MO Appeals Court Upholds Denial of Application to Build a Single-Family House Giving Deference to BZA

This post was authored by Matthew Loescher, Esq.

In this case Kathleen Vandenboom, as trustee of the Kathleen M. Vandenboom Revocable Trust, appealed a decision of the Board of Zoning Adjustment of the City of Kansas City (the “BZA”), which denied the Trustee approval to build a single-family house. On appeal, the Trustee argued the BZA’s decision was unlawful because it relied on a misinterpretation of the applicable zoning ordinances.

The Trustee first claimed that the BZA erred in interpreting the lot consolidation provision contained in section 88-610-03-C to apply to Lots 63-65. Specifically, the Trustee argued that, because Lots 63-65 were in single ownership prior to January 1, 2011 (the effective date of the lot consolidation provision), the city’s legislative body did not intend for the provision to apply to Lots 63-65. The court disagreed, finding that although the Trustee argued that the lot consolidation provision did not include any language expressly indicating it applied to lots that were already in single ownership on its effective date, this argument was contrary to the plain language of the lot consolidation provision – which applied when two or more abutting lots, one or more of which are nonconforming, are in single ownership. Accordingly, the BZA did not misinterpret the lot consolidation provision contained in section 88-610-03-C of the City’s Code.

The Trustee contended that the BZA misinterpreted the exception contained in section 88-820-01-B as not relieving the Trustee of complying with lot width requirements. The court found that the text of section 88-820-01-B.1, while authorizing a use of land under certain circumstances, did not indicate that the land upon which that use is made was considered a compliant lot (or a lot at all), so as to remove that area of land from the lot consolidation provision’s prohibition on sales that diminish compliance with lot size requirements.

Lastly, the Trustee argued that the BZA’s decision was illegal because the BZA failed to grant the decision of the Permit Division a presumption of correctness. At the BZA hearing, the record reflected that Thompson, the appellant before the BZA, presented numerous provisions of the Code as exhibits, made arguments regarding the interpretation of these provisions, and presented evidence and testimony to establish that certain provisions applied to the lots at issue. Consequently, the BZA found that Thompson carried her burden of persuasion to establish that the initial administrative decision was in error. The court therefore held that the BZA did not erroneously fail to grant the Permit Division’s decision a presumption of correctness. Similarly, without providing any arguments or pointing to any facts that suggest that the BZA based its decision on improper considerations, the Trustee was unable establish that the BZA erred on this ground.

State of Missouri Ex. Rel. Vandenboom v Board of Zoning Adjustment of the City of Kansas City, 2021 WL 4057197 (MO App. 9/7/2021)