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A Sign to Many No More: Supreme Court of Missouri Casts Away Church's Sign Variance.

I. INTRODUCTION

Depending on the context in which they are encountered, the consequences of land use zoning may be viewed either as a saving grace--preserving or prospectively safeguarding the locality to similar compatible uses--or as an obstacle to overcome--hindering the development potential or use of a piece of land. Although the level of concern may vary based upon the zoning district, homeowners in residential neighborhoods have a right to be particularly sensitive to adjacent land use.

Zoning separates specified land uses into delineated geographic districts. These distinct separations exist to accomplish certain objectives. If a city's zoning designation is similar to that of Kansas City, Missouri, a residential zone may be designated as "primarily intended to create, maintain, and promote a variety of housing opportunities for individual households and to maintain the desired physical character of existing and developing neighborhoods." (1) As part of preserving the character of residential neighborhoods, concerns exist regarding the proliferation of signs. (2) A sign ordinance may provide a mechanism for balancing the legitimate need for signs with residents' desires to prevent their neighborhood from becoming overrun with unwelcome advertisements. (3)

Part II of this Note explores the facts of Antioch Community Church v. Board of Zoning Adjustment of City of Kansas City, (4) a case involving a church seeking a zoning variance for a recently updated sign. Part III then provides a brief overview of the legal background of the case as well as zoning and variances in general. Next, Part IV analyzes the court's reasoning in the case. Lastly, Part V discusses how this case has created a stricter standard for non-use variances in Missouri and analyzes alternatives.

II. FACTS AND HOLDING

In February 2012, the Kansas City, Missouri, Board of Zoning Adjustment (the "KC-BZA") denied the request for a variance (5) submitted by Antioch Community Church (the "Church") concerning a digital display the Church installed as an update within its existing monument sign. (6) Prior to the addition of the digital display, the monument sign--originally installed in 1956 (7)--was of the type typically associated with small churches: a brick exterior surrounding a wood and glass frame with individual letters that could be manually changed. (8) Ignorant of any potential ordinance violation, the Church expended over $11,000 in 2010 to replace the letterboard portion of the sign with a digital display; no changes were made to the brick surround. (9) Figure 1 shows a picture of the sign and the adjacent road.

The Church property lays within a "residential" zone on Antioch Road, (11) a four-lane roadway connecting Interstate 35 ("I-35") and Vivion Road. (12) The lot, approximately three and one-half acres, is zoned "R-6." (13) R-6 zoning indicates that the lot is in a residential district allowing one dwelling unit per 6,000 square feet of gross site area. (14) Religious-assembly use is allowed in the residential area; uses for fire stations, police stations, schools, and parks are also permitted. (15) Commercial development exists where Antioch Road intersects with I-35 and Vivion Road, and commercial zones surrounding those intersections permit digital signs. (16) Approximately 14,000 vehicles per day traverse Antioch Road. (17) Figure 2 shows the location of the Church and its proximity to these intersections.

In October 2011, Kansas City's Director of City Planning and Development issued a citation to the Church because the Church's sign was not compliant with the Kansas City's sign code. (19) The citation specified digital signs were prohibited on the property. (20) The Church appealed the citation and applied for a variance--an administrative permission to depart from a zoning ordinance. (21) At the KC-BZA's hearing for the variance, the Church explained the history of the sign and the rationale for replacing the old display with the digital display. (22) The Church pointed to the latitude that a digital display created: A church member would not have to venture out in the elements to change the individual letters. (23) Additionally, the digital display allowed the Church to increase the font size to inform passing motorists of Church news. (24) At the hearing, a representative of a local neighborhood group testified in support of the variance. (25) There was no opposing testimony presented. (26) Without an accompanying written decision, the KC-BZA denied the Church's variance request. (27) The hearing transcript indicated that the KC-BZA felt the Church did not "establish undue hardship or practical difficulty" and that the KC-BZA itself lacked the authority to grant the variance. (28) Shortly thereafter, the KC-BZA denied the Church's appeal too, again without a written decision. (29)

The Church's zoning dilemma and the KC-BZA's rationale for denying the variance request implicate multiple portions of the Kansas City, Missouri, Zoning and Development Code (the "Code"). Section 88-445-12 of the Code, discussing sign variances, states that "[t]he [KC-BZA] may grant variances to the requirements for signs, except as to type and number, and except as to sign location and spacing requirements for outdoor advertising signs, in accordance with the procedures of [the sign development standards]." (30) Sign type is defined by the Code as follows:
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. (31)


A "digital sign" is defined as "[a] sign or component of a sign that uses changing lights to form a message or series of messages that are electronically programmed or modified by electronic processes." (32) In light of the above portions of the Code, the report prepared by Kansas City's Planning and Development Department staff opined that granting the variance was beyond the KC-BZA's authority. (33) During the hearing, the KC-BZA's chairman also pointed to the fact that the KC-BZA had previously denied other requests to allow digital displays. (34)

The Church then filed a petition with the Clay County Circuit Court, (35) "alleg[ing] that '[t]he [KC-]BZA's denial of... [the] Church's requested variance and the denial of the [C]hurch's appeal was arbitrary, capricious, illegal, unconstitutional and void because each was unsupported by the competent and substantial evidence upon the record as a whole and contrary to law.'" (36) The day before the trial court rendered its judgment, the Church filed a supplemental petition against Kansas City for a declaratory judgment that the sign Code was unconstitutional. (37) In reversing the KC-BZA's decision, the trial court held that the KC-BZA's decision was an abuse of discretion and that the KC-BZA did have the authority to grant the variance. (38) It then directed the KC-BZA to issue the variance. (39) Because of this outcome, the issue of the constitutionality of the supplemental petition was moot, and the trial court dismissed it. (40)

The KC-BZA appealed the judgment. (41) The Court of Appeals for the Western District of Missouri affirmed the circuit court's judgment. (42) Applying the court's own "practical difficulty" analysis set forth in prior case law, the Western District held that the KC-BZA abused its discretion in denying the variance request because the variation was not substantial and would not change the neighborhood's character. (43) The Western District further held there was no feasible alternative for the Church. (44) The Supreme Court of Missouri granted transfer. (45) Like the lower courts, it held that the KC-BZA did have the authority to grant the variance; however, the supreme Court of Missouri affirmed the KC-BZA's original denial of the variance because the Church failed to show "practical difficulties" in operating without the variance. (46)

III. LEGAL BACKGROUND

This Part will explore the fundamentals of zoning and variances. Following an introduction to the history of zoning and the legal framework for zoning in Missouri, this Part will address use and non-use variances and the implication of the variance type. Next, this Part will discuss the review process for variances. Finally, the application of zoning to places of worship will briefly be addressed.

A. Zoning

Comprehensive zoning laws emerged in the United states in the early 1900s as a response to the problems associated with increasing population density. (47) Zoning allows a local government to create districts within its jurisdiction and define permissible land uses within those districts. (48) Zoning purportedly serves many purposes, including the preservation of property values, the protection of the character and aesthetics of an area, and the control of traffic. (49) Zoning laws and regulations find justification through their relation to the police power--the state's inherent ability to make laws for the promotion of "public health, safety, morals, or general welfare." (50)

Across the United States, enabling acts grant this police power authority to local governments. (51) In 1925, the Missouri legislature passed its zoning enabling act. (52) Section 1 delineated the purpose of the act:
[P]romoting health, safety, morals, or the general welfare of the
community, the legislative body of all incorporated cities, towns and
villages is hereby empowered to regulate and restrict the height,
number of stories, and size of buildings and other structures, the
percentage of lot that may be occupied, the size of yards, courts, and
other open spaces, the density of population, and the location and use
of buildings, structures and land for trade, industry, residence or
other purposes. (53)


The act elaborated on the formation of districts, the purpose of the regulations, the powers and limitations of the legislative body in the city, the process for revising restrictions and boundaries, and the powers and duties of a zoning commission and a board of zoning adjustment ("BZA"). (54) Today, chapter 89 of the Missouri Revised Statutes contains the modern iteration of these provisions. (55)

A city's legislative body has the power to "provide for the manner in which such regulations and restrictions and the boundaries of such districts shall be determined, established, and enforced, and from time to time amended, supplemented, or changed." (56) The zoning commission has the responsibility of recommending zoning boundaries and regulations. (57) A BZA has the power to "hear and decide appeals" of any administrative decision pertaining to zoning. (58) The BZA has the power, when considering an appeal, "where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of such ordinance, to vary or modify the application of any of the regulations or provisions of such ordinance ...." (59) This power is exercised "so that the spirit of the ordinance shall be observed, public safety and welfare [shall be] secured and substantial justice [shall be] done." (60) The next Section addresses the power to vary the provisions of zoning ordinances.

B. Zoning Variances

Variances allow flexibility when zoning divisions create "inevitable hardship situations" because of the unique characteristics of a piece of land. (61) Due to its broad scale, the effect of a zoning ordinance cannot be anticipated on each parcel of land; to avoid legislation or litigation, a landowner may seek a variance--an administrative remedy--from the BZA. (62) The Supreme Court of Missouri has explained that "[a] variance is in the nature of a waiver of the strict letter of the zoning law upon substantial compliance with it and without sacrificing its spirit and purpose." (63)

Variances can serve as an "escape hatch" or "safety valve" where adherence to the zoning scheme would create a unique hardship for a landowner. (64) For example, a uniquely shaped parcel may require a variance to support the construction of a structure that would be at odds with a setback requirement that a building be offset so many feet from all property boundary lines. Granting a variance recognizes that "relief is necessary because of the unique character of the property," as opposed to some circumstance unique to the landowner. (65) However, the process to obtain a variance confines the ability to grant a variance to situations where it will not hurt "the preservation of the plan." (66) The granting of a variance is a serious measure because variances are perpetual: They "[r]un with the land and are not personal to the owner." (67)

In the absence of a variance, the owner of a piece of land is left with less appealing alternatives. Of course, there is always the option to forgo whatever improvement or change in use the landowner desires. A more realistic option would be to pursue a zoning amendment--a change to the restrictions within a zoning district or to the zoning map--but this method involves much more than the administrative variance process. (68) Rezoning is a responsibility of the legislative body in a city, and the process introduces the possibility of increased involvement of neighbors. (69) Furthermore, any rezoning still must not be "an unlawful departure from the comprehensive plan." (70) If a rezoning occurs, by definition, the area becomes subject to the regulations and restrictions of the new zoning designation--a more risky alternative for adjacent landowners compared to a non-use variance.

