Posted by: Patricia Salkin | August 11, 2018

MO Supreme Court Rejects Church’s Claim for Variance Relief from Digital Sign Restrictions

This post was authored by Amy Lavine, Esq,

The Missouri Supreme Court ruled in April that there were no practical difficulties that would justify a variance for a church to install a digital display on an existing sign located in front of its building. The court reversed a 2016 decision from the Missouri Court of Appeals and instead affirmed the decision of the board of zoning adjustment, which had denied the church’s variance request. Antioch Community Church v. Board of Zoning Adjustment, 543 S.W.3d 28 (Mo. 4/3/18).

The plaintiff, Antioch Community Church, had used a bequest from a church member to install a digital display face on its existing glass-fronted monument sign. The church didn’t apply for a permit before installing the new display, however, and when the city became aware of the new display it issued the church a zoning citation. In particular, the regulations provided that the church could have a sign, but that any “changeable copy feature must use direct human intervention for changes and may not include any form of digital or electronic display.” The church then filed an appeal of its violation, and it also submitted an application for a variance to allow its sign. The board declined to grant a variance however, finding that the digital sign display would change the “type” of sign from a monument sign to a digital sign, in violation of a code provision that prohibited sign variances “as to type and number.” Alternatively, the board found that the church failed to establish undue hardship or practical difficulties sufficient to support variance relief. The circuit court reversed as to the denial of the church’s sign variance, and this appeal followed.

The Missouri Supreme Court first addressed whether a variance allowing a digital display would result in changing the sign “type,” which was prohibited under the variance regulations. “Sign type,” the court noted, was defined in the code as a “group or class of signs that are regulated, allowed or not allowed… as a group or class,” and examples were listed as including monument signs, wall signs, digital signs, and electronic signs. The board claimed that the addition of digital lettering to the church’s sign changed the sign type from a monument sign to a digital sign, but the court agreed with the church that the type of lettering used on a sign was not relevant to the definition of a “monument sign.” Rather, “monument signs” were defined as signs “placed upon a base that rests upon the ground where the width of the base of the sign is a minimum of 75 percent of the width of the longest part of the sign.” The church’s sign qualified under this definition both before and after the addition of digital lettering, the court found. The board’s interpretation, the court explained, appeared to be based “on the belief a sign can be of only one sign type at a time,” but the court found this position to be contrary to the inherently overlapping nature of the different sign types in the code. In sum, the court held that “the addition of a digital display to the Church’s monument sign did not change its sign type. It remained a monument sign, albeit with an unpermitted digital display. The BZA therefore had the authority to grant the Church’s request for a variance if other requirements were met.”

While the board may have had authority to grant a variance, the court ultimately concluded that its denial of the variance was reasonable and supported by the evidence. As a “nonuse” variance, the court noted that the correct standard was “practical difficulties,” which it further explained was “slightly less rigorous” than the undue hardship test applied to use variances. The church offered three primary arguments as to the practical difficulties it would face if it was denied a variance for its digital sign: first, it was difficult for the church’s aging members to manually change the sign’s messages, especially during bad weather; second, the digital display was more easily seen from the road than the small lettering on the old monument sign; and third, the church would suffer economic hardship due to the fact that it had spent more than $11,000 on the upgrades to the sign, based on its good faith belief that the digital display was permitted.

These arguments may have offered an explanation for the church’s desire for a digital display, the court noted, but they fell short of establishing practical difficulties. The ability to change the sign’s messages without going outside in bad weather was a mere convenience, and it arose from the personal nature of the church’s aging demographics, not from any unique aspect of the property. As to the sign’s visibility and the church’s ability to convey its messages to drivers in order to boost membership, the court noted that “the test for a variance is not whether the variance would be beneficial or allow the Church to expand but whether the Church experiences practical difficulties in operating without the variance.” And finally, the fact that the church had invested a substantial amount of money in upgrading its sign could not be a practical difficulty, as it was a self-created problem and did not involve any unusual or peculiar aspect of the property.

The court also rejected the church’s contention that the restriction against digital monument signs in residential areas favored commercial speech over non-commercial speech in violation of the First Amendment. The church failed to preserve this claim, the court explained, but it would have failed on the merits regardless. The church’s argument was essentially that the restriction against digital signs in residential zones had a disparate impact on churches because the zoning code prohibited churches from obtaining variances for digital display signs. This was simply incorrect, the court noted, as the church could obtain a variance for its digital sign so long as it met the requirements for a variance under the zoning code.
Antioch Community Church v. Board of Zoning Adjustment, 543 S.W.3d 28 (Mo. 4/3/18).


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