Opinion
Case No. 2017CA00164
06-18-2018
LAMAR ADVERTISING OF YOUNGSTOWN, INC., AKA LAMAR OF CLEVELAND Plaintiff - Appellee v. CITY OF ALLIANCE, OHIO, ET AL., Defendant - Appellants
APPEARANCES: For Plaintiff-Appellee R. GUY TAFT CHRISTOPHER S. HOUSTON Strauss Troy Co., LPA 150 East Fourth Street Cincinnati, Ohio 45202-4018 JEFFREY JAKMIDES 325 East Main Street Alliance, Ohio 44601 For Defendant-Appellants WILLIAM F. MORRIS Assistant Law Director JENNIFER L. ARNOLD Law Director City of Alliance, Ohio 470 East Market Street Alliance, Ohio 44601
JUDGES: Hon. William B. Hoffman, P.J. Hon. Patricia A. Delaney, J. Hon. Craig R.
OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2016 CV 02088 JUDGMENT: Affirmed APPEARANCES: For Plaintiff-Appellee R. GUY TAFT
CHRISTOPHER S. HOUSTON
Strauss Troy Co., LPA
150 East Fourth Street
Cincinnati, Ohio 45202-4018 JEFFREY JAKMIDES
325 East Main Street
Alliance, Ohio 44601 For Defendant-Appellants WILLIAM F. MORRIS
Assistant Law Director
JENNIFER L. ARNOLD
Law Director
City of Alliance, Ohio
470 East Market Street
Alliance, Ohio 44601 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reversing the decision of the appellant Board of Zoning Appeals that ordered appellee to remove its billboards and rescinded all stop work orders.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?Transcript, 8/16/16, p.62, lines 12-25 to p.63, line 1
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 changing it to the other one that was put on it?
A. From a zoning aspect, yes.
{¶10} Mr. Hawley explained the replacement of the sign face violated the Alliance Zoning Code because the new face was a different size and shape. He conceded that the only change in the shape of the sign face involved the corners. The replacements had rounded corners, where the originals had squared corners. He admitted that had the rectangular shape been replaced with "something exactly the same, probably that would have been permitted had they achieved a permit if required by the building department." (Transcript, 8/16/16, p. 57, lines 15-18).
{¶11} Mr. Hawley also insisted the new billboard faces were a different size, but when asked directly to describe the difference, he admitted he did not know how the size had changed. (Transcript, 8/16/16, p.92, lines12-25). Testimony from appellee's witnesses provided significant evidence that the size of the billboards remained unchanged and they were essentially rectangular, albeit with curved corners.
{¶12} Mr. Hawley suggested the appellee would need a building permit to replace the sign faces, but no violation of the building code was issued. He agreed that replacing the sign face was part of normal maintenance as long as the size and shape did not change and that the replacement of the face, if a part of normal maintenance, did not require a permit from the building or the zoning department.
{¶13} At the conclusion of appellants' presentation to the Board of Zoning Appeals, appellee requested that the appeal be granted due to the lack of evidence supporting appellants' position. The Board took the motion under advisement, adjourned and reconvened on August 22, 2016.
{¶14} On August 22, 2016, the Board denied the request to grant the appeal and the appellee presented testimony of Tim Gerity, vice president and general manager of appellee and Jack Mirolo, who was responsible for all maintenance and construction of appellee's billboards in the Alliance area.
{¶15} Mr. Gerity described his professional experience in the business of billboard advertising and maintenance. He acknowledged that after the acquisition of the billboards in Alliance appellee followed its normal maintenance program for the billboards and the surrounding property for each billboard that was at issue. Mr. Gerity confirmed that the sign face was removed and had been or would be replaced by a new sign face unit. He described the process of cutting the portions of the sign face that attached it to the sign structure, removing the sign face, and replacing it with a pre-constructed sign face that was then bolted or welded to the structure. According to Mr. Gerity, no structural work or changes were completed on any of the billboards.
{¶16} He described the sign face as one unit with stringers on the back of the face. He confirmed that the dimensions of each sign that was a subject of the appeal did not change in size, but did acknowledge that the corners were rounded. He also confirmed that the only change to any of the signs was replacement of the sign face.
