Foster and Kleiser Outdoor Advertising, Inc. v. University Furniture Galleries, Inc.

• Decision Date: 19 November 1986
• Citation: Foster and Kleiser Outdoor Advertising, Inc. v. University Furniture Galleries, Inc., 500 So.2d 29 (Ala. Civ. App. 1986)
• Parties: FOSTER AND KLEISER OUTDOOR ADVERTISING, INC. v. UNIVERSITY FURNITURE GALLERIES, INC., and The Board of Zoning Adjustment for the City of Huntsville, Alabama. Civ. 5415.
• Court: Alabama Court of Civil Appeals

Page 29

500 So.2d 29

FOSTER AND KLEISER OUTDOOR ADVERTISING, INC. v. UNIVERSITY FURNITURE GALLERIES, INC., and The Board of Zoning Adjustment for the City of Huntsville, Alabama.

Civ. 5415.

Court of Civil Appeals of Alabama.

Nov. 19, 1986.

Robert C. Gammons of Watson, Gammons & Fees, Huntsville, for appellant.

Clyde Alan Blankenship, Asst. City Atty., Huntsville, for appellee.

WRIGHT, Presiding Judge.

This is a zoning case. The issue is whether the court abused its discretion by affirming the zoning board's denial of a request for variance from the City's sign ordinance.

Foster and Kleiser Outdoor Advertising, Inc. (F & K), appeals the circuit court's denial of its request for a variance to permit the continued existence of a nonconforming sign. That judgment was entered in a trial de novo on an appeal brought by University Furniture Galleries, Inc. (University), which claimed to be a "party aggrieved" by the decision of the Board of Zoning Adjustment (Board). The Board denied F & K's request for a variance, but gave it one year to comply with the applicable ordinance. University appealed that decision to the circuit court, which also denied the variance but shortened the time for compliance to thirty days from the date of its order. From that decision F & K now appeals.

When evidence is taken ore tenus on the question of whether a variance should be allowed, the findings of the trial court are presumed correct and will not be set aside except for plain and palpable abuse of discretion. Sanders v. Board of Adjustment, 445 So.2d 909 (Ala.Civ.App.1983). Finding no such abuse of discretion in this case, we affirm the court's decision requiring F & K to bring its sign into compliance with local law within thirty days.

The pertinent facts leading us to our determination can be summarized as follows: University purchased property for its retail furniture business upon which F & K's billboard sign had been standing for approximately two years. F & K received a permit to build the sign from the Huntsville Department of Building Inspection. The permit authorized the erection of a sign 672 square feet in dimension, but "on the express condition that the erection shall conform in all respects ... to all sign control ordinances, zoning ordinances, building codes, of the City of Huntsville, Alabama." An authorized representative of F & K signed the permit agreeing "to all the provisions of the Sign Control Ordinance, Zoning Ordinance and the Building Code of Huntsville, Alabama...."

The sign in question is situated in a Light Industry Zoning District. Local ordinance permits such signs to be up to but not exceeding 300 square feet in dimension. That ordinance has been in effect since 1972 and was in effect at all times pertinent to the location of F & K's sign.

The sign overhangs University's store structure by several feet; the overhanging portion is about three feet above the store roof. The trial court was "satisfied from the evidence that the sign in its present size does adversely affect University Furniture Galleries' use, enjoyment and value of its leased property." Evidence produced at trial tends to support a finding that F & K's sign is causing a loss of business to University.

F & K contends that "the evidence set forth in the record totally fails to support the decision of the trial court denying the request for a limited variance." It contends that the expense incurred in constructing the sign, what it would cost to bring the sign into compliance, and the revenue lost by the smaller billboard area available for lease, should lead us to a determination of unnecessary hardship such as to require a variance in its case. See § 11-52-80(d)(3), Code of Alabama.

The law in Alabama is that economic hardship to the party seeking the...