In land use planning, there are generally two broad categories of variances: use variances and non-use variances. (71) A use variance, when granted by a BZA, permits a use of property that would not otherwise be allowed within its given zoning district. (72) "A non[-]use variance authorizes deviations from restrictions which relate to a permitted use." (73) Examples of non-use variances include "variances of bulk restrictions, of area, height, density, setback, side line restrictions, and restrictions covering miscellaneous subjects." (74) Before the 1986 Supreme Court of Missouri's opinion in Matthew v. Smith, (75) it was unclear whether use variances were even permitted in Missouri. (76) Previous case law seemed to indirectly hold that use variances were disallowed because they impermissibly delegated power to an administrative body. (77) Matthew held that a BZA's grant of a use variance under proper circumstances was not an unconstitutional delegation of power to a BZA. (78)

C. The Implication of Variance Type

Whether a variance's classification counts as a use or non-use variance controls the standard by which the variance is granted. (79) For a BZA to grant a use variance, the "applicant must demonstrate, inter alia, unnecessary hard-ship." (80) Approval of a non-use variance requires, "inter alia, the existence of conditions slightly less rigorous than unnecessary hardship." (81) Thus, Missouri case law requires what amounts to a showing of "practical difficulties" to grant a non-use variance. (82) "No all-inclusive definition" exists of what "practical difficulty" or "unnecessary hardship" will definitively result in the granting of a variance. (83) The decision of whether to grant or deny a variance is highly context-specific and turns "on the facts and circumstances of each case," (84) but "[t]he general rule is that the authority to grant a variance should be exercised sparingly and only under exceptional circumstances." (85)

Although the legislative body of a local government may provide the specifications for regulations and restrictions within zoning districts, (86) the standards for "unnecessary hardship" or "practical difficulty" are derived from Missouri's common law. (87) The Supreme Court of Missouri has recognized the "classic definition of unnecessary hardship"--the BZA must find (1) that, in the absence of the variance, the land "cannot yield a reasonable return"; (2) that the necessity of the variance is due to "unique circumstances"; and (3) that granting the variance will not change the "essential character" of the area. (88) The difficulty of satisfying the elements of "unnecessary hardship" indicates that use variances should be granted only in rare circumstances. After all, these variances would truly affect the basic nature of a comprehensive zoning plan. (89)

Unlike the relatively straightforward three-element test for unnecessary hardship in use variance cases, there is no definite framework for showing practical difficulties in non-use variance cases; however, case law has recognized several factors. (90) According to Highland Homes Association v. Board of Adjustment, (91) these include: (1) the extent of the variance from the zoning requirements; (2) the impact of the variance on the neighborhood; (3) a feasible alternative other than the variance; and (4) "whether, in light of the manner in which the difficulty arose and considering all relevant factors, the interests of justice will be served by granting the variance." (92) Economic hardship may also be a consideration in granting a non-use variance. (93)

D. Variance Review and Decision-Making

In Kansas City, the BZA has the responsibility to "hear and decide all matters referred to it or upon which it is required to pass under [the] zoning and development code." (94) When the KC-BZA addresses zoning variances, it must do so with the intent of "address[ing] unnecessary hardships or practical difficulties resulting from strict application of zoning-related standards." (95) The KC-BZA has the discretion to approve variances "when they find substantial evidence in the official record that" three review criteria exist. (96) Those criteria are as follows:
88-565-06-A. strict application of one or more standards or
requirements of this zoning and development code would result in
unnecessary hardships or practical difficulties for the subject
property and that such unnecessary hardships or practical difficulties
are not generally applicable to other property in the same zoning
district;
88-565-06-B. the zoning variance is generally consistent with all
relevant purposes and intents of this zoning and development code; and
88-565-06-C. the zoning variance will result in substantial justice
being done, considering both the public benefits intended to be secured
by this zoning and development code and the individual hardships or
practical difficulties that will be suffered if the zoning variance
request is denied. (97)


Five factors are set out that the KC-BZA "must also consider" in the evaluation of variances. (98) These include: (1) whether the need for the variance was caused by the requesting party; (2) whether granting the variance would confer an advantage to the requesting party that others in the district lack; (3) whether the variance is of the least intrusive nature for the relief; (4) whether granting the variance would invade the rights of others affected; and (5) whether the request for the variance is a consequence of an intentional violation of the zoning (99)

When a Missouri court reviews the decisions of a BZA, the court decides "whether the ruling is authorized by law and is supported by competent and substantial evidence upon the whole record." (100) This judicial review standard comes from the Missouri Constitution. (101) "[A]ppellate court[s] must view the evidence and reasonable inferences therefrom in a light most favorable to the decision." (102) Some Missouri appellate decisions specify that the standard is different for use and non-use variances. (103) These opinions state that non-use variances are reviewed only for abuse of discretion. (104) Upon an appeal of a trial court judgement, "the findings and conclusions of the BZA and not the trial court" are reviewed. (105) An appellate court will independently review any question of law. (106)

E. Zoning and Places of Worship (107)

Local governments have the power to regulate churches through zoning under their police power. (108) The Supreme Court of Missouri has held that the state's zoning enabling act could not be used to prohibit churches in residential districts. (109) However, "'municipalities may use their regulatory powers over churches solely for the purposes of promoting health, safety, morals, or the general welfare of the community. "' (110) Determining when a regulation crosses the line and infringes on the free exercise of religion requires a case-by-case analysis. (111)

In the 2015 United States Supreme Court decision, Reed v. Town of Gilbert, (112) the Court discussed how "content-neutral options" may be used in a city's sign ordinance "to resolve problems with safety and aesthetics." (113) Standards that are content-neutral include "[r]ules distinguishing between the placement of signs on commercial and residential property" and "[r]ules distinguishing between signs with fixed messages and electronic signs with messages that change." (114) These content-neutral options give municipalities the ability to "enact and enforce reasonable sign regulations." (115)

IV. INSTANT DECISION

In the instant case, the Supreme Court of Missouri held that the KC-BZA improperly determined that it lacked the authority to grant the variance. (116) The court further found that the decision of the KC-BZA to deny the variance based on an inadequate showing of practical difficulties should be affirmed. (117) Finally, the court addressed the Church's First Amendment claim, holding that it must be dismissed because it was not preserved. (118) The rationales underpinning each of these holdings will be addressed in turn.

A. The KC-BZA Could Grant the Variance

The Supreme Court of Missouri, in accord with the trial court and the Court of Appeals for the Western District of Missouri, held that the KC-BZA erred in determining that it lacked the authority to grant the variance. (119) The KC-BZA's argument proceeded as follows: (1) the addition of the digital display to the monument sign changed the sign type, i.e., that it was now a digital sign; (2) the ordinance did not allow the KC-BZA to grant variances to sign types; thus, (3) the KC-BZA lacked the authority to give a variance to allow a digital display on a monument sign. (120)

The court interpreted the language of the ordinance differently and agreed with the Church's argument that the sign remained a monument sign, despite the digital portion. (121) There is no requirement that a sign cannot be more than one type. (122) The court analyzed other sections of the Code to find examples of overlapping sign types. (123) One section specifically permitted "[e]lectronic, digital, or motorized monument signs" in non-residential districts. (124) Thus, the court reasoned that the Church's monument sign remained a monument sign--now with a digital display. (125) Because there was no request for a change to sign type, the KC-BZA had the authority to grant the variance. (126)

B. The KC-BZA's Decision to Deny the Variance Was Affirmed

The Supreme Court of Missouri ultimately held that the Church failed to satisfy "its burden of establishing the existence of a practical difficulty absent the grant of a variance for its digital sign," affirming the KC-BZA's denial of the variance in that regard. (127) To reach this conclusion, the court first clarified the standard of review. (128) Citing article V, section 18 of the Missouri Constitution, the court overruled prior variance cases at the intermediate appellate level to the extent that they differentiated the standard of review in use and non-use variance cases. (129) By mandate of the Missouri Constitution, the standard of review for any variance case--because it entails judicial review of an agency decision involving a hearing--is "whether the [decision is] authorized by law... and supported by competent and substantial evidence upon the whole record." (130) In a footnote to the opinion, the court acknowledged that the "competent and substantial evidence" standard is "semantically awkward"--in a variance case, a court will be looking at "whether the [BZA] properly found the applicant did not present sufficient evidence to support the grant of a variance." (131)

Having established the standard of review, the court next determined whether the KC-BZA's decision to deny the variance complied with that standard. (132) After setting out the differences between use and non-use variance from Matthew, the seminal Missouri variance case, the court proceeded to analyze the requested variance as a non-use variance--one that could only be granted upon a showing of practical difficulties. (133) This practical difficulty test is necessarily ill-defined. (134) Although the practical difficulty standard involves an "inherently fact-specific" analysis that is "committed to the discretion of the [BZA]," the court recognized three "guiding principles" from Rosedale-Skinker to aid the analysis: (1) that granting variances should be an infrequent occurrence and only be given if in harmony with the zoning plan; (2) that judicial review should be limited to whether the BZA's decision is "authorized by law" and "supported by competent and substantial evidence upon the whole record;" and (3) that, unless specified otherwise in the local ordinance, the state statute allows a non-use variance to be granted beyond those issues inherent in the topography of a tract of land, as some previous cases stated. (135)

