This post was originally authored by Evan Seeman, Karla Chafee, Dwight Merriam, and John Peloso of Robinson + Cole, LLP. Any views reflected in this post are the views of the original authors.
The Missouri Court of Appeals has ruled that the Kansas City, Missouri, Board of Adjustment abused its discretion in failing to grant a variance to Antioch Community Church (Church) to install digital components into its monument sign. The Church argued that absent the variance it had practical difficulty in communicating its message. In the alternative, the Church contended that the zoning code violated the First Amendment “by favoring less-protected commercial speech over more-protected non-commercial speech.” Under the code, schools and churches on lots 15 acres or more (or 10 acres or more if located on a major arterial road) are allowed to use digital signs. Because the Church’s lot was less than 10 acres, the code prohibited it from having a digital sign on its property.
The Church property is in a single-family residence zone next to commercial, urban residential, downtown, and industrial zones, all of which permit digital signs. The Church is located on Antioch Road, a four-land roadway with about 14,000 travelers each day. Since 1956, the Church has had a monument sign consisting of glass display cases surrounded by brick framework. The sign included messages and information about Church activities that were manually added using letters hung from cup hooks. In 2010, at a cost of $11,000, the Church installed a digital sign, which replaced the display case, but no changes were made to the brick surround. At this time, the Church was unaware that the Kansas City sign ordinance prohibited digital signs in residential zones (Section 88-445-06-A-4 of the code). Accordingly, the Church did not seek a variance before installing the digital sign component.
About a year later, the City issued a notice of violation to the Church for installing the digital component without seeking a variance. The Church then sought and was denied a variance. Its local appeal of the Board’s decision was also denied. Following this local process, the Church sued in Clay County Circuit Court. The Circuit Court entered judgment in favor of the Church and ordered the issuance of the variance, but did not address the Church’s constitutional claim finding it to be moot.
The Missouri Court of Appeals affirmed the Circuit Court’s decision that the Church was entitled to the variance. First, the Court of Appeals rejected the Board’s assertion that it had no authority to issue a variance as to the “type” of sign under the code. Section 88-445-12 of the code states: “The Board of Zoning Adjustment may grant variances to the requirement for signs, except as to the type and number.” (emphasis added). But a “digital sign” is a “component” of a sign (Section 88-810) – not a sign “type.” Rather, Section 88-445-12 defines “sign type” as:
A group or class of signs that are regulated, allowed, or not allowed in this code as a group or class. Sign types include, but are not limited to, pole signs, monument signs, oversized monument signs, outdoor advertising signs, wall signs, projecting signs, roof signs, ornamental tower signs, electronic or digital or motorized signs, banner signs, and temporary signs.
As found by the Court of Appeals, the monument sign which had been there since 1956 was the “sign type,” so the Board had authority to grant a variance to permit a digital component for a monument sign.
The Court of Appeals also found that the Church had proven practical difficulty warranting issuance of the variance: (a) the variation was not substantial; (b) the sign does not effect a substantial change to the character of the neighborhood; and (c) the Church lacks other means of advertising or communication, such as fliers or paid advertisement. Like the Circuit Court, the Court of Appeals did not address the Church’s claim that the code violated the First Amendment by favoring commercial speech above non-commercial speech.
The decision in Antioch Community Church v. Board of Zoning Adjustment of the City of Kansas City, Missouri (2016) is available here.