Opinion
NO. 2011-CA-001367-MR
08-17-2012
UNITED OUTDOOR MEDIA, LLC; GEORGE HAMMONS; AND BURNETTA HAMMONS APPELLANTS v. THE BARBOURVILLE BOARD OF ADJUSTMENT; SCOTT LEE, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE BARBOURVILLE BOARD OF ADJUSTMENT; WENDELL HAMMONS, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE BARBOURVILLE BOARD OF ADJUSTMENT; CHARLES W. BUCHANAN, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE BARBOURVILLE BOARD OF ADJUSTMENT; BONITA WILLIAMS, IN HER OFFICIAL CAPACITY AS MEMBER OF THE BARBOURVILLE BOARD OF ADJUSTMENT; RANDY B. CANADY, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE BARBOURVILLE BOARD OF ADJUSTMENT; THE CITY OF BARBOURVILLE, DIVISION OF BUILDING INSPECTION; AND COREY MOREN, CODE ENFORCEMENT OFFICER, IN HIS OFFICIAL CAPACITY APPELLEES
BRIEFS AND ORAL ARGUMENT FOR APPELLANTS: Philip E. Wilson Lexington, Kentucky BRIEF AND ORAL ARGUMENT FOR APPELLEES: John W. Dixon Barbourville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM KNOX CIRCUIT COURT
HONORABLE JOHN KNOX MILLS, JUDGE
ACTION NO. 09-CI-00686
OPINION
REVERSING
BEFORE: MOORE, STUMBO AND VANMETER, JUDGES. STUMBO, JUDGE: United Outdoor Media, LLC, George Hammons and Burnetta Hammons appeal from an Order of the Knox Circuit Court affirming a decision of the Barbourville Board of Adjustment. The Board's decision affirmed the denial of a land usage permit sought by Outdoor Media for the purpose of erecting a billboard on real property owned by George and Burnetta Hammons. We are persuaded by the Appellants' contention that the Board's denial of the permit was arbitrary, and that the Knox Circuit Court erred in failing to so rule. As such, we reverse the order on appeal.
The facts are not in controversy. The Hammons own a parcel of real property situated in Barbourville, Kentucky. United Outdoor Media is a Kentucky limited liability corporation which engaged in the business of constructing billboards and other outdoor advertising. United Outdoor Media contracted with the Hammons to construct a billboard on the Barbourville parcel. On October 12, 2009, construction of the billboard commenced.
That same day, City of Barbourville Code Enforcement Officer Corey Moren and Mayor David Thompson visited the construction site and informed United Outdoor Media that it had failed to obtain a permit as required by Barbourville ordinances. Work on the site ceased and on the following day United Outdoor Media filed an application for a Land Usage Permit. The application noted that United Outdoor Media properly sought to erect the sign in the business district, which was zoned "Business," "C-2" or "GB." It also described the proposed usage of the land, the location and physical dimensions of the billboard, and the purpose of the sign.
On October 14, 2009, Enforcement Officer Moren formally denied the permit application. As a basis for the denial, Moren stated that the application failed to comply with Article XII Section 12.1 of the city zoning ordinance. That provision states that,
This [sic] purpose of this Article is to promote and protect the public health, welfare and safety by regulating existing and proposed outdoor media advertising and outdoor signs of all types. It is intended to protect property values, create a more attractive business climate, and enhance and protect the appearance of the community, and preserve the scenic and natural beauty of designated areas.Article XII Section 12.2 goes on to state that,
Outdoor advertising shall be classified as a business use and shall be permitted in Industrial Districts, Business Districts and Planned Development Districts of an industrial or business nature.
United Outdoor Media appealed the Enforcement Officer's decision to the Barbourville Zoning Commission, Board of Adjustment. A hearing on the matter was conducted by the Commission on December 1, 2009, where United Outdoor Media asserted that the application was in compliance with the zoning ordinance, that the billboard was to be properly situated in an established Business District C- 2 zone, and that the "purpose clause" of Article XII was not regulatory and could not serve as a basis for denying the application.
