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MYC Klepper/Brandon Knolls L.L.C. v. The Board of Adjustment for the City of Asheville

Court of Appeals of North Carolina

December 31, 2014

MYC KLEPPER/BRANDON KNOLLS L.L.C., d/b/a Klepper Outdoor Advertising, Petitioner,
v.
THE BOARD OF ADJUSTMENT FOR THE CITY OF ASHEVILLE, Respondent

Heard in the Court of Appeals 23 October 2014.

As Corrected January 15, 2015.

Editorial Note:

This Decision is not final until expiration of the twenty-one day rehearing period. [North Carolina Rules of Appellate Procedure 32(b)]

Appeal by petitioner from order entered 27 January 2014 by Judge Alan Z. Thornburg in Buncombe County Superior Court.

Buncombe County. No. 11 CVS 2276.

Affirmed.

Kelly & Rowe, P.A., by James Gary Rowe, for petitioner-appellant.

City Attorney Robin T. Currin and Assistant City Attorney Jannice Ashley, for respondent-appellee.

GEER, Judge. Judges STROUD and BELL concur.

OPINION

GEER, Judge.

Petitioner MYC Klepper/Brandon Knolls L.L.C., d/b/a Klepper Outdoor Advertising appeals an order affirming the decision of respondent the Board of Adjustment for the City of Asheville (" the Board" ) upholding the issuance of a Notice of Violation (" NOV" ) for a billboard sign owned by petitioner. On appeal, petitioner primarily argues that the sign should be allowed pursuant to a variance granted in 1992 for a sign located on the same property. However, the City of Asheville's Code of Ordinances provides that legal nonconforming signs may not be reestablished after discontinued use for more than a year. Thereafter, the use of the structure must conform to the zoning ordinance. The prior sign was removed in 2007 and the structure was not in use for more than two years. Therefore, any newly constructed sign was required to conform to the zoning ordinance.

Although petitioner argues that the City Attorney failed to inform him that the previous sign could not be reestablished, representations by a city official cannot immunize a petitioner from violations of zoning ordinances. Because it is undisputed that the sign was installed without a permit and is larger than allowed by ordinance, we affirm.

Facts

On 27 October 2010, the City of Asheville issued an NOV to R.L. Jordan SV STA N.C. Inc., the owner of the property located at 1069 Sweeten Creek Road, Asheville, North Carolina (" the property" ), for installing an off-premise sign without first obtaining a sign permit. Petitioner, the owner of the sign, appealed the NOV to the Board. The evidence at the hearing before the Board showed the following facts.

In 1992, Donald Feldbusch was granted a variance to erect a 199.88 square foot billboard on the property. Although the order granting the variance does not indicate that it was subject to any conditions, the ordinance in effect in 1992 required that all nonconforming billboards be removed or amortized within seven years of 1990, and the minutes from the board meeting when the variance was granted state that the variance was " good only through amortization period." Nevertheless, the sign was not removed when the amortization period ended in 1997, and no notice of violation was issued by the City of Asheville.

Sometime in 2007, the sign was removed and only poles remained. On 2 September 2010, petitioner purchased the billboard structure from James and Inger Campen. The sales contract described the billboard structure as one " once known to have been . . . located" on the property. After purchasing the billboard structure and related equipment, petitioner erected a 288 square foot billboard sign on the property.

On 11 October 2010, during a routine inspection of the area, the Asheville City Development Review Specialist, Shannon Morgan, noticed the billboard on the property for the first time. Mr. Morgan searched the City's system and discovered that no sign permit application had ever been submitted for the billboard and that no sign permit for the billboard had ever been issued by the City. Consequently, on 27 October 2010, the City ...


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