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Nauman Outdoor Advertising, Inc. v. McWhorter

Court of Appeals of Ohio, Fifth District

January 9, 2006

NAUMAN OUTDOOR ADVERTISING, INC., an OHIO CORPORATION Plaintiff-Appellant
v.
WILLIAM McWHORTER, SECRETARY BOARD OF ZONING APPEALS, BLOOM TOWNSHIP, FAIRFIELD COUNTY, OHIO Defendant-Appellee

Civil Appeal From Fairfield Court of Common Pleas Case 04 CV 317

For Plaintiff-Appellant: RAY R. MICHALSKI

For Defendant-Appellee: PAUL-MICHAEL LaFAYETTE, MICHAEL S. VALENTINE

Sheila G. Farmer, P.J. John W. Wise, J. Julie A. Edwards, J., JUDGES:

OPINION

Edwards, J.

{¶1} Plaintiff-appellant Nauman Outdoor Advertising, Inc. appeals from the February 2, 2005, Judgment Entry of the Fairfield County Court of Common Pleas.

STATEMENT OF THE FACTS AND CASE

{¶2} In January of 2004, appellant Nauman Outdoor Advertising filed two applications for billboard permits with the Bloom Township Zoning and Building Department. The property on which the billboards were to be erected is owned by Indiana and Ohio Central Railroad, Inc. and is leased from the railroad by appellant for outdoor advertising purposes. Each billboard was to be 300 square feet in size and was to be erected in an "R-R", or rural residential, zone.

{¶3} The railroad property at the location where the signs were to be erected is classified as a residential district because of the application of Bloom Township Zoning Resolution Article IV, Paragraph 406(A)(4) which states as follows: "The following rules shall be used to determine the precise location of any zoning district boundary unless such boundary is specifically indicated on the zoning map:…Where the boundary of a district follows a railroad line, such boundary shall be deemed to be located in the middle of the main tracks of said railroad line…"

{¶4} The Zoning Inspector for Bloom Township denied appellant's applications based upon Bloom Township Zoning Resolution Sections 1017 and 1006(B). Zoning Resolution 1017 provides, in relevant part, as follows: "For purposes of this Article, outdoor advertising off-premises signs shall be classified as a business use and be permitted in all district (sic) zoned for manufacturing or business or lands used for agricultural purposes." In turn, Zoning Resolution Section 1006(B) states as follows: "Any sign advertising a commercial enterprise, including real estate developers or subdividers, in a district zoned residential shall not exceed twelve square feet in area and shall advertise only the names of the owners, trade names, products sold and/or the business or activity conducted on the premises where such sign is located."

{¶5} Appellant appealed the denial of the applications to the Bloom Township Board of Zoning Appeals. A public hearing was held on March 15, 2004. At the hearing, appellant argued, in part, as follows:

{¶6} "Now, it's indicated that the reason that these permits have been denied or revoked is because the property is zoned residentially. The point of the matter is that this property is owned by the railroad - …. And the problem is that under your zoning code, the zoning code indicates that zones run to the center line of roads and the center lines of railroads.

{¶7} "Now, it's all well and good with regard to roads or streets because the public uses those, but this piece of property that we have a lease on of a part of it runs not only from - - it goes much further north and much further south, but as you can see where it runs through this particular section, based on how you got it zoned, that's what the zoning is on this. One piece of property, multiple zones.

{¶8} "There is case law to the effect that when you can't tell what zone you are in or you are not clear as to how a particular piece of property is zoned throughout, the zoning resolution is invalid." Transcript at 10-11. In short, appellant argued that, as applied to the railroad property, Section 406 of the Bloom Township Zoning Resolution was unconstitutional. At the conclusion of the hearing, the Board of Zoning Appeals upheld the denial of the billboard permit, ...


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