IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT
THE PARKVIEW VALE, LLC and THE ) ALMA, LLC, ) ) Appellants, ) WD83729 v. ) (Consolidated with WD83730) ) ) OPINION FILED: BOARD OF ZONING ADJUSTMENT ) March 9, 2021 FOR THE CITY OF KANSAS CITY, ) MISSOURI, ) ) Respondent. )
Appeal from the Circuit Court of Jackson County, Missouri The Honorable George E. Wolf, Judge
Before Division Four: Cynthia L. Martin, Chief Judge, and Lisa White Hardwick and Mark D. Pfeiffer, Judges
In this consolidated appeal, The Parkview Vale, LLC (“Parkview”) and The Alma, LLC
(“Alma”) appeal from judgments of the Circuit Court of Jackson County, Missouri (“circuit
court”), affirming decisions by the Board of Zoning Adjustment for the City of Kansas City,
Missouri (“BZA”). Parkview and Alma each own a “six-plex” apartment building, and each filed
an application with the Director of City Planning and Development Department (“Director”)
requesting a certificate of legal nonconformance to allow a seven-unit apartment building. The
Director denied each application, and the BZA affirmed the Director’s decision, but ordered the Director to issue certificates of legal nonconformance to allow a six-unit apartment building. In
this appeal, Parkview and Alma argue that the certificate of legal nonconformance should have
been granted for seven units. We affirm the circuit court’s judgments affirming the BZA’s
decisions.
Factual and Procedural Background1
Parkview and Alma each own a colonnade-style “six-plex” apartment building in
Kansas City, Missouri. Parkview’s building is located at 4225-27 Locust Street, and Alma’s
building is located at 4217-19 Locust Street. The original permit for Parkview was issued in 1913,
and the original permit for Alma was issued in 1915. Each original permit authorized six apartment
units. Each lot is approximately 0.15 acres. The properties are zoned R-1.5. Under current zoning
Lot and Building Standards, a residential development in an R-1.5 zoning district must have a
minimum of 1,500 square feet of lot area per unit.2 § 88-110-06-B, Table 110-2.3
Parkview and Alma each filed an application with the Director, requesting a certificate of
legal nonconformance to allow a seven-unit apartment building in an R-1.5 zoning district with
insufficient lot area. The Director denied the requests, having determined that each building
presently had “six arranged apartment units. The basement is uninhabitable for human occupancy
and there is no evidence to show that presently there is a 7th unit arranged in the basement.”
Parkview and Alma each appealed the Director’s decision to the BZA. The two appeals
were consolidated and heard by the BZA on April 9, 2019. At the hearing, a representative of the
City Planning and Development Department testified that the original permits for six units were
1 We view the evidence and reasonable inferences therefrom in a light most favorable to the BZA’s decision. Antioch Cmty. Church v. Bd. of Zoning Adjustment, 543 S.W.3d 28, 34 (Mo. banc 2018). 2 Accordingly, under current zoning standards, only four units would be permitted in each building. 3 All zoning and development code references are to KANSAS CITY, MO., ZONING AND DEVELOPMENT CODE (2018), as supplemented, unless otherwise noted.
2 issued in 1913 and 1915 but that a seventh “basement unit” was added at some point; however,
there was no evidence to indicate whether it was added when the building was constructed or after
that.
Parkview and Alma agreed that the original building permits authorized a “6 Apt. Flat.”
But, Parkview and Alma offered evidence that the additional unit or units constructed at some
point in the basement of each building were used as quarters for servants who maintained the
building. To explain the discrepancy between the building permits that authorized six units and
the claim that the original buildings actually contained one or two servant quarters in the basement,
Parkview and Alma speculated that the original building permit was never intended to reflect “the
real number of units.” Instead, Parkview and Alma speculated that the “on file” building permit
“was never intended to reflect the Max number of units originally planned and built, rather: it
reflected the minimum (or at least and obvious) number of units built.”
Larry Dade, owner of Parkview and Alma, testified that he purchased the buildings in the
late 1980s or early 1990s and rented the upper-floor units, but the basement units were never
occupied by tenants because “[t]hey were never in a condition to rent. . . . [T]hey weren’t up to
par to be part [of] our normal apartments by any means.” Mr. Dade testified that he did allow the
basement units to be occupied by “art students that wanted a workplace that they could camp out
from time to time [and] construction workers that . . . needed transitional housing.” He also had a
“business arrangement” with a woman who provided cleaning services for his properties. She did
not have a written lease agreement, but he allowed her to store furniture in the basement of one of
the buildings and occasionally stay in the basement when she needed “a place to stay over the
weekends when she stayed in Kansas City.”
