Weatherby Lake Improvement Company, INC v. City of Weatherby Lake Board of Zoning Adjustment

MISSOURI COURT OF APPEALS

WESTERN DISTRICT

WEATHERBY LAKE IMPROVEMENT )

COMPANY, INC, )

)

Appellant, ) WD86685

)

v. ) OPINION FILED:

)

CITY OF WEATHERBY LAKE BOARD ) August 20, 2024

OF ZONING ADJUSTMENT, )

)

Respondent. )

)

Appeal from the Circuit Court of Platte County, Missouri

Honorable W. Ann Hansbrough, Judge

Before Division Two: W. Douglas Thomson, Presiding Judge,

Karen King Mitchell, Judge, and Janet Sutton, Judge

Weatherby Lake Improvement Company, Inc., (WLIC) appeals from a decision by the

Weatherby Lake Board of Zoning Adjustment (BZA) denying its application for a non-use

variance. In three points on appeal, WLIC argues that the BZA erred by relying on an incorrect

standard to evaluate WLIC’s request for a non-use variance, that competent and substantial

evidence does not support the BZA’s decision, and that the BZA erred in denying its application

because the “zoning ordinance” was not in evidence at the hearing on WLIC’s application.

Because the applicable Weatherby Lake municipal ordinances were not introduced into evidence

at the hearing on WLIC’s application for a variance, the BZA’s decision and the judgment of the

circuit court are reversed without prejudice to WLIC’s right to file a subsequent application for

variance.

Factual and Procedural Background

WLIC is a Missouri non-profit corporation that owns Weatherby Lake, the land under the

lake, the dam, spillway, and certain parkways. WLIC functions as the home-owners association

for Weatherby Lake. Around 2017, WLIC purchased a house and lot (the property) next to the

Weatherby Lake dam, located at 10208 NW 73rd Terrace, Weatherby Lake, Missouri. The

house was one of the first buildings built on the lake. In the 1950s, the Weatherby Lake dam

ruptured and an impervious core was installed under the dam and under this property to protect

the dam from any leakage. WLIC, therefore, purchased the property to “protect the dam.” The

house sits on the crown of the property near the street and the rest of the land slopes dramatically

downward to the lake. The front of the house is only six feet from the front property line. The

location of the house on the lot was grandfathered into the Weatherby Lake zoning code as a

legal nonconforming use.

In June 2022, WLIC filed an application with the BZA for a variance from the required

fifty-foot setback from the property line to be reduced to only a six-foot setback. In December

2022, the BZA held a public hearing on WLIC’s application for a non-use variance. WLIC

believed that the house on the lot was beyond repair in its current condition, but it was concerned

with how to proceed because it wanted to protect the dam structure and not risk disturbing the

impervious core. Any new construction complying with the current fifty-foot setback would

create this risk. The president of WLIC’s board of directors explained WLIC sought a variance

because there was serious concern from engineers regarding construction near the impervious

core, such that he believed “the place where the building is now is the best place to protect [the]

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property and protect the dam from any degradation” and that construction on the property should

not go “down the hill.” If WLIC demolished the current structure before receiving the grant of a

variance, then it would lose its grandfathered status, and would no longer meet the setback

requirements of the zoning code. Any new replacement structure would have to be built to the

current zoning code, which would require construction at least fifty feet further down the hill

toward the water.

WLIC did not admit into evidence any engineering report, building plans indicating what

could or would be built if the front setback variance were granted or what could or could not be

constructed if the variance was not granted, or other documentation supporting its request for a

non-use variance. No Weatherby Lake municipal ordinances, including the ordinance that sets

forth the setback requirements, were introduced into evidence by either party during the hearing.

The BZA’s attorney only referred to three Weatherby Lake municipal ordinances during the

hearing by summarizing, reading portions of the ordinances out loud, and commenting on what

he believed the ordinances meant, all of which related to non-conforming use. A question

followed this recitation, asking “These are our ordinances?”

WLIC needed four affirmative votes to obtain the variance. Three BZA members voted

in favor of the non-use variance and two members voted against it. The two members voting

against the non-use variance indicated that they voted against it because WLIC did not have or

present to the BZA a plan for the property’s future use.

The BZA was provided a written decision with optional findings to checkmark by their

attorney, before the hearing. They voted to adopt the finding denying WLIC’s application. The

decision quoted two Weatherby Lake ordinances—section 405.120 that sets forth the setback

requirements and section 405.400 that details the board of adjustment’s powers. The BZA

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denied the variance request because the vote did not reach the required super majority of four

members needed to approve the variance request. 1 The BZA concluded that WLIC failed to

demonstrate practical difficulties of why the property could not be used for a permitted use

without conflicting with “the ordinance’s restrictions.”