The court clarified that "to ensure it is practical difficulties with the zoning that cause the need for a variance, later non-use cases have followed Matthew's requirement for use variances that the applicant show 'relief is necessary because of the unique character of the property rather than for personal considerations. '" (136) The court referenced Highland Homes for the proposition that the interpretation of that statement, distinct from the standard of a use variance, "means the applicant seeks to use the property for a specific permitted use but cannot do so without conflicting with the zoning requirement as to which the applicant seeks a variance." (137) The court also cited the four factors to consider when showing practical difficulties in non-use variance cases, as set forth in Highland Homes. (138)

These factors are just that--they are merely guidelines. (139) Local ordinances may impose greater requirements as long as they are not in conflict with chapter 89. (140) Kansas City has done so in section 88-565-06 of the Code. (141) Citing Rosedale-Skinker, the court stated that "ultimately the question of whether practical difficulties have been shown 'is a question of fact as to which the [KC-BZA] is accorded a discretion to be exercised within the guidelines of the zoning legislation.'" (142) The court next analyzed whether the variance in Antioch "would meet the various criteria recognized in the cases" because the KC-BZA and the Church, according to the court, "[did] not claim applying the local ordinance change[d] the analysis." (143)

After setting out the Highland Homes framework, the court dismissed the Church's claimed practical difficulties. (144) The Church argued practical difficulties based on the following circumstances: (1) a difficulty modifying the message of the old sign, (2) the desire for passing motorists to more easily see the sign's message, and (3) the fact that the Church had spent the large sum of money to add the digital display because of a unique set of circumstances. (145) The court explained that none of these demonstrated the Church would experience practical difficulties in the absence of a variance. (146) The court reiterated that the test was whether, "as a practical matter[,] the property cannot be used for a [specific] permitted use without coming into conflict with certain of the ordinance's restrictions." (147) Because the circumstances cited by the Church did not render conflict with the ordinance's restrictions inevitable, the court classified these circumstances as mere preferences and conveniences instead. (148)

C. The First Amendment Claim

The Church, in its First Amendment claim, asserted that the zoning code prohibiting the digital display on monument signs in residential zones favored commercial speech over non-commercial speech. (149) The court rejected this claim with much greater ease than the application of the practical difficulty standard. It held that the Church did not preserve this claim--Kansas City, the proper defendant for this claim, was not added as a defendant before the trial court entered judgment. (150) The court further declined to remand for the constitutional issue because "[a] constitutional claim must be raised in the first instance and cannot be changed on appeal." (151) Ultimately, the court held that if the Church had proved practical difficulties for the variance, it could have been granted a variance; the ordinance was not unconstitutional merely because the Church could not meet its burden. (152)

V. COMMENT

The Supreme Court of Missouri held that the KC-BZA had the authority to grant the variance, but it affirmed the KC-BZA's decision to deny the variance because the Church did not establish practical difficulties. (153) Because the authority of the KC-BZA to grant the variance merely turns on the overlapping definitions of sign types in the Code, the authority of the KC-BZA to grant the variance will not be further addressed. Likewise, because the First Amendment issue was dismissed as not preserved, it, too, will not be discussed. Rather, this Part argues: (A) that the Supreme Court of Missouri missed the mark in narrowly defining a practical difficulty test; (B) that the "competent and substantial" standard of review, as presented in the case, downplays the potential that a BZA's decision may still be contrary to the overwhelming weight of the evidence; (C) that, in the review of all variance cases, the local ordinance, rather than some statewide standard, should be the guide; and (D) that, in Antioch, the KC-BZA did not properly consider the Church's argument because of its reliance on its lack of authority to grant the variance. Section E concludes this Part by suggesting a more sensible method for addressing signs with institutional uses.

A. Revisiting "Practical Difficulties "

The Supreme Court of Missouri unnecessarily grafted a component from the appropriately more difficult use variance standard onto the practical difficulties standard for non-use variances. That component is the requirement that "relief is necessary because of the unique character of the property rather than for personal considerations." (154) The court acknowledged that cases in Missouri involving non-use variances subsequent to Matthew took this path. (155) The court could and should have taken the opportunity to recognize that portion of the use variance analysis as unduly burdensome in the context of a non-use variance. The outcome is that non-use variances can only be granted when "the applicant seeks to use the property for a specific permitted use but cannot do so without conflicting with the zoning requirement as to which the applicant seeks a variance." (156) This amounts to a strict test.

As an initial matter, taken literally, that simply cannot be the proper analysis. Take a variety of typical non-use variances--variances for bulk restrictions or for area, height, density, setback, or sideline restrictions--and plug them into that formula along with a zoning category to see the folly in this proposition. Consider an existing grocery store that adds a restaurant within its interior. It seeks a variance to the sign ordinance allowing wall signage that exceeds the maximum square feet permitted because the owner would like to place a small sign advertising the restaurant on the store's exterior in addition to the existing signage. (157) According to Antioch, the store could not add the sign. This is because, per Antioch's analysis, the property could still be used for a specific permitted use--a store/restaurant or commercial use--without the variance, and therefore, the store would be unable to demonstrate practical difficulties.

Not only would this outcome be highly unsatisfying from the perspective of any landowner who may seek a variance to a local ordinance, but it also effectively destroys the safety-valve aspects of non-use variances and proscribes the BZA from granting non-use variances. And, because this is a Supreme Court of Missouri opinion, these unreasonable effects cascade down onto all courts reviewing appeals from local BZAs across Missouri. Especially as zoning ordinances relate to signs, it seems quite possible that most prospective sign variances would be personal in nature rather than resulting from the unique nature of the property involved. More importantly, beyond the application of sign variances, this outcome has the potential to remove the ability of a local BZA to grant a relatively minor variance to an applicant--resulting in stalled development and an overall hindrance to the alienability of commercial property within a jurisdiction.

To resolve this dilemma, as a starting point, Missouri's statute addressing the power of a BZA should be analyzed. The BZA has the power,
[i]n passing upon appeals, where there are practical difficulties or
unnecessary hardship in the way of carrying out the strict letter of
such ordinance, to vary or modify the application of any of the
regulations or provisions of such ordinance relating to the
construction or alteration of buildings or structures or the use of
land so that the spirit of the ordinance shall be observed, public
safety and welfare secured and substantial justice done .... (158)


As recognized throughout land use doctrine, "practical difficulties" and "unnecessary hardship" are intentionally vague. The assumption is that local government will clarify the standards and that those exercising the power as part of a BZA will have the flexibility to go beyond a rigid set of elements in deciding whether an applicant has demonstrated a need for a variance. "Practical difficulty" should be left as a more workable standard, subject only to additional requirements imposed by the local jurisdiction whose legislative body can easily rectify problems encountered with any standards set forth in the ordinance.

The court correctly recognized that the Church "finds a digital display preferable and more convenient," but then it stated that the Church "[did] not show practical difficulty in carrying out the Church's use of the property as a church." (159) Perhaps a more elegant, and useful, method would be to consider zoning variances on a spectrum ranging from the landowner's desire to inconvenience to practical difficulty.

In practice, a BZA, following general guidelines set forth in the local zoning ordinance instead of a bright-line rule, would assess the entirety of the applicant's situation alongside the overarching purpose of the zoning ordinance. A desire would not rise to the level of warranting a variance--it would be too personal to the applicant and granting a variance based on this would result in the dissolution of the zoning plan. A practical difficulty, as it is understood in a general sense, would warrant a variance; this opposite end of the spectrum would recognize that zoning regulations need to be malleable to accommodate the "unique character of the property." (160) The middle ground would be left to the discretion of a BZA to act in its function to vary or modify the application of the ordinance "so that the spirit of the ordinance shall be observed, public safety and welfare secured and substantial justice done." (161) In reality, for non-use variances, the standard must at least acknowledge that the circumstances relate somewhat to the property owner.

B. The "Competent and Substantial Evidence " Standard of Review

The Antioch decision settles the discrepancy between past cases about the appropriate standard of review in all variance cases in Missouri--it is to be the "competent and substantial evidence" standard. (162) The standard "is met when the record supports the [BZA's] determination the applicant failed to present evidence showing practical difficulties or other requirements for a variance." (163) Unfortunately, as it appears in Antioch, this standard seemingly creates a black box for BZA decision-making. With the burden of demonstrating practical difficulty placed on the applicant of a variance and the requirement that appellate review be limited to viewing the record "in a light most favorable to the decision," (164) the practical effect of such a standard is that it becomes extremely challenging for the BZA to ever be overturned.

The court's presentation of the competent and substantial evidence standard is incomplete. The competent and substantial evidence standard "authorize[s] [the reviewing court] to decide whether such tribunal could have reasonably made its findings, and reached its result, upon consideration of all of the evidence before it; and to set aside decisions clearly contrary to the overwhelming weight of the evidence." (165) The Missouri statute discussing the procedure for how a BZA's decision is reviewed even anticipates the possibility of a court taking additional evidence through testimony. (166) Additionally, article V, section 18 of the Missouri Constitution does not require the reviewing court to view the evidence in the light most favorable to the determination by the administrative agency. (167) Granted, a court cannot view the evidence and simply insert its own judgment over that of the administrative agency. (168)

Taken together, all of this suggests that a court's goal should be to reach a reasonable decision without giving blind deference to the BZA. Matthew specifies that "[a]lthough the circuit court does not exercise de novo review, the statute nonetheless contemplates a meaningful review that may extend beyond the record before the [BZA]." (169) Matthew also seems to suggest that written findings by the BZA would help clarify whether there was sufficient evidence. (170) Written findings would have been enlightening in this case and could have demonstrated how the KC-BZA made its findings.

