Agenda - Planning Commission - 02/05/2015

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Zoning Bulletin December 25, 2014 1 Volume 8 1 Issue 24 OHIO (11/07/14)—This case addressed the issue of whether a zoning code allowed a billboard company to alter its nonconforming off -premises signs by converting the face of the signs from vinyl to electronic changeable copy panels. The Background/Facts: Key Ads, Inc. ("Key Ads") owned three billboards in the City of Dayton (the "City"). All three signs had been built before 2006. In 2006, the City had adopted zoning restrictions that rendered the signs noncompliant with the City's Zoning Code. Accordingly, the signs were legally "non -conforming off -premises signs" under the Zoning Code. In 2011, Key Ads filed zoning applications with the City. Under those ap- plications, Key Ads requested to alter the three signs by changing the face of each sign from static vinyl panels to electronic changeable copy panels (i.e., digital panels). The City Zoning Administrator rejected Key Ads' applications to convert the signs. In rejecting the applications, the Administrator determined that the requested alterations were not in compliance with the Zoning Code. The Zoning Administrator pointed to § 150.140.4 of the Zoning Code prohibited nonconforming signs from being "improved or reconstructed" if the "alteration, reconstruction, or improvement" cost exceeded 50% of the replace- ment value of the sign. Key Ads appealed. Key Ads contended that another provision of the Zoning Code instead governed the alteration of nonconforming signs. Key Ads said that § 150.900.18(B)(2)(b) and (B)(3) allowed for nonconforming signs to be "repaired and renovated so long as the cost of such work [did] not exceed .. . [50] percent of the value of such sign." Here, expert witnesses had testified that the cost to convert each sign would be about $200,000. Expert witnesses had testified that the fair market value of the signs at their "highest and best use" as electronic changeable copy was $1 million to $2 million. The Zoning Administrator had testified that the value of a vinyl sign in the City was no more than $60,000. The City's Board of Zoning Appeals (the "Board") affirmed the Zoning Administrator's rejection of Key Ads' applications. Key Ads again appealed and the county court of common pleas reversed the Board's decision. The court found that § 150.900.18(B)(2)(b) of the Zoning Code permitted the alteration of the signs from vinyl to electronic changeable copy. The court also found that the alteration complied with § 150.900.18(B)(3) because the cost to alter the signs would not exceed 50% of the signs' value (as electronic signs). The Board appealed. On appeal, the Board argued that § 150.140.4 of the Zoning Code governed the sign alteration request here and that the alteration cost of $200,000 would exceed 50% of the replacement value of the sign based on the vinyl sign value of $60,000. DECISION: Judgment of court of common pleas reversed. The Court of Appeals of Ohio, Second District, Montgomery County, agreed with the Board. The appellate court held that § 150.900.18(B) governed the requested sign alterations here. More specifically, the court found that conver- sion from vinyl to electronic changeable copy panels qualified as an "improve- ment" under § 150.140.4(B)(1). In so holding, the court noted that "[w]hen confronted with such comparable 2014 Thomson Reuters 5