Posted by: Patricia Salkin | April 21, 2016

MO Appeals Court Holds Court Below Erred in Affirming BZA’s Determination that Corporation Was Not Entitled to Thirty-Day Cure Period Prior to Finding Nonconforming Outdoor Advertising Sign Abandoned

Claudia Lee & Associates (CLA) is an Indiana Corporation that owned an outdoor advertising sign in Kansas City, which it installed in 2005 in a parking lot of a commercial establishment. The commercial property upon which the sign is located is zoned B3–2 and B1–1 by the City of Kansas City Zoning and Development Code. CLA’s Wornall Road sign was considered a legal nonconforming sign because it was erected prior to the Code being amended to exclude such signs from districts zoned B3–2 or B1–1. In November of 2010, a resident living near CLA’s Wornall Road outdoor advertising sign complained to Kansas City’s Planning and Development Department that the sign had been blank for at least thirty days. On March 3, 2011, the City received notice from CLA that new advertising had been placed on the sign. The City’s compliance staff documented that the new advertising message was solely promoting rental of the sign itself. On March 9, 2011, the City sent written notice to CLA that, from November 23, 2010, until March 3, 2011, CLA’s Wornall Road outdoor advertising sign had remained “blank” as defined by 88–445–14–B.5(g)(1). The notice offered no opportunity to cure the alleged infraction and ordered the sign removed within thirty days of the date of the notice. CLA appealed the notice of violation to the BZA. The BZA, and then the circuit court, both affirmed the City’s decision.

Section 88–445–14 of the Code at issue contained various regulations providing that, if a legal nonconforming outdoor advertising sign remains blank for a continuous period of ninety days, the sign is considered abandoned and will no longer be deemed a legal nonconforming sign. CLA argued that a provision of this Code, providing that “the city planning and development director must provide written notice to the signs record owner of the signs deficiencies, and the owner must be given 30 days from the date of the notice to remove the sign or bring the sign into compliance with these requirements,” applied to blank signs as well. The court resolved the ambiguity in favor of the landowner, and therefore found that the City must provide written notice to a sign’s record owner of alleged deficiencies and must give the sign owner thirty days from the date of that notice to bring the sign into compliance. Accordingly, it held that the circuit court erred in affirming the BZA’s determination that CLA was not entitled to a thirty-day cure period.

CLA next alleged that it forwarded, and BZA received, CLA’s open records request and BZA failed to respond to the request within three days, in violation of the Sunshine Law. The BZA countered that, because the BZA was merely a department within the city of Kansas City, it was not a legal entity with the capacity to be sued in an independent action such as was alleged in CLA’s open records claim. The court found that CLA failed to plead sufficient facts for this claim because CLA “did not define and isolate the issue of whether the officials had purposely violated the statutes.”

Claudia Lee & Associates v. Kansas City Board of Zoning Adjustment, 2016 WL 1442382 (MO. App. 4/12/2016)

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