3 Mr. Dade testified that he started renovating the buildings in January 2018. He stated that,
at the time of the hearing, the upper units at The Alma were rented but the basement was not. He
testified that the entire Parkview Vale building was vacant and uninhabitable because all of the
plumbing, wiring, heating and air conditioning had been removed.
The BZA affirmed the Director’s decisions to deny certificates of legal nonconformance
to allow use as seven-unit apartment buildings but ordered the Director to grant to Parkview and
to Alma a certificate of legal nonconformance to allow use as a six-unit apartment building.
Pursuant to section 89.110,4 Parkview and Alma filed verified petitions in the circuit court
requesting issuance of a writ of certiorari for review of the BZA’s decision. The parties stipulated
that the actions should be consolidated for review based on one consolidated record of proceedings
before the BZA. The circuit court granted the motion to consolidate and issued a writ of certiorari
to the BZA for return of the record of the consolidated hearing before the BZA. After review, the
circuit court entered separate judgments affirming the BZA’s decision.5
Parkview and Alma timely appealed and we consolidated the appeals.
Violations of Rule 84.046
Before addressing Parkview and Alma’s points on appeal, we note that “[a]n appellate
court reviews the findings and conclusions of the BZA and not the judgment of the trial court.”
Antioch Cmty. Church v. Bd. of Zoning Adjustment, 543 S.W.3d 28, 33 (Mo. banc 2018) (internal
quotation marks omitted). Parkview and Alma’s points relied on assert trial court error, thereby
violating Rule 84.04(d)(2), which provides that:
Where the appellate court reviews the decision of an administrative agency, rather than a trial court, each point shall:
4 All statutory references are to the REVISED STATUTES OF MISSOURI 2016, as supplemented. 5 A party aggrieved by any decision of the BZA may request circuit court review of the BZA’s action. “The court may reverse or affirm or may modify the decision brought up for review.” § 64.870.2. 6 All rule references are to I MISSOURI COURT RULES – STATE 2020.
4 (A) Identify the administrative ruling or action the appellant challenges;
(B) State concisely the legal reasons for the appellant’s claim of reversible error; and
(C) Explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.
We further note that their first point relied on contains multifarious claims of error and,
accordingly, violates Rule 84.04(d). Wennihan v. Wennihan, 452 S.W.3d 723, 728 (Mo. App.
W.D. 2015). “A point relied on should contain only one issue, and parties should not group
multiple contentions about different issues together into one point relied on.” Id. (internal
quotation marks omitted). Here, Parkview and Alma appear to assert that the BZA’s decision was
not supported by competent and substantial evidence because “the record established the
buildings’ nonconforming use and occupancy as seven and not six multi-unit apartment buildings.”
They then appear to claim that the BZA’s decision was not authorized by law because “Kansas City
Missouri ordinances governing loss of a nonconforming use provide that a vacancy of a portion of
the units in a multi-unit building will not be deemed a discontinuance and loss of the
nonconforming use of the building.”
“Despite this flagrant disregard of the rules, the policy of the appellate courts in this State
is to decide a case on the merits rather than technical deficiencies in the brief.” Id. (internal
quotation marks omitted). “Because we are able to discern the claims being made and the defective
nature of the point[s] relied on does not impede our disposition of the case on the merits, we will
exercise our discretion to attempt to resolve the issues on the merits.” Id. (internal quotation marks
omitted).
5 Nonconforming Use
Before addressing the merits of Parkview and Alma’s appeal, we review the law regarding
nonconforming use. “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 the new use restriction.” Lamar Co., LLC v.
City of Columbia, 512 S.W.3d 774, 788 (Mo. App. W.D. 2016) (internal quotation marks omitted).
“The theory behind the nonconforming use doctrine is that applying new zoning restrictions to
established uses of land would constitute a taking of private property without just compensation
or due process.” Id. (internal quotation marks omitted). “As such, the prior use which is now
considered ‘nonconforming’ is deemed legal or lawful and is allowed to continue albeit in violation
of current zoning laws.” Id. (internal quotation marks omitted).
