Posted by: Patricia Salkin | January 2, 2012

Ohio Appeals Court Finds that Sign Affixed to Rooftop Was Entitled to Nonconforming Use Status When Panels Were Removed and Replaced

Southtown Furniture (“Southtown”) appealed the trial court’s decision affirming an administrative decision denying its request to replace face panels on a non-conforming roof sign atop its business. Southtown operates a business in Miami Township and since 1974 has had a commercial sign on the roof of its building. However, sometime after the sign was erected, the Township banned roof signs but allowed this sign to remain as a non-conforming use.

Repair work to the sign and roof needed to be performed in 2010, and a contractor was hired to remove the panels to the sign, though he left the support structure in place. A zoning inspector noticed the work being done and informed Southtown that removing the panels constituted removal of the sign and therefore it lost its legal non-conforming use status. Southtown decided to apply to the Board of Zoning Appeals (“BZA”) for substitution of a non-conforming use, seeking to replace the panels on the existing support structure without changing the size of the panels or structure itself.

The BZA denied Southtown’s application, reasoning that the substitution is not a valid request because it was submitted after the sign was removed, and therefore does not qualify as a substitution. Southtown appealed, challenging the BZA’s determination that the sign was actually removed. The trial court ultimately rejected this argument, explaining that by removing the old panels and replacing them with new panels without authorization constituted a removal of the sign. Without prior authorization such as a zoning permit, this action brought the sign within the purview of the prohibition on roof signs. The court rejected Southtown’s contention that the sign was never removed because the supporting structure was still in place, though noted that even assuming this argument was accepted, Southtown still failed to seek substitution of the nonconforming use before replacing the sign. This appeal followed.

Southtown appealed arguing that the trial court erred in determining that its removal of the old panels constituted removal of the roof sign. Southtown bases this argument on the fact that the supporting structure, which remained in place, was part of the sign, and therefore it was never removed. Second, it claims the trial court erred in determining that it was required to seek administrative approval to repair the roof sign.

As to the first argument, looked to determine whether the sign and supporting structure were “free standing.” Under the Miami Township Zoning Resolution (“MTZR”), free standing support structures are not considered part of a non-conforming sign that has been altered, removed or replaced and thus needs to comply with the Resolution. Under MTZR § 4102.02, a “free-standing sign” is “[a] sign suspended or supported by one or more uprights or braces and . . . permanently affixed to the ground surface.” The court accepted Southtown’s argument that a free standing support structure is permanently affixed to the ground, lending the belief that the structure in this case, being attached to the roof, should be included as part of the sign. After analyzing the different definitions and codes related to “free standing” and non-free standing” structures, the court noted that because the structure here is attached to the roof which is attached to the ground, it should be considered non-free standing. Therefore the provision related to losing the non-conforming status is inapplicable.

The court also pointed out that an additional consideration supports the finding that Southtown’s sign was not removed causing a discontinuance of the non-conforming use was that Southtown was preventing a public safety hazard. The panels were in a state of disrepair, and therefore were hazardous to the public, necessitating their removal and replacement. The court cited to past precedent where it recognized that “it is unreasonable to construe [a zoning] ordinance . . . in such a manner that compliance with the maintenance requirement, by itself, will in time cause the owner of the sign to lose his right to its continued [non-conforming] use.”

As for the second argument that Southtown regarding administrative approval to substitute the non-conforming use prior to replacing the sign, Southtown argued that no prior approval was necessary because the sign had never been removed. As noted above, the non-freestanding support structure, which was part of the sign, remained in place, so the denial of the request for substitution based on Southtown’s failure to timely file the application before the removal of the sign was erroneous. Because the sign was never removed, no substitution or authorization in the form of a permit or zoning certificate needed to be sought. Therefore, the Court concluded that Southtown was entitled to retain the legal non-conforming use status of its roof sign.

Southtown Furniture v Miami Township Zoning Board of Appeals, 2012 WL 6675088 (OH App. 2 Dist. 12/21/2012)

The opinion can be accessed at:

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