Corey Outdoor Advertising, Inc. v. Board of Zoning Adjustments of City of Atlanta

• Decision Date: 14 March 1985
• Docket Number: No. 41767,41767
• Citation: 327 S.E.2d 178,254 Ga. 221
• Parties: COREY OUTDOOR ADVERTISING, INC. v. The BOARD OF ZONING ADJUSTMENTS OF the CITY OF ATLANTA et al.
• Court: Georgia Supreme Court

Page 178

327 S.E.2d 178

254 Ga. 221

COREY OUTDOOR ADVERTISING, INC. v. The BOARD OF ZONING ADJUSTMENTS OF the CITY OF ATLANTA et al.

No. 41767.

Supreme Court of Georgia.

March 14, 1985.

Rehearing Denied March 28, 1985.

Henry R. Bauer, Jr., Bauer, Beitch & Raines, P.C., Atlanta, for Corey Outdoor Advertising, Inc.

Thomas A. Bowman, Marva Jones Brooks, Robert L. Zoeckler, Dennis M. Hall, Atlanta, for Board of Zoning Adjustments of City of Atlanta et al.

MARSHALL, Presiding Justice.

On September 8, 1983, the appellant (Corey) was issued a sign permit from the Bureau of Buildings (BOB) of the City of Atlanta to erect a billboard at 1558 Peachtree Street. The appellant renewed its permit on March 16, 1984. On March 22, 1984, the appellant received a permit for a larger, two-faced billboard at the same location (the permit at issue) after an inspection by a BOB inspector.

On May 30, 1984, the Georgia Trust for Historic Preservation notified the BOB that the billboard was being erected within 300 feet of Rhodes Memorial Hall, a historic property listed on the National Register of Historic Places, in apparent violation of § 16-28.019(13) of the city ordinance, to wit: "General advertising signs shall not be erected on or within 300 feet of the boundaries of the following properties which are located on the National Register of Historic Places if any part of the general advertising sign is visible therefrom; ... e. Rhodes Memorial Hall." (Emphases supplied.) The BOB confirmed this by investigation, and violation notices, removal notices and stop-work orders as to the south face of the billboard were posted on the structure and given to Corey's representatives.

Corey ignored these notices, completed the advertisement on the south face of the billboard, and appealed the issuance of these orders to the Atlanta Board of Zoning Adjustment (BZA). The Georgia Trust appealed to the BZA on the ground that the permit allowing any sign at that location violated the ordinance. The BZA ruled that the sign, as defined as the entire structure, including both the south and north faces, was within 300 feet of a historic-property boundary line in violation of the valid ordinance, and must be removed. Corey filed an appeal to the Superior Court of Fulton County, which appeal contained (1) a statutory appeal from the decision of the BZA; (2) an attack on the constitutionality of the underlying city zoning ordinance in question, § 16-28.019(13); (3) a prayer for permanent injunctive relief to enjoin the BOB, the City of Atlanta and the BZA from revoking Corey's building permit; and (4) a prayer for a declaratory judgment that Corey had not violated § 16-28.019(13) and that the building permit issued to it is valid and that Corey may rely on it to continue to use and maintain its sign on the property.

Superior court affirmed the BZA; Corey appeals; we affirm.

1. The appellant contends that the ordinance in question is unconstitutional in that it is vague, indefinite and ambiguous, therefore void and unenforceable under the federal and state Constitutions, because it fails to provide explicit standards for measuring the 300-foot distance, hence impermissibly delegates to the BOB the right on an ad hoc basis to determine the technique for measuring such distance restriction.

The clear purpose of the ordinance is to provide a zone of visual integrity around certain designated structures which the City of Atlanta has deemed to have historical significance, preventing general advertising signs from marring historical sites by distracting from the view, overshadowing the site, or lessening the impact of the site. The prohibition against any part of such signs' being visible from the site prevents the ordinance from being arbitrarily applied when natural topography, trees, buildings or structures screen out such signs from view on or within the boundaries of such historic site.

