State ex rel. Gannett Outdoor Co. of Kansas City v. City of Lee's Summit

957 S.W.2d 416, 1997 Mo. App. LEXIS 1921, 1997 WL 693752
CourtMissouri Court of Appeals
DecidedNovember 10, 1997
DocketNo. WD 53896
StatusPublished
Cited by6 cases

This text of 957 S.W.2d 416 (State ex rel. Gannett Outdoor Co. of Kansas City v. City of Lee's Summit) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Gannett Outdoor Co. of Kansas City v. City of Lee's Summit, 957 S.W.2d 416, 1997 Mo. App. LEXIS 1921, 1997 WL 693752 (Mo. Ct. App. 1997).

Opinion

HOWARD, Presiding Judge.

This is an appeal from the trial court’s order upholding the City Council’s denial of a special use permit. Appellants contend the trial court erred in affirming the City Council’s denial of Gannett’s request for a special use permit for an outdoor advertising structure because the Council’s decision was 1) unlawful, arbitrary and capricious, constituting an abuse of discretion; 2) not supported by competent and substantial evidence upon the whole record; 8) contrary to the weight of the evidence.

Facts

John Ivey and Joyce Ivey are owners of a certain tract of real property located at Lot 3A, Lakewood Business Park, at 4101 NE Lakewood Way, Lee’s Summit, Missouri (“subject property”), where they would like to have an outdoor advertising sign (“billboard”). They own all of the Lakewood Business Park, which consists of approximately 70 acres, of which approximately 45 are now developed. The entire business park is zoned I-P (Industrial Park District). Adjoining the industrial park on the west is a frontage road called NE Lakewood Way, which adjoins Interstate 470, Missouri Highway 291. Property on the other side of I-470 adjoining on the west is zoned R-3A (Garden Apartment District) and CP (Planned Business District). The R-3A property is approximately 600 feet to the west across 1-470. It is undeveloped.

On February 13, 1996, the Iveys and Gan-nett Outdoor Company of Kansas City filed an Application for Special Use Permit (No. 1341) under the City of Lee’s Summit Ordinance No. 715 to operate an outdoor advertising sign greater than 72 square feet on the subject property for a period of ten years. An off-premise sign is permissible in District I-P. However, signs in excess of 72 square feet must obtain a Special Use Permit in accordance with Section 280 of Ordinance 715. The billboard in question was 14 feet by 48 feet, for a total of 672 feet. It would be 45 feet high. It is an industry standard sized billboard.

On March 11, 1996, the City Planning Commission held a public hearing on the permit application. At the healing, the Commission heard testimony from the following individuals: Steven Bridgens, real estate and public affairs representative of Gannett; David Robinson, the City’s Director for Community Development; and Lowell Hinerman, a resident of Lee’s Summit who opposed the sign. Following the hearing, the Commission voted unanimously to recommend denial of the permit application. The staffs recommendation was that the Council deny the special use permit because “the proposed sign’s proximity to and visibility from resi-dentially zoned land to the west will have an adverse impact on the use and enjoyment of that property for its intended and appropriate use.”

On May 21, 1996, the City Council of Lee’s Summit (“Council”) held a public hearing for the permit. The testimony presented at the hearing before the Council is discussed infra. The Council voted unanimously to deny the permit application, based on “the premise of the ... staffs recommendation for denial.” Appellants thereafter filed their Petition for Writ of Certiorari and Verified Petition for Judicial Review. On January 2, 1997, the trial court issued its Findings of Fact and Conclusions of Law and Order of Final Judgment affirming the Council’s decision to deny the permit application. This appeal followed.

Standard of Review

When the Council considers a special use permit application, it acts in an administrative capacity. State ex rel. Presbyterian Church of Washington, Missouri v. City of Washington, Mo., 911 S.W.2d 697, 700 (Mo.App. E.D.1995); State ex rel. Crouse v. City of Savannah, 696 S.W.2d 346, 347 (Mo.App. W.D.1985). Judicial review of an administrative factual determination is limited to whether the decision was supported by substantial and competent evidence; whether the decision was procedurally unlawful or otherwise unauthorized by law; whether the decision was arbitrary, capricious or unreasonable; or whether the decision constituted [419]*419an abuse of discretion. State ex rel. Columbia Tower, Inc. v. Boone County, 829 S.W.2d 534, 536 (Mo.App. W.D.1992).

We review the findings and decision of the Council to deny the application for a special use permit, and not the judgment of the circuit court. Village Lutheran Church v. City of Ladue, 935 S.W.2d 720, 722 (Mo.App. E.D.1996). A reviewing court may not substitute its own judgment and may not set aside an administrative decision unless the decision is clearly contrary to the overwhelming weight of the evidence. Columbia Tower, 829 S.W.2d at 537; see also Longview of St. Joseph, Inc. v. City of St. Joseph, 918 S.W.2d 364, 369 (Mo.App. W.D.1996) (Court of Appeals will not substitute its judgment for the council’s judgment denying special use permit, unless the council’s decision was arbitrary and unreasonable). We view the evidence in the light most favorable to the administrative decision. Columbia Tower, 829 S.W.2d at 536. Furthermore, the decision of the Council carries with it a strong presumption of validity which cannot be overcome by anything short of “clear and convincing evidence.” Davco Food Inc. v. City of Bridgeton, 725 S.W.2d 32, 34 (Mo.App. E.D.1986).

Argument

We first address Appellants’ argument that the Council’s decision was not supported by competent and substantial evidence. Competent evidence is relevant and admissible evidence that can establish the fact at issue. Consolidated School Dist. No. 2 v. King by Dresselhaus, 786 S.W.2d 217, 219 (Mo.App. W.D.1990). Substantial evidence is competent evidence which, if believed, would have probative force upon the issues. Citizens for Rural Preservation, Inc. v. Robinett, 648 S.W.2d 117, 124 (Mo.App. W.D.1982).

The Comprehensive Zoning Ordinance for Lee’s Summit, No. 715, Section 280 provides that a sign greater than 72 square feet may be approved by the Board of Aider-men (now the City Council) if in the Council’s judgment the sign will not “seriously injure the appropriate use of neighboring property and will conform to the general intent and purpose of this ordinance....” Appellants argue that Respondents did not present any evidence to the Council that the proposed billboard would cause serious injury to the use of neighboring property. We disagree. David Robinson, the City’s Community Development Director and a professional planner, testified that while the sign application did meet the ordinance requirements, the visual impact of the sign would seriously injure the appropriate use of the neighboring property. He further testified that the sign to the north of the site of the proposed sign was highly visible from the property to the west across 1-470.

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Bluebook (online)
957 S.W.2d 416, 1997 Mo. App. LEXIS 1921, 1997 WL 693752, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-gannett-outdoor-co-of-kansas-city-v-city-of-lees-summit-moctapp-1997.