Posted by: Patricia Salkin | December 16, 2015

GA Appeals Court Holds Owner’s Predecessor Did Not Abandon Any Rights in Billboard by Dismantling Billboard and Upgrading It to Accommodate a LED Display

In 2001, Action Outdoor Advertizing JV, LLC, applied to DeKalb County for permits to erect a number of billboards, including the one at issue in this case. The application proposed a static sign face measuring 10 feet by 50 feet. The County issued the permit, and, despite the permitted size, Action installed a sign face measuring 14 feet by 48 feet. The County revoked Action’s permit for the sign, and in 2004, the court sustained the revocation and held that Action had no vested right in the revoked permit because it was issued in violation of the County’s zoning requirements. Once the permit was revoked, rather than dismantling the sign, Action entered into discussions with the County to preserve the sign and resolve an ongoing dispute with the County over a number of existing and proposed billboards for which Action also had sought permits in 2001.

In February 2008, the Superior Court entered a consent order allowing Action to retain certain signs “as presently constructed”. Action installed a full-face digital LED sign on the disputed billboard, and sold the billboard to Olympus Media, LLC, and Olympus officer Ray Moyers (collectively “Olympus”). The City then adopted a new sign ordinance and, based on the amended ordinance, the City issued a citation to Olympus for the sign. Before the citation was resolved, Olympus sued the City in the present action, seeking a declaratory judgment clarifying its rights in the disputed billboard. The trial court ruled that the upgraded sign was not authorized by the consent order.

Given its plain meaning, the court found the language of the consent order demonstrated an intent by the parties to preserve the status quo as to the disputed sign, allowing Action to maintain it “as presently constructed” with the static sign face featuring a small electronic board (not a full-face LED multi-message board). Furthermore, the difference in nomenclature (“digital (LED) electronic sign” versus “electronic sign”) was a reflection of the fact that the sign had an electronic component but it was not a full-face digital LED electronic sign. Therefore, the trial court correctly concluded that the order did not authorize a conversion of the disputed billboard to a full-face digital LED sign.

The City argued that Action abandoned the pre-existing use of the Metro Brokers billboard by dismantling it and upgrading it to accommodate a full-face digital LED sign board. However, nothing in the act of upgrading the disputed billboard demonstrated an intent to cease using the billboard for advertising. Accordingly, the court affirmed the trial court’s ruling that Action had not abandoned any rights it had in the disputed billboard.

Olympus Media, LLC v City of Dunwoody, 2015 WL 7291157 (GA App. 11/19/2015)

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