Agenda - Planning Commission - 07/10/2006

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furore value if another developer showed interest in his property. Johnson argued that the board did not hear any expert testimony as to its safety con- ceres and that the board had applied ad hoc rationale to deny the variance. The 10th Circuit found that all of the reasons given in the decision were discussed at the hearing, and it dismissed the ad hoc argument. Finally, the 10th Circuit noted that it was USCC's and Johnson's responsibility to show that the variance was needed by establishing that an undue hardskip existed with respect to the specific site, and it was not the board's responsibility to get an expert opinion. see also: Preferred Sites, LLC v. Troup County, 296 F.3d 1210 (2002). Signs -- Local authorities claim 3-D shark is a 'sign' Claim that shark is designed to attract attention : Citation: City of Corpus Christi v. Azoulcry, Court of Appeals of Texas, 13th Dist., Corpus Christi, No. 13-04-592-CV (2006) TEXAS (05/04/06) -- Azoulay wanted to build a three-dimensional shark struc- ture at the entrance of Ms business. His permit application to the city of Corpus Christi's Zoning Board of Adjustment was denied because the structure was determined to be a "sign" under the city ordinance. The ordinance restricted the size of signs to I00 square feet or less. Azoulay sued, and the court ruled in Iris favor. It found that the shark structure did not meet the ordinance's defm/tion of "sign." Further, the court found that, even if it was a sign, the structure was not in violation of the ordinance. The court ordered the city to issue a permit to Azoulay. The board appealed, arguing that the trial court had abused its dis~etion by substituting its judgment for that of the board and erred by allowing new evidence to be heard at trial. The board argued further that the shark structure was a sign because it was intended to attract attention. DECISION: Amrmed. If the lower court found that the board had incorrectly analyzed or applied the law, it had to reverse the board's decision; however, the court was not allowed to substitute its judgment for that of the board. The appeals court ;arid to determine if the lower court's ruling reversing the board's decision was supported by the law and the record. The ordinance in question was.clear and unambiguous. To be considered a sign, a structure had to: l) attract attention; 2) convey h:fformafion; 3) identify or advertise any establishment, product, goods, or services; and 4) be out- doors in view of the general public. There was nothing in the language of the ordinance to support the board's interpretation that the structure only needed to attract attention to constitute a sign. Because no disjunctive word divided the string of elements bed to del-me © 2006 Quinlan Put~lishing Group. Any reproduction is prohibited. For more information please call (617) 542-0048. 181