Posted by: Patricia Salkin | December 31, 2016

MO Court of Appeals Finds Board Abused Its Discretion in Denying Church’s Variance Request for Digital Billboard

The Kansas City Board of Zoning Adjustment appealed a judgment below finding that it abused its discretion in failing to grant Antioch Community Church a variance from the city’s sign ordinance. The Church contended 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. Alternatively, the Church contended 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.

City code section 88–445–12, the applicable code for sign variances, stated “The Board of Zoning Adjustment may grant variances to the requirements for signs, except as to type and number.” The Board contended 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 court found that the “type” of sign was not at issue, as the sign was a monument sign before the alteration: albeit with a digital display. Because the Board could grant variances as to sign “requirements,” and the digital display prohibition applying to churches in residential zones was simply a sign “requirement,” the court found the Board had the authority to grant the Church a variance from the prohibition on “any form of digital or electronic display.”

As to the decision to deny the variance, the court found the sign allowed the church to “greatly increase the number of messages it could share with the community” and made “it easier (and safer) for passing motorists to read the new larger messages.” Furthermore, the sign was found to not have substantially changed the character of the neighborhood, and no evidence was introduced to show a substantial detriment to neighboring properties. Lastly, the court found 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 court therefore reversed the Board’s decision, finding the Board abused its discretion in denying Church’s variance request.
Antioch Community Church v. Board of Zoning Adjustment of City of Kansas City, MO, 2016 WL 7209821 (MO App. 12/13/2016)

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