{¶17} Mr. Gerity explained that appellee's maintenance plan included replacement of the sign faces on the billboard's appellee had acquired. Since February 1, 2016, appellee had replaced "close to sixteen hundred" faces as part of their normal maintenance plan.
{¶18} Mr. Mirolo testified briefly and confirmed that the work completed by appellee was limited to removing and replacing sign faces. Board members asked several questions regarding the billboard and sign face parts and how they were connected and Mr. Mirolo responded by explaining how the sign faces were like a puzzle that consisted of several parts combined by a third party and delivered to the site where the new face was substituted for the old.
{¶19} At the conclusion of the hearing on August 22, 2016 the appellant Board Members struggled with the definition of "sign face" and that discussion continued when the board reconvened on August 24, 2016. One Board Member admitted "***after listening to for whatever number of hours we were here before looking at code sections, I am still not exactly sure what sign face means. I am pretty sure I do not know what sign face means." (Transcript, 8/24/16, p. 6, lines 16-20). That same Member commented that "so I do not doubt that the code needs to be revised to make it clear what it is that they are either prohibiting or not prohibiting." (Transcript 8/24/16, p. 7, lines 23-25). He complained that the use of some of the terms throughout the code was inconsistent and the drafters should have been more cautious with the words they used. The trial court noted the difficulty this lack of clear definition caused the Board and correctly noted that:
[a]mbiguities must be construed against the zoning resolution because the enforcement of such provisions is an exercise police power that constricts property rights. Freedom Twp. Bd. of Zoning Appeals v. Portage Cty. Bd. of Mental Retardation & Developmental Disabilities, (1984), 16 Ohio App.3d 387, 390, 16 OBR 456, 458-459, 476 N.E.2d 360, 363-364. The Board failed to consider or apply Ohio law regarding the interpretation of ambiguous zoning ordinances.Trial court entry, Aug. 1, 2017, p.4, fn. 5
{¶20} The Board members cast aside the ambiguity they had wrestled with during the deliberations, and, without resolving the questions raised by some Members of the Board, concluded that "sign face" was equivalent to "poster," or what is defined in the code as "changeable copy." The Board also concluded that welding had occurred during the work completed by appellee and that constituted a structural change. The Board arrived at these conclusions by relying on their personal experience without any reference to the Code.
{¶21} The Board also denied the request for variance; however, that issue is not before this court on appeal.
{¶22} Appellee herein filed its notice of appeal with the trial court on September 21, 2016 and filed its brief on December 7, 2016. Appellants herein filed their responsive brief on January 26, 2017, and a reply brief was filed on February 6, 2017. The matter was decided on the briefs and the trial court issued its decision on March 7, 2017, reversing the decision of the Alliance Board of Zoning Appeals.
{¶23} Prior to the filing of this appeal, the City of Alliance served appellees with a second set of stop work orders issued by the building department. Appellee filed a motion to have appellants held in contempt and requested sanctions and attorney fees. While that motion was pending, the trial court issued a nunc pro tunc entry on August 1, 2017, confirming its decision of March 7, 2017 and including an endorsement that the decision was a final appealable order and that there was no just cause for delay.
{¶24} The trial court found "that the board's determinations are unsupported by the preponderance of the substantial, reliable and probative evidence presented at the hearings, and additionally, that the board's determinations are arbitrary and capricious insofar as the board failed to fully consider and properly apply the ordinance provisions at issue." (Trial court entry, Aug. 1, 2017, page 8).
{¶25} Appellants filed a timely notice of appeal on August 31, 2017 and submitted a single assignment of error:
{¶26} THE TRIAL COURT ABUSED ITS DISCRETION BY SUBSTITUTING ITS JUDGMENT FOR THAT OF THE BOARD OF ZONING APPEALS.
