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Lamar Advertising of Youngstown, Inc. v. City of Alliance

Court of Appeals of Ohio, Fifth District, Stark

June 18, 2018

LAMAR ADVERTISING OF YOUNGSTOWN, INC., AKA LAMAR OF CLEVELAND Plaintiff-Appellee
v.
CITY OF ALLIANCE, OHIO, ET AL., Defendant-Appellants

          Appeal from the Stark County Court of Common Pleas, Case No. 2016 CV 02088

          For Plaintiff-Appellee R. GUY TAFT CHRISTOPHER S. HOUSTON Strauss Troy Co., LPA JEFFREY JAKMIDES.

          For Defendant-Appellants WILLIAM F. MORRIS Assistant Law Director JENNIFER L. ARNOLD Law Director.

          Hon. William B. Hoffman, P.J. Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J.

          OPINION

          Baldwin, J.

         {¶1} Appellants, City of Alliance, Board of Zoning Appeals of the City of Alliance and William T. Hawley, Zoning Inspector for the City of Alliance, appeal the decision of the Stark County Court of Common Pleas reversing the decision of the appellant Board of Zoning Appeals that ordered appellee to remove its billboards and rescinded all stop work orders. Appellee is Lamar Advertising of Youngstown, Inc., AKA Lamar of Cleveland.

         FACTS AND PROCEDURAL POSTURE

         {¶2} In January 2016, Appellee acquired eighteen billboards located within the City of Alliance and began working on them as part of its normal maintenance program. Appellant Hawley issued a "Stop Work Order followed by a letter to appellee explaining the reason for the Order. Appellant Hawley found that "the sign supports have been removed at all locations and new sign face supports have been installed" and he directed that "[a]ll of the above referenced signs have lost their legal non-conforming status and you are instructed to immediately remove them upon receipt of this notice." (Exhibit 1). His letter cites several sections of the Alliance Codified Ordinances but, while some of the sections are italicized, the letter provides no explanation of the application of those sections to the facts. He concludes the letter by explaining the appellee's right to appeal.

         {¶3} On July 13, 2016, appellee filed an appeal of the Zoning Inspector's Order as well as a request for a variance with the Board of Zoning Appeals for the City of Alliance. The hearing of the appeal began on August 16, and was completed on August 22, 2016. The Board of Zoning Appeals reconvened on August 24, 2016, deliberated, and denied the appeal and the request for a variance.

         {¶4} At the hearing before the Board of Zoning Appeals, the appellants herein submitted the testimony of Roger Westfall, Chief Building Official of the City of Alliance, and William Hawley, Zoning Inspector.

         {¶5} Mr. Westfall concluded that the billboards had been structurally altered based upon his inspection of two or three of the billboards. He claimed that "a lot of the cross members had been removed. All the faces had been removed."(Transcript, 8/16/16 p.13, lines 3-5). He drafted a letter on July 22, 2016 regarding his findings and delivered it to the Alliance Building Department, but did not deliver that letter, a notice of violation or a stop work order to appellee.

         {¶6} Mr. Westfall did concede that he had no idea how any the billboards were altered and he could not say if the shape or size had been changed. Further, he was not asked and did not testify to having any experience in the construction or maintenance of billboards.

         {¶7} Appellant William T. Hawley, the City of Alliance Zoning Inspector for fourteen years, testified on behalf of appellants regarding his observation of the billboards, the stop work orders he issued and the notice of violation he delivered. Mr. Hawley has no experience building or maintaining billboards, but he testified that he issued the stop work order because:

the billboards were being structurally altered at that point. And on the ones that were reinstalled the size and the shape was changed. It was no longer a square, they're perfectly rectangled square edged shape, it was round corners as was previously mentioned, and one piece and not the same size.

         Transcript, 8/16/16, p.52, lines 15-19

         {¶8} When questioned about the structural changes, Mr. Hawley's responses were vague and relied upon the building inspector's findings. The building inspector, Mr. Westfall, admitted that he could not describe what structural changes occurred. Consequently, the record lacks clear evidence of the structural changes described by Mr. Hawley in his letter of June 29, 2016 to appellee.

         {¶9} During cross examination Mr. Hawley conceded that the entire sign face had been removed and that the only issue was whether the Alliance Zoning Code permitted that change.

Q Okay. Now when you say that the -- and that's really what was done on all eight of these billboards to the extent the sign face was able to be replaced before you stopped them -- is that the old sign face, the whole unit was taken off of the supports, the structure, correct?
A Yeah.
Q And done away with, and then a whole new sign face was reattached to it, correct, to the structure, correct?
A Yes.
Q Okay. So you do agree with me that the issue comes down to whether this building code allows Lamar as a part of normal maintenance to change that sign face, to change it from one sign face that was on there to ...

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