City of Myrtle Beach v. Juel P. Corp.

• Decision Date: 20 September 1999
• Docket Number: No. 3049.,3049.
• Citation: 522 S.E.2d 153,337 S.C. 157
• Court: South Carolina Court of Appeals
• Parties: CITY OF MYRTLE BEACH, Appellant/Respondent, v. JUEL P. CORPORATION and Gay Dolphin, Inc., Respondents/Appellants.

337 S.C. 157

522 S.E.2d 153

CITY OF MYRTLE BEACH, Appellant/Respondent, v. JUEL P. CORPORATION and Gay Dolphin, Inc., Respondents/Appellants.

No. 3049.

Court of Appeals of South Carolina.

Heard September 9, 1999.

Decided September 20, 1999.

Rehearing Denied December 4, 1999.

Michael W. Battle, of Battle & Vaught, of Conway, for appellant/respondent.

Howell V. Bellamy and Douglas M. Zayicek, both of Bellamy Law Firm, of Myrtle Beach, for respondents/appellants.

ANDERSON, Judge:

The City of Myrtle Beach (the City) brought this action against Juel P. Corporation and Gay Dolphin, Inc. (Gay Dolphin) seeking an order requiring Gay Dolphin to remove a rooftop billboard sign. The Master: (1) refused to issue the injunction; and (2) determined the City was not estopped from claiming the sign had been abandoned. Both parties appeal. We affirm in part and reverse in part.

FACTS/PROCEDURAL BACKGROUND

The disputed sign was originally erected sometime in the 1970's. Justin W. Plyler (the father), who operates Gay Dolphin, acquired the Ed's Hobby Shop property in the early 1970's "primarily for the sign location.... You can see it for seven or eight blocks."

I. 1979 ZONING ORDINANCE

In 1979, the City enacted a zoning ordinance which prohibited rooftop signs in certain areas of the City, including the area where the sign was located. Section 902.8.3 of the zoning ordinance provided that rooftop signs had an amortization period of 3 years.¹ Frances M. Savageau² explained the sign "was an illegal sign at the passing of the Code with an amortization schedule of three years to allow, to compensate for the removal." Lyle Kershner³ testified the rooftop sign would have been amortized out by 1985: "Three years after the effective date according to the Ordinance." Wayne Owens, the Code Inspector for the City, believed that based on the amortization schedule for nonconforming signs, this sign "should have been down for sometime before [Hugo]." Savageau maintained: "The sign should have come down."

The father was on the Zoning Board for fourteen years. For twelve of those years, the father was the chairman. Justin A. Plyler (the son) served on the Community Appearance Board for ten years from about 1981 until 1991.

II. 1985 NOTICE

Savageau attested he wrote a letter to Kay Plyler Brandon (the daughter), the owner of the sign at the time, in 1985. The letter instructed the sign was "an illegal sign ... for many reasons."

After lengthy legal procedures ... the system down through District Court, declared our Ordinance to be legal, constitutional, and enforceable. Pursuant to that decision and the provisions of the Section 24.7.3 (Amortization of Non-Conforming Signs) of the Ordinance, roof mounted billboards or outdoor advertising structures must be removed after three (3) years of adoption of the Code.

Since the Ordinance adoption date was August 9, 1979, the amortization for the billboard mounted on the roof of 702 Main St. must be removed within sixty (60) days of receipt of this notice.

On October 8, 1985, National Advertising wrote the City responding to the City's September 25th letter:

Subsection 195 of Chapter 25 of the South Carolina statutes concerning outdoor advertising require[s] that just compensation be paid by the governmental authority removing or causing to be removed, a lawfully erected sign located in view of an interstate or Federal Aid Primary highway.⁴... I would appreciate a response from either you or the City Attorney as to whether you concur with my reading of this provision. I am not aware of any offer to pay just compensation for the removal of this structure, which is located on an FAP highway.

The City neither responded to this letter nor took any action to have the sign removed. The father said: "I heard nothing from [the City] ... They evidently changed their mind or backed off from their position, because—unless they had to pay compensation."

III. 1989/HURRICANE HUGO

When Hurricane Hugo began threatening the South Carolina coast, Gay Dolphin removed the sign facing. The sign structure, however, remained atop the building. Hurricane Hugo made landfall in the early morning hours of September 22, 1989, Shortly after the storm, someone associated with the sign received a letter from the City stating the sign could not be replaced because it was more than 50% damaged.⁵ On September 29, 1989, The Department of Highways and Public Transportation (the Department) wrote:

[N]ew regulations affecting maintenance and repair to signs went into effect on June 9, 1989. Under 63-350(7) of these Regulations, very specific guidelines are set forth regarding signs suffering damage in excess of normal wear. THESE SIGNS CANNOT BE REPAIRED UNTIL THE DPARTMENT IS NOTIFIED BY YOU IN WRITING OF THE EXTENT OF THE DAMAGE, THE REASON FOR THE DAMAGE, AND PROVIDING A DESCRIPTION OF THE REPAIR WORK TO THE (sic) DONE, INCLUING THE ESTIMATED COST OF REPAIR.