STANDARD OF REVIEW
{¶27} Pursuant to R.C. 2506.04, in an administrative appeal, the common pleas court considers the whole record, including any new or additional evidence, and determines whether the administrative order is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence. In reviewing an appeal of an administrative decision, a court of common pleas begins with the presumption the board's determination is valid, and the appealing party bears the burden of showing otherwise. Hollinger v. Pike Township Board of Zoning Appeals, Stark App. No. 09CA00275, 2010-Ohio-5097, 2010 WL 4111162.
{¶28} As an appellate court, our standard of review to be applied in an R.C. 2506.04 appeal is "limited in scope." Kisil v. Sandusky, 12 Ohio St.3d 30, 465 N.E.2d 848 (1984). "This statute grants a more limited power to the court of appeals to review the judgment of the common pleas court only on 'questions of law,' which does not include the same extensive power to weigh the preponderance of the substantial, reliable, and probative evidence, as is granted to the common pleas court." Id. Ultimately, the standard of review for appellate courts in a R.C. 2506 appeal is "whether the common pleas court abused its discretion in finding that the administrative order was or was not supported by reliable, probative, and substantial evidence." See Weber v. Troy Twp. Board of Zoning Appeals, 5th Dist. Delaware No. 07 CAH 04 0017, 2008-Ohio-1163, 2008 WL 697384.
{¶29} "The standard of review for courts of appeals in administrative appeals is designed to strongly favor affirmance" and "permits reversal only when the common pleas court errs in its application or interpretation of the law or its decision is unsupported by a preponderance of the evidence as a matter of law." Cleveland Clinic Foundation v. Cleveland Board of Zoning Appeals, 141 Ohio St.3d 318, 2014-Ohio-4809, 23 N.E.3d 1161.
ANALYSIS
{¶30} Appellants' assignment of error is subdivided into three subparts and we will address them in the order presented. In the first subpart, appellants contend:
The Trial Court first abused its discretion in substituting its judgment as to whether or not the removal and replacement of a billboard sign constituted an alteration of the sign structure.
{¶31} The appellee was cited by the zoning inspector for removing sign supports and installing new sign face supports (Exhibit 1). Neither the citation, the transcript, nor the trial courts entry supports appellants' assertion in this part of their assignment of error that entire billboards were removed and replaced. The chairman of Appellant Board of Zoning Appeals succinctly described the issues before the Board at the beginning of the Board's deliberations on August 24, 2016: "***what is normal maintenance and what is a sign face."
{¶32} During the hearing before the Board of Zoning Appeals, appellants counsel described the citation as addressing the zoning inspector's contention "the entire sign face was removed and replaced, substituted, which he found to be contrary to the provisions of the zoning code***."(Transcript, 8/16/16, p. 9, lines 1-3)(Emphasis added). The terms "sign face" and "billboard"" are defined separately in the Alliance Codified Ordinances and they are not synonymous. Finally, the appellants' witnesses never asserted that the entire billboard was removed and replaced
{¶33} Further, appellants' argument regarding this issue relies upon an erroneous citation of the Codified Ordinances of the City of Alliance, specifically Section 1134.09 (d)(ii) which states:
A nonconforming sign shall immediately lose its legal nonconforming status, and shall be brought into conformance with this section or removed, when any of the following occurs: *** The sign face (except where otherwise permitted for changeable copy) or sign structure is altered, except where otherwise permitted for normal maintenance."(Emphasis added.)
{¶34} Appellants have omitted the language in bold repeatedly without explanation. This error is found throughout the appellants' case, from the language in the zoning inspector's initial letter to the brief filed with this court. This omission in the Zoning Inspector's letter of June 29, 2016 was noted at the hearing (Transcript, 8/16, 16, p.93 lines13-25 to p.94, lines 1-24). Despite highlighting the error at the hearing, the omission was included in appellants' brief filed with the trial court and it is repeated in its brief filed herein. This language is a focal point of the analysis by the appellant Board of Zoning Appeals and the trial court because, as admitted by Appellants, "the question becomes what is normal maintenance." The trial court determined the Board found that the changes were not exempt from the prohibition against alterations because they were not normal maintenance and we agree that is a proper characterization of one of the issues before the Board of Zoning Appeals and the trial court. The issue of "whether or not the removal and replacement of a billboard sign constituted an alteration of the sign structure" was not addressed by the Board of Zoning Appeals or the trial court and, therefore, cannot be considered at this juncture.