WLIC filed a petition for a writ of certiorari with the Platte County circuit court pursuant

to section 89.110 RSMo (2016). The circuit court held a hearing on the petition during which

WLIC requested to supplement the record to include a packet that was provided to individual

members and referenced at the public hearing before the BZA on WLIC’s application. This

packet included a list of reasons of why WLIC sought a variance, a copy of a plat that included

the existing building, and photographs of the building. The circuit court granted the request to

supplement the record to include the packet. WLIC also alerted the circuit court to its belief that

“the zoning ordinance” may not have been properly before the BZA during the hearing on its

application for a variance. The BZA responded that it did not believe there was any question

about “whether or not the ordinance, from which the variance [was] sought” was before the BZA

and that “the ordinance” was considered and was in the BZA’s findings.

After reviewing the record and hearing argument from the parties, the circuit court

affirmed the denial of WLIC’s application for a variance in a written judgment. WLIC appeals.

Standard of Review

We review the findings and conclusions of the BZA and not the trial court’s judgment.

Antioch Cmty. Church v. Bd. of Zoning Adjustment of City of Kansas City, 543 S.W.3d 28, 33

(Mo. banc 2018); Four B. Corp. v. City of Harrisonville, 667 S.W.3d 169, 174 (Mo. App. W.D.

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The BZA’s decision contained an error when it recounted the vote total but it correctly

concluded that WLIC failed to garner the four necessary affirmative votes to obtain the variance.

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2023). Article V, section 18 of the Missouri Constitution governs the scope of our review, and

provides that “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.” Antioch

Cmty. Church, 543 S.W.3d at 33-34 (quoting Mo. Const. art. V, section 18). Our review of the

BZA’s decision in a zoning proceeding “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.” Id. at 34 (citation omitted). “In determining whether administrative findings are

supported by competent and substantial evidence upon the whole record, this Court may consider

only the record that was before the administrative body.” Consumer Contact Co. v. Dep’t of

Revenue, 592 S.W.2d 782, 785 (Mo. banc 1980). See also Platte Woods United Methodist

Church v. City of Platte Woods, 935 S.W.2d 735, 738 (Mo. App. W.D. 1996).

Discussion

In its first point, WLIC argues that the BZA erred in denying its application for a non-use

variance because the BZA improperly relied on the “unnecessary hardship” standard for use

variances rather than the correct “practical difficulties” standard for non-use variances. In its

second point, WLIC argues that there was no competent or substantial evidence in opposition to

its request for a variance and, therefore, the BZA erred in denying its request. In WLIC’s third

point on appeal, it argues that the BZA erred in denying its request for a variance because “the

zoning ordinance” was not in evidence at the hearing on WLIC’s application for a variance.

WLIC argues that without “the zoning ordinance” in evidence, the BZA did not have a standard

to govern their vote. 2 We address point three first because it is dispositive of this appeal.

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WLIC’s third point refers only to “the zoning ordinance” but it does not specifically state what

zoning ordinance it refers to. The brief’s argument portion similarly does not specifically state

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“A court may not take judicial notice of the existence or contents of an ordinance.”

Platte Woods, 935 S.W.2d at 739. See also Schneider v. Housing Bd. of Appeals, 969 S.W.2d

873, 875 (Mo. App. E.D. 1998). Here, the BZA’s decision quotes Weatherby Lake ordinance

section 405.120 which sets forth setback requirements. (LF D5 pg. 1). “It was necessary for

some party to introduce the ordinance[] in question.” Gannett Outdoor Co. of Kansas City v. Bd.

Of Zoning Adjustment of Jackson Cnty., 943 S.W.2d 359, 362 (Mo. App. W.D. 1997) (citing

Lussow v. County Comm’n, 887 S.W.2d 815, 817 (Mo. App. E.D. 1994)); State ex rel. Barnes v.

Hunter, 867 S.W.2d 282, 283–84 (Mo. App. S.D. 1993). Without the applicable ordinance—or

ordinances—in evidence, there is “insufficient evidence in the record to sustain” the BZA’s

findings. See State ex rel. Dotson v. Cnty. Comm’n of Clay Cnty., 941 S.W.2d 589, 594 (Mo.

App. W.D. 1997) (citation omitted). “Thus, any decision that is based upon part of a municipal

ordinance that is not admitted into evidence or has been stipulated to by the parties lacks the

requisite substantial evidence to support it.” Id.