In the application of the competent and substantial evidence standard as it applies to the KC-BZA and the Church, the Supreme Court of Missouri stated that "it was up to [the Church] to present competent and substantial evidence supporting a variance, and up to the [KC-]BZA to determine, in its discretion, whether that evidence supported a variance." (171) The court noted the KC-BZA did not have a burden to contradict evidence offered by applicants, including the Church. (172) However, in the absence of written findings and under a meaningful review, the court could have found that the KC-BZA's decision was contrary to the overwhelming weight of the evidence in Antioch.

C. The Local Ordinance Should Be the Guide

Determining whether practical difficulties exist that warrant the grant of a non-use variance should depend primarily on the text of the ordinance. Case law that attempts to apply these standards complicates future precedent when the analysis is divorced from the local ordinance. Antioch serves as an example of how none of the reviewing courts comprehensively analyzed the ordinance of Kansas City--the text that should have controlled the outcome. Based on the Code, and with the ex-post-facto realization that the BZA had the authority to grant the variance, the Church had a strong argument for the grant of the variance.

Although the Clay County Circuit Court and the Court of Appeals for the Western District of Missouri recognized the lack of a precise definition of practical difficulties, both turned immediately to the Highland Homes four-factor analysis. (173) The review criteria (174) and factors to be considered (175) from the Kansas City ordinance were scarcely analyzed. The Supreme Court of Missouri fared better: It stated that the Highland Homes factors were helpful but that "local ordinances, such as Kansas City's zoning code[,] 'may further define the power of the [BZA] to grant a variance,'" absent conflict with the statutory criteria. (176) It then set out the review criteria from section 88-565-06; (177) however, it did not venture into the factors to be considered that are present in the ordinance in section 88-565-07. That shortcoming, as developed next, fatally impacted the analysis.

Section 88-565-06A contains the reference to practical difficulties in the Code: "Zoning variances may be approved by the [KC-BZA] when they find substantial evidence... [that a] strict application of one or more standards or requirements of [the Code] would result in unnecessary hardships or practical difficulties ...." (178) Considering the fact that Kansas City cannot grant use variances, per the state statute, (179) the review criteria in section 55-565-06 and the factors that must be considered in section 88-565-07 of the Code suggest that those factors should constitute the entirety of the practical difficulty test for Kansas City. Table 1 compares these factors and criteria to the Highland Homes' four-factor analysis.

As illustrated in Table 1, use of a generalized practical difficulty test does not directly track a specific ordinance. It appears that the ordinance has standards that exceed the Highland Homes four-factor analysis on several fronts, as the Supreme Court of Missouri in Antioch recognized could be the case. The trial court and the appellate court addressed the Highland Homes factors and found in favor of the Church, (182) so looking at the remaining factors from the ordinance may be informative. Two of these can be summarily dismissed. First, the practical difficulties are not the result of the Church's action under section 88-565-07-A. Essentially, the only action the Church took to put itself in this position was not selling the property as residential development occurred around it. This factor applies more closely to a practical difficulty, such as a lot being too small to support a structure, because the applicant sold the other half of the lot. Likewise, the Church did not intentionally violate the sign ordinance under section 88-565-07-E. It did not replace the display for the purpose of violating the sign ordinance--although it definitely should have checked for compliance first. That some factors cut against the Church should not have been fatal to its establishment of practical difficulty; because they are factors, and not elements, each is merely part of a balancing process.

Factor 88-565-07-B--"whether granting the requested zoning variance will result in advantages or special privileges to the applicant... that this zoning... [C]ode denies to other land, structures, or uses in the same district"--must be addressed. (183) An argument that all lots in a residential area cannot have a monument sign with a digital display--and that the Church is receiving a special privilege--certainly does not suffice. This would be comparing entities that should be treated entirely differently. In a residential zone, an institutional use is not treated in the same manner as an actual residential use. only institutional uses in the residential zoning can have monument signs. (184) The proper analysis is a comparison to other institutional uses, or, even more narrowly, other uses of land to operate private places of worship.

Factor 88-565-07-D likewise requires serious consideration. A suspected response to allowing this variance would be that, due to the vast number of churches in residential districts, there would be an explosion of signs with digital displays. However, this argument cannot be maintained. The Church, although in an R-6 neighborhood, is on a four-lane road and is a half-mile away from commercial development to the north and south. (185) A more precise examination would compare similarly-situated parcels containing places of worship in the same residential zone. (186) The resulting analysis would not reveal an apocalyptic proliferation of brightly-lit signs destroying the character of otherwise quaintly-residential neighborhoods--even if those similarly-situated places of worship were also able to update their existing monument signs to add a digital display. Across this residential zone, there is simply not a great number of similarly situated places of worship. A BZA should weigh all these factors when determining whether to grant a variance.

D. The KC-BZA's Decision Was Clouded by Its Erroneous Determination of Lack of Authority

The fact that the KC-BZA maintained the position that it lacked authority to grant the variance throughout the variance-request process demonstrates the real potential that, by digging in its heels on that ground, it did not properly consider the evidence put forth by the Church to show practical difficulties. Relevant portions of the hearing transcript are cited in this Section to illustrate this point before commentary on the consequence of such a course is given.

The hearing transcript reflects that, at one point, a KC-BZA member commented, "I think when this Code was rewritten not too long ago, it was the intent of the writer to say--and, again, I'm not an attorney--but it was the intent of the writer to say we really don't want digital signs." (187) Following this comment, the KC-BZA went into a closed session "to seek legal advice." (188) When the KC-BZA returned to open session, they proceeded to ask the Church about its practical difficulties, acknowledging that the issue of "whether th[e] [KC-BZA] ha[d] jurisdiction to vary the digital display sign" had not been ruled on yet. (189)

After the Church presented an analysis of its practical difficulties and testimony from a member of the board of commissioners for the Sherwood Estates Homes Association, a neighboring home association in support of the Church, the KC-BZA's chairperson, while sympathizing with the Church, stated that he "fe[lt] that they h[ad] failed to establish undue hardship or practical difficulty as those terms are defined in law and, furthermore, d[id] not believe that the ordinance permit[ted] [the KC-BZA] to grant this request." (190) The KC-BZA voted unanimously to deny the variance. (191) Prior to the vote and the above comment, the chairperson voiced his experience with the sign ordinance:
I just want to make this statement before I ask the [KC-BZA] for a
motion. I've been on this board for about [thirteen] years and... I was
part of the residence committee that worked... to redraft our
ordinances to bring them into a more modern condition ....

The first digital sign case I remember was for a church .... At that
time we didn't have the exact same language but that sign was denied.

So because I personally have been involved and know the history behind
this ordinance..., I can tell the people that are present that a lot
of thought was put into this new ordinance and there was great
conversation about the fact that digital signs were appropriate in
commercial [spots] but not residential zones. (192)


This statement, along with the prior comment about the intent of the drafters of the ordinance, suggests the KC-BZA superficially examined both the ordinance and the Church's arguments. First, these statements indicate that the KC-BZA may not have relied on the text of the ordinance but rather on what it believed the ordinance should reflect. Second, these statements suggest that comparison was made with previously denied variances. The point of a variance is to grant relief to a particular applicant. Consequently, that analysis should be unique and not solely based on the results of previous variance determinations. Finally, these statements indicate that the KC-BZA did not attempt to overcome the Church's evidence pertaining to its presented practical difficulties. However, as the Supreme Court of Missouri noted, it was not required to do so. In Antioch, where there is relevant information presented by the applicant, coupled with a statement that the KC-BZA believed it lacked the authority to grant the variance, it seems more than plausible that adequate consideration was never given for the fit of the Church's arguments into the criteria and factors set forth in the Code.

E. Approaching Institutional Use in a Sensible Manner

Allowing electronic, changeable copy signs in residential districts via a conditional use permit would be a reasonable way to regulate the introduction of this type of sign for churches and schools in residential districts. (193) Alternatively, allowing the use of electronic signs for assembly use--such as schools, churches, and community centers--regardless of placement in any zoning district would "provide a way-finding and informational function that helps people to locate a specific event or activity at a specific time." (194) Regulations concerning many aspects of the sign placement and parameters of use--aside from regulation of content--could still be controlled through proper exercise of a city's police power.

On April 30, 2015, the Kansas City Council passed Ordinance 150312. (195) The ordinance expanded Kansas City's Council Approved Signage Plan by allowing an applicant exceeding specific acreage requirements to apply for the ability "to allow the installation of a noncommercial digital sign face on one otherwise allowable monument sign," subject to compliance with a host of standards. (196) The addition of the Council Approved Signage Plan to qualifying lots in residential zones was a response to allow updates that had already taken place on three school signs to remain intact. (197)

This approach seems questionable at best. Although lot acreage may create a potential buffer to shield residential lots from negative impacts--and while the laundry list of fourteen items of required compliance, in theory, further protects surrounding residential land use--the lot size requirement, in reality, may make little difference. Common sense dictates that a sign is still going to be alongside a road--even if subject to the required setback. Residential lots across the street from a fifteen-acre lot with a sign are subjected to the same aesthetic intrusion as those residential lots across the street from a one-acre lot with the same sign. A consistent approach--if consideration of preservation of a residential neighborhood is truly the concern--would be to require merely a specified distance from neighboring residential lot lines. This distance could be considered in conjunction with, and even vary with, the character of the adjacent road and proximity to other signs--even if those signs are in adjacent zoning districts. Requirements pertaining to the size of the sign, brightness and display change control, and hours of operation could still apply.

VI. CONCLUSION

Eight years after the Church installed the digital display, the Supreme Court of Missouri held that the KC-BZA--an entity operating in a quasi-judicial function that could not even correctly determine whether it had the authority to grant this particular variance--correctly concluded that the Church did not demonstrate practical difficulty absent the grant of the variance. (198)

From one point of view, this case can be thought of as a city pursuing, all the way to the Supreme Court of Missouri, a case involving a variance centered around a single sign measuring three by three and one-half feet with all the time and money that endeavor entails--never mind the fact that the sign sits on a lot not far from an area that would allow the same sign. Of course, that is an unfair characterization because adherence to a zoning ordinance provides some measure of stability in separation of uses across a city. From a city's perspective, allowing this sign could open the floodgates for other signs to follow. That characterization, too, is likely an exaggeration.

one takeaway from this case is that times are changing and technology is advancing. The outdated method the Church was using with its old sign was due for an upgrade. The digital display it chose--one that is commonly used in a commercial setting and that represents an aesthetic upgrade--was certainly one more associated with modern advertising. As these issues are only likely to proliferate in the future, cities should update sign regulations to provide specific guidance for digital sign conversions.