The determination of nonconformity status is addressed in section 88-610-01-D of the
Kansas City, Missouri, Zoning and Development Code:
1. The burden of proving that a nonconformity exists (as opposed to a violation of this zoning and development code) rests entirely with the subject landowner. The city planning and development director is authorized to determine whether adequate proof of nonconforming status has been provided by the subject landowner.
2. Evidence provided must be sufficient to show that the use or structure was lawfully established prior to annexation or prior to the adoption of the subject regulations and that the lawful use has been continuous and [has] not been discontinued.
3. The city planning and development director’s decision on nonconforming status determinations may be appealed in accordance with 88-575.
(Emphasis added.) A “lawfully established” use or building is one that is “in compliance with all
regulations in effect at the time of their establishment.” § 88-610-01-A.
6 “[T]he spirit of zoning ordinances always has been and still is to diminish and decrease
nonconforming uses.” Lamar Co., LLC, 512 S.W.3d at 788 (internal quotation marks omitted).
Accordingly:
Missouri courts . . . allow[ ] municipalities to regulate and limit nonconforming uses by various means such as prohibiting the resumption of a nonconforming use after its abandonment or discontinuance, prohibiting the rebuilding or alteration of nonconforming structures or structures occupied for nonconforming uses, and prohibiting or rigidly restricting a change from one nonconforming use to another.
Id. (internal quotation marks omitted).
If a nonconforming use is discontinued, “its nonconforming status is lost and any
subsequent use of the property must comply with the regulations of the zoning district in which it
is located.” § 88-610-04-D. A nonconforming use is considered discontinued when any of the
following occurs:
a. the intent of the owner to discontinue all uses in the structure is apparent;
b. the building or structure ceases to be used in a nonconforming manner for a period of 12 consecutive months[;]
c. no use has been maintained in the structure for a period of 12 months or more;
d. a demolition permit has been applied for;
e. all equipment and furnishings have been removed from the premises and have not been replaced by similar or other equipment and furnishings within 180 days;
f. the use was required to obtain a certificate of legal nonconformance and did not obtain such certificate within the timeframe required; or
g. the property has been used for illegal activities or the use has failed to comply with city ordinances or with state or federal law.
h. The vacancy of a portion of the units in a multi-unit building will not be deemed a discontinuance of the nonconforming use of the building.
§ 88-610-04-D.
7 Standard of Review
The Missouri Supreme Court has established the scope of our standard of review of a BZA
decision:
The scope of this Court’s review is governed by article V, section 18 of the Missouri Constitution, which provides judicial review of an agency decision “shall include the determination whether the [decision is] authorized by law, and in cases in which a hearing is required by law, whether the [decision is] supported by competent and substantial evidence upon the whole record.” This means the “scope of judicial review of the decisions of the board of adjustment in a zoning proceedings is limited to a determination of whether the ruling is authorized by law and is supported by competent and substantial evidence upon the whole record.”
The question whether the decision is authorized by law is a legal question this Court determines de novo. Determining whether the decision is supported by competent and substantial evidence “does not mean that the reviewing court may substitute its own judgment on the evidence for that of the administrative tribunal.” Rather, “an appellate court must view the evidence and reasonable inferences therefrom in a light most favorable to the decision.”
Antioch Cmty. Church, 543 S.W.3d at 33-34 (citations omitted).
Analysis
Point I
Sufficiency of the Evidence Challenge
In Parkview and Alma’s first point, they assert that the BZA erred in denying their requests
to issue certificates of legal nonconformance because the decision was not supported by competent
and substantial evidence in that “the record established the buildings’ nonconforming use and
occupancy as seven and not six multi-unit apartment buildings.”
“[A]n agency’s decision is unsupported by competent and substantial evidence only in the
rare case when the decision is contrary to the overwhelming weight of the evidence.” Lynch v.
Franklin Cty., 604 S.W.3d 855, 869 (Mo. App. E.D. 2020) (internal quotation marks omitted).