As part of the proceeding, Enforcement Officer Moren testified that his denial of the permit was based in large part on a discussion he had with City Attorney Kenneth Boggs. Moren stated that Boggs told him that the purpose of Section 12.1 was to insure the public health, welfare and safety, as well as the scenic and natural beauty of the designated area, and that the placement of the billboard violated this purpose. Additionally, according to Moren, Boggs determined from the ordinance that outdoor advertising was allowed only on the property where the business was located, and the billboard in question did not advertise a business located on the property. After hearing the testimony from both parties, the Board of Adjustment unanimously upheld the Enforcement Officer's decision.
United Outdoor Media and the Hammonses appealed from that ruling to the Knox Circuit Court. In examining the issue, the court determined that the Board's ruling should be disturbed only if it were clearly erroneous. It went on to find that the decision of the Board of Adjustment "was based upon an appropriate examination of the applicable zoning ordinance, Plaintiff's application for a permit, and all applicable facts presented to it." In so doing, the court determined that the Board acted within its authority in denying the permit, and it affirmed that denial. This appeal followed.
United Outdoor Media and the Hammonses now argue that the Knox Circuit Court erred in sustaining the action of the Board. In support of their claim of error, they contend that the court improperly determined that the Enforcement Officer and the Board have discretionary authority to determine whether the proposed signage would comply with the policies set out at Section 12.1 of the Barbourville Zoning Ordinance. They argue that pursuant to Kentucky Revised Statutes (KRS) 100.271 and related case law, the Enforcement Officer and the Board were required to enforce the ordinance according to its literal terms and that, accordingly, the statement of purpose set out in Section 12.1 is not susceptible to discretionary enforcement. That is to say, United Outdoor Media and the Hammonses maintain that though Section 12 does set out enforceable standards for signage, such as the size and location of billboards, the purpose provision of Section 12.1 is merely what it says it is - the purpose of the subsequent standards - and is not an enforceable standard upon which an application's denial may be grounded. Additionally, United Outdoor Media and the Hammonses contend that Boggs erroneously advised the Board that it had broad discretionary authority to apply the ordinance as a whole, when, as a matter of law, the Board was bound by statute to literally apply the ordinance. And finally, they argue that the Knox Circuit Court improperly failed to reject Barbourville's contention that Section 12.21 could be applied to sustain the denial of the permit. That provision contains language restricting, under certain circumstances, the placement of signage to locations owned or operated by the business name appearing on the signage.
On appeal, the standard of review is whether the administrative body's decision was arbitrary. Hilltop Basic Res., Inc. v. County of Boone, 180 S.W.3d 464 (Ky. 2005). In determining whether an administrative body's decision is arbitrary, the reviewing court should examine whether the administrative body exercised its statutory powers, whether it afforded procedural due process to those affected, and whether its action is supported by substantial evidence. Board of Adjustments v. Brown, 969 S.W.2d 214 (Ky. App. 1998). To the extent that this determination turns on an issue of law, the matter shall be reviewed de novo. Louisville Metro Health Dep't v. Highview Manor Ass'n, LLC, 319 S.W.3d 380 (Ky. 2010).
KRS 100.271 addresses the scope of authority of city zoning officials. It states that,
An administrative official shall be designated by the city or county to administer the zoning regulation, and, if delegated, housing or building regulations. The administrative official may be designated to issue building permits or certificates of occupancy, or both, in accordance with the literal terms of the regulation, but may not have the power to permit any construction, or to permit any use or any change of use which does not conform to the literal terms of the zoning regulation.United Outdoor Media and the Hammonses properly note that this provision requires the issuance of permits "in accordance with the literal terms of the regulation."
In examining the literal terms of Article XII, we must first recognize that Barbourville Zoning Ordinance Section 12.1, styled "Purpose," is what its title states - i.e., a recitation of the purpose of the subsequent outdoor advertising regulations. It states in unambiguous language that the purpose of this section is to promote and protect the public health, welfare, and safety by regulating outdoor advertising and signs of all types. In applying the literal principle of KRS 100.271 to this provision, we must conclude that Section 12.1 does not set out any regulatory authority nor describe the size, placement or type of any outdoor advertising or signage. Rather, the literal terms of this provision merely describe what follows by placing the public on notice as to the purpose of the subsequent regulations. From this we cannot conclude that Section 12.1 grants any authority, either discretionary or otherwise, to the Enforcement Officer or the Board. Instead, it describes the purpose of the zoning scheme.
