MO Appeals Court docket Upholds Denial of Utility to Construct a Single-Household Home Giving Deference to BZA

This put up was authored by Matthew Loescher, Esq.

On this case Kathleen Vandenboom, as trustee of the Kathleen M. Vandenboom Revocable Belief, appealed a call of the Board of Zoning Adjustment of the Metropolis of Kansas Metropolis (the “BZA”), which denied the Trustee approval to construct a single-family home. On attraction, the Trustee argued the BZA’s determination was illegal as a result of it relied on a misinterpretation of the relevant zoning ordinances.

The Trustee first claimed that the BZA erred in deciphering the lot consolidation provision contained in part 88-610-03-C to use to Heaps 63-65. Particularly, the Trustee argued that, as a result of Heaps 63-65 have been in single possession previous to January 1, 2011 (the efficient date of the lot consolidation provision), town’s legislative physique didn’t intend for the supply to use to Heaps 63-65 . The courtroom disagreed, discovering that though the Trustee argued that the lot consolidation provision didn’t embody any language expressly indicating it utilized to a lot that have been already in single possession on its efficient date, this argument was Opposite to the plain language of the lot consolidation provision – which utilized when two or extra abutting heaps, a number of of that are nonconforming, are in single possession. Accordingly, the BZA didn’t misread the lot consolidation provision contained in part 88-610-03-C of the Metropolis’s Code.

The Trustee contended that the BZA misinterpreted the exception contained in part 88-820-01-B as not relieving the Trustee of complying with lot width necessities. The courtroom discovered that the textual content of part 88-820-01-B.1, whereas authorizing a use of land underneath sure circumstances, didn’t point out that the land upon which that use is made was thought-about a compliant lot (or rather a lot in any respect), in order to take away that space of ​​land from the lot consolidation provision’s prohibition on gross sales that diminishes compliance with lot dimension necessities.

Lastly, the Trustee argued that the BZA’s determination was unlawful as a result of the BZA didn’t grant the choice of the Allow Division a presumption of correctness. On the BZA listening to, the report mirrored that Thompson, the appellant earlier than the BZA, offered quite a few provisions of the Code as reveals, made arguments concerning the interpretation of those provisions, and offered proof and testimony to determine that sure provisions utilized to the heaps at points. Consequently, the BZA discovered that Thompson carried her burden of persuasion to determine that the preliminary administrative determination was in error. The courtroom subsequently held that the BZA didn’t erroneously fail to grant the Allow Division’s determination a presumption of correctness. Equally, with out offering any arguments or pointing to any info that counsel that the BZA primarily based its determination on improper concerns, the Trustee was unable to determine that the BZA erred on this floor.

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

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