This Court considered a similar situation to the case before us in Gannett Outdoor

Company of Kansas City v. Board of Zoning Adjustment of Jackson County, 943 S.W.2d 359

(Mo. App. W.D. 1997), where the relevant municipal ordinances were discussed generally at a

hearing before a board of adjustment but were not introduced into evidence. In Gannett, a

business appealed a board of zoning adjustment’s decision denying its application for a special

which zoning ordinance or ordinances it is referring to. From our reading of its brief, the BZA

believed that the WLIC was referring to section 405.120 of the Weatherby Lake zoning

ordinances which sets forth setback requirements—a reasonable assumption given the issue on

appeal. While WLIC should have listed the specific zoning ordinance or ordinances it was

referring to rather than discussing “the zoning ordinance” generally, it is immaterial to our

resolution here as no zoning ordinances were admitted into evidence during the hearing in front

of the BZA.

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use permit to continue placement of an outdoor advertising sign on the side of a highway. 943

S.W.2d at 360. At a public hearing before the board of zoning adjustment, the business

presented testimony and evidence in support of its request for a special use permit, and no one

testified in opposition. Id. at 361. Neither the board of zoning adjustment’s policy governing

off-premises signs and billboards nor the relevant county ordinances were introduced into

evidence. Id. The board voted to deny the special use permit, finding that granting the special

use permit would not conform with the scope, nor general intent, nor purpose of the county’s

zoning order and its policy governing off-premises signs and billboards. Id.

The business then sought judicial review in the circuit court and the court entered an

order supplementing the record to include “the ordinances necessary to substantiate” the board of

zoning adjustment’s action. Id. Two chapters from the county code were subsequently added to

the record on judicial review. Id. The circuit court then denied the business’s petition for

judicial review and affirmed the board of zoning adjustment’s denial of the special use permit.

Id.

On appeal, the board of zoning adjustment argued that the appeal should be dismissed

because the business failed to develop a proper record that would allow this Court to review the

decision on the special use permit. Id. We noted that in our review, this Court considers only

the record that was before the board of zoning adjustment. Id. at 362. We concluded that the

board’s record was “not sufficiently developed for meaningful review as it [did] not contain a

copy of the ordinances pertinent to the [board of zoning adjustment’s] decision.” Id. We also

stated that discussion of the ordinances at the hearing was not sufficient and we could not rely on

the fact that the ordinances were introduced later at the circuit court. Id. We declared the board

of zoning adjustment’s decision and the circuit court’s judgment invalid, reversed the board’s

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ruling and the circuit court’s judgment, and remanded to the board for further proceedings on the

business’s application. Id. at 363.

Other cases have reached the same legal conclusion that there was not competent and

substantial evidence to support the decision where the municipal or county ordinances were not

introduced into evidence at the agency level. Three such cases reaching this same legal

conclusion are of note. First, Schneider v. Housing Bd. of Appeals, 969 S.W.2d 873, 875 (Mo.

App. E.D. 1998) held that in an action challenging the decision of the city housing board of

appeals denying a request for a variance, the decision was not supported by competent and

substantial evidence without the introduction of the ordinance into evidence. The Schneider

Court required that the ordinance on which the board’s decision was based be introduced into

evidence. Id. Though a paragraph of the ordinance was quoted on a page of a larger exhibit

entered into evidence and witnesses mentioned the ordinance at the hearing, this was insufficient

to cure the fatal defect. Id.

Next, Platte Woods United Methodist Church v. City of Platte Woods, 935 S.W.2d 735,

738-39 (Mo. App. W.D. 1996) held that in an action challenging a board of alderman’s denial for

a conditional use permit, the absence of the municipal ordinances prescribing standards for the

issuance of a conditional use permit in the record was fatal to the decisions of the board of

alderman and the circuit court’s judgment. Without the ordinances in the record, no standards

existed for determining whether the board’s decision was based on competent and substantial

evidence. Id. at 739.

Finally, Lussow v. County Commission, 887 S.W.2d 815, 817 (Mo. App. E.D. 1994) held

that where a county ordinance outlining standards for the issuance of a conditional use permit

was not in the record from the proceedings before a county commission, such absence was fatal

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to the commission’s issuance of a conditional use permit. While a letter was in the record that

purportedly quoted the ordinance and the ordinance was included in the petition filed in circuit

court, this was insufficient and was a fatal defect. Id. at 816-17.

Here, neither party introduced any Weatherby Lake ordinances into evidence at the

hearing before the BZA and no stipulation regarding the applicable ordinance or ordinances were

recited or offered into evidence. WLIC applied for the variance and it should have introduced

the ordinance—or ordinances—applicable to its request into evidence at the hearing before the

BZA. While the BZA’s attorney specifically referenced three Weatherby Lake ordinances by

number during the hearing, including summarizing and reading parts of the ordinances out loud,

this was not enough. The BZA argues that because the board “considered” the ordinance related

to setback requirements and the ordinance was included “verbatim” in the BZA’s findings that

were drafted before the hearing, then the ordinance was properly introduced into the record. We

are unpersuaded.

