictions in Code § 70-13(c)(5)(d),

a provision never cited in the Board’s decision or mentioned at the hearing. We

reject this argument for several reasons.

      First, this section is part of Code § 70-13, which sets out “[s]pecific regulations

for sign overlay zones.” Subsection (c) thereof, which includes § 70-13(c)(5)(d) now



   (a) Legal nonconforming signs. Where a lawful sign exists at the effective date of adoption of
   the ordinance from which this chapter is derived (July 13, 1998) or amendment of this
   chapter that would be illegal under the terms of this chapter, such sign may be continued so
   long as it remains otherwise lawful, subject to the following provisions:
       (1) No such nonconforming sign may be enlarged or altered in any way which increases
       its nonconformity, but any sign or portion thereof may be altered to decrease its
       nonconformity.
       (2) Should such nonconforming sign or nonconforming portion of sign be destroyed by
       any means to any extent of more than 50 percent of its replacement cost at the time of
       destruction, it shall not be reconstructed except in conformity with the provisions of this
       chapter.
       (3) Should such sign be moved for any reason for any distance whatever, it shall
       thereafter conform to the regulations for the district in which it is located after it is
       moved. When a permit has been obtained, temporary removal of any portion of a sign for
       repairs and maintenance shall not be considered to be in violation of this stipulation. Any
       sign temporarily removed by a public utility company, the city, or any governmental
       agency to accommodate repair or maintenance, or expansion operations may be replaced,
       provided there is no change in size, height or location of the sign. If any sign is moved as
       a direct result of a public street expansion, it may be relocated to a position determined
       by the city engineer to be appropriate in relation to the expansion project. No permit shall
       be required for such replacement.
   (b) Loss of legal nonconforming status. A legal nonconforming sign shall lose this
   designation if:
       (1) The sign is relocated or replaced; or
       (2) The structure or size of the sign is altered in any way except towards compliance with
       this chapter. This does not refer to change of copy, graphics, or normal maintenance.
   (c) Maintenance and repair of nonconforming signs. The legal nonconforming sign is subject
   to all requirements of this Code regarding safety, maintenance and repair.


                                                5
cited by the Board, applies to “sign overlay zone 3.”            The Board admits that

Cushman’s sign is not within that zone.

       Second, as already noted, the Board admits that this code section was never

mentioned at the hearing or in the Board’s decision.

       A third reason relates to an alternative argument by the Board. The Code was

in evidence, including § 70-13(c)(5)(d). Citing this support in the record, the Board

asks us to affirm its decision, even if its stated reasons were flawed. Yet the Board

itself describes § 70-13(c)(5)(d) nonconformity as “a matter for factual

determination by the finder of fact” and admits that it made no such determination.

       Under these circumstances, we are not free “to infer that an administrative

agency found facts in accordance with the results reached.” Citizens for Rural

Preservation, Inc., v. Robinett, 648 S.W.2d 117, 126 (Mo.App. 1982).

Administrative review is “unlike appeal from a judgment in a court tried case where

review is de novo and the appellate court may assume that all fact issues on which no

findings were made were found in accordance with the result reached (rule 73.01(b),

V.A.M.R.).” Stephen & Stephen Properties, Inc., v. State Tax Comm’n, 499

S.W.2d 798, 804 (Mo. 1973).

          In administrative review, the court is bound by the agency's findings
          if supported by competent and substantial evidence and its scope of
          review is limited. For a court to infer findings from the ultimate
          decision of an administrative agency, defeats this limited review
          provision, as it allows the court to find both the law and the facts on
          appeal.

Id.; see also Citizens for Rural Preservation, 648 S.W.2d at 126.4

4
 Similar reasoning defeats the Board’s argument that Cushman violated Code § 70-6(7) by not
providing adequate information in its application. The City made no such claim in its initial


                                             6
       We need not reach other arguments for reversing the Board’s decision, which

is not supported by competent and substantial evidence. We affirm the circuit

court’s judgment in Cushman’s favor.


DANIEL E. SCOTT, J. – OPINION AUTHOR

JEFFREY W. BATES, J. – CONCURS

ROBERT S. BARNEY, SR. J. – CONCURS




denial letter or at the public hearing, nor did the Board’s decision address this issue or Code
section, so we cannot fact-find this issue under the cases and for the reasons cited above.


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