## Facts

- James and Susan Brandt owned a Kansas City residential tract consisting of one and one-half platted lots in a single-family residential zone.
- The tract contained two separate houses (one fronting Erie Street and one in the rear), each rented to a different family when the Brandts purchased the property in March 1980.
- The two-house, two-family use had existed for roughly thirty years with only intermittent vacancies.
- At the suggestion of a city official, the Brandts applied to the Kansas City Board of Zoning Adjustment for a variance to allow continued rental of both houses to separate families despite single-family zoning.
- After hearings, the Board granted the variance.
- Neighboring landowner Jon Matthew sought certiorari review under § 89.110, RSMo 1978, challenging the Board’s action.

## Issues

1. Whether the Board had authority to grant a use variance permitting two-family residential use in a single-family zone, and what standards govern such variances.
2. Whether the record contained competent evidence of “unnecessary hardship” sufficient to justify the use variance.
3. Whether the property instead qualified as a lawful nonconforming use based on long-standing two-house occupancy, and whether that theory required development on remand.
4. Whether the Board’s hearing procedures provided a fair opportunity for an objecting neighbor to present relevant evidence.

## Decision

- The Supreme Court of Missouri (en banc) reversed the circuit court judgment that had affirmed the Board’s variance.
- The court held the granted use variance was unsupported by competent evidence establishing unnecessary hardship under Missouri variance standards.
- The court remanded to the Board for further proceedings, including a new hearing to develop an adequate record.
- The court directed that, on remand, the Brandts could present evidence supporting a variance and could also assert and attempt to prove a nonconforming-use claim.

## Legal Principles

- A variance applicant must satisfy a multi-part showing, including that: (1) relief is necessary due to unique property characteristics rather than personal considerations; (2) strict application would cause unnecessary hardship; (3) the hardship is not necessary to preserve the overall zoning plan; and (4) the variance will result in substantial justice.
- “Unnecessary hardship” is the central basis for a variance and requires record evidence that: (1) the property cannot yield a reasonable return if used only as zoned; (2) the owner’s plight results from unique circumstances rather than general neighborhood conditions; and (3) the proposed use will not alter the essential character of the locality.
- “Lack of reasonable return” requires deprivation of all beneficial use, not merely reduced profitability; conclusory assertions are insufficient without concrete supporting proof.
- Boards of zoning adjustment must conduct fair and impartial hearings, allow affected parties a meaningful opportunity to present evidence, and create a record capable of supporting the required statutory findings.
- Where the facts suggest a possible lawful nonconforming use, the Board must meaningfully consider that status rather than using a variance to excuse a potentially protected preexisting use.

## Conclusion

The court set aside the granted use variance because the Board’s record lacked competent evidence of unnecessary hardship and the proceedings did not adequately develop relevant proof, and it remanded for a fair rehearing at which the owners could attempt to prove either the variance requirements or a lawful nonconforming use.


Matthew v. Smith, 707 S.W.2d 411 (Mo. 1986)