Commercial Zoning

Is an Alternating Electronic Billboard the Equivalent of "Multiple Signs Per Sign Face" Under County Ordinance?

We spend much of our time in this space covering North Carolina-related issues and topics. However, as our readers know, we’ll travel outside the State’s borders from time to time in search of interesting or even amusing subject matter. We’re here to enlighten, but we’re also here to keep things accessible.

Porter County in Indiana boasts an ordinance: “Where permitted, an outdoor advertising structure shall … [c]ontain not more than one poster panel or the equivalent per facing….” A separate ordinance permits “tri-wave billboards,” which are comprised of slats that simultaneously rotate to change from one advertisement to the next every so often.

Lamar Advertising, purveyor of billboards road-wide, applied for an “improvement location permit” to replace an existing, standard billboard with an electronic sign using light-emitting diodes. According to description, the new sign would “display a ‘static, … electronically-generated image, but [with] no motion in the billboard itself.” The new LED billboard — think flat-screen television for interstate drivers — would be programmed with six different advertisments, which would appear one at a time in ten-second intervals.

Citing the ordinance section referenced above, the County’s Planning Commission denied the permit application. The Board of Adjustment affirmed, concluding that the ordinance allows “only ONE poster panel … on each face of a sign”; that “[t]he request of [Lamar] would have posted up to seven poster panel equivalent on the sign”; and that “the intent of the ordinance was to prevent the display of multiple messages from one sign.” Lamar appealed to the trial court, which reversed the Board’s conclusion and ordered the permit application approved.

In Porter County Board of Zoning Appeals v. Lamar Advertising Northwest Indiana, the Board appealed the trial court’s order. The appellate court affirmed the trial court, reasoning that “The plain, ordinary, and usual meaning of the ordinance in question prohibits more than the equivalent of one panel at a time. But the plain, ordinary, and usual meaning of the ordinance also implicitly allows that same one panel (or equivalent) to change from time to time.” Employing that favorite gadget of lawyers and judges, alike — taking a point to its “logical conclusion,” which, at its worst, may neither be logical nor a conclusion — the court states, “Without this additional interpretation, the ordinance would be a limit for time indefinite, which would be impractical, illogical, and likely inconsistent with the practices of the [Board] and Porter County billboard owners ….” In other words, if the Board is correct in its interpretation, once a billboards is posted in Porter County, the madien advertisment is the only advertisement allowed. There’s a certain charm in seeing, circa 2011, that Geritol is the proper tonic for old age and that the Studebaker will get me “To and Fro,” but there isn’t much value in the way of, you know, advertising stuff.

There’s such a thing as form over function, and the County about drank that Kool Aid with the Board’s “to the letter” interpretation. Don’t know what Kool Aid is? I bet a Porter County billboard can help explain.

Mike Thelen is a lawyer in Womble Carlyle’s Real Estate Litigation practice group. He regularly represents a wide variety of clients in land use and land development issues, from local governments to businesses, in both state and federal venues throughout North Carolina.

Categories: Commercial Zoning

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