IN Appeals Court Applies Agency Deference and Reverses Trial Court Ruling on Non-Conforming Use of a Sign

This post was authored by Sebastian Perez, JD

The Court of Appeals of Indiana (the “Court”) reversed the lower court’s decision when The City of Noblesville Board of Zoning Appeals (the “NBZA”) appealed a trial court order that reversed an NBZA affirmance of a Stop Work Order and Notice of Violation Issued by the City of Noblesville (the “City”). The Order and Notice were issued when Reagan Outdoor Advertising (“Reagan”) performed work on its pole sign (the “Sign”) after a storm damaged it. The NBZA argued that the trial court failed to apply deference to its reasonable interpretation of the relevant zoning ordinance which concluded Reagan performed new construction without a permit and work performed by Reagan constituted a relocation of the sign that caused the loss of its legal nonconforming status. This appeal followed. 

For the standard of review, the Court noted that a reviewing court could provide relief to a person that had been prejudiced by a zoning decision only if the decision fell within one of five categories under Ind. Code Sec. 36-7-41614(d) and the burden of demonstrating the invalidity of a zoning decision was on the party asserting the invalidity per I.C. Sec. 36-7-4-1614(a). The Court’s review began with the presumption that a board of appeals, due to its expertise in zoning matters, reached a correct decision and would reverse a zoning board’s decision only where a clear error of law had been demonstrated where grounds set in Indiana Code Section 36-7-4-1614(a) had been established. 174 N.E.3d 202, 210 (Ind. Ct. App. 2021). The question of whether the work performed caused a loss of legal nonconforming status was identified as a question of law which was to be strictly construed to favor the free use of land. The proposition for agency deference found support in Hoosier Outdoor Advert Corp v RBL Mgmt, Inc when an ordinance was subject to different interpretations unless that interpretation was inconsistent with the ordinance. 844 N.E.2d 157, 163 (Ind. Ct. App. 2006). The UDO did not provide a clear definition for “relocating” a sign so the Court applied the plain dictionary meaning of the word and concluded that the trial court erred in vacating the NBZA decision because it was reasonable for the agency to conclude that Reagan’s activities—consisting of employing an excavator, chopping wooden posts, removing a graphic face, placing the graphic face on the ground, and erecting new steel posts 18 to 36 inches to the north—constituted “relocation” of the sign under the UDO. 

Therefore, the Court held that Reagan had failed to meet its burden of demonstrating the invalidity of the NBZA decision and reversed the trial court with directions that the NBZA decision be reinstated.  Noblesville, Indiana Board of Zoning Appeals v FMG Indianapolis, LLC, 201 NE3d 1175 (IN App. 12/27/2022)