Board of Adjustment of Fayetteville v. Osage Oil & Transp., Inc., 75--25

• Decision Date: 12 May 1975
• Docket Number: No. 75--25,75--25
• Citation: 258 Ark. 91,522 S.W.2d 836
• Court: Arkansas Supreme Court
• Parties: BOARD OF ADJUSTMENT OF FAYETTEVILLE, Appellant, v. OSAGE OIL & TRANSPORTATION, INC., Appellee.

Page 836

522 S.W.2d 836

258 Ark. 91

BOARD OF ADJUSTMENT OF FAYETTEVILLE, Appellant, v. OSAGE OIL & TRANSPORTATION, INC., Appellee.

No. 75--25.

Supreme Court of Arkansas.

May 12, 1975.

Rehearing Denied June 16, 1975.

James N. McCord, II, Fayetteville, for appellant.

Esther M. White, Fayetteville, for appellee.

GEORGE ROSE SMITH, Justice.

This zoning case presents a question of constitutional law. The appellee, as the owner of a gasoline service station in Fayetteville, applied to the appellant Board of Adjustment for a variance that would permit the appellee to erect at its service station an advertising sign exceeding in size the limit of 75 square feet fixed by the zoning ordinance. The Board unanimously denied the request. On appeal the circuit court reversed the Board's decision, holding that the 75-foot limitation is invalid on its face, in view of other provisions in the ordinance. Whether that holding is correct is the only question before us.

The ordinance contains extensive and detailed provisions governing a wide variety of signs that are permitted or prohibited in differing zoning districts. We need not set forth the numerous restrictions imposed by the ordinance, but we do stress the fact that the appellee is challenging a single provision in a very comprehensive zoning ordinance.

This controversy centers upon the city's distinction between a 'business sign,' which relates to goods or services available on the premises where the sign is situated, and an 'outdoor-advertising sign,' which relates to goods or services available elsewhere. Business signs are not to exceed 75 square feet in size, though there may be one on each face of a building. Outdoor-advertising signs cannot be more than 25 feet long or 12 feet high, so that a maximum area of 300 square feet is possible.

The basic power of a municipality to regulate the size and location of billboards and other commercial signs has been sustained in so many jurisdictions that it would be a waste of time and effort to cite the cases. Such regulations have been upheld upon many grounds, including the promotion of traffic safety, the control of potentially hazardous structures, and the fundamental considerations of city planning and city beautification that underlie the zoning concept itself. We have sustained simple regulations affecting signs. Seiz v. City of Hot Springs, 194 Ark. 544, 108 S.W.2d 897 (1937); Berkau v. City of Little Rock, 174 Ark. 1145, 298 S.W. 514 (1927).

Moreover, the particular distinction now before us, between on-site and off-site advertising signs, has almost invariably been held to be constitutional. In a recent case, Cromwell v. Ferrier, 19 N.Y.2d 263 279 N.Y.S.2d 22, 225 N.E.2d 749 (1967), the Court of Appeals had this to say: '. . . petitioner argues that the legislative distinction between identification signs (on-site) and nonaccessory signs (off-site) is unreasonable and discriminatory. Neither Bond, (274 N.Y. 82, 8 N.E.2d 286) (a prior N.Y. case) nor any other decision of this court has dealt specifically with this point but numerous cases from other jurisdictions have had occasion to do so. In nearly all, zoning ordinances which have distinguished between accessory and nonaccessory signs have been upheld, providing that the distinctions were applied in a reasonable manner.'

Perhaps the leading opinion upon the point is that of Justice Brennan in United Advertising Corp. v. Borough of Raritan, 11 N.J. 144, 93 A.2d 362 (1952). There the controlling legislative measure prohibited all off-site signs and enacted many restrictions upon the size and location of on-site signs. The court upheld the law, pointing out that a business sign is in actuality part of the business itself, but an outdoor advertising sign lacks that characteristic and is therefore subject to different treatment.

It goes without saying that in the case at bar the ordinance is presumed to be constitutional and the burden of showing its invalidity is upon the appellee. Rebsamen Motor Co. v. Phillips, 226 Ark. 146, 289 S.W.2d 170, 57 A.L.R.2d 1256 (1956). The appellee offered no proof...