Cannot condition issuance of use permit on the removal of nonconforming signs.

Cannot condition issuance of use permit on the removal of nonconforming signs. 

MLB Holdings filed an application with the Board of Zoning Adjustment of Kansas City (BZA) requesting a special use permit to operate a pawnshop in Kansas City, Missouri.  The landowner, Curry Investment Company, leased its building and parking lot to MLB.  The building and parking lot were previously leased to a business known as “Max Speed and Sound,” a car audio and performance center.  The property where the building and parking lot are located contains two nonconforming outdoor advertising signs that Curry Investment leases to CBS Outdoor.  The BZA held a hearing on July 12, 2011, on the MLB’s application.  The BZA staff submitted a report at the hearing stating that all of the code criteria are met with the proposed application, but went on to state that in recent years staff has had a general policy that as property is redeveloped, any existing billboards that are on the site are removed within five years of the approval of the development.  The report further stated that the City Planning Commission has affirmed that position several times in the last several months, and that staff believes as part of the approval process for a pawnshop that this development be held to the same standard as other developments within other areas of the City; therefore, the BZA required as a condition of the use permit that the two nonconforming signs be removed.  MLB Holdings appealed the decision to the circuit court that reversed the BZA on the grounds that the decision was not supported by competent and substantial evidence.  The BZA appealed to the Western District, which also held that the BZA erred when it conditioned the permit on the removal of the nonconforming signs.  Under the nonconforming use doctrine, zoning restrictions adopted by a municipality may not be applied so as to require removal or cessation of an established use of land that does not conform with a use authorized by the zoning law.  The city code recognizes vested rights associated with nonconforming signs subject to such issues as sign maintenance and repair, sign abandonment, compliance with electronic/video technology and relocation. The BZA made no contention that the outdoor advertising signs in question violated the code such that their nonconforming nature had been compromised.  Instead, the BZA argued that certain aspects of the proposed site for the pawnshop did not comply with the code’s standards, and that conditioning approval of the special use permit for the pawnshop on removal of the nonconforming signs was within the BZA’s authority.  The BZA contended that its authority to require removal of nonconforming signs as a condition for a special use permit comes from its mandate to determine if a proposed special use complies with the standards of the code, whether it is in the interest of the public convenience, and whether or not it will not have a significant adverse impact on the general welfare of the neighborhood or community, and whether it is compatible with the character of the surrounding area in terms of building scale and project design.  The court refused to decide whether or not such a condition might be justified given different facts, holding that it is not allowable in this case because it is unsupported by the record.  Curry Inv. Co. v. Board of Zoning Adjustment of Kansas City, Missouri, 399 S.W.3d 106, 107 (Mo. App. W.D., 2013)(WD75479, 5/7/2013).

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