However, the ultimate consequence of the Antioch decision is that no one really wins. Now, a non-use variance can only be granted when "the applicant seeks to use the property for a specific permitted use but cannot do so without conflicting with the zoning requirement as to which the applicant seeks a variance." (199) This will likely come as a shock to every local jurisdiction as neighbors begin to challenge BZAs' grants of variances to applicants. Sensible non-use variances will no longer survive judicial review because the property could still be used for a specific permitted use. At the same time, the "competent and substantial evidence" standard of review, as articulated here, is sure to encourage BZAs to operate with the assurance that a reviewing court will search the record and find a trace of support to uphold a variance denial. This decision puts unnecessary rigidity into a zoning plan and clogs the safety valve that variances should offer.

Matthew Neuman (*)

(*) B.S. Environmental Geoscience, Texas A&M University, 2008; J.D. Candidate, University of Missouri School of Law, 2019; Associate Managing Editor, Missouri Law Review, 2018-2019. I am grateful to Professor Freyermuth for his insight, guidance, and support during the writing of this Note, as well as the Missouri Law Review for its help in the editing process.

Antioch Cmty. Church v. Bd. of Zoning Adjustment, 543 S.W.3d 28 (Mo. 2018) (en banc)

(1.) KANSAS CITY, MO., ZONING AND DEVELOPMENT CODE [section] 88-110-02 (2018).

(2.) See id. [section] 88-445-01.

(3.) See Lynn Horsley, Neighborhoods, Schools, Churches Wrestle Over Digital Signs, KAN. CITY STAR (Sept. 14, 2014), https://www.kansascity.com/news/politicsgovernment/article2120297.html ("'Digital signs are aggressive,' said [a] south Kansas City activist..., who worries a compromise will open the floodgates to everyone. 'It degrades the neighborhood. We're looking like Las Vegas and it's going to be all over the place.'").

(4.) 543 S.W.3d 28 (Mo. 2018) (en banc).

(5.) See infra Section III.B.

(6.) Antioch Cmty. Church, 543 S.W.3d at 31. "Monument sign" is a term defined in the Kansas City, Missouri, Zoning and Development Code as "[a] sign placed upon a base that rests upon the ground where the width of the base of the sign is a minimum of [seventy-five] percent of the width of the longest part of the sign." KANSAS CITY, MO., ZONING AND DEVELOPMENT CODE [section] 88-810-175. Unless otherwise noted, all references from here on to the Zoning and Development Code of the City of Kansas City, Missouri, will be to the January 25, 2012, version--the version in effect at the time of the administrative appeal. This archived version of the code is available online at KANSAS CITY, MO., ZONING AND DEVELOPMENT CODE (2012), https://library.munic-ode.com/mo/kansas_city/codes/zoning_and_development_code/141331?no-deId=14867.

(7.) Antioch Cmty. Church, 543 S.W.3d at 40.

(8.) Id. at 32. The sign was perhaps even more simple than the average church display, as it involved letters hung from cup hooks. Id.

(9.) Id. The funding for the display came from a bequest to the Church. Id. The Church members conceived the idea for the digital display update following a Church member's donation for a digital sign board at Oak Grove Park in Gladstone, Missouri, to honor her late husband. Substitute Brief of Antioch Community Church at 3, Antioch Cmty. Church, 543 S.W.3d 28 (No. SC 96215), 2017 WL 3195829, at *3 [hereinafter Appellant's Brief]. The digital sign in that park was also surrounded by residential use. Id. It, too, was in Clay County, Missouri, but, of course, not in Kansas City, Missouri, and not subject to this zoning. See Antioch Cmty. Church, 543 S.W.3d at 31-32.

(10.) GOOGLE MAPS, https://goo.gl/maps/MUJmft8Wgv42 (last visited Jan. 6, 2019). This image is from August 2014. Id.

(11.) Antioch Road and many features in the vicinity take their name from Antioch Church--the predecessor to Antioch Community Church. Appellant's Brief, supra note 9, at 2. That original church, constructed in 1859 and at the time "located in deep woods," still stands, restored, on the lot with the new church building. National Register of Historic Places Inventory--Nomination Form, LANDMARKS COMM'N OF KAN. CITY, Mo. (June 29, 1978), https://dnr.mo.gov/shpo/nps-nr/79001358.pdf; see also Appellant's Brief, supra note 9, at 2.

(12.) Antioch Cmty. Church v. Bd. of Zoning Adjustment, No. WD 79676, 2016 WL 7209821, at *1 (Mo. Ct. App. Dec. 13, 2016), rev'd, 543 S.W.3d 28 (Mo. 2018).

(13.) Parcel Viewer, KANSAS CITY, MO., maps.kcmo.org/apps/parcelviewer/ (last visited oct. 7, 2018) (search "80061" in "City pin:" search bar); see also Appellant's Brief, supra note 9, at 29.

(14.) See KANSAS CITY, MO., ZONING AND DEVELOPMENT CODE [section] 88-110-01 (2012).

(15.) Id. [section] 88-110-03-A. In an R-6 district, the Ordinance's Residential Districts Use Table indicates "Religious Assembly" is allowed, but the use is designated "P/S," indicating it is a permitted/special use depending on its size as a function of lot size compared to building capacity or floor area. Id. [section][section] 88-110-03-A, 88-365-03-A. Of course, this church would be a nonconforming use anyways, as it predated any zoning ordinance. See also infra Section III.E. Kansas City's first zoning ordinance was in 1923. Frederick V. Wells, The Law of Zoning in Missouri, 34 UNIV. MO. BULL. L. SERIES 3, 8 (1926), https://scholarship.law.missouri.edu/cgi/viewcontent.cgi7arti-cle=1196&context=ls.

(16.) Antioch Cmty. Church, 2016 WL 7209821, at *1 ("The Church property sits within a sizable single-family residential zone that is bookended by commercial areas zoned B4 (the most intense business district), UR (urban residential), D (downtown), and M (industrial), where digital signs are allowed."). To put the scene into perspective, this section of Antioch Road spans approximately 1.0 mile between I-35 and Vivion Road--a three-minute car ride. Google Maps, https://maps.google.com/ (click the direction button to the right of the search bar; enter "4339-4361 MO-1, Kansas City, MO 64117" in "Your location" search bar; enter "5025 NE Antioch Rd, Kansas City, MO 64119" in the "Choose destination" search bar) (last visited Oct. 19, 2018).

(17.) Antioch Cmty. Church v. Bd. of Zoning Adjustment, 543 S.W.3d 28, 32 (Mo. 2018) (en banc).

(18.) Data layers used to create this map are from Open Data KC, a service provided by the City of Kansas City. OPEN DATA KC, https://data.kcmo.org (last visited Jan. 6, 2019) (The following datasets were used to create this map: Cadastre, GIS Additional Features, and Centerline. For each of these datasets, the site claims a last update of May 1, 2014; however, some attributes do appear to be more recent). Note that the City of Kansas City makes no claims as to the content, accuracy, timeliness, or completeness of any of the data provided at this site. Id.

(19.) Antioch Cmty. Church v. Bd. of Zoning Adjustment, No. 12CY-CV02727, 2016 WL 8416849, at *1 (Mo. Cir. Ct. Apr. 7, 2016), rev'd, No. WD 79676, 2016 WL 7209821 (Mo. Ct. App. Dec. 13, 2016), rev'd, 543 S.W.3d 28. An anonymous tip brought the issue to the City. Antioch Cmty. Church, 2016 WL 7209821, at *1.

(20.) Antioch Cmty. Church, 2016 WL 7209821, at *1. The Zoning and Development Code detailed that
[a] lot with an institutional use as its principal use, such as a
church,... may have...
....
[o]ne monument sign per street frontage which may not exceed
[thirty-two] square feet in area or [six] feet in height. One sign per
lot may include changeable copy, but the changeable copy feature must
use direct human intervention for changes and may not include any form
of digital or electronic display. Such sign may be internally or
externally illuminated.
Kansas City, Mo., Zoning and Development Code [section]
88-445-06-A.4(a) (2012).


(21.) Antioch Cmty. Church, 543 S.W.3d at 31.

(22.) Antioch Cmty. Church, 2016 WL 8416849, at *1-2.

(23.) Id. at *2.

(24.) Id.

(25.) Id. at *2-3. The neighbor testified, among other points, that, although the Church is in a residential area, the road on which the Church is located is a major thoroughfare, that the display blends well into the property, and that the "sign is unobtrusive when compared with the commercial activity in the area ...." Id. at *2. This speaker was a member of the board of commissioners for the Sherwood Estates Homes Association, a neighboring home association. Transcript of Meeting of Board of Zoning Adjustment at 35-36, Antioch Cmty. Church v. Bd. of Zoning Adjustment, No. WD 79676, 2016 WL 7209821 (Mo. Ct. App. Dec. 13, 2016) (No. 14255-A-1).

(26.) Antioch Cmty. Church, 2016 WL 8416849, at *2-3.

(27.) Antioch Cmty. Church v. Bd. of Zoning Adjustment, No. WD 79676, 2016 WL 7209821, at *1 (Mo. Ct. App. Dec. 13, 2016), rev'd, 543 S.W.3d 28.

(28.) Transcript of Meeting of Board of Zoning Adjustment, supra note 25, at 42; see also Antioch Cmty. Church v. Bd. of Zoning Adjustment, 543 S.W.3d 28, 33 (Mo. 2018) (en banc).

