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Sign Review Board ruling leaves some puzzled, may get rehearing

Monday, September 20, 2010 by Michael Kanin

A ruling by the Sign Review Board on relocation of two billboards—or signs, depending on your point-of-view—has raised as many questions as answers. At least one member of the board believes the panel should reconsider the ruling in light of the confusion generated by Monday’s decision.


In that ruling, the board gave the owner of two billboards 180 days to bring the signs back into compliance with city code. The billboards, which city staff said were really on-site advertisements and illegally relocated, have been removed. 


The hearing was called to consider revoking the city-issued permit to maintain the signs.  The board heard charges that National Media Corporation, the owner of the two signs, was abusing the grandfathering and relocation provisions in Austin’s billboard ordinance, which bans new billboards.  Under the ordinance, in certain circumstances owners are allowed to relocate existing billboards to new locations, unless the sign is considered an on-site advertisement


City Code Compliance Officer Charles Boas argued that previous owners had inflated the sizes of the billboards on their application for the permits to operate them. He also argued that the billboards were in fact on-site advertisements tied to a specific location, and therefore could not be relocated as billboards, as they had been.


“The registration and subsequent relocation of this sign has the effect of creating a new, off-premise sign, which is of course prohibited by City of Austin code,” Boas said about the first of the billboards. “I submit this sign was built as an on-premise sign and that the sign was consistently misrepresented in order to register it, at an inflated size, as an off-premise sign and then to relocate it and, in the process, create a new off-premise sign.”


For its part, National Media’s attorney John Foster of Minton, Burton, Foster, & Collins said that the firm had never intended to be fraudulent or deceitful in its actions.


For the first sign, he cited evidence, including an affidavit from the previous owner of one of the signs, which he said showed that the signs were used as billboards before National Media made its purchase. “My client made no misrepresentation—made no representation—to the City of Austin in connection with this sign that this board could find was fraudulent or made…with intent to deceive,” he said.


With the second, Foster argued that National Media had worked with the city to bring it in to compliance. “My client did exactly what Mr. Boas asked him to do and he has no information since that time that this sign is illegal,” he said.


Foster also said that, there at least, Boas hadn’t made his case. “He has presented to you no evidence that this sign was not an off-premise sign from the beginning,” he argued.


In their ruling, board members did not entirely side with city staff in the matter. Indeed, their ruling seemed hedged to allow for the possibility that the situation was not entirely deliberate on the part of the company. 


Board member Michael von Ohlen, who seemed convinced that the sign’s previous owners were responsible for the mistakes on the permits, was hesitant to assign blame entirely to National Media. “If he did not alter those signs…we’re in a little bit of a dilemma here,” he said.


“If indeed, they had been altered or changed prior to this man purchasing (the signs), then to totally revoke…I don’t think is fair,” he added later. “To make him bring them to where they are conforming with code, I think is fair.”


However, for his colleague Bryan King, the question of who made the mistake wasn’t necessarily the issue. “I think our charge tonight is to decide not who wrecked the car but is the car wrecked,” he said. “To me, there’s pretty compelling evidence that there was an accident that happened here.”


A motion by Board Member Jeff Jack to revoke National Media’s permits failed to gain the two-thirds approval needed to pass. Von Ohlen, Cathy French, and Clarke Hammond represented the dissenting votes.


The board then opted for a 180-day suspension of the permits, giving National Media a narrow, quasi-victory.


“You’ve got just a little bit of breathing room, and if I was walking in those shoes, I’d go ahead and try to get yourself within conformance ’cause otherwise you’ll be back up here again,” said von Ohlen. “It was a real hard no for me to go for…but please sir, get ‘em within compliance because if it comes back here again, I may not vote the same way.”


The final vote, which was unanimous, did not satisfy staff. Boas told the board that “the only outcome that would meet our requirements is that the newly created off-premise advertising billboards need to be taken down.”


Contacted Friday, Assistant City Attorney Brent Lloyd said “there were issues with the height and size of signs and there was evidence presented that they were not legitimate billboards.” He said because the board had suspended the permits staff would have to work with the billboard owner to determine exactly how to correct the violation.


Foster, National Media’s attorney, told In Fact Daily, “Those signs are not there. We are complying with the order.”


Board member Hammond indicated that some members of the panel wanted to reconsider the case. “I definitely want to bring the case back for further clarification because the City Council did not anticipate,” this situation, he said.


Jack saw a cause for a broader worry. “My big concern about this case is that…we have hundreds of on-premise signs throughout the city that are sitting there for someone to come by with the belief that all they have to do is get the previous owner to file that application and then they go and they get a relocation permit and then we find ourselves (with) a slew of new billboards in town,” he said.

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