Posted by: Patricia Salkin | June 14, 2013

Missouri Appeals Court Holds Conditions on Special Use Permit for Pawn Shop Must Relate to the Proposed Use and May Not Be Imposed to Eliminate a Nonconforming Use

Curry Investments sought a special use permit to establish a pawn shop on their property. The BZA determined it had met all the criteria necessary to obtain a special use permit, but nonetheless, conditioned approval of the special use permit on  Curry removing two nonconforming outdoor advertising signs that it was leasing.

Curry, opposed to the  conditions, sought a rehearing from which the BZA denied and Curry filed suit claiming its signs represented an existing and lawful nonconforming use and that the BZA had no authority to impose  conditions unrelated to the approval of the special use permit. The BZA disagreed and argued that the City’s code gives it the power to consider site conditions and impact on the neighborhood. The Circuit Court ruled in favor of Curry, modifying the order of the BZA to grant the special use permit without the condition of removal of the signs, and the BZA appealed.

Curry claimed once again that the BZA is without authority to condition approval of a special use permit on unrelated conditions. BZA argued that its authority to require removal of nonconforming signs as a condition for a special use permit comes from its mandate to determine if a proposed special use complies with the standards of the code and whether the impact will be adverse to the community. The Appeals Court agreed with Curry, reaffirming the right to operate the nonconforming signs by holding that under nonconforming use doctrine, zoning restrictions cannot be applied to require the removal of cessation of an established use which does not conform with a use authorized by the zoning restrictions. The Court also held that it was unreasonable of the BZA to require removal of the nonconforming signs as a special use permit condition because all the criteria needed for a special use permit had been met.

Curry Investment Company v. The Board of Zoning Adjustment of Kansas City, Missouri, 2013 WL 1876623 (Mo.App. W.D. 5/7/2013)

The opinion can be accessed at: http://www.courts.mo.gov/file.jsp?id=61755


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