(29.) Antioch Cmty. Church, 2016 WL 7209821, at *1. Although the appellate decision notes that the variance request and the appeal were denied "without a written decision," this could be more accurately described as a denial without a written explanation. The ordinance requires that copies of the written decision be sent to the applicant within ten days of the KC-BZA's decision. Kansas City, Mo., Zoning and Development Code [section] 88-575-10 (2012). The letter sent regarding the variance stated, "At its regularly scheduled meeting on February 14, 2012, the Board of Zoning Adjustment DENIED a request for a variance to allow an existing digital display on an existing monument sign in a residential district to remain, plus any other necessary variances." Letter from Sarah Anzicek, Planner, Bd. of Zoning Adjustment, to Bernard Rhodes, Attorney for Antioch Community Church (Feb. 15, 2012). Of course, the Church, having attended the meeting, would have been able to hear the questions and statements regarding the variance; they also would have known the outcome of the roll-call vote. See Transcript of Meeting of Board of Zoning Adjustment, supra note 25, at 42. Requiring a BZA to explain its position in detail in writing would make the review process streamlined. See Matthew v. Smith, 707 S.W.2d 411, 417 n.8 (Mo. 1986) (en banc) ("While not deciding the point, it might be noted that both the ordinance [of North Kansas City] and a growing number of jurisdictions suggest that the [BZA] should issue findings of fact.").

(30.) Kansas City, Mo., Zoning and Development Code [section] 88-445-12 (emphasis added).

(31.) Id. [section] 88-810-183 (emphasis added).

(32.) Id. [section] 88-810-170 (emphasis added).

(33.) Antioch Cmty. Church, 2016 WL 7209821, at *3.

(34.) Appellant's Brief, supra note 9, at 28, 40.

(35.) Antioch Cmty. Church, 2016 WL 7209821, at * 2. "Any person... aggrieved by any decision of the [BZA]... may present to the circuit court of the county... in which the property affected is located a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality." Mo. Rev. Stat. [section] 89.110 (2016).

(36.) Antioch Cmty. Church v. Bd. of Zoning Adjustment, No. 12CY-CV02727, 2016 WL 8416849, at *3 (Mo. Cir. Ct. Apr. 7, 2016) (second alteration in original), rev'd, No. WD 79676, 2016 WL 7209821 (Mo. Ct. App. Dec. 13, 2016), rev'd, 543 S.W.3d 28 (Mo. 2018) (en banc).

(37.) Id. at *1.

(38.) Id. at *3, *5.

(39.) Id. at *6. On appeal of a BZA's decision to a circuit court, "[t]he court may reverse or affirm, wholly or partly, or may modify the decision brought up for review." Mo. Rev. Stat. [section] 89.110 (2016).

(40.) Antioch Cmty. Church, 2016 WL 8416849, at *6.

(41.) Antioch Cmty. Church, 2016 WL 7209821, at *1.

(42.) Id. at *1.

(43.) Id. at *4. The Western District did not address the constitutional issue because, by affirming the judgment of the Circuit Court of Clay County, there was no need to. See id.

(44.) Id. at *4.

(45.) Antioch Cmty. Church v. Bd. of Zoning Adjustment, 543 S.W.3d 28, 33 (Mo. 2018) (en banc).

(46.) Id. at 36, 41.

(47.) Vill. of Euclid v. Ambler Realty Co., 272 U.S. 365, 386-87 (1926).

(48.) Matthew v. Smith, 707 S.W.2d 411, 412-13 (Mo. 1986) (en banc).

(49.) JULIAN CONRAD JUERGENSMEYER & THOMAS E. ROBERTS, LAND USE PLANNING AND DEVELOPMENT REGULATION LAW 49-54 (3d ed. 2013) (discussing the purposes of zoning).

(50.) Vill. of Euclid, 272 U.S. at 387, 395. Village of Euclid upheld the constitutionality of excluding "business and trade of every sort," id. at 390, from residential districts by providing that
the reasons [put forth in favor of the ordinance] are sufficiently
cogent to preclude us from saying, as it must be said before the
ordinance can be declared unconstitutional, that such provisions are
clearly arbitrary and unreasonable, having no substantial relation to
the public health, safety, morals, or general welfare.


(51.) Stuart Meck, Model Planning and Zoning Enabling Legislation: A Short History, in 1 MODERNIZING STATE PLANNING STATUTES 1, 1 (1996).

(52.) Wells, supra note 15, at 19. Missouri's statute follows the lead of a 1920 New York statute that multiple jurisdictions copied in part prior to the United States Department of Commerce's Standard Zoning Act. Matthew, 707 S.W.2d at 414. Missouri also has a constitutional home rule provision, James E. Westbrook, Municipal Home Rule: An Evaluation of the Missouri Experience, 33 Mo. L. REV. 45, 45-46 (1968), and Kansas City adopted its own charter in 1889, id. at 45 n.5.
Any city which adopts or has adopted a charter for its own government,
shall have all powers which the general assembly of the state of
Missouri has authority to confer upon any city, provided such powers
are consistent with the constitution of this state and are not limited
or denied either by the charter so adopted or by statute.


Mo. CONST. art. VI, [section] 19(a).

(53.) Zoning Act, 1925 Mo. Sess. L. 307, 308.

(54.) Id. at 307-14.

(55.) See generally Mo. REV. STAT. ch. 89 (2016).

(56.) Id. [section] 89.050.

(57.) Id. [section] 89.070.

(58.) Id.

(59.) Id. [section] 89.090.1(3) (emphasis added).

(60.) Id. ("The [BZA] shall have the following powers:... In passing upon appeals, where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of such ordinance, to vary or modify the application of any of the regulations or provisions of such ordinance relating to the construction or alteration of buildings or structures or the use of land so that the spirit of the ordinance shall be observed, public safety and welfare secured and substantial justice done, provided that, in any city with a population of three hundred fifty thousand or more inhabitants which is located in more than one county, the board of adjustment shall not have the power to vary or modify any ordinance relating to the use of land."). Note that, based on population, the ending clause of this statute--the portion pertaining to "any city with a population of three hundred fifty thousand or more inhabitants which is located in more than one county"--applies only to Kansas City, which is in Clay County and Jackson County. See Population Estimates for Missouri and Across the U.S., MO. CENSUS DATA CTR., http://sas.mcdc.missouri.edu/trends/estimates.html (select Curmoests.xlsx) (last visited Oct. 19, 2018) (Excel file with latest Missouri estimates).

(61.) JUERGENSMEYER & ROBERTS, supra note 49, at 150.

(62.) STEWART E. STERK ET AL., LAND USE REGULATION 28-29 (2d ed. 2016).

(63.) Rosedale--Skinker Imp. Ass'n v. Bd. of Adjustment, 425 S.W.2d 929, 937 (Mo. 1968) (en banc). The opinion of the Supreme Court of Missouri continues--in a line that cannot be glossed over in the case at hand, "This is not a new concept. Many years ago it was said that we should be ministers 'not of the letter, but of the spirit: for the letter killeth, but the spirit giveth life." Id. (quoting 2 Corinthians 3:6).

(64.) Matthew v. Smith, 707 S.W.2d 411, 413 (Mo. 1986) (en banc) (quoting City & Borough of Juneau v. Thibodeau, 595 P.2d 626, 633 (Alaska 1979)).

(65.) Id. at 415.

(66.) Id. at 416.

(67.) Ogawa v. City of Des Peres, 745 S.W.2d 238, 245 (Mo. Ct. App. 1988).

(68.) STERK ET AL., supra note 62, at 75-76.

(69.) See Mo. REV. STAT. [section] 89.060 (2016) ("In case, however, of a protest... by the owners of thirty percent or more, either of the areas of the land (exclusive of streets and alleys) included in such proposed change or within an area determined by lines drawn parallel to and one hundred and eighty-five feet distant from the boundaries of the district proposed to be changed, such amendment shall not become effective except by the favorable vote of two-thirds of all the members of the legislative body of such municipality." (emphasis added)).

(70.) Strandberg v. Kan. City, 415 S.W.2d 737, 747 (Mo. 1967). Spot zoning, "an amendment to the municipal zoning law reclassifying one or more lots or parcels of land for a use out of harmony with the classification of the surrounding areas and without regard to the public welfare" is not allowed. Id. at 746.

(71.) Matthew, 707 S.W.2d at 413. Non-use variances are commonly referred to as area variances. Id.

(72.) Id. (citing 3 A. Rathkopf, The Law of Zoning and Planning [section] 38.01 (1979)). "Allowing a retail store to establish in a residential zoning district would be an example" of a use variance. Board of Adjustment Appeals, MD. HEIGHTS, http://www.marylandheights.com/departments/community-development/development-zoning-pro-cess/board-of-adjustment-appeals (last visited Mar. 4, 2018). There are not any Missouri appellate opinions following Matthew where a use variance was granted.

(73.) Matthew, 707 S.W.2d at 413 (citing 3 A. Rathkopf, The Law of Zoning and Planning [section] 38.01 (1979)).

(74.) Id. (citing 3 A. Rathkopf, The Law of Zoning and Planning [section] 38.01 (1979)).

(75.) 707 S.W.2d 411.

(76.) See id. at 415-16.

(77.) Id. at 416-18.

(78.) Id. at 418-19. This concurs with the plain language of the zoning statute. Id. at 414; see also MO. REV. STAT. [section] 89.090.1(3) (2016) ("The board of adjustment shall have the following powers... to vary or modify the application of any of the regulations or provisions of such ordinance relating to... the use of land ...."). Of course, as discussed supra note 60, Kansas City does not allow its BZA to make use variances.

(79.) Matthew, 707 S.W.2d at 416.

(80.) Id. (italics omitted).

(81.) Id. (italics omitted).

(82.) Id. at 416 n.6.

