Studio 205, Inc. v. City of Brewton

967 So. 2d 86, 2007 Ala. LEXIS 63, 2007 WL 1098551
CourtSupreme Court of Alabama
DecidedApril 13, 2007
Docket1051801
StatusPublished
Cited by2 cases

This text of 967 So. 2d 86 (Studio 205, Inc. v. City of Brewton) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Studio 205, Inc. v. City of Brewton, 967 So. 2d 86, 2007 Ala. LEXIS 63, 2007 WL 1098551 (Ala. 2007).

Opinion

STUART, Justice.

Studio 205, Inc. (“Studio 205”), appeals from the trial court’s denial of its petition seeking to enjoin the City of Brewton (“Brewton”) from removing five billboards belonging to Studio 205 that allegedly violated Brewton’s zoning ordinances. Initially, the trial court entered a temporary restraining order prohibiting Brewton from removing the billboards. However, at the conclusion of a bench trial, the trial court entered a final order denying the petition for a permanent injunction as to four of the five billboards. Brewton does not cross-appeal as to that part of the trial [87]*87court’s order enjoining Brewton from removing one of the five billboards.

Facts

Studio 205 owns five outdoor off-premises signs, i.e., billboards, located within the police jurisdiction of Brewton. Each sign consists of three vertical poles inserted into the ground, two horizontal 2x6 wooden boards (“stringers”), which are 24 feet long and attached to the vertical poles, and the sign-message board (“the face”). The face consists of light-gauge metal panels attached to the stringers by clips. The five billboards had been in place for approximately 30 years at the time the present litigation began. In 1992, Brewton adopted a zoning ordinance regulating such signs; the ordinance “grandfathered” in existing signs, such as those belonging to Studio 205, even though they did not conform to the size or location requirements of the ordinance. The ordinance provided that the nonconforming signs could remain in place unless they were “destroyed” or became “fifty (50) percent or more structurally deteriorated as determined by the building inspector.” The ordinance provided that, if either of those events occurred, any replacement sign would be required to conform to the size and location requirements of the ordinance.

In September 2004, Studio 205’s billboards were damaged by Hurricane Ivan. Thereafter, Studio 205 rebuilt the signs without obtaining a permit from Brewton. Brewton requested that Studio 205 remove the rebuilt signs because Brewton believed, that the repairs to the signs were in violation of the ordinance. However, Studio 205 believed that the signs had not been “destroyed” or “fifty (50) percent or more structurally deteriorated” and, thus, that the signs were still within the grandfathering provision and exempt from the size and location requirements of the ordinance.

All the billboards the trial court declared to be “destroyed” or “fifty (50) percent or more structurally deteriorated” had had the entire face and at least one stringer replaced as a result of the damage caused by Hurricane Ivan. Three of the billboards had had one of the vertical poles replaced. Brewton’s building inspector testified that, in his opinion, the signs had either been destroyed or been rendered 50 percent structurally deteriorated as a result of the hurricane damage. He testified that he calculated the percentage of structural deterioration to an entire sign by assigning 45% to the face, 10% to the stringers, and 45% to the poles and then determining the percentage of structural deterioration to each part. He also testified that his definition of “destroyed” included extensive damage, including “pieces of the sign laying on the ground,” but he did not believe that something had to be beyond repair to be “destroyed.”

Standard of Revieiv

The parties dispute the standard of review this Court should apply on appeal. Brewton argues that whether the billboards were “destroyed” or became “fifty (50) percent or more structurally deteriorated” is purely a factual determination and, thus, that the trial court’s decision enjoys a presumption of correctness on appeal. .However, it appears that Studio 205 is not attempting to appeal based on any factual determinations made by the trial court, but is arguing only that the trial court misinterpreted the zoning ordinance. The trial court’s interpretation of the provisions of a statute or an ordinance is a determination of law, which is not entitled to a presumption of correctness on appeal. Clark v. Houston County Comm’n, 507 So.2d 902, 903 (Ala.1987).

Issue and, Analysis

Studio 205 contends that the trial court misinterpreted the ordinance, which allows [88]*88nonconforming signs in existence on the date the ordinance was adopted to continue to exist as nonconforming signs subject to certain conditions. Specifically, Studio 205 argues that its billboards were not “destroyed” or “fifty (50) percent or more structurally deteriorated” and, thus, that Studio 205 was not required to rebuild the signs in conformance with the ordinance. Studio 205 explicitly states that, unlike similar cases decided by this Court, Studio 205 is not arguing that the terms of the ordinance are unconstitutionally vague.

The ordinance provides:

“§ 10.72. Nonconforming Signs. Any sign in existence on the date of adoption of this ordinance that is not in conformance with the requirements of this ordinance shall be considered a nonconforming sign and shall be permitted to continue to exist subject to the following conditions:
“If any nonconforming sign is removed or destroyed or becomes fifty (50) percent or more structurally deteriorated as determined, by the building inspector, then the replacement sign shall be in conformance with the requirements of this ordinance.”

(Emphasis added.)

The ordinance does not define the terms “destroyed” or “fifty (50) percent or more structurally deteriorated,” but the ordinance does define what constitutes a “sign.” A “sign” is

“[a]ny words, lettering, parts of letters, figures, numerals, phrases, sentences, emblems, devices, designs, trade names, or marks, or combinations thereof, by which anything is made known, such as the designation of an individual, a firm, an association, a profession, a business, a commodity, or product which are visible from any public way and used as an outdoor display, including any base or supporting structure.”

This Court has set forth the standard for interpreting such ordinances, as follows:

“City ordinances are subject to the same general rules of construction, as are acts of the Legislature. S & S Distrib. Co. v. Town of New Hope, 334 So.2d 905 (Ala.1976). In John Deere Co. v. Gamble, 523 So.2d 95, 99-100 (Ala.1988), this Court, quoting Clark v. Houston County Comm’n, 507 So.2d 902, 903-04 (Ala.1987), set out the following general rules of statutory construction, which also apply to the construction of municipal ordinances:
“ ‘ “The fundamental rule of statutory construction is to ascertain and give effect to the intent of the [city council] in enacting the [ordinance]. Advertiser Co. v. Hobbie, 474 So.2d 93 (Ala.1985); League of Women Voters v. Renfro, 292 Ala. 128, 290 So.2d 167 (1974). If possible, the intent of the [city council] should be gathered from the language of the [ordinance] itself. Advertiser Co. v. Hobbie, supra; Morgan County Board of Education v. Alabama Public School & College Authority, 362 So.2d 850 (Ala.1978). If the [ordinance] is ambiguous or uncertain, the court may consider conditions which might arise under the provisions of the [ordinance] and examine results that will flow from giving the language in question one particular meaning rather than another. Studdard v. South Central Bell Telephone Co.,

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Related

City of Mobile v. Grizzard
109 So. 3d 187 (Court of Civil Appeals of Alabama, 2012)
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486 F. Supp. 2d 1314 (S.D. Alabama, 2007)

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Bluebook (online)
967 So. 2d 86, 2007 Ala. LEXIS 63, 2007 WL 1098551, Counsel Stack Legal Research, https://law.counselstack.com/opinion/studio-205-inc-v-city-of-brewton-ala-2007.