Introduction – This last year  was a good year for zoning cases, providing insights into how communities might deal with certain problems such as the difficult problem of allowing flexibility in your zoning ordinance, while at the same time retaining some level of  protection for citizens who are concerned about certain uses that can easily get out of control, like a homeless shelter. Consider,  New Life Evangelistic Center vs. City of St. Louis, the second case discussed below, which prohibited homeless shelters, while at the same time allowing citizens within 500 feet to give their consent. This approach was upheld. In addition, when statutes  require a public hearing they mean exactly that; Consequently, a county failed to hold a public hearing before its planning and zoning commission it did not provide due process, invalidating the action of the County.  The one sign and one flag ordinance  of Bel-Nor,  failed to pass strict scrutiny under the First Amendment making the ordinance  invalid. Furthermore, courts clarified what constitutes a nonuse variance that should be particularly helpful to  local government.  Below   is  a short discussion of these cases with links to additional material providing further insight.

County Zoning Commission Required To Allow Citizens To Speak At Public Hearing To Rezone Property

• Section 64.875 RSMo., provides that zoning districts may be amended from time to time by the county commission “…after hearings thereon by the commission.”
• A hearing is defined as: “a session… in which testimony is taken from witnesses,” an “opportunity to be heard, to present one side of the case, or to be generally known or appreciated,” and “a listening to arguments.”
• Procedures followed by the County violated due process because the Commission did not hold a “hearing” as defined above, which would have allowed the Commission to consider the information, including oral arguments that would have been provided by Concerned Citizens before the Commission made its recommendation to the County Commissioners. State ex rel. Kelly Brothers vs. County Commission of Franklin County, (ED104766, 05/15/18)
• A full review of this case may be found in the June 2018 edition of the MMAA newsletter by clicking here. https://mmaanewsletter.org/2018-2/june-newsletter-issue-06-2018/\

St. Louis Ordinance That Allowed a Majority of Persons Living Within A 500 Foot Radius Of A Homeless Shelter To Approve A Shelter, Otherwise Prohibited, Was Not An Unlawful Delegation Of Legislative Power

• New Life Evangelistic Center vs. City of St. Louis, held that allowing a majority of persons living within 500 feet of a homeless shelter to give their consent to the use of property for a homeless shelter was not an unlawful delegation of legislative power. New Life Evangelistic Center vs. City of St. Louis, (ED105737, 09/25/18)
• The distinction between “imposing” restrictions versus “waiving” restrictions is determinative of whether the ordinance unconstitutionally delegated legislative authority.
• The City ordinance did not unconstitutionally delegate legislative authority because the legislature had he already determined that the specified use of property was unlawful due to the use being potentially hazardous or burdensome to the surrounding area, even though citizens could give their approval.

For a more extensive review of this case click here. https://www.courts.mo.gov/file/ED/Opinion_ED105737.pdf

Missouri Supreme Court Clarifies Law on Nonuse Variance

In Community Church v. Board Of Zoning Adjustment Of The City Of Kansas City, the Missouri Supreme Court, clarified the factors that can be considered in determining if a person may be granted a non-use variance by the board of adjustment (BAZ).Antioch Community Church v. Board Of Zoning Adjustment Of The City Of Kansas City, (SC96215, 04/03/18)

• The Court provided, a nonexclusive list, of specific criteria that can be used to evaluate a request for a nonuse variance: “(1) How substantial the variation is in relation to the requirement, (2) the effect, if the variance is allowed, of the increased population density thus produced on available governmental facilities (fire, water, garbage and the like), (3) whether a substantial change will be produced in the character of the neighborhood or a substantial detriment to adjoining properties created, (4) whether the difficulty can be obviated by some method, feasible for the applicant to pursue, other than a variance, and (5) whether in view of the manner in which the difficulty arose and considering all of the above factors the interests of justice will be served by allowing the variance.”

For a more detailed review of this case click here https://mmaanewsletter.org/2018-2/april-newsletter-issue-04-2018/

One Sign and One Flag Ordinance Of Bel-Nor Was Unconstitutional Because It Regulated Content And Did Not Meet The Strict Scrutiny Test

• Bel-Nor (City) passed Ordinance 983, which permits “each improved parcel” of private property “to post one stake-mounted and self-supporting freestanding sign” and “Not more than one (1) flag.” Willson displayed “Clinton Kaine” and “Jason Kander U.S. Senate” signs since 2016, and a “Black Lives Matter” sign since 2014.  In December 2017, he received an information and summons charging him with violating City Ordinance 983.
• Willson sued in federal district court, which ruled against him and he appealed to the Eighth Circuit, which held that the Ordinance violated the free speech clause of the First Amendment because it regulated content and failed to pass strict scrutiny.
• Examination of the definition of sign and flag demonstrated that the Ordinance regulated content.
• The Ordinance was overly broad because it covered a  substantial amount of expressive activity and had a strict limit of only one sign and one flag to the exclusion of everything else.
• The City failed to demonstrate that there was a compelling governmental interest because the ordinance was not narrowly tailored.

For a more detailed examination of this Ordinance click here. Willson v. City of Bel-Nor, (8^th Cir.,  18-1753, 05/20/19) 

Howard Wright© 2019