“We examine whether the agency decision was arbitrary, capricious or unreasonable, or involve[d]
8 an abuse of discretion.” Id. (internal quotation marks omitted). We defer to the BZA’s view of
the evidence and reasonable inferences therefrom. Id. We may not substitute our own judgment
for that of the BZA; consequently, if the evidence would support either of two different, opposed
findings, we are bound by the BZA’s determination. Id. We also defer to the BZA’s determination
of witness credibility. Id.
The landowner has the burden of proving that a nonconformity exists. § 88-610-01-D.1.
Accordingly, in order for Parkview and Alma to prove that they were entitled to a certificate of
legal nonconformance for each building as requested, they had the burden to prove: (1) that a
seven-unit residential apartment building had been lawfully established; and (2) that such lawful
use had been continuous and had not been discontinued. § 88-610-01-D.2.
At the BZA hearing, Parkview and Alma stipulated that the original building permits for
The Parkview Vale and The Alma authorized only six units. They then speculated that even though
the permits authorized only six units, at the time the permits were issued, it was acceptable for the
builder to state fewer than “the real number of units” so the City officials could claim ignorance
as to the existence of ground-level servants’ apartments. To support the contention that the
basement units were part of the original construction of the buildings and used for residential
purposes, Parkview and Alma submitted letters by third parties who did not appear or testify at the
hearing. None of the letters provided evidence that the original building permit misstated the
actual number of authorized units or that the basement units were lawfully established.
A representative of the City Planning and Development Department testified that the
original permits were issued in 1913 and 1915 for six units; however, there was no evidence to
indicate whether a seventh unit was added when the building was constructed or after that. Thus,
9 the evidence before the BZA showed that the basements in each building were not lawfully
established by the original permits to be used as residential units.
Mr. Dade’s testimony was the only evidence as to actual occupancy of the basement units
of the buildings. He testified that he purchased the buildings in the late 1980s or early 1990s and
rented the upper-floor units, but the basement units were never occupied by tenants because “[t]hey
were never in a condition to rent.” He did allow the basement units to be occupied by “art students
that wanted a workplace that they could camp out from time to time [and] construction workers
that . . . needed transitional housing.” He also had a “business arrangement” with a woman who
provided cleaning services for his properties, allowing her to store furniture in the basement of one
of the buildings and occasionally stay in the basement when she stayed in Kansas City over the
weekend. Photographs taken by the City in the basement of each building showed that the
basements were uninhabitable and filled with debris.
Mr. Dade further testified that he started renovating the buildings in January 2018. He
stated that, at the time of the hearing, the upper units at The Alma were rented but the basement
was not. He testified that the entire Parkview Vale building was vacant and uninhabitable because
all of the plumbing, wiring, heating and air conditioning had been removed. Thus, according to
Mr. Dade’s testimony, the basements in both buildings were never in a condition to rent to tenants
in the thirty years that he owned the buildings. Hence, basement units in the buildings were never
lawfully established and, therefore, were not entitled to protection under the nonconformity
regulations.
Viewing the evidence and reasonable inferences therefrom in a light most favorable to the
BZA’s decision, as our standard of review requires, the BZA’s decision to order the issuance of
10 certificates of legal nonconformance for six units—and not seven units—is supported by
competent and substantial evidence upon the whole record.
Legality Challenge
In Parkview and Alma’s first point, they also claim that the BZA’s decision was not
authorized by law because “Kansas City Missouri ordinances governing loss of a nonconforming
use provide that a vacancy of a portion of the units in a multi-unit building will not be deemed a
discontinuance and loss of the nonconforming use of the building.”
Parkview and Alma rely on a subsection of the Zoning and Development Code titled “Loss
of Nonconforming Status,” which provides: “The vacancy of a portion of the units in a multi-unit
building will not be deemed a discontinuance of the nonconforming use of the building.”
§ 88-610-04-D.1.h. Clearly, this provision applies only if a building has already gained
nonconforming status and the nonconforming use is thereafter discontinued. Before Parkview and
Alma applied for certificates of legal nonconformance, they had not established that The Parkview
Vale or The Alma had nonconforming status. The BZA hearing was not about whether The
Parkview Vale and The Alma would lose their status as a nonconforming building, but about
whether Parkview and Alma could prove the nonconforming status of the buildings and, if so, for
how many units.