(83.) Rosedale--Skinker Imp. Ass'n v. Bd. of Adjustment, 425 S.W.2d 929, 933 (Mo. 1968) (en banc).

(84.) Id. at 936.

(85.) Matthew, 707 S.W.2d at 413.

(86.) Mo. REV. STAT. [section] 89.050 (2016).

(87.) Matthew, 707 S.W.2d at 415-16.

(88.) Id. at 416-17 (quoting Otto v. Steinhilber, 24 N.E.2d 851, 853 (N.Y. 1939)). The "reasonable return" element involves "depriv[ation] of all beneficial use of the property under any of the permitted uses" and should be shown by "actual proof, often in the form of dollars and cent evidence." Id. at 417.

(89.) Id. at 416 ("[A]n area variance is a relaxation of one or more incidental limitations to a permitted use and does not alter the character of the district as much as a use not permitted by the ordinance.").

(90.) See, e.g., Highlands Homes Ass'n v. Bd. of Adjustment, 306 S.W.3d 561, 565-68 (Mo. Ct. App. 2009), abrogated by Antioch Cmty. Church v. Bd. of Adjustment, 543 S.W.3d 28 (Mo. 2018) (en banc).

(91.) 306 S.W.3d 561.

(92.) Id. at 566. These factors appear to be first enumerated in Missouri in Slate v. Boone County Board of Adjustment. 810 S.W.2d 361, 364 (Mo. Ct. App. 1991) (citing Wachsberger v. Michalis, 191 N.Y.S.2d 621, 624 (1959), aff'd, 18 A.D.2d 921 (N.Y. 1963)).

(93.) State ex rel. Holly Inv. Co. v. Bd. of Zoning Adjustment, 771 S.W.2d 949, 951-52 (Mo. Ct. App. 1989), abrogated by Antioch Cmty. Church, 543 S.W.3d 28.

(94.) KANSAS CITY, MO., ZONING AND DEVELOPMENT CODE [section] 88-605-01-B (2012). The KC-BZA is comprised of five members appointed by the mayor with the advice and consent of the city council. Id. [section] 88-605-01-A.1, 4. Qualification for membership consists of residency within the city. Id. [section] 88-605-01-A. 1.

(95.) Id. [section] 88-565-01.

(96.) Id. [section] 88-565-06.

(97.) Id. [section] 88-565-06-A-C.

(98.) Id. [section] 88-565-07.

(99.) Id. [section] 88-565-07-A-E.

(100.) Rosedale-Skinker Imp. Ass'n v. Bd. of Adjustment, 425 S.W.2d 929, 936 (Mo. 1968) (en banc).

(101.) Mo. CONST. art. V, [section] 18 ("All final decisions, findings, rules and orders on any administrative officer or body existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights, shall be subject to direct review by the courts as provided by law; and such review shall include the determination whether the same are authorized by law, and in cases in which a hearing is required by law, whether the same are supported by competent and substantial evidence upon the whole record."); Matthew v. Smith, 707 S.W.2d 411, 417 n.8 (Mo. 1986) (en banc).

(102.) State ex rel. Teefey v. Bd. of Zoning Adjustment, 24 S.W.3d 681, 684 (Mo. 2000) (en banc).

(103.) Highlands Homes Ass'n v. Bd. of Adjustment, 306 S.W.3d 561, 565 (Mo. Ct. App. 2009), abrogated by Antioch Cmty. Church v. Bd. of Adjustment, 543 S.W.3d 28 (Mo. 2018) (en banc); Baumer v. City of Jennings, 247 S.W.3d 105, 113 (Mo. Ct. App. 2008); State ex rel. Branum v. Bd. of Zoning Adjustment, 85 S.W.3d 35, 39 (Mo. Ct. App. 2002), abrogated by Antioch Cmty. Church, 543 S.W.3d 28.

(104.) E.g., Highlands Homes Ass'n, 306 S.W.3d at 565. "'The determination of whether practical difficulties exist is a factual matter,' which is why the abuse of discretion standard is used." Id. (citing Baumer, 247 S.W.3d at 113).

(105.) Teefey, 24 S.W.3d at 684.

(106.) Id.

(107.) As discussed infra Section IV.C, the Supreme Court of Missouri rather quickly pierced holes through the Church's First Amendment argument. As the claim was dismissed for procedural reasons, this Note will not take the opportunity to comment extensively on the substance of this argument.

(108.) Congregation Temple Isr. v. City of Creve Coeur, 320 S.W.2d 451, 456 (Mo. 1959) (giving the examples of regulation related to the "safety of boilers, smokestacks and similar facilities..., sanitation..., manner and type of construction for fire protection[,]... off-street parking facilities, sewage disposal and other matters related to the public health, safety and welfare").

(109.) Id. at 454 ("Certainly churches do not come within the classification of trade, industry, residence or other similar purposes.").

(110.) St. John's Evangelical Lutheran Church v. City of Ellisville, 122 S.W.3d 635, 643 (Mo. Ct. App. 2003) (alteration in original) (quoting Vill. Lutheran Church v. City of Ladue, 997 S.W.2d 506, 508 (Mo. Ct. App. 1999)).

(111.) Id. at 644.

(112.) 135 S. Ct. 2218 (2015).

(113.) Id. at 2232. However, an ordinance that involves content-based restrictions will require analysis under strict scrutiny--a compelling governmental interest that is narrowly tailored.

(114.) Id. at 2233 (Alito, J., concurring).

(115.) Id.

(116.) Antioch Cmty. Church v. Bd. of Zoning Adjustment, 543 S.W.3d 28, 31 (Mo. 2018) (en banc).

(117.) Id.

(118.) Id. at 42-43.

(119.) Id. at 31.

(120.) Id. at 35.

(121.) Id.

(122.) Id.

(123.) Id. at 35-36.

(124.) Id.

(125.) Id. at 36.

(126.) Id.

(127.) Id. at 42.

(128.) Id. at 33.

(129.) Id. at 34.

(130.) Id. at 33-34 (first alteration in original).

(131.) Id. at 33 n.4 (alteration in original).

(132.) Id. at 35-38.

(133.) Id. at 37.

(134.) Id.

(135.) Id. Rosedale-Skinker, a case decided by the Supreme Court of Missouri in 1968, involved the St. Louis BZA's grant of a height variance for a building expansion. Rosedale-Skinker Imp. Ass'n v. Bd. of Adjustment, 425 S.W.2d 929, 931 (Mo. 1968) (en banc). When neighbors appealed that decision, in part by arguing that "no practical difficulty or unnecessary hardship was established by [the applicant] or found by the [St. Louis BZA]," id., the court found the BZA's discretion supported, id. at 937. The applicant showed the building to be a special purpose building--one containing telephone exchange equipment--and the building needed the height variance to accommodate equipment. Id.

(136.) Antioch Cmty. Church, 543 S.W.3d at 38 (emphasis added) (quoting Matthew v. Smith, 707 S.W.2d 411, 415 (Mo. 1986) (en banc)).

(137.) Id. at 38-39 (citing Highland Homes Ass'n v. Board of Adjustment, 306 S.W.3d 561, 566 (Mo. Ct. App. 2009), abrogated by Antioch Cmty. Church, 543 S.W.3d 28).

(138.) See id. ; see also supra notes 90-92 and accompanying text. The court recognizes that these are ultimately an import from Wachsberger--a case out of New York. Antioch Cmty. Church, 543 S.W.3d at 38-39 (quoting Highland Homes Ass'n, 306 S.W.3d at 364).

(139.) Antioch Cmty. Church, 543 S.W.3d at 39.

(140.) Id.

(141.) Id.

(142.) Id. (quoting Rosedale-Skinker Imp. Ass'n v. Bd. of Adjustment, 425 S.W.2d 929, 933 (Mo. 1968) (en banc)).

(143.) Id.

(144.) Id. at 40.

(145.) Id.

(146.) Id.

(147.) Id. at 41 (alteration in original) (quoting Slate v. Boone Cty Bd. of Adjustment, 810 S.W.2d 361, 364 (Mo. 1991)).

(148.) Id. at 40.

(149.) Id. at 42.

(150). Id.

(151.) Id. at 43. This outcome is disappointing; the First Amendment issue is not considered due to the timing of the supplemental petition in the trial court. Application of the Religious Land Use and Institutionalized Persons Act, in the first instance, could have been a good argument. See 42 U.S.C. [section] 2000cc(b)(1) (2018) ("No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution."); id. [section] 2000cc(b)(3)(B) ("No government shall impose or implement a land use regulation that... unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.").

(152.) Antioch Cmty. Church, 543 S.W.3d at 43.

(153.) Id. at 43.

(154.) Id. at 36 (quoting Matthew v. Smith, 707 S.W.2d 411, 415-16 (Mo. 1986) (en banc)).

(155.) See id. at 38. Note that these cases were in the intermediate appellate courts, not the Supreme Court of Missouri.

(156.) Id. at 38.

(157.) Cf. Meeting Minutes: Board of Adjustment, CITY OF COLUMBIA, MO. (Feb. 14, 2017), https://www.como.gov/CMS/granicus/downloadfile.php?type=minutes&id=590 (discussing and granting a variance for a Hy-Vee Market Grille logo to the wall of the store).

(158.) Mo. REV. STAT. [section] 89.090.1(3) (2016) (emphasis added).

(159.) Antioch Cmty. Church, 543 S.W.3d at 40.

(160.) Id. at 41 (quoting Matthew v. Smith, 707 S.W.2d 411, 415-16 (Mo. 1986) (en banc)).

(161.) Mo. REV. STAT. [section] 89.090.1(3).

(162.) Antioch Cmty. Church, 543 S.W.3d at 33-34.

(163.) Id. at 34 n.4.

(164.) Id. at 34 (quoting State ex rel. Teefey v. Bd. of Zoning Adjustment, 24 S.W.3d 681, 684 (Mo. 2000)).

