Agenda - Planning Commission - 08/07/2008

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Zoning,Bulletin " 6.7-1(a) of the zoning ordinance provided a "grandfather" provision, which provided that any legally non-conforming sign prior to the ad- dition of S 8.9(7) could remain in use as a legal non-conforming sign. After being cited for violating the building code for failure to have a permit for the sign, Whiteco (at Heerey's request) applied for a per- mit. The city's zoning administrator denied zoning certification for the sign, and therefore the building permit was denied. The denial. of the zoning certification was based on the grounds that the sign violat- ed S 8.9(7) of the zoning ordinance regarding the proximity of signs to residential districts. The zoning administrator also determined that the sign was not grandfathered under S 6.7-1(a) of the zoning ordi- nance because there was no prior permit for the sign on file. Whiteco appealed the denial of the zoning certification to the . city's zoning board of appeals (ZBA). The ZBA sustained the denial. Whiteco sought judicial review of the ZBA's decision in state court and lost. Meanwhile, GASS, as the owner of the property, filed an action in federal court. GASS asserted that its sign was established and lawful before the 1990 zoning change that banned advertising signs within 250 feet of a residential district. As such, GASS argued that it had a vested property interest in continuing to display its sign, and that the city deprived it of that right without substantive due process because: (1) the city's application of the city's 1990 zoning provisions and its refusal to grandfather the sign, amounted to a retroactive applica- tion of laws enacted after the sign's erection that deprived GASS of its vested property and contractual rights in an arbitrary manner; and (2) the grandfather provision of S 6,7-1(a) did not promote the pub- lic health, safety, morals, or general welfare city since it arbitrarily grandfathered advertising signs that had been erected pursuant to a permit but not signs for which no permit had been required. GASS also argued that the city's zoning ordinance violated the First Amend- ment to the u.s. Constitution because it only grandfathered those signs issued pursuant to a permit, rather than all advertising signs. After dismissing the First Amendment daim, the district court found in favor of the city on the substantive due process daims. GASS appealed. DECISION: Affirmed. The Seventh Circuit Court of Appeals held that GASS' substan- tive due process daims failed because the sign was not lawful before the zoning changes. 6 @ 2008 Thomson Reuters/West 42 -~,