Missouri Appeals Court Holds that Board’s Decision Denying Permit to Upgrade Backlit Billboard Was not Supported by Competent and Substantial Evidence

Branson’s Board of Adjustment denied Respondent 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. Code § 70–17(a)(1) sets forth in relevant part that no nonconforming sign “may be enlarged or altered in any way which increases its nonconformity….” The current sign included 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 would have required some electrical modifications because the digital sign would require more electricity than the current backlit sign.

The court stated, “[Z]oning ordinances, being in derogation of common law property rights, are to be strictly construed in favor of the property owner against the zoning authority” and, if a permit applicant meets the standard, the issuance of the permit is ministerial. On judicial review of an administrative decision, the appellate court cannot affirm decision on grounds not cited in decision and “cannot infer that an administrative agency found facts in accordance with the results reached.” The Board admitted that Cushman’s sign was not within the zone code it cited, and the proper code section was never mentioned at the hearing or in the Board’s decision. Therefore the court reversed the Board’s decision, which was not supported by competent and substantial evidence.

State of Missouri v Board of Adjustment of City of Branson, 2014 WL 6478610 (MO App. 11/19/2014)

The opinion can be accessed at: http://www.courts.mo.gov/file.jsp?id=80893