Daily Development for
Friday, November 3, 2000
By: Patrick A. Randolph,
Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu
ZONING AND PLANNING:
Updating the sign faces of freestanding signs, which had been exempted from the
zoning code as legal nonconforming signs, to reflect current logos and shopping
center tenants, without altering the existing signs, is a "reasonable
alteration" and consistent with continued nonconforming status.
Motel 6 Operating Ltd.
Partnership v. Flagstaff, 991 P.2d 272 (Ariz. App. 1999).
Business owners sought
relief when the city denied them permission to change the sign faces on signs
that had been "grandfathered" after the city amended its development
code. Arizona's Code did not allow any alteration of a nonconforming sign. The
court held that, although Arizona public policy encourages the elimination of
nonconforming uses, such uses are constitutionally protected from the
retroactive effect of the zoning laws and may be removed only within the
boundaries of fairness and justice. Following other courts that concluded that
alterations to sign messages do not trigger the loss of nonconforming use
rights, the Arizona Court of Appeals held that the proposed sign alterations
were reasonable and should be allowed.
Comment 1: Although this
case states good news, don't forget that a number of cases have held that
government can constitutionally zone out signs without compensating for them by
giving a relatively limited period in which to amortize the current investment
in the sign.
Comment 2: Tenants who are
negotiating for space in an area where sign control has been initiated would be
wise either to make approval of their new signage a condition of the lease or
else resolve any signage problems in advance. Typically, tenants and purchasers
have the duty to identify zoning issues in advance, and such problems usually
will not support "frustration of purpose" claims when they are later
discovered.
Comment 3: For a similar
holding, see the DD for 11/18/98, reporting Rogers v. Zoning Board of
Adjustment of the Village of Ridgewood, 309 N.J. Super. 630, 707 A.2d 1090
(App. Div. 1998).
Readers are urged to respond, comment, and argue with the daily
development or the editor's comments about it.
Items in the Daily Development section generally are extracted from the
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