Agenda - Planning Commission - 02/06/2014

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Zoning Law Bulletin December 25, 2013 I Volume 7 I Issue 24 tion had to be evaluated under the more strict "classic, standard" (i.e., enhanced qual- ity of proof standard) (d)(1) variance. Preemption —Private advertising company challenges order to remove its advertising benches from public rights -of -way Company claims its benches located at public transit bus stops constitute public utility service facilities covered by statutory exemption from local zoning Citation: Bench Billboard Co. v. City of Covington, Ky., 2013 WL 5942230 (6th Cir. 2013) The Ninth Circuit has jurisdiction over Kentucky, Michigan, Ohio, and Tennessee. NINTH CIRCUIT (CALIFORNIA) (02/15/11)—This case addressed the issue of whether a private advertising company's benches located at local transit authority bus stops constituted public utility facilities covered by a statutory exemption from local zoning ordinances. The Background/Facts: Bench Billboard Company ("BBC") was a company that installed advertising benches on both public and private prop- erty in Kentucky, usually near bus stops. In the course of its business, BBC installed advertising benches at Transit Authority of Northern Kentucky ("TANK") bus stops in the City of Covington (the "City"). City Ordinance 0-2-09 prohibited any encroachment on public rights -of - way such as public sidewalks or streets. Among such encroachments were "benches," which the Ordinance defined as "[a] seat or seats located on public sidewalks, along any public way or right-of-way, for the accommodation of persons awaiting transportation or for other purposes" and "that may or may not have advertising located anywhere on their exterior." The Ordinance cre- ated exceptions for "[a]ny property placed in the right-of-way by a governmen- tal or quasi -governmental agency or body, including but not limited to .. . public transportation shelters [and] benches." After the City began enforcing its ordinances and removing BBC's benches from public rights -of -way, BBC filed suit, asserting constitutional challenges to the ordinances and later adding claims against the TANK. Finding there were no material issues of fact in dispute, and deciding the matter on the law alone, the district court granted summary judgment in favor of the City and TANK. The court found that the Ordinance did not violate BBC's constitu- tional rights and that BBC lacked standing to bring its claims against TANK. The United States Court of Appeals, Sixth Circuit, affirmed. © 2013 Thomson Reuters 7