Agenda - Planning Commission - 06/06/1995

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Page 2 Special Report Z.B. The appeals court reversed, holding that the city could find the billboards illegal even though it had not done so in the past. Nonconforming Use? Lamer argued that the Zoning Code allowed it to rebuild its old signs. Under the code, if a "business structure" (like a billboard) was permitted before a zoning change, it could be reconstructed after rezoning in any way "necessary to the continued con- duct of the activities of that industry or business." In effect, the code "grandfathered" in structures that lawfully existed before any zoning change that would make them illegal. To fall under the protection of the code, Lamer had to show the zoning for the property containing the billboards had changed, either through adoption of zoning where none had existed or a change in zoning restrictions. Second, Lamer had tO prove the billboards had once been permitted before a zoning change. The court found that the city's failure to enforce the code against Lamar's signs did not constitute permission to maintain them. As used in the code, the word permission meant that zoning regulations had to expressly permit the use. The city's oversight or tax enforcement did not constitute permission. Lamer failed the test because it could not show any zoning change detrimental to the billboards, as required by the code. When Lamer built the signs in 1972, the prop- erty was in an agricultural zone that prohibited billboards. In t979, the area was re- zoned, but signs were still prohibited. Therefore, there were no changes in zoning restrictions which affected Lamer, because the signs were always illegal. Lack of E~/forcement? Lamar next argued that the city allowed the billboards to exist for many years and treated them as legal. As a result, Lamar reasoned, the city "permitted" the signs in spite of the zoning regulations. In other words, "lax enforcement" by the city equaled "permission" to maintain the billboards. The court found that'the city's failure to enforce the code against Lamar's signs did not constitute permission to maintain them. As used in the code,, the word permis- sion meant that zoning regulations had to expressly permit the use. The city's over- sight or lax enforcement did not constitute permission. The city could start enforcing the regulations prohibiting billboards even though it had not actively enforced them during the 20 years that Lamer had its signs on the property. YvonneA. Tamayo is a legal writing instructor andAdjunct Faculty member at Suffolk University Law School in Boston, Mass.