You will then receive written notice from the Department authorizing or denying the repair work as requested. ANY SIGN WHICH IS REPAIRED WITHOUT DEPARMENT AUTHORIZATION BECOMES ILLEGAL regardless of the extent of damage.

On October 26, 1989, Gay Dolphin responded to the Department:

In reference to the enclosed letter, our sign located at the intersection of Highway 501 and West Broadway was slightly damaged by Hurricane Hugo. The panels had been removed in anticipation of Hugo, but the three wooden dolphins extending above the sign on metal poles were bent over by the wind. These need to be straigntened (sic) and the metal welded in two places.⁶ The cost of repairs is approximately $200.00.⁷

We cannot ascertain from the record whether Gay Dolphin obtained the required permit from the Department.

As to the assessment of more than 50% damage, the father, claimed "maybe 10 percent" of the sign was damaged. When asked: "Was it clear in your mind that you thought you had the right to put your sign back?", he responded: "Absolutely."

To challenge this damage assessment, the son "went out and got three sign companies to give me a bid on [repairing the sign] and it turns out that they're all willing to say that it was only 10 percent [damaged]." Armed with this information, the son spoke with Savageau seeking permission to put the sign back up. The son testified Savageau told him "`No.'" Thereafter, the son had no other meetings with Savageau about the matter. Instead, the son and the father "decided to talk to Tom Leath and see what he would say about it."

Although the son admitted he knew a decision of the Community Appearance Board becomes final unless it's appealed and was aware of the procedure for appealing such decisions, he arranged a meeting with Leath in lieu of an appeal. The son explained the topics of discussion in the meeting with Leath:

Just compensation and the fact that whether or not the sign was damaged.... We had [another] problem on Ocean Boulevard of some type that required us to talk to Tom Leath. And at that time we brought up the sign and asked whether or not we could smooth things over.... We didn't want to have any bad blood but if a roof-top sign was the problem that we could install a unipole, and all we wanted was the ability to work off some of the exorbitant cost of doing that to satisfy them by adding another face.

The son professed that during the meeting, Leath "said, `Well, you know, we want to get rid of the rooftop.'"

Q: What did [Leath] propose to you that would settle the matter?

A: Putting up a unipole [with] ... One face.

Q: All right, sir. And what did you propose to him alternatively?

A: I told him we were suffering. We had too many expenses. If we could get two faces, it would help us a lot.

Q: So, you had two propositions on the table?

A: Exactly.

Q: The proposal he made to you, did you rely on what he told you?

A: Absolutely. He was the City Manager... We had the understanding that he was going to get back to us and give us an answer on it, on, on, on that situation and if he didn't our alternative was, we were going to put the sign back up.

(Emphasis added).

The father similarly explicated: "I was aware that the City was anxious to get the rooftop signs down and I wanted to see if there was someway we could maybe comply with that and not, not create a financial loss." "[I]f the city would make it feasible to get the sign off the roof and give us a couple of faces on a pole, we would be glad to work with them, you know. But the—I had no intentions of taking the sign down until we got just compensation for it."

After no response from Leath, the son explained: "Rather than going back I thought it would be prudent to get someone else involved so I would have a witness." The son and John Tinker agreed to "lease [Tinker] the board for two years if he would take the heat and get it smoothed out." Tinker then went to see Leath. According to the son, Tinker reported he felt the City would "probably settle or compromise, allowing us to have a uni-pole there if we would just take down the roof-top sign." Even so, the son expounded, "we felt like we had the right to put that sign up there."

For about five years after Hurricane Hugo there was no sign on the structure. Neither Savageau or Kershner knew of any negotiations with Leath. The City has not paid any compensation to Gay Dolphin.

IV. 1994

In October 1994, Owens asserted, after noticing a crane truck apparently preparing to replace the sign, he "call[ed] Mr. Mark Stocks ... and asked him ... what was going on there ... [H]e indicated to me that they were getting ready to put a face on it, and I—Well, you're not permitted to do that. You have no permit to do that.'" The truck immediately left.

On October 25, 1994, the City issued a Notice of Violation for the rooftop sign atop Ed's Hobby Shop. The notice instructed: "Sign atop Ed's Hobby Shop is not a permitted sign and should be removed within twenty-four hours." Owens also contacted Mark Stocks.⁸

After being...