Although neither party has directed our attention to the case, we acknowledge the ruling

in General Motors Corporation v. Fair Employment Practices Division, 574 S.W.2d 394 (Mo.

banc 1978), where the Supreme Court of Missouri avoided a strict application of the rule that a

court may not take judicial notice of the existence or contents of city or county ordinances.

General Motors acknowledged the rule and said:

One need but ask how an agency’s determination of an ordinance violation can be

reviewed and affirmed without the ordinance having been properly put in

evidence before the agency, to recognize such failure of proof effectively

precludes any determination as to the validity of the ordinance, and vitiates any

agency decision rendered in reliance thereon.

574 S.W.2d at 400. The Court stated it considered the merits of the appeal for the following

reasons:

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because it [was] apparent that all parties, the [d]ivision and the circuit court had

the ordinance before them during these proceedings and no objection was made at

any stage before the commission, the trial court or in this appeal to the movant’s

failure in the first instance to make formal offer of the ordinance and proof of its

adoption.

Id. Ultimately, General Motors stated, “we reiterate that our holding does not rest on this rule of

evidence; rather, for the reasons first discussed, we find the decision of the [d]ivision was not

supported by substantial competent evidence.” Id.

Two other cases, State ex rel. Dotson v. County Commission of Clay County, 941 S.W.2d

589, 594-95 (Mo. App. W.D. 1997) and Wehrle v. Cassor, 708 S.W.2d 788, 791 n.2 (Mo. App.

E.D. 1986), acknowledged the rule that a court may not take judicial notice of the existence or

contents of a city or county ordinances but cited General Motors and similarly did not apply the

rule under the circumstances existing in those cases. General Motors, Dotson, and Wehrle are all

distinguishable from this case. Here, it is not apparent or proven by the record that all the

parties, the BZA and the circuit court had the applicable ordinance or ordinances before it during

the proceedings, WLIC brought this issue to the circuit court’s attention, and complains of the

issue on appeal. We find no reason to deviate from the general rule.

“The ordinance applicable to the case should have been introduced into evidence.”

Schneider, 969 S.W.2d at 875 (citing Consumer Contact Co., 592 S.W.2d at 785). “The failure

of the parties to do so is fatal to this appeal. That the ordinances were generally discussed at the

hearing is not enough.” Gannett, 943 S.W.2d at 362 (citing Platte Woods, 935 S.W.2d at 739).

See also Schneider, 969 S.W.2d at 875 (stating that the absence of the applicable ordinance from

the record was a “fatal defect” even though a paragraph of the ordinance was quoted on a page of

a larger exhibit entered into evidence and witnesses mentioned the ordinance at the hearing).

The BZA also argues, in the alternative, that if the applicable ordinances were not

properly introduced into evidence at the hearing, then WLIC’s appeal “fails” and must be denied.

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The BZA argues that WLIC should not benefit from its failure to properly introduce the

ordinances into the record. This argument is contrary to prior cases that hold that regardless of

which party bears the burden of introducing the ordinance at issue, the failure to do so means that

competent and substantial evidence does not exist to support the agency’s action, thus

necessitating reversal on appeal. These cases do not require a denial of appeal that would

preclude the applicant from further action. See e.g., Barnes, 867 S.W.2d at 283-84; Schneider,

969 S.W.2d at 875; Platte Woods, 935 S.W.2d at 738-39.

Thus, without the applicable municipal ordinances in evidence, the record before this

Court does not allow us to determine whether the BZA’s findings and decision are supported by

competent and substantial evidence. See Platte Woods, 935 S.W.2d at 739; Schneider, 969

S.W.2d at 875; Lussow, 887 S.W.2d at 816-17. Further, this Court does “not have the power to

remand the case for the purpose of receiving the relevant ordinances into evidence.” Gannett,

943 S.W.2d at 362; Barnes, 867 S.W.2d at 284.

Point three is granted.

Conclusion

Without the relevant ordinances in the record, no standards exist for this Court’s review

of the BZA’s decision. See Gannett, 943 S.W.2d at 363. The BZA’s decision and the circuit

court’s judgment are reversed. This Court’s reversal of the circuit court’s judgment and the BZA

decision are without prejudice to WLIC’s right to file a subsequent application for a variance.

See Lussow, 887 S.W.2d at 817; Barnes, 867 S.W.2d at 284.

_____________________________

Janet Sutton, Judge

W. Douglas Thomson, P.J., and Karen King Mitchell, J. concur.

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