We next look to the general requirements set out in Section 12.2, which state that "[o]utdoor advertising shall be classified as a business use and shall be permitted in . . . Business Districts[.]" (Emphasis added). The "shall" language connotes mandatory rather than discretionary action, and it is uncontroverted that the permit at issue sought to erect a sign in Barbourville's "Business District," "GB" or "C-2" zone. Again applying the literal principle of KRS 100.271, we conclude that outdoor advertising "shall be permitted" in the Business District unless otherwise prohibited by subsequent provisions of the ordinance. Barbourville concedes this point, stating that "the Proposed Billboard would be a permitted use unless it fails to satisfy . . . some further requirement of Section 12.2."
The issue then turns on whether subsequent provisions of the ordinance operate to support the denial of the permit sought by United Outdoor Media and the Hammonses. United Outdoor Media, the Hammonses and the Board each direct our attention to Section 12.21 in support of their respective positions on this question. United Outdoor Media and the Hammonses contend that nothing in this section operates to support the denial of United Outdoor Media's permit application, whereas the Board maintains that the application was properly denied because the proposed billboard did not advertise a business located on the same property as the billboard. Section 12.21 states at follows:
Location and Size: No advertising sign or display shall be erected, placed, painted, repainted or hung nearer to any street right-of-way line upon which said display faces than the building lines provided in zones where the use is permitted, except one (1) sign advertising the primary nature of the business or industry conducted on the premises may be placed no closer than six feet to the street right-of-way line, but shall in no case be permitted to obstruct the view of traffic.
United Outdoor Media and the Hammonses characterize this provision as setting out (1) a general rule that advertising signs are permitted so long as they are not "nearer to any street right-of-way line upon which said display faces than the building lines provided in zones where the use is permitted[,]" followed by (2) a special rule that a sign advertising the business on the premises may be placed not closer than six feet to the street right-of-way. Conversely, the Board maintains that Section 12.21 requires all signage of any type to advertise a business located on the parcel where the sign is erected, and because the billboard in question did not do so, the permit was properly denied.
Once again applying the literal principle of KRS 100.271, we find the argument of United Outdoor Media and the Hammonses to be persuasive. Section 12.21, by both its heading and content, sets parameters on the size and placement of signage. We disagree with the Board's contention that "the subject matter of the advertisement is limited to advertising the business located on the property where the advertisement is located." Nothing in Article XII generally or Section 12.21 specifically states this. Rather, this restriction is noted in Section 12.21 solely in relation to the exception that signs advertising a business located on the parcel where the sign is erected may be placed no closer than six feet to the street right-of-way line. That is to say, we find nothing in Section 12.21 which operates to overcome the general provision set out in Section 12.2 that "Outdoor advertising shall be classified as a business use and shall be permitted in . . . Business Districts[.]"
In sustaining the Board's denial of the permit, the circuit court did not apply the facts to Sections 12.1, 12.2 nor 12.21. Rather, the circuit court's analysis centered on its determination that the Board was well informed, that it acted within its powers, and that the Board's decision "was based upon an appropriate examination of the applicable zoning ordinance, Plaintiff's application for a permit, and all applicable facts presented to it." We must conclude, however, that the Enforcement Officer does not have discretion to subjectively determine whether proposed signage meets the ordinance's purposes as set out in Section 12.1, but rather must objectively and literally apply terms of the ordinance. KRS 100.271. In so doing, we conclude that such signage "shall" be permitted within the Business District so long as it does not run afoul of the limiting size and placement provisions set out in Section 12.2, et seq. The record does not reveal that the billboard in question runs afoul of these limited provisions, and, accordingly, we must conclude that the billboard at issue "shall be permitted." Barbourville Zoning Ordinance, Section 12.2. Accordingly, we reverse the Order of the Knox Circuit Court which affirmed the decision of the Barbourville Board of Adjustment.
ALL CONCUR. BRIEFS AND ORAL ARGUMENT
FOR APPELLANTS:
Philip E. Wilson
Lexington, Kentucky
BRIEF AND ORAL ARGUMENT
FOR APPELLEES:
John W. Dixon
Barbourville, Kentucky