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City staff, BOA agree that South Congress billboard was abandoned

Friday, December 2, 2011 by Elizabeth Pagano

The Board of Adjustment shot down an appeal this week by owners of a South Congress Avenue billboard, who had claimed that just because they didn’t use a billboard for several years didn’t necessarily mean they abandoned it. The board sided with the Planning and Development Review Department staff, who pointed out that city regulations essentially say: use it or lose it.


City planners determined that the billboard, located at 5222 ½ South Congress Avenue, has been abandoned. The code enforcement staff rejected an attempt to register the sign in 2009 and issued a notice of violation that required its removal.


Though the case is currently in court, the property and sign owners sought an interpretation from the Board of Adjustment.


“This case is in litigation. We’ve been through a year’s worth of litigation, and this is a recent addition to the controversy,” explained John Foster, an attorney for the National Media Corporation and Anchor Equities, Ltd. Anchor Equities is the owner of the property, and sold the billboard to National Media Corporation.


The city contends that the sign was dismantled. The owners of the sign maintain that it remained intact, but simply stood without a “face.”


Planning Director Greg Guernsey produced pictures from 1997 to 2009 to show the sign standing in just that state. Photos from 1997 show three poles with remnants of a sign frame, but pictures from 2003, 2006, and 2009 show only three vertical poles. In 2009, an additional pole and framing have been added.


“Using Mr. Foster’s logic, you would argue that 100 years from now you would still be able to come in an erect the billboard in this location… And I don’t know if that’s a reasonable expectation that he puts forth,” said Guernsey.


Foster argued that the non-use of the sign did not constitute abandonment, and that nearby signs on Ben White that were left faceless for more than a year had suffered no such assessment.


“The difference I see in the case at 5222 ½ is that there was no way you could have put any sign up on those poles… The one on Ben White, you could still stretch a piece of nylon across the front of it and attach it to that frame,” said Guernsey, who added that in the Ben White case the signs were also registered.


The Board of Adjustment voted 6-1 to deny the appeal, with Board Member Susan Morrison voting against.


Morrison expressed concern that eliminating use of the sign was violating the property rights of the sign owners, National Media Company. She disagreed with the analogy given by Guernsey that the city does not typically provide notice when an owner abandons a particular use, as would be in the case of a bar.


“At least if it’s not a bar anymore, you still have the building. In this case, you are actually eliminating the property. You’re eliminating the value of the sign that this company bought, so you’re effectively taking away their property rights without any kind of notice,” said Morrison.


Board Member Heidi Goebel disagreed.


“It seems clear to me that this was abandoned… I mean it was three poles sitting out and getting all rained on and deteriorating for some number of years before anything else. Before any registration. The fact is that it started out abandoned and it seems to me they tried to bring it back to life,” said Goebel  “Nothing was taken away from anything. These folks are trying to gain something now, but nothing was taken away from these folks.”


Goebel went on to question the wisdom in investing so much money into the fight to retain the sign.


“It was an abandoned sign when you first encountered it, you know,  and it was a risk you took, and maybe a gamble that you’re losing,” said Goebel.

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