Odegard Outdoor Advertising, LLC, Respondent, v. The Board of Zoning Adjustment of Jackson County, Missouri, Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: Odegard Outdoor Advertising, LLC, Respondent, v. The Board of Zoning Adjustment of Jackson County, Missouri, Appellant. Case Number: 55449 Handdown Date: 11/17/1998 Appeal From: Circuit Court of Jackson County, Hon. William W. Ely Counsel for Appellant: Ronald L. Jurgeson Counsel for Respondent: Steven E. Mauer Opinion Summary: The Board of Zoning Adjustment of Jackson County, Missouri appeals from the trial court's judgment reversing the BZA's decisions denying variances and affirming the denial of special use permits. The trial court determined that the BZA's decisions were based upon county sign regulations which violated constitutional prohibitions against the taking of property without just compensation because they did not exempt nonconforming uses. REVERSED AND REMANDED WITH DIRECTIONS. Division III holds : (1) The trial court erred by concluding that the BZA unconstitutionally took a continuing property right from Odegard because that right ended with the expiration, by their own terms, of the special use permits. (2) The BZA's decisions denying variances and affirming the denial of special use permits were not arbitrary, capricious, unreasonable, or an abuse of discretion, and the decisions were supported by competent and substantial evidence. Citation: Opinion Author: Victor C. Howard, Judge Opinion Vote: REVERSED AND REMANDED WITH DIRECTIONS. Smart, P.J., and Ellis, concur. Opinion:

Opinion modified by Court's own motion on March 2, 1999. This substitution does not constitute a new opinion. The Board of Zoning Adjustment of Jackson County, Missouri ("the BZA") issued decisions denying variances for billboards owned by Odegard Outdoor Advertising, LLC ("Odegard") and affirming the denial of special use permits for those billboards. Odegard sought judicial review of that decision, and the trial court reversed the BZA's decisions on the ground that they were based upon county sign regulations which violated constitutional prohibitions against the taking of property without just compensation because they did not exempt nonconforming uses. On appeal, the BZA claims that the trial court erred in its constitutional ruling, and Odegard challenges the Board's decisions denying the variances and affirming the denial of the special use permits. Reversed and remanded with directions. In the early 1980s, Odegard acquired ownership of some billboards located on both the east and west sides of U.S. 40 Highway in Jackson County, Missouri. In 1992, the Director of Public Works notified Odegard that it was required to obtain administrative permits for the continued placement of the billboards. Odegard applied for special use permits on August 28, 1992, and on February 1, 1993, Odegard obtained three-year special use permits for the billboards. On June 1, 1995, the new Jackson County Unified Development Code went into effect. Section 24007.2.d.2 of the Code limited the gross area of the sign face of a billboard on a state secondary highway to 100 square feet, and provided that billboards which were double-faced, placed back-to-back, or of V-type construction were to be considered as one sign. Section 24007.2.b.5 provided that all signs and billboards were subject to the setback regulations established for the zoning district in which they were located. In 1996, Odegard attempted to renew its special use permits, but the Director of Public Works refused to issue new permits, determining that the two billboards on the east side of U.S. 40 Highway, combined, exceeded the new 100 square feet limit by 44 feet; and that the two billboards on the west side of U.S. 40 Highway, combined, exceeded the new 100 square feet limit by 44 feet; and that the latter two billboards failed to comply with the governing setback regulations. Pursuant to section 24003.23.i.2 of the Jackson County Unified Development Code, which authorizes the BZA to issue variances from the specific restrictions of the Code, Odegard filed applications requesting variances which would allow the continued placement of the billboards. On July 18, 1996, the BZA issued decisions denying the requested variances, and sustaining the Director's initial denial of the special use permits. On July 25, 1996, Odegard received a letter from the Jackson County Public Works Department providing notice of the BZA's decisions and ordering Odegard to remove the billboards. On August 22, 1996, Odegard filed a petition for

