Evansville Outdoor Advertising, Inc. v. BZA OF EVANSVILLE AND …

Decision Date10 October 2001
Docket NumberNo. 82A01-0105-CV-177.,82A01-0105-CV-177.
Citation757 N.E.2d 151
PartiesEVANSVILLE OUTDOOR ADVERTISING, INC., Appellant-Plaintiff, v. BOARD OF ZONING APPEALS OF EVANSVILLE AND VANDERBURGH COUNTY, Appellee-Defendant.
CourtIndiana Appellate Court

Leslie C. Shively, Shively & Associates, Evansville, IN, Attorney for Appellant.

D. Timothy Born, Shawn M. Sullivan, Terrell, Baugh, Salmon & Born, LLP, Evansville, IN, Attorneys for Appellee.

OPINION

ROBB, Judge.

Evansville Outdoor Advertising, Inc. ("Evansville Outdoor") appeals the trial court's order affirming the decision of the Board of Zoning Appeals of Evansville and Vanderburgh County (the "BZA") that two improvement location permits were null and void. We affirm.1

Issues

Evansville Outdoor raises the following consolidated and restated issues for our review:

1. Whether the "use" of the property was timely established;
2. Whether the procurement of the building permit extends the time period for the validity of the improvement location permit;
3. Whether substantial evidence supports the BZA's findings of fact that Improvement Location Permit No. 991417 and Improvement Location Permit No. 991418 were null and void; and
4. Whether the decision of the BZA is "arbitrary and capricious."
Facts and Procedural History

Evansville Outdoor is an Indiana corporation principally involved in the construction, leasing, and operation of commercial billboards. The Area Plan Commission of Evansville-Vanderburgh County ("APC") is the local entity vested with the authority via the Vanderburgh County Zoning Code ("VCZC") to issue improvement location permits. According to the local zoning code, "[n]o building or other structure shall be erected, moved, relocated, added to, or structurally altered; nor shall any building, structure or land be established or changed in use without first obtaining an improvement location permit from the [APC]." VCZC § 17.36.020(B)(1).

In 1989, Evansville Outdoor obtained improvement location permits from the APC for the purpose of erecting two commercial billboards at 2801 and 2901 North Green River Road, Evansville, Vanderburgh County, Indiana. In 1998, APC issued Evansville Outdoor additional improvement location permits for the purpose of changing the dimensions of the two off-premise signs. On May 20, 1999, the Executive Director of the APC promulgated a new policy that placed a condition precedent on issuance of improvement location permits. According to the APC's new policy, an existing off-premise sign had to be removed from a site before the APC could issue a new improvement location permit to place a new sign on that site.2 Shortly thereafter, the APC advised Evansville Outdoor of their new policy.

Because Evansville Outdoor again intended to change the dimensions of the two signs, the company removed them from the sites in order to obtain the needed improvement location permits from the APC. On June 22, 1999, Evansville Outdoor obtained from APC Improvement Location Permit No. 991417 and Improvement Location Permit No. 991418. Each improvement location permit authorized the placement of a billboard with a fourteen (14) foot by forty-eight (48) foot v-shaped display. On December 16, 1999, Evansville Outdoor obtained the necessary building permits from the Vanderburgh County Building Department to construct the two off-premises signs at 2801 and 2901 North Green River Road.

On January 27, 2000, staff of the APC inspected the two sites where the off-premises signs were to be erected. The inspection revealed that Evansville Outdoor had not commenced construction of the two billboards. On February 7, 2000, the APC notified Evansville Outdoor that pursuant to VCZC section 17.36.020, Improvement Location Permit No. 991417 and Improvement Location Permit No. 991418 were null and void. The APC is vested with authority by the VCZC to revoke and void location improvement permits. The zoning code provides in pertinent part:

C. Improvement Location Permits-Revocation and Voiding.

1. An improvement location permit may be revoked after at least ten (10) days written notice, if the conditions of the zoning code requirements and/or the conditions of the permit are not met.
2. An improvement location permit is void if construction has not been started or the use has not been established within six months of the date of the issuance. (Prior code § 153.156).

VCZC § 17.36.020(C)(1)-(2). The subject improvement location permits explicitly inform Evansville Outdoor of such, providing that:

Pursuant to the provisions of the Zoning Ordinance, by virtue of the authority vested in the [APC] by said Ordinance, an Improvement Location Permit is hereby granted; subject to cancellation on failure to abide by any of the conditions listed below.
This permit will expire six (6) months after the date granted hereof unless a building permit is obtained and construction is started within this period.

