Agenda - Planning Commission - 03/04/1996

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Page ~-- February 1996 g.g. [ M0. re than three years later, Handy placed a sixth banner outside the build- ing. Ttie 2-by-20-foot banner was up for about a week. All'six banners were visible from nearby highways. Other area businesses were a!so using temporary signs during the same time period. Th~. Agency of Natural Resources ordered Handy to remove ail signs not allowe~ under the permit, and assessed a $25,000 penalty. Handy requested a hearing, before the Environmental Law Division. Thd division separated the alleged violations into three time periods. It ruled there was no permit violation from February 1991 (when Handy put up the first, banner) until the commission's May denial of permission to put up the bannera. The division decided the first two permits did not specifically pro- hibit te~nporary banners. The division noted other businesses in the park were using t~mporary banners without challenge. Second, the division ruled there was a permit violation from May to October 1991 (the date the last permit was granted} because Handy kept the banners up knowing the commission consid- ered it ~ permit violation. Third, the division ruled Handy violated the last permit f/;om Oct. 8, 1991 to March 3, 1992--when the last banner was removed. Howevqr, it decided the restaurant's banners created only a slight adverse affect on the a~rea's aesthetics, considering other nearby businesses also displayed banners.! The division fined Handy. Haniy and the agency appealed the decision to court. The agency argued the d~visSon was wrong to find no violations for the first period. It claimed the temporary banners were signs because they were used to call attention to a business! and were visible from the highway. It also appealed the division's finding that the violations caused only slight environmental harm. Hanc~y claimed the penalties were unsupported. It argued the temporary banners ~ere not "signs," so they were not prohibited by the first two permits. DECISI~)N: Affirmed in part and returned to the division. The ~ivision was correct in holding the temporary banners were not signs. The temporary banners were not prohibited by the first two permits, which had conditio~{s against the installation of signs. The Word "sign" referred to both the message (the advertisement) and the medium {how the sign was displayed or posted). In everyday usage, a "sign" meant soinething more substantial and permanent than a temporary banner. The banners were tied, not installed, to the outside of the restaurant. The word "installati~on" commonly meant something built, not hung. The division improperly found permit violations before Oct. 8, 1991, the date the list permit was issued with its specific prohibition against temporary banners. The conditions on the first two permits were not specific enough to let Handy know it could not have hanging temporary banners. The opinion and the commission's notice were not supported by specific permit language. There- fore, no p{nalties should have been assessed for conduct before Oct. 8, 1991. The division properly found Handy violated the last permit's prohibition r against temporary banners. However, the court could reasonably conclude the banners' o~eralI effect created only a slight impact on public health, safety, and welfare.