Cleatus Wiles d/b/a Outdoor Advertising v. City of Highland Planning & Zoning Commission Board of Adjustment

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

CLEATUS WILES d/b/a OUTDOOR

ADVERTISING

APPELLANT

V.

CITY OF HIGHLAND PLANNING & ZONING COMMISSION BOARD OF

ADJUSTMENT

APPELLEE

CA 04-149

November 3, 2004

APPEAL FROM THE SHARP

COUNTY CIRCUIT COURT

[CV-03-125]

HONORABLE PHILIP GREGORY

SMITH, CIRCUIT JUDGE

AFFIRMED

John F. Stroud, Jr., Chief Judge

Appellant, Cleatus Wiles d/b/a Outdoor Advertising, sought a variance concerning the location of a billboard from appellee, City of Highland Planning and Zoning Commission Board of Adjustment. Appellee denied appellant's request and he appealed to the circuit court. The circuit court granted appellee's motion for a directed verdict. We affirm.

The facts of this case are essentially undisputed. In 2000, appellee adopted by ordinance certain zoning regulations that applied to signs, billboards, and other advertising structures. One of the regulations mandated that billboards not be located within 300 feet of any residential district and that they be at least ten feet above the adjacent street. The regulations also contained a grandfather clause concerning any nonconforming billboards that were already in existence. The regulations that are pertinent to this case provided that any billboard that

was "grandfathered in" could remain, but any remodeling or repairing would be subject to approval by the Board of Adjustment; that there would be no relocation of the billboard, even on the same lot, without bringing it into compliance with the zoning requirements; and that nonconforming billboards could be enlarged if such enlargements were approved by the Board and if they did not create any additional nonconforming effect. Finally, the regulations provided that the Board could vary from the regulations in individual circumstances upon application by an aggrieved party.

Appellant has been in the outdoor advertising business for approximately twenty years. The billboard that is at issue in this case was in existence at the time the regulations were adopted in December 2000. It did not meet the new zoning requirements; however, it was allowed to remain as a nonconforming use under the grandfather clause. In late 2001 or early 2002, appellant relocated and upgraded the billboard at issue. It remained on the same lot, but in a different nearby location. The new location, however, was still in violation of the regulations because it was 132 feet from a residential district. The regulations provided that no such structure was to be permitted within 300 feet of any residential district. In addition, the wooden poles were replaced with a steel monopole and the sign itself was higher than the original, which, except for the location, actually brought it more in line with the zoning requirements. However, appellant did not seek approval from the Board before moving it and making these modifications, as required under the regulations.

As noted by the trial court, as long as appellant was maintaining and improving his existing grandfathered billboard, no variance was necessary. However, when he relocated his billboard on the same lot, he was required to bring it into compliance with the zoning regulations, or if that was not possible, to obtain a variance prior to making the adjustments, which he did not do.

As mentioned at the outset of this opinion, appellant's belated efforts to obtain a variance were denied by the appellee. On appeal to the trial court, appellee's motion for directed verdict was granted, appellant's request for a variance was denied, and appellant was ordered to remove the sign and supporting pole.

For his sole point of appeal, appellant contends that "the trial court erred in denying the appellant's request for a variance after the appellant had presented proof that he would suffer an economic hardship and that the granting of the variance would not change the character of the neighborhood or area in which the variance was requested." We find no error.

The zoning regulation regarding variances provides in pertinent part:

1. The Board may authorize upon appeal in specific cases such variance from the terms of these regulations as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of these regulations would result in unnecessary hardship. A variance from the terms of these regulations shall not be granted by the Board of Adjustment unless and until:

a. The applicant demonstrates that special conditions and circumstances exist which:

(1.) are peculiar to the land, structure or building involved and which are not applicable to other lands, structure or buildings in the same district such that literal interpretation of the provisions of these regulations would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of these regulations; and,

(2.) are not [the] result from the actions of the applicant.

City of Highland Zoning Ordinance No. 00-11, § 12.03.02 (emphasis added).

In making his argument, appellant cites Davidson v. City of Little Rock, 50 Ark. App. 129, 900 S.W.2d 578 (1995), and seems to take the position that Davidson sets forth two issues that are applicable in every zoning case: 1) whether the strict enforcement of the zoning regulations would cause undue hardship, 2) whether granting the variance was in keeping with the spirit and intent of the zoning regulations. Those were the issues in Davidson because the zoning ordinance in question contained those two conditions. While those same, or similar, conditions might well be at issue in other cases having similarly worded ordinances, they are not necessarily applicable in every case.

Those two issues are not applicable here because the trial court's order makes it clear that the regulation relied upon by the zoning commission/board in denying the variance request was section 12.03.02, quoted above. Paragraphs 8 and 9 of the court's order provide:

8. After a public hearing on August 11, 2003, the defendants concluded that the applicant had not demonstrated that special conditions exist which are not the result from the action of the applicant as required by Section 12.03.02(1)(a)(2), Highland Zoning Regulations, as required for grant of a variance. By a unanimous vote they denied the request for a variance;

9. At the conclusion of the plaintiff's case in chief the defendants moved for a directed verdict and the Court granted said request for the reason that plaintiffs moving the billboard approximately 40 feet (40') on the same property violated Section 11.03.0(1)(3), Highland Zoning Regulations, that such action by the plaintiff resulted in the loss of the exemption provided by Section 10.07.0, Highland Zoning Ordinances, and precluded the granting of a variance under Section 12.03.02(1)(a)(2), Highland Zoning Regulations[.]

(Emphasis added.)

In short, in denying appellant's request for a variance, the board and the trial court relied upon the regulation that provides, "A variance from the terms of these regulations shall not be granted by the Board of Adjustment unless and until: a. The applicant demonstrates that special conditions and circumstances exist which: (1.) . . . and, (2.) are not [the] result from the actions of the applicant." (Emphasis added.) Consequently, the regulatory language relied upon here differs from that in Davidson, and, here, it was appellant's own actions that brought about his need for a variance. We hold that the trial court did not err in granting appellee's motion for directed verdict.

Affirmed.

Pittman and Crabtree, JJ., agree.