Agenda - Planning Commission - 02/02/2006

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Page 8 -- December 24, 2005 board location permit regulation did not apply to billboards that were erected on interstate highway rights-of-way. As a result of th.is Ietter, Pinnacle erected two billboards without city ap- proval. Pinnacle leased land on interstate l-fighway rights-of-way, and requested permits only from the state government. Pinnacle also sought to erect 15 billboards by applying for a permit only from the state government. The state approved 10 of the applications. Dur- ing this time, the city enacted an amendment to its zoning ordinance to include interstate highway rights-of-ways. Although Pinnacle received no- tice of the amendment, it began erecting one of its billboards without seek- ing a permit from the city. The city issued a stop-work order, and Pinnacle sued the city, seeking a declaration that the amendment to the zoning ordi- nance did not apply to the 10 permits that he received from the state. The lower court granted judgment in Pinnacle's favor, and the city ap- pealed. The appeals court affirmed the lower court's decision, and the city appealed again. DECISION: Reversed, Pinnacle was required to comply with the zoning amendment. In general, a person's "vested rights" were protected against retroactive application of a zoning change in the law. A developer usually had a vested right if it "relied in good faith.., upon some act or on-fission of the government ... [and] made substantial change or committed him or herself to a substantial disadvantage prior to the zoning change." To determine whether Pinnacle had a vested right in erecting the billboards, the court relied on a prior case, Lut: v. New Albany City Plan Commission. In that case, the court held that a nonconforming use could not be terminated by a new zoning enactment. A nonconforming use was a use of property that lawfully existed prior to the enactment of a zoning ordinance that continued after the ordinance's effective date, even though it didn't comply with the ordinance's restrictions. Here, the court had to determine whether a land developer had a vested interest in a nonconforming use that only was intended because construction had not yet begun at the time of the enactment. Based on Lute, when no work has begun, or when only preliminary work has been done without going ahead with construction, there could be no vested rights. Purchasing the property and making plans for the erection of a building before the adoption of a zoning ordinance did not make the property exempt from the new regulations. Therefore, since Pinnacle had not commenced construction on any of the 10 billboards prior to the enactment of the amendment, it did not have a vested right, and it was required to obtain a pemfit from the city. see also: Latc w. New Albany Ci~. Plan Commissioner, JO1 N.E. 2d 187 (1951). see also: _¥tutstet~ ~: State, 16~) ),I.~'.2d 200 (!959). © 2005 Quinlan Publishing Grou~. Any reproduction is prortibiteo. For more information please carl (617) 542-0048. 138