(165.) Wood v. Wagner Elec. Corp., 197 S.W.2d 647, 674 (Mo. 1946) (en banc); see also Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. 2003) (en banc) ("This standard w[ill] not be met in the rare case when the award is contrary to the overwhelming weight of the evidence.").

(166.) Mo. REV. STAT. [section] 89.110.

(167.) See Mo. CONST. art. V, [section] 18. Likewise, section 89.110 does not specify this either. See Mo. REV. STAT. [section] 89.110. However, the Supreme Court of Missouri noted in a prior case involving a BZA appeal that "[i]n determining whether substantial evidence existed to support the BZA's decision, an appellate court must view the evidence and reasonable inferences therefrom in a light most favorable to the decision." Teefey, 24 S.W.3d at 684.

(168.) Wood, 197 S.W.2d at 649.

(169.) Matthew v. Smith, 707 S.W.2d 411, 417 n.8 (Mo. 1986) (en banc) (emphasis added).

(170.) See id.

(171.) Antioch Cmty. Church v. Bd. of Zoning Adjustment, 543 S.W.3d 28, 40 n.9 (Mo. 2018) (en banc).

(172.) Id.

(173.) Id. at *4; Antioch Cmty. Church v. Bd. of Zoning Adjustment, No. 12CY--CV02727, 2016 WL 8416849, at *3 (Mo. Cir. Ct. Apr. 7, 2016), rev'd, No. WD 79676, 2016 WL 7209821 (Mo. Ct. App. Dec. 13, 2016), rev'd, 543 S.W.3d 28.

(174.) See KANSAS CITY, MO., ZONING AND DEVELOPMENT CODE [section] 88-565-06 (2012).

(175.) Id. [section] 88-565-07.

(176.) Antioch Cmty. Church, 543 S.W.3d at 39 (quoting Matthew v. Smith, 707 S.W.2d 411, 415 (Mo. 1986) (en banc)).

(177.) Id. (quoting KANSAS CITY, MO., ZONING AND DEVELOPMENT CODE [section] 88-565-06).

(178.) KANSAS CITY, MO., ZONING AND DEVELOPMENT CODE [section] 88-565-06-A.

(179.) See supra note 60.

(180.) All of the factors and criteria in this column are quoted verbatim from KANSAS CITY, MO., ZONING AND DEVELOPMENT CODE [section][section] 88-565-06, 88-565-07.

(181.) All of the factors and criteria in this column which begin with a number are quoted verbatim from Highlands Homes Ass'n v. Bd. of Adjustment, 306 S.W.3d 561, 566 (Mo. Ct. App. 2009), abrogated by Antioch Cmty. Church, 543 S.W.3d 28.

(182.) Antioch Cmty. Church v. Bd. of Zoning Adjustment, No. WD 79676, 2016 WL 7209821, at *4 (Mo. Ct. App. Dec. 13, 2016), rev'd, 543 S.W.3d 28; Antioch Cmty. Church v. Bd. of Zoning Adjustment, No. 12CY-CV02727, 2016 WL 8416849, at *1 (Mo. Cir. Ct. Apr. 7, 2016), rev'd, No. WD 79676, 2016 WL 7209821 (Mo. Ct. App. Dec. 13, 2016), rev'd, 543 S.W.3d 28. Recognizing the request as for a non-use variance, the Western District, operating under an abuse of discretion review standard, analyzed the KC-BZA's determination using the practical difficulty framework set out in Highland Homes. Antioch Cmty. Church, 2016 WL 7209821, at *4. The court noted that the KC--BZA "made no findings to suggest that it rejected the Church's unopposed evidence of practical difficulty." Id. at *3. Due to the minor nature of the change to the sign, the court did not find the variance to be substantial. Id. at *4. Likewise, it found the digital display would not greatly impact the character of the neighborhood, considering the commercial development to the north and south. Id. Finally, the Western District saw no feasible alternative for the Church. Id. Perhaps this lower court took a more utilitarian (and compassionate) approach than the Supreme Court of Missouri's recommendation that the Church simply find a younger member of the congregation to manually change the letters on the sign. Antioch Cmty. Church, 543 S.W.3d at 40. The Western District found it unnecessary to address the final factor from Highland Homes--whether granting the variance is in the interests of justice. See Antioch Cmty. Church, 2016 WL 7209821, at *4.

(183.) KANSAS CITY, MO., ZONING AND DEVELOPMENT CODE [section] 88-565-07-B.

(184.) KANSAS CITY, MO., ZONING AND DEVELOPMENT CODE [section] 88-445-06-A.4(a).

(185.) See supra Part II.

(186.) The Kansas City, Missouri, parcel data layer shows 718 parcels that have a land use code of "Church." OPEN DATA KC, https://data.kcmo.org (last visited Feb. 26, 2018) (The following datasets were used for this analysis: Cadastre and GIS Additional Features. The Cadastre dataset contains the parcel boundaries and associated attributes. The GIS Additional Features Dataset contains zoning areas. For each of these datasets, the site claims a last update of May 1, 2014; however, some attributes do appear to be more recent). The land use could more accurately be classified as places of worship. To account for lot lines separating otherwise contiguous parcels, the dataset was summarized on the attribute of the owner's name and then "exploded" to account for similar ownership of non-contiguous parcels. This yielded 680 total parcels as places of worship. Id. overlaying these parcels on to the zoning divisions shows ninety-eight places of worship located in "R-6" zoning. Id. of course, this number would include any inaccuracies in the data. of these ninety-eight, only seventeen are located next to a major road (within 100 feet of a road classified as a freeway or highway). Id.

(187.) Transcript of Meeting of Board of Zoning Adjustment, supra note 25, at 27.

(188.) Id. at 28.

(189.) Id. at 31.

(190.) Id. at 31-42.

(191). Id. at 42.

(192.) Id. at 40-41.

(193.) See, e.g., COMMUNITY DEVELOPMENT DEPARTMENT CITY OF MANHATTAN, KS, USER GUIDE TO THE SIGN REGULATIONS 14, https://cityofmhk.com/DocumentCenter/View/29643 (last visited Oct. 5, 2018) ("In residential districts, Electronic Changeable Copy Signs are only allowed for Institutional Uses through a Conditional Use.").

(194.) See, e.g., SAN JOSE, CALIFORNIA GOVERNMENT, PROPOSED REVISIONS TO THE CITY OF SAN JOSE SIGN ORDINANCE 9 (2009), https://www.sanjoseca.gov/DocumentCenter/View/674.

(195.) Kansas City, Mo., Ordinance No. 150312 (Apr. 30, 2015).

(196.) Id. The size requirements covered the following parcels: "any lot zoned R containing a minimum of [fifteen] acres, or for any lot (or any two contiguous lots under common ownership) containing a minimum of [ten] acres, located adjacent to an arterial (as shown on the major street plan)." Id. Among other provisions, these standards addressed the frequency of change of the signs message, transitioning of the message, brightness control, distance from other residential property, and no night-time operation. KANSAS CITY, MO., ZONING AND DEVELOPMENT CODE [section] 88-445-11-E.8 (2018).

(197.) Kansas City Council Record for April 29, 2015, KAN. CITY. (Apr. 29, 2015), http://cityclerk.kcmo.org/liveweb/Meetings/CouncilMinutes.aspx?q=m8VuJkOJiqdDdSDzeSCOMqR70wK3WiKPYXkKbRpBUXbkAxMmbodZhalZz7Y9qSgf9s8kkaz4WGI%3d ("This process was initiated when the North Kansas City School District erected 3 digital signs illegally. They contacted [a councilman,] and a narrowly worded Ordinance was introduced to allow those three signs to remain. After much debate, a new ordinance was drafted to address the land acreage threshold concerns voiced during the discussions for the first digital sign ordinance."); see also Horsley, supra note 3.

(198.) Antioch Cmty. Church v. Bd. of Zoning Adjustment, 543 S.W.3d 28, 43 (Mo. 2018) (en banc).

(199.) Id. at 38.
Table 1

Ordinance's Review                                  Four Factors from
Criteria and Factors (180)                          Highland Homes (181)

88-565-06-A. strict application of one or more      N/A (this is a
standards or requirements of this zoning and        general statement of
development code would result in unnecessary        the analysis to be
hardships or practical difficulties for the         used)
subject property and that such unnecessary
hardships or practical difficulties are not
generally applicable to other property in the
same zoning district
88-565-06-B. the zoning variance is generally       (1) how substantial
consistent with all relevant purposes and           the requested
intents of this zoning and development code...      variance is
88-565-06-C. the zoning variance will result        (4) whether, in
in substantial justice being done, considering      light of the manner
both the public benefits intended to be secured     in which the
by this zoning and development code and the         difficulty arose and
individual hardships or practical difficulties      considering all
that will be suffered if the zoning variance        relevant factors,
request is denied                                   the interests of
                                                    justice will be
                                                    served by granting
                                                    the variance
88-565-07-A. whether the undue hardship or          N/A
practical difficulties are the result of the
actions of the property owner or applicant,
their agent, employee, or contractor
88-565-07-B. whether granting the requested         N/A
zoning variance will result in advantages or
special privileges to the applicant or property
owner that this zoning and development code
denies to other land, structures, or uses in the
same district
88-565-07-C. whether the requested zoning           (3) whether the
variance is the minimum zoning variance nec-        difficulty can be
essary to provide relief                            obviated by some
                                                    method, feasible for
                                                    the applicant to
                                                    pursue, other than a
                                                    variance
88-565-07-D. whether the zoning variance, if        (2) whether the
allowed, will substantially interfere with or       variance will result
injure the rights of others whose property          in a substantial
would be affected by allowance of the zoning        change to the
variance...                                         character of the
                                                    neighborhood or
                                                    create a substantial
                                                    detriment to
                                                    adjoining properties
88-565-07-E. whether the zoning variance is         N/A
being requested due to an intentional violation
of this zoning and development code
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