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A Noblesville ordinance’s language for sign relocation was ambiguous with its usage of “relocate” and “move,” the Indiana Supreme Court affirmed Monday in upholding a trial court’s judgment in favor of an outdoor signage company.
According to court records, since the 1970s, Reagan Outdoor Advertising has owned three billboards along State Road 37 in Noblesville. The billboards are classified as pole signs under Noblesville’s unified development ordinance.
The 1974 ordinance, which regulates the display of signs within the city, prohibits pole signs. But preexisting pole signs like Reagan’s retain their status as a legal nonconforming use.
Nonconforming signs lose their legal status if they are relocated or fall into disrepair after six months.
In April 2020, Reagan learned that a storm had damaged one of its billboards, so it “acted promptly” to repair the damage. That included removing the billboard’s front-facing display, cutting off the existing posts at ground level, and installing new posts 18 to 36 inches behind the original posts.
Before Reagan could finish the repairs, the city’s Department of Planning & Development issued a stop-work order. It later issued a notice of violation, which explained that Reagan had not obtained a valid permit to install the sign and its replacement of the failed posts with posts 18 to 36 inches away relocated the sign.
The department concluded the sign lost its legal nonconforming status and ordered Reagan to remove it immediately.
Reagan appealed to the city’s Board of Zoning Appeals, which affirmed.
Reagan then sought judicial review under Indiana Code§ 36-7-4-1615 and declaratory relief under I.C. 34-14-1-2 and 10.
The Hamilton Superior Court found for Reagan, holding that it did not need a permit under Article 11 of the city’s ordinance, which governs signs, to do necessary repairs. It also held that Reagan did not “relocate” its sign by installing the new posts a few feet from the old posts.
As to declaratory relief, the court held that Reagan could “place its [s]ign on the new, steel [s]upports without any challenge to its uninterrupted and ongoing legal non-conforming use status” under I.C. 36-7-4-1615(2) and 34-14-1-2.
And the court awarded Reagan “an assessment of costs against the [board]” under I.C. 34-14-1-10.
The board appealed, arguing the disputed sign lost its legal nonconforming status because Reagan needed a permit to install the new support posts and that, by installing the new posts in a different location, Reagan relocated the sign in violation of the ordinance.
The Court of Appeals of Indiana agreed and reversed in Noblesville, Ind. Bd. of Zoning Appeals v. FMG Indianapolis, LLC, 201 N.E.3d 1175 (Ind. Ct. App. 2022).
The Indiana Supreme Court granted transfer and affirmed the trial court’s decision, holding that it is unclear under the ordinance whether “relocate” encompasses the de minimis movement of a sign undertaken to repair the damaged support posts.
“Thus, the board’s decision was contrary to law under Indiana code section 36-7-4-1614(d)(1), and Reagan is entitled to declaratory relief,” the high court’s opinion states.
Justice Geoffrey Slaughter wrote the opinion.
Slaughter wrote that the zoning board referenced Reagan’s lack of a permit in its appellate papers but did not explain why Reagan needed a permit.
According to Slaughter, the board simply insisted Reagan needed a permit to complete its work because Reagan was constructing a “new” sign, not “repairing” an old one.
“Such bare assertions without legal support or briefing are insufficient. Thus, we conclude the argument is waived and cannot serve as a basis for the board to obtain appellate relief,” Slaughter wrote, citing French v. State, 778 N.E.2d 816 (Ind. 2002).
Slaughter wrote that the only argument before the high court is whether Reagan’s decision to move the posts 18 to 36 inches from their original position “relocated” the sign in violation of the ordinance’s ban on nonconforming signs.
The high court held that Reagan did not violate Noblesville’s ordinance.
‘Although ‘relocate’ and ‘move’ are similar, they have different meanings under the ordinance. And the ordinance offers no guidance on how far a sign must be ‘moved’ before it has been ‘relocated.’ Thus, the term is ambiguous, and we construe it in Reagan’s favor,” Slaughter wrote.
Chief Justice Loretta Rush, Justice Mark Massa and Justice Derek Molter concurred.
Justice Christopher Goff concurred in the judgment with a separate opinion.
Goff wrote that under precedent, the high court affords “great weight” to a zoning board’s interpretation of the ordinances it enforces.
“Here, however, Noblesville’s interpretation of ‘relocated,’ to include re-erection of a damaged pole sign 18 to 36 inches from its original spot, is unreasonable — especially considering Reagan’s duty to keep the sign in good repair. Noblesville’s interpretation is therefore undeserving of deference,” Goff wrote.
The case is Noblesville, Indiana Board of Zoning Appeals v. FMG Indianapolis, LLC d/b/a Reagan Outdoor Advertising, 23S-PL-114.
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