The provision, "erected on or within 300 feet of the boundaries ...," sets forth clearly and unambiguously that such prohibited distance is to be measured from any point on the "boundaries" (plural) of the historic site to any "part of the general advertising sign" which "is visible therefrom." This puts the world on notice that, within a 300-foot zone perimeter surrounding a historic site, no general advertising sign is permitted if visible from the historic-site boundaries. While other zoning ordinances do provide for measurement between signs point-to-point along the abutting right-of-way, the purpose of these ordinances is to limit the distance between billboards, reducing visual clutter and distractions along the city streets. To follow the construction urged by the appellant of a point-to-point measurement along the abutting right-of-way (which in this case would exceed the 300 feet) would defeat the valid public purpose of restricting or minimizing visual blight surrounding a historic site, because the entire site is visually important, and not just the front. Even statutes in pari materia may not be resorted to where the language of the statute under consideration is clear. Ryan v. Commrs. of Chatham County, 203 Ga. 730, 732, 48 S.E.2d 86 (1948). As the ordinances requiring measurement of distance along the curb specifically provide for such a method of measurement, had the City Council intended for this method to be used in the ordinance in question, it would have so stated in the ordinance. There is no evidence that the appellant ever had a general advertising sign permit granted involving any other listed historic site upon which it can now rely; the granting of permits to erect other general advertising signs under conditions other than a historic site is entirely different and unrelated.

The trial court did not err in holding that no state or federal equal-protection or due-process rights of the appellant have been violated and that the ordinance in question is not overly broad or overly restrictive, and is reasonable, clear and unambiguous.

2. The appellant argues that the "signs" which are prohibited under the ordinance should be interpreted to mean "sign copy" only, rather than the entire structure of a billboard, as here.

Section 16-28.019(13) specifies that "if any part of the general advertising sign is visible ...," and it does not say "sign face" or "sign copy." In § 16-28.017 of the ordinance, "signs" are defined as "Any name, identification, description, display, illustration or device which is affixed to or represented directly or indirectly upon a building, structure or land in view of the general public and which directs attention to a product, place, activity, person, institution or business." (Emphases supplied.) The language "affixed to ... a building, structure or land" is used to distinguish between self-supporting billboards, and signs affixed to previously standing structures or buildings which have a separate and distinct use.

This interpretation is also supported by the numerous ordinance references to "sign copy" when referring to the face or advertising portion of the "signs." For example, § 16-28.019 states: "No permit shall be required for the substitution of panels or faces where the customary use of the signs involve frequent and periodic changes of copy." (Emphases supplied.) Reading the sign ordinance as a whole, as is proper (see generally Scott v. State, 6 Ga.App. 332, 64 S.E. 1005 (1909)), it is clear that the BZA and trial-court interpretation of "sign," as encompassing the entire free-standing structure, is the required interpretation when taken in the context of the sign ordinance, and also as a matter of common sense. To construe "sign" to mean only "sign face" would defeat the clear intent and purpose of the ordinance, and would permit billboards to be erected on or adjacent to all boundaries of a historic site provided the sign was angled or positioned so that the "sign face" could not be seen from the boundary.

3. The theory of estoppel against a municipal corporation may be applied, and is recognized by Georgia courts. See Kiker v. City of Riverdale, 223 Ga. 142, 154 S.E.2d 17 (1967); City of Calhoun v. Holland, 222 Ga. 817, 819, 152 S.E.2d 752 (1966). "A municipal corporation may be estopped, as right and justice may require, where the act or contract relied on to create the estoppel was within the charter powers of the corporation, although the method of exercising the power was irregular." City of Summerville v. Ga. Power Co., 205 Ga. 843(2), 55 S.E.2d 540 (1949).

However, in each such instance, it was the governing body, i.e., city council, rather than a mere employee carrying out a ministerial function, which knowingly chose or did such act which it tried to undo. Even the governing authority could not be estopped regarding an ultra vires act. City of Calhoun v. Holland, supra, 222 Ga. p. 819, 152 S.E.2d 752. "Powers of all public officers are defined by law and all persons must take notice thereof. The public may not be estopped by the acts of any officer done in the exercise of an unconferred power." OCGA § 45-6-5; City of Atlanta v. Bull, 161 Ga.App. 648, 288 S.E.2d 335 (1982), applying this rule to city officials; City of Columbus v. Richardson, 155 Ga.App. 573, 271 S.E.2d 706 (1980); P.C. Gailey Contractors, Inc. v. Exxon Co., U.S.A., 143 Ga.App. 827, 240 S.E.2d 208 (1977). "There is no such doctrine known to the law as a set-off of wrongs. Not even estoppel can legalize or vitalize that which the law declares unlawful and void. If so, the conduct of individuals, whether independently or collusively, could render any and all laws invalid and impotent." Flournoy v. Highlands Hotel Co., 170 Ga. 467, 471(1), 153 S.E. 26 (1930). The act of the official with the BOB who issued the building permit to the appellant was clearly unauthorized, because the ordinance in question prohibited the issuance of a building permit for the site in question. The ordinance grants authority to issue...