{¶35} The Board considered the terms "sign face" and "normal maintenance" as they applied to the facts of this case and rendered a decision. The trial court limited its analysis to those issues. This court cannot now permit appellants to address an issue not raised by the parties at any stage prior to the appeal. "It is axiomatic that a party cannot raise new issues or legal theories for the first time on appeal and failure to raise an issue before the trial court results in waiver of that issue for appellate purposes." Dudley v. Dudley, 12th Dist. Butler No. CA2008-07-165, 2009-Ohio-1166, ¶ 18. Therefor this portion of appellants' assignment of error is overruled.
{¶36} The appellants' second subpart of it assignment of error states:
The Trial Court further abused its discretion in substituting its judgment for that of the Board of Zoning Appeals and the clear definition set forth in the Zoning Code on the issue of what constituted a "sign face".
{¶37} The assertion that the definition of "sign face" is clear in the Zoning Code is refuted by the comments of the members of the appellant Board. The Board began deliberations by discussing the definition of "sign face' and within those deliberations a Board Member notes "some room for interpretation on either side" and "I am not totally convinced of either interpretation." (8/22/16, page 121, lines 10 through 18). That same board member stated that:
I guess I think of the sign as the poster, or as the drawing or the paper that used to be that you put up with the paste and, you know, the sign face and
not necessarily the structure that supports that. But I can understand that could mean that too. I do not know that it--it does not seem hundred percent clear to me on either—to either side of that.Transcript, 8/22/16, page 121, line 19-24.
{¶38} During deliberations on August 24, 2016 a board member commented "I am still not exactly sure what sign face means. I am pretty sure I do not know what sign face means." (8/24/16, page 6, lines 18 through 20). The same board member noted that "it would be nice if the code would have been written a little clearer" and "I don't doubt that the code needs to be revised to make it clear what it is that they are either prohibiting or not prohibiting." (Transcript, 8/24/16, page 7, lines 11-12; lines 23-25). Appellants' assertion the definition within the zoning code is clear is refuted by appellant Board members' comments.
{¶39} Appellants argue the appellees installed a new "sign structure" as that term is defined by the Alliance Zoning Code, and not simply a new "sign face". The appellants do not direct us to a clear definition, but contend that the distinction between "sign face" and "sign structure" was revealed by the appellant Board's review of Section 1134.03(c) where "sign structure" is used in reference to "Removal of Abandoned Signs." The billboards in question were not abandoned, and because this section refers to "conforming sign structures" and not billboards, which are nonconforming, we do not agree with appellants' assertion that this section provides a clear and usable distinction between the terms "sign face" and "sign structure."
{¶40} Both terms are used in that section, but neither the use nor the context directly refutes the definition of "sign face" promoted by appellee. The section refers to "sign face" and "structure" as different parts of the sign, but provides no parameters for an objective definition. This part of the code provides nothing that would assist in crafting a clear, usable definition of "sign face" and does not provide conclusive support for appellant's position.
{¶41} The malleability of the definition of "sign face" is made evident by the comments and testimony of the witnesses and counsel for the parties at the hearing before the Board of Zoning Appeals. Counsel for the appellants mentioned that "the entire sign face was removed and replaced, substituted, which he found to be contrary to the provisions of the zoning code and thus his orders." (Transcript, 8/16/16, page 9, lines 1 through 3). Despite this admission, counsel for appellants now contends that a sign face has no depth but only height and width and is essentially a two dimensional construct that is not subject to removal and replacement despite the language in the Code authorizing its replacement as a part of normal maintenance.
{¶42} Appellant Hawley's testimony supports a conclusion that a sign face is a three dimensional object. He used the term "sign face" throughout his testimony, but was never asked to define the term. During cross-examination, he admitted that the sign face was taken off the supports, and a new sign face was reattached, directly contradicting the appellants' assertion that a sign face has only two dimensions. The notice of violation issued by Mr. Hawley references "sign face supports", adding further evidence for the conclusion that a sign face has more than two dimensions.