The City submitted evidence to the BZA that the buildings were constructed prior to the
adoption of City zoning ordinances and that, at the time of construction, the properties were
considered to have sufficient lots. Parkview and Alma submitted letters from third parties, who
did not appear or testify at the hearing, to support the contention that the basements of the buildings
were used for residential purposes. However, the letters merely contained observations about the
physical structure of the buildings and speculated that the buildings were like many buildings built
11 in the early 1900s that had servant quarters in the basements. There was no evidence presented
that the basements in the buildings were used as residential units in 1951 when lot requirements
changed to 1,000 square feet per residential unit. Since each lot is approximately 0.15 acres, the
1951 lot requirements allowed only six units in each building. Thus, if the properties had been
seven-unit apartment buildings, they became nonconforming in 1951. There simply is no evidence
in the record that the buildings had previously been granted a nonconforming status.
The provision relied on by Parkview and Alma clarifies that the vacancy of a portion of the
units in a multi-unit building with nonconforming status is not considered discontinuance of the
nonconforming use and does not result in the loss of the building’s nonconforming status. Neither
Parkview’s nor Alma’s building lost an existing nonconforming status; therefore, they cannot take
shelter in the “Loss of Nonconforming Status” code sections and certainly cannot demonstrate that
the BZA misapplied the provision.
The BZA’s decision that Parkview and Alma established the nonconforming status of their
buildings for six units—and not seven units—was supported by the evidence and authorized by
law.
Point I is denied.
Point II
In Parkview and Alma’s second point, they assert that the BZA erred in relying on the
building permits to determine that they failed to meet their burden to prove that residential use of
the basements was lawfully established because there were no zoning ordinances in effect when
the buildings were originally constructed that would have prevented seven units in each building.
Section 88-610-01-D.1 provides that the landowner has the burden of proving that a
nonconformity exists. The landowner’s evidence must show that “the use or structure was lawfully
12 established.” § 88-610-01-D.2. A use or structure is lawfully established when it is “in compliance
with all regulations in effect at the time of their establishment.” § 88-610-01-A (emphasis added).
The BZA heard testimony from and was presented evidence by City staff and Mr. Dade that the
original building permits only authorized six units. Though Parkview and Alma presented
speculative evidence that basement units were often used as “servant quarters” in similar buildings
built in Kansas City in the early 1900s, Parkview and Alma did not provide evidence to the BZA
that basement residential units were actually resided in—let alone establish that they were used
continuously for residential purposes. Thus, it was not error for the BZA to rely on the original
building permits to conclude that Parkview and Alma failed to meet their burden to prove that
residential use of the basements was lawfully established.
Point II is denied.
Point III
In Parkview and Alma’s third and final point, they assert that the trial court erred in
upholding the BZA’s decision by considering for the first time on judicial review the issue “that
the buildings were not lawfully occupied” as seven-unit apartment buildings because the building
permits authorized only six units for each building in that the BZA did not consider that issue when
it rendered its decision.7 Parkview and Alma contend that the BZA first argued in the circuit court
that their applications for certificates of nonconformance were denied because the buildings did
not comply with the building permit description as a six-plex and, therefore, the basement seventh
unit was “illegally created,” which made the buildings illegal and disqualified them for
nonconforming status.
7 As we have pointed out, “[a]n appellate court reviews the findings and conclusions of the BZA and not the judgment of the trial court.” Antioch Cmty. Church, 543 S.W.3d at 33 (internal quotation marks omitted). Parkview and Alma’s point relied on asserts trial court error, thereby violating Rule 84.04(d)(2).
13 The burden to prove a lawful nonconforming use was upon Parkview and Alma. It was
their burden to show that the use of their building as a seven-unit apartment building “complied
with all regulations in effect at the time of their establishment.” § 88-610-01-A. The regulations
impose no burden on the City to prove that the use was not lawfully established. Rather, the
regulations authorize the Director to determine whether the landowner provided adequate proof of
nonconforming status. § 88-610-01-D.1. The evidence before the BZA, including testimony from
City staff and Mr. Dade, was that the original building permit for each building was for six units;
the permits did not authorize a seventh basement unit. This evidence was not considered for the
first time in the circuit court.
Point III is denied.
Conclusion
We affirm the circuit court’s judgments affirming the BZA’s decisions.
/s/Mark D. Pfeiffer Mark D. Pfeiffer, Judge
Cynthia L. Martin, Chief Judge, and Lisa White Hardwick, Judge, concur.