Posted by: Patricia Salkin | January 27, 2015

SC Appeals Court Agrees Nonconforming Sign Had Been Discontinued, Failure to Join a Necessary Party was not Fatal, and City Cannot Be Estopped from Enforcing its Zoning

Petitioner MYC Klepper/Brandon Knolls L.L.C., d/b/a Klepper Outdoor Advertising purchased a billboard structure “once known to have been located” on a property. After purchasing the billboard structure petitioner erected a 288 square- foot billboard on the property. Petitioner was issued a Notice of Violation (“NOV”) for not obtaining a sign permit. The City of Ashville’s Code of Ordinances provided that legal nonconforming signs may not be reestablished after discontinued use for more than a year. Thereafter, the use of the structure must conform to the zoning ordinance. A prior nonconforming sign was removed in 2007 and the structure was not in use for more than two years.

Petitioner appealed an order from the Buncombe County Superior Court, North Carolina affirming the decision of the Board of Adjustment for the City of Ashville (“the Board”) upholding the issuance of the violation.

On appeal, the court first addressed the Board’s contention that the trial court erred in denying its motion to dismiss the petition for lack of subject matter jurisdiction. The Board contended N.C. Gen.Stat. § 160A–393(e) provides that “the respondent named in the petition shall be the city whose decision-making board made the decision that is being appealed.” Here, petitioners named the Board of Adjustment for the City of Ashville as respondent instead of naming the City of Ashville, as required. The Board contended that this failure deprived the trial court of subject matter jurisdiction. The court disagreed stating the defect in the petition amounted to a failure to join a necessary party. Previously, the court had expressly held that “a failure to join a necessary party does not result in a lack of jurisdiction over the subject matter of the proceeding.” Stancil v. Bruce Stancil Refrigeration, Inc., 81 N.C.App. 567, 573, 344 S.E.2d 789, 793 (1986). Accordingly, it held that petitioner’s failure to name the City of Ashville as respondent in the petition did not deprive the trial court of subject matter jurisdiction over the proceedings. Additionally, the Board did not dispute the trial court’s finding that “the City was on notice of this action and participated in the defense.” Because the City’s participation in the proceedings cured the defect in the petition, the court held that the trial court did not err in denying the Board’s motion to dismiss the petition.

Secondly, Petitioner argued that the sign should be allowed based on a 1992 variance, which, petitioner contends, was not subject to the amortization rules. Alternatively, the sign should be deemed legal because the City failed to notify petitioner or any prior owner of the sign of the “cap and replace” provisions adopted by the City in 2004. While the Board upheld the NOV based upon its finding that the sign is larger than permitted by the ordinance and was constructed without a permit.

The court stated that the Ashville, N.C., Code of Ordinances Section 7–13–8(f)(5) provides that a legal nonconforming sign cannot be reestablished after its discontinued use for 60 days. “A nonconforming use shall be deemed discontinued after a period of 365 consecutive days regardless of any substantial good faith efforts to re-establish the use. Thereafter, the structure or property associated with the use may be used only for conforming use.” Thus, if a nonconforming sign that has been deemed legal by the granting of a variance or through a “cap and replace” agreement is not used for 425 consecutive days, the sign loses the benefit of the variance or the “cap and replace” agreement.

Here, it was undisputed that the prior sign was removed from the property in 2007 and that no sign existed on the property until the current sign was built in 2010. Because the sign was not in use during a period of more than 425 consecutive days, the new sign constructed in 2010 was required to conform with the ordinance. Accordingly, the Board correctly found that even “if the sign had been a non-conforming sign that could have continued in use after 1997, it still could not be reestablished after being removed for more than two years.”

Petitioner next argued, that he should be able to reestablish the sign because he relied upon the advice of the City Attorney. Petitioner consulted the attorney during the time the previous sign was not in use and was being considered for replacement. The attorney did not inform petitioner that there was a time limit for re-establishing the sign and in fact told petitioner that he was proceeding properly. The court stated that it was well established, “a municipality cannot be estopped to enforce a zoning ordinance against a violator by the conduct of its officials in encouraging or permitting such violator to violate such ordinance in times past.” City of Raleigh v. Fisher, 232 N.C. 629, 635, 61 S.E.2d 897, 902 (1950). This is because “in enacting and enforcing zoning regulations, a municipality acts as a governmental agency and exercises the police power of the State,” and such power “cannot be bartered away by contract, or lost by any other mode.” Therefore, representations by a city official cannot immunize a petitioner from violations of zoning ordinances.

MYC Klepper/Brandon Knolls L.L.C. v. Bd. of Adjustment for City of Ashville, 2014 WL 7472936 (N.C. 12/31/2014)

The opinion can be accessed at:

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