1A, Clear Channel Litigation - Laserfiche WebLink

Home Browse Search

Robert H. Lynn April 15, 2008 Page 7 (attached hereto as Exhibit C), the City of Virginia Beach's zoning regulation provided that "no nonconforming sign shall be structurally altered, enlarged, moved or replaced." 645 S.E.2d at 275. Adams Outdoor owned a lawful nonconforming billboard and replaced a static face with an electronic message board. !d. The Virginia Supreme Court upheld the decision of the circuit court that the installation of an electronic message board onto the existing nonconforming billboard enlarged the billboard in violation of the City's zoning ordinance. Id. The Court reasoned that the electronic message board increased the depth and weight of the billboard, even though it did not increase the billboard's height, length, or the square footage of the advertising area. Jd The COUli explicitly rejected the argument offered by the billboard's owner that the billboard was not enlarged because the message board did not increase the square footage of the billboard's advertising area, observing that the square footage of the advertising area was not the controlling factor and that increasing the depth and weight of the billboard enlarged the billboard within the meaning of the zoning ordinance. !d. Here, because Plaintiff admits that the depth of the LED sign face is greater than the depth of the static billboard it replaced, it can only be concluded that Plaintiff unlawfully expanded its nonconforming use. See Adams Outdoor, 645 S.E.2d at 274-75. Contrary to Plaintiff's claims, the fact that the two dimensional footprint of the sign did not change does not somehow negate the fact that the depth of the sign increased. The very notion that the term "expansion" is limited to the height and width of the sign and not its depth is contrary to well- established Minnesota law that an increase in one or more dimensions of a structure or a use constitutes an expansion or enlargement of that structure or use. See County of Lake, 451 N.W.2d at 341; County of Freeborn. 295 Minn. at 100, 203 N.W.2d at 326. Also contrary to Plaintiffs claims, a purported reduction in advertising space is not a reduction in the dimension of the structure itself, and the fact that Plaintiff has chosen not to use the maximum available advertising area of the larger digital sign it constructed does not in any way negate the fact that there was an increase in the depth of the sign. See Adams Outdoor, 645 S.E.2d at 274-75 (holding that the advertising surface area is not the controlling factor when the depth and weight of the sign have been increased). In any event, Plaintiff can provide no authority for the proposition that an increase in one dimension of a structure (the depth) and a reduction in another aspect of a structure (such as the advertising surface area) somehow means that the changes in the structure offset each other and there is not an expansion for purposes of the nonconforming use statute. To the contrary, the fact that the depth of the sign increased is alone sufficient to constitute an unlawful expansion. See id The conclusion that Plaintiff unlawfully expanded its sign is buttressed by the plain language of the City's zoning ordinance and the underlying policy of the ordinance. To hold, as Plaintiff must urge, that an increase in one dimension of a billboard is not an expansion would torture the plain and ordinary meaning of the City's ordinance, which plainly prohibits expansion or enlargement of use nonconformities. It is well-established that zoning ordinances must be considered in light of their underlying policy goals, Frank's Nursery Sales. Inc. v. City of