judicial review with the Jackson County Circuit Court, claiming that the BZA's decisions were arbitrary and capricious, were an abuse of discretion, were not supported by sufficient evidence, and were unconstitutional because they constituted a taking of Odegard's property without just compensation. The court reversed the decisions of the BZA, finding that section 24007.2 of the Jackson County Unified Development Code violated constitutional prohibitions against the taking of property without just compensation because it did not exempt nonconforming uses. The court ordered that the billboards be allowed to remain in place, or alternatively, that Odegard be compensated for their removal. On appeal from the decision of the circuit court, the BZA claims that the court erred by finding that the BZA's decisions were improper because they were based upon county sign regulations which violated constitutional prohibitions against the taking of property without just compensation because they did not exempt nonconforming uses. The BZA contends that, when the three-year period of the special use period expired in 1996, Odegard no longer had a property right in the continued placement of its billboards. In order to avoid violation of constitutional provisions preventing the taking of private property without compensation, zoning ordinances must permit continuation of nonconforming uses in existence at the time of their enactment. Missouri Rock, Inc. v. Winholtz, 614 S.W.2d 734, 739 (Mo. App. W.D. 1981). The term "nonconforming use" means a use of land which lawfully existed prior to the enactment of a zoning ordinance and which is maintained after the effective date of the ordinance even though not in compliance with use restrictions. Id. In the case at bar, the nonconforming use in place at the time of the enactment of the Jackson County Unified Development Code was in the nature of three-year special use permits, which, by their own terms, expired in 1996. Thus the use was defined by an inherent temporal limitation which operated independently of the enactment of the Code. The protection afforded to a nonconforming use is not absolute, and is subject to limitations as to the extension of the use, both in a functional and a temporal sense, and this is particularly true in cases involving billboards. Boyce Industries v. Mo. Hy. and Transp. Com'n, 670 S.W.2d 147, 150 (Mo. App. W.D. 1984). The trial court erred by concluding that the BZA unconstitutionally took a continuing property right from Odegard because that right ended with the expiration, by their own terms, of the special use permits.(FN1) On appeal from the BZA's decisions denying the variances and upholding the denial of the special use permits, Odegard claims that, for various reasons, those decisions were arbitrary, capricious, unreasonable, an abuse of discretion, and were not supported by competent and substantial evidence on the record. First, Odegard complains of the BZA's finding that the billboards violated section 24007.2.d.2 of the Code, which

restricts the maximum size of a billboard's face to 100 square feet. Odegard notes that, to reach this conclusion, the BZA erroneously counted the two billboards on the east side of U.S. 40 as one billboard and the two billboards on the west side of U.S. 40 as one billboard. (Each of the four billboards at issue has a face of seventy-two square feet.) Section 24007.2.d.2 provides that, in calculating the size of a billboard's face, billboards which are "double faced, placed back-to-back, or of V-type construction" are considered as one billboard. It is clear from the photographs in the record that the billboards at issue here are single faced rather than double faced, and are not back-to-back or of V-type construction. Therefore, the BZA incorrectly counted the two signs on each side of the highway as one billboard. However, as the BZA points out in its brief, if each of the four billboards is counted as a separate billboard, then they merely run afoul of another provision of the Code, namely, section 24007.2.d.3, which prohibits erecting billboards on the same side of the highway or roadway within 800 feet of each other. Odegard also contends that the BZA's findings violate section 24003.23.i.2(b) of the Code, which provides that, when the BZA grants a request for a variance, it must make findings on five enumerated conditions which must be met. Here, since the BZA denied the request for a variance, it merely made findings on the three conditions which were not met. This was not improper, since the Code only requires findings on all five separate conditions when the variance is given. Further, Odegard argues that there was insufficient evidence to support the BZA's decision, and suggests that there was nothing in the record to show that circumstances had changed in the three years since the BZA's prior decision, when it granted special use permits for the same billboards. However, what had changed in those three years was the enactment of the Code, which imposed off-premise sign standards which were not met by the billboards at issue here. Therefore, we cannot say that the BZA's decision was unsupported by competent and substantial evidence. We may not substitute our judgment for that of the BZA, and we must defer to its findings of fact. Kraus v. Director of Revenue, 935 S.W.2d 71, 75 (Mo. App. W.D. 1996). The judgment of the circuit court is reversed and the case remanded. The circuit court is directed to enter judgment affirming the decision of the BZA. All concur. Footnotes: FN1. Although it was the self-limiting terms of the special use permit issued in 1993 that defined the extent of Odegard's property right at the time the Code went into effect, Odegard claims that there was still an illegal taking because, prior to 1993, Odegard had a less restricted right to the use of the property. However, the merits of any prior change in the property's status is not an issue that is before this court, and Odegard has not offered any persuasive legal authority to support its contention that we should consider any property right that had already ceased to exist at the time that the Code was enacted.

Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.