Agenda - Planning Commission - 07/10/2006

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(- June 10, 2006 --Page 7 Signs -- Board denies sign permit based on pending application of separate company Zoning code requires 700feet between billboards Citation: The Lamar Company of Nebraska LLC v. Omaha Zoning Board of Appeals, Supreme Court of Nebraska, No. S~04-1300 (2006) NEBRASKA (04/27/06) --The Lamar Company of Nebraska LLC had a bill- board on property that it leased from Miller Properties Inc. in Omaha. When the lease expired, Lamar had 30 days to remove the billboard. Mil/er then leased the property to Waitt Outdoor LLC, which also planned to use the space to erect a billboard. Omaha had a municipal code that required 700 feet of separation- between advertising sign locations. Waitt applied to Omaha's planning department for ~ sign permit on May 19, 2003. On May 29, it applied for variances that were necessary because the billboard would be located within an area that was zoned for residential use. A heating on the application was scheduled for Aug. 21, 2003. Lamar, having failed to renegotiate its lease with Miller, leased a parcel from Mercy Road Limited Partnerships that was adjacent to Miller's property. On June 12, 2003, Lamar applied to Omaha for a sign permit. Lar~, ar was notified by letter on June 24 that its application was denied because of Waitt's pending application before the board. Lamar appealed to the board, which considered its complaint on the same day as Waitt's application. The board approved Waitt's requests for a sign permit and a variance. The board also denied Lamar's appeal. Subsequently, Lamar argued that it should be granted a variance to the separation provision; the board also denied that request. Lamar sued, but the trial court upheld the board's decision. Lamar appealed. DECISION:Affirmed. The trial court's review of the board's decision was limited to whether the board's actions were illegal, arbitrary, unreasonable, or clearly wrong. The ap- peals court had to decide i~ the trial court had abused its discretion or made an error of law. The appeals court found that neither the board nor the lower court had abused its discretion or made an error of law. Lamar argued that, because its application complied with all of the code's requirements, it was entitled to the permit "as a matter of fight." The board countered that it had to deny Lamar's application under state law and its "first in time, f~rst in right" policy. The board also asserted that due process required resolving Waitt's application before acting on Lamar's. Lamar also argued that the board should have ~anted it a variance because granting Waitt's application created a hardship. The court, noting an adminis- trative board's wide range of discretion, found that this argument lacked merit. see also: Eastroads v. Omaha Zoning Bd. of Appeals, 628 N. ~2d 677 (2001). © 2006 Ouinlan PuDlishing Group. Any reproduction is proh~t3~ted. For more information please call (617) 5,4.240411. 177