Posted by: Patricia Salkin | August 13, 2015

TX Appeals Court Holds Dilapidated Billboard Could Be Repaired Rather than Removed as Nonconforming

Appellants CPM Trust, KLM Secure Trust, and RMP Parker Central, LLC filed this lawsuit against appellees the City of Plano, Texas and the Board of Adjustment of the City of Plano, Texas. The evidence introduced in the record was that the Plaintiff’s property had a legally, nonconforming billboard on it that was damaged by a storm. Section 3.1604(6) of the Plano Zoning Ordinance does not allow a nonconforming sign to be “moved, altered, removed and reinstalled, or replaced.” The Board voted 2–3 to uphold the building official’s decision that this language does not allow a property owner to repair the damaged billboard. The claims asserted by appellants were: a challenge to the Board’s decision requiring removal of a certain billboard owned by appellants; a violation of appellants’ “vested property rights”; and a regulatory taking claim. Following a hearing, the trial court denied appellants’ motion for summary judgment as to that claim and signed an order in which it affirmed the Board’s decision.

Section 3.1602 states in part that a sign is “dilapidated and deteriorated” when the structural support or frame members are visibly bent, broken, dented, or torn or the sign or its elements are twisted, leaning, or at angles other than those at which it was originally erected (such as may result from being blown or the failure of a structural support ). The photographs of the billboard cited by the Board showed one support pole standing and other parts of the billboard on the ground nearby. Because the court determined that the sign in question met this definition, rather than the “destroyed” definition suggested by the Board, the court held that the Board abused its discretion by not allowing appellants the option to make repairs as provided under subsection 3.1604(7)(b), and the trial court erred by affirming the Board’s decision.

The court rejected Plaintiffs’ takings claim, finding appellants did not contest the sign regulations in the City’s zoning ordinance, but rather complained about the City’s misapplication of certain regulations as to their property. Because of this, the court held that the owners did not allege a taking arising out of city board of adjustment decision requiring removal of billboard pursuant to city zoning ordinance and, therefore, the city retained immunity from inverse condemnation claim. Accordingly, the court upheld the trial court’s determination on the takings claim, but reversed as to the decision to affirm the Board’s decision the sign could not be repaired.

CPM Trust v City of Plano, 461 S.W. 3d 661 (TX App. 4/7/2015)

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