MO Appeals Court Finds Trustees Failed to Prove that the Cost of Repairing the Billboard was Not More Than 50% of the Cost to Replace its Non-Conforming Portions

The Board of Adjustment of the city of Branson (“the Board”) and the city of Branson (“City”) appealed the judgment of the circuit court that: reversed the Board’s decision to deny a sign permit (“the permit”) sought by the co-trustees of the William and Janet Dailey Trust (“the Trustees”)); and ordered City to issue the permit. The permit allowed the Trustees to reconstruct a grandfathered billboard (“the Billboard”) that was struck by a tornado in February 2012. The Trustees submitted an application for the permit to City’s Planning and Development Department (“the Department”), which denied the permit on the ground that the Billboard had lost its status as a legal non-conforming sign. The Trustees contended that City and the Board erred by ignoring the plain language of Chapter 70 of the Branson Municipal Code [“Code”] in that they arbitrarily created their own personal, subjective standard to govern the repair of damaged nonconforming signs. The Trustees also argued that the denial of the permit was not based on competent and substantial evidence because the Trustees presented the only material and uncontroverted evidence that the Billboard could be repaired for less than 50% of the replacement cost pursuant to Section 70–17(a)(2) of the Code.

In support of the proposition that the Board adopted this misconstruction of Code section 70–17(a)(2), the Trustees pointed to the combination of the testimony of Mr. Lawson regarding the internal policy for signs that appeared to have damage to “50 percent or more … to the structure”, the denial language used by Mr. Crawford on the permit that “damage to billboard exceeded 50% of structure”, and the Board’s findings “that the Billboard in question was totally destroyed” and “substantial rebuilding” would be necessary to satisfy Code section 70–17. Simply because Mr. Crawford gave “damage to billboard exceeded 50% of structure” as the basis for the Department’s denial of the permit did not mean that the Board must have interpreted Code section 70–17(a)(2) as addressing the percentage of damage to the physical structure of the sign itself instead of the percentage of replacement cost involved to repair a sign. The court found that the Board did not find that the permit should be denied simply because over 50 percent of the Billboard had been destroyed, but because the requisite majority of the Board did not believe that the Trustees met the burden in showing that the Billboard in question met the standards of Section 70–17.

Dailey v Board of Adjustment of the City of Branson, 2014 WL 4964318 (MO App. 10/6/2014)

The opinion can be accessed at: http://www.courts.mo.gov/file.jsp?id=79073