                        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.


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        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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