Appellee's Appendix at 12, 13.

On February 2, 2000, Evansville Outdoor informed APC via mail that the two improvement location permits were valid as result of the two building permits it had procured to construct the off-premise signs. Five days later, the APC informed Evansville Outdoor via mail that the existence of the building permits was insufficient to prevent the nullity of the two improvement location permits pursuant to VCZC section 17.36.020(C)(2), and that the two permits were in fact null and void. Thereafter, Evansville Outdoor began construction of the off-premise sign at 2801 North Green River Road despite the APC's assertion that Improvement Location Permit No. 991417 was null and void as was Improvement Location Permit No. 991418. On September 1, 2000, the APC via mail informed Evansville Outdoor that it must cease construction of the off-premise sign at 2801 North Green River Road. On September 11, 2000, Evansville Outdoor via mail advised the APC that it viewed the two improvement location permits as valid and would not cease construction.3

On October 5, 2000, Evansville Outdoor filed with the BZA its Verified Application for Appeal of the decision of the APC. The BZA is the entity authorized by Indiana Code section 34-7-4-901 and VCZC section 17.36.080 to hear and determine appeals from decisions or determinations of the APC. The matter was heard by the BZA at its regularly scheduled meeting on November 16, 2000. At the conclusion of the meeting, the BZA voted six to zero to uphold the decision of the APC that the two improvement location permits were null and void. Thereafter, the BZA entered written findings of fact4 which provide in pertinent part:

1. This matter came on to be heard by the [BZA] at its November public meeting for consideration of an appeal from a decision of the staff of the [APC] revoking a certain Improvement Location Permit 991418 permitting the erection of an off-premises advertising display at 2901 North Green River Road, Evansville, Indiana.
2. BZA is the body authorized by statute and ordinance to hear and determine appeals from a decision of APC staff revoking an Improvement Location Permit.
3. On or about June 22, 1999, the APC issued to [Evansville Outdoor] a certain Improvement Location Permit 991418 for construction of an off premise advertising display at 2901 North Green River Road, Evansville, Indiana. The Improvement Location Permit authorized the erection of a sign with a 14' by 48' V shaped display. The Improvement Location Permit conspicuously states on its face that, "this permit will expire six (6) months after the date granted hereof unless a building permit is obtained and construction is started within this period."

4. As of June 22, 1999, there was no off-premise advertising display located on the premises at 2901 North Green River Road, Evansville, Indiana, which at that time was a vacant field.

5. On January 27, 2000, a member of the APC staff inspected the premises at 2901 North Green River Road. The APC staff member's inspection of the site did not reveal the existence of any off premise advertising display, nor did it otherwise reveal that construction or erection of the off premises advertising display permitted at 2901 North Green River Road, Evansville, Indiana, had commenced.
6. On January 27, 2000, the APC staff member notified [Evansville Outdoor] that Improvement Location Permit No. 991418 was void and subject to revocation because construction or erection of the off-premises display permitted by Improvement Location Permit No. 991418 had not commenced within the required six month time period. The correspondence sent to [Evansville Outdoor] advised that if it was in possession of information from which it could be established that construction had commenced within the six month time period, [Evansville Outdoor] was free to present to the APC staff such information within ten business days.
7. On February 2, 2000, the APC staff received correspondence from [Evansville Outdoor's] attorney who advised that it had obtained a building permit, and that Improvement Location Permit No. 991418 was not void.

8. On February 7, 2000, APC's Executive Director wrote to [Evansville Outdoor's] counsel, and advised the Improvement Location Permit No. 991418 was being revoked and voided pursuant to Zoning Code Section 17.36.02(C)(1) and (2).

9. On September 1, 2000, APC staff received a complaint that sign contractors had arrived at the site and were commencing construction of an off premises advertising display.
10. On September 1, 2000, APC staff mailed to Evansville Outdoor, its attorney, and the owner of the site advising that Improvement Location Permit No. 991418 had been earlier revoked and that no construction should be attempted without obtaining a new improvement location permit.
11. Notwithstanding the Executive Director's correspondence dated September 1, 2000, an inspection of the site on September 20, 2000, revealed that an off-premises advertising display
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