{¶43} Despite referencing the term "sign face" several times at the hearing before the Board, appellants never provided a definition that could be said to contradict appellee's position. Appellee provided the testimony of two witnesses defining the term "sign face" as used in the billboard industry which was unrebutted by evidence provided by appellants. Tim Gerity, vice president and general manager of the appellee describes a face as "one piece. Crane comes in, lifts it off its attachments, takes it down, takes the new face and puts it right on top." (Transcript, 8/22/16 page 18, lines 12-14). He also described the sign face as "an integral piece all together as one unit with stringers on the back of the—on the back of the face. Back of the face has stringers on it. And the stringers on there fits right on the clip." (Transcript 8/22/16, p. 20, lines 10-13). Throughout his testimony he identified all of the faces on the other billboards and provided an objective description of a sign face upon which the trial court could reasonably rely.
{¶44} Appellee's second expert, Jack Mirolo, Jr., confirmed the description of a sign face as put together with "nuts, bolts, screws and all that stuff and everything that is part of the sign face." (Transcript 8/22/16, p 97, lines 14-16). The trial court did not abuse its discretion by accepting and relying upon appellee's witnesses' testimony and the exhibits presented to the Board to conclude that a sign face is a three-dimensional object that forms the surface upon which changeable copy is posted.
{¶45} As noted by the trial court, the Alliance City Code distinguishes between a sign face and the changeable copy posted on the sign face. Despite this distinction within the Code iand the testimony of the experts presented by appellee, the Board concluded that the term "sign face" was synonymous with "poster" or the sign message. The trial court concluded that the Board's determination that appellee's work went beyond the scope of permissible maintenance because sign face means poster was unsupported by a preponderance of the substantial, reliable and probative evidence. Additionally, the board's determination on this issue disregarded the language of the ordinance itself and was, therefore, arbitrary and capricious as being "without adequate determining principle." We find that the trial court's decision was based upon evidence that is dependable and trustworthy, relevant and more than superficial and speculative. The evidence carries sufficient weight that reasonable minds might accept it as adequate to support a conclusion and, therefore, we find that the court's decision was based on reliable, probative and substantial evidence and that the court did not abuse its discretion in finding in favor of appellee.
{¶46} The second subpart of appellants' assignment of error is overruled.
{¶47} Appellants' third subdivision of their assignment of error states:
The Trial Court further abused its discretion in substituting its judgment for that of the Board of Zoning Appeals and the clear definition set forth in the Zoning Code on the issue of what constituted "normal maintenance".
{¶48} The Alliance Zoning Code provides for maintenance of a nonconforming sign in section 1134.03 (d)(i) and specifically states that "normal maintenance shall include painting of chipped or faded signs, replacement of sign face, or, repair or replacement of electrical wiring or electrical devices."(Emphasis added). We previously concluded that the trial court did not abuse its discretion by defining the "sign face" as consisting of a three-dimensional object that can be removed and replaced. This section of the Code authorizing the replacement of the sign face is consistent with the finding that a sign face is a three dimensional objection and refutes the appellants' assertion that a sign face has only length and width.
{¶49} The trial court referred to this section and noted that the board attempted to "utilize their own understanding of what would constitute normal maintenance" and disregarded the provision of the code that included replacement of the sign face as a part of normal maintenance. The court found the board's conclusion that any welding was equivalent to a structural change prohibited by the code was arbitrary. The court further found, and we agree, the Code does not require that the replacement of the sign face be a necessary repair, that it could not involve welding or that it must be done as part of any preventative maintenance plan. We further agree that the court's finding that the "boards act of implicitly reading into the ordinance terms limitations not contained therein was improper" and we therefore hold that there was sufficient reliable, probative, and substantial evidence to support the trial court's conclusions. The third subpart of the appellants' assignment of error is overruled.
{¶50} The decision of the Stark County Court of Common Pleas is affirmed. Costs assessed to appellants. By: Baldwin, J. Hoffman, P.J. and Delaney, J. concur.