Neal v. City of Kingman
| Decision Date | 30 October 1990 |
| Docket Number | No. 1,CA-CV,1 |
| Parties | Richard NEAL, Plaintiff-Appellee, Cross Appellant, v. CITY OF KINGMAN, an Arizona political subdivision; Board of Adjustment of the City of Kingman, Arizona, an administrative body, Defendants-Appellants, Cross Appellees. 88-268. |
| Court | Arizona Court of Appeals |
This is an appeal from an order of the trial court setting aside a decision of the Kingman City Board of Adjustment requiring the reconstruction of an advertising sign so that it will be more visible from Highway 66 than from Interstate 40. We hold that no reconstruction is required, and we affirm the trial court.
Richard Neal owns a parcel of real property in the City of Kingman located close to both Highway 66 and Interstate 40, near where those roads intersect at an angle of approximately 50 degrees. In early 1986, Neal applied for a building permit to place an off-premise sign on the property fronting Interstate 40. The plat, Exhibit M in evidence, illustrates the relationship of the roads to the sign as it was constructed. The location of the sign in controversy is positioned on the plat at "Site No. 2." [See Appendix.]
According to the Kingman ordinance an off-premise sign along Highway 66 or Interstate 40 within the city limits must be within a 200-foot sign corridor immediately adjacent to those roads. City of Kingman, Ariz., Zoning Ordinance No. 135, section XXV, Off-Premise Signs, § 6.
At that time the ordinance read:
Off-premise signs must be oriented toward the street frontage of the zone in which it (sic) is located.
City of Kingman, Ariz., Zoning Ordinance No. 135, section XXV, Off-Premise Signs, § 5 (emphasis added).
The city's zoning administrator, Thomas Duranceau, refused to issue the requested building permit, advising Neal by letter that the sign did not qualify as an Interstate 40 sign. The letter added:
An off premise sign must be oriented to the road being claimed. This means the sign should be perpendicular to the road being claimed as a highway corridor. (Emphasis added).
Because Neal's property abutted Highway 66, that was the only road that could serve as a highway corridor for his sign.
Neal met with Duranceau to discuss the matter, and as a result of that meeting, a building permit was prepared for Neal's signature. Before the permit was issued, Neal was asked to sign a list of conditions which were referred to in the permit and attached to it. One of these conditions stated that the sign:
Neal promptly spoke with Dennis Roberts, Duranceau's immediate supervisor, and explained that he would not sign the permit or the list of conditions because the ordinance did not require signs to be perpendicular to the roadway. Roberts then wrote on the list of conditions: "Sign will comply with the requirements of Sign Code, Dennis Roberts 5/12/86." Neal then signed and paid for the permit.
Neal constructed his sign at a cost of approximately $30,000. As the sign was being built the city conducted regular inspections of the construction but never advised Neal that there were any problems with its orientation. The day after the sign was completed, Duranceau "red-tagged" it, prohibiting its use because it was oriented to Interstate 40 rather than to Highway 66. The evidence indisputably shows that while it is possible for motorists driving in a northwesterly direction on Highway 66 to read the sign, it is very difficult for motorists driving in the opposite direction on that road to see it. The sign is easily readable by motorists traveling in both directions on Interstate 40.
Neal appealed Duranceau's interpretation of the ordinance to the City of Kingman Board of Adjustment, arguing that the sign was oriented to Highway 66 and that the ordinance did not require that it be perpendicular to that highway. At the hearing, Duranceau stated that "orient" meant that the sign should be situated so that it could be read from both directions on the highway for which it was permitted. It was his opinion that Neal's sign was placed primarily for traffic on Interstate 40 rather than for traffic on Highway 66, the highway for which the sign was permitted. The board agreed, and unanimously voted to uphold Duranceau's decision to "red-tag" the sign, finding that it was not properly oriented to Highway 66 because it was more readable from Interstate 40 than it was from the access road of Highway 66.
Neal filed a special action in the superior court claiming that the board had abused its discretion, that he had acquired a vested interest in the sign, and that the board had unconstitutionally discriminated against him. Both parties filed for Partial Summary Judgment. The court held that Neal's complaint set forth three separate claims. It ruled that the board had not abused its discretion in finding that the sign did not conform to the ordinance. It found that Neal was entitled to a trial on his vested right claim which had never been considered by the board. Neal did not pursue his discrimination claim and it was dismissed.
The trial court, sitting with an advisory jury, ruled that Neal had a vested right in the sign as it is presently constructed. The city appealed this decision and Neal cross-appealed, challenging the validity of the ordinance and the power of the board to enforce it as it did. We resolve the following questions.
1. Is the sign ordinance unconstitutionally vague?
2. Did the board of adjustment abuse its discretion in the way it interpreted the ordinance?
3. Did Neal waive his right to assert that he had a vested right in the sign as constructed?
4. Did the trial court err in conducting a trial to determine whether Neal had acquired a vested right in the sign?
5. Did the trial court err in finding that Neal had acquired a vested right in the sign?
We find that the ordinance is not unconstitutionally vague, that the board did not abuse its discretion in how it interpreted the ordinance, that Neal did not waive his right to assert that he had acquired a vested right in the sign, that the trial court did not err in conducting a trial on the vested right issue, and that the evidence supports Neal's right in the sign under principles of equitable estoppel rather than vested rights.
Neal argues that the Kingman sign ordinance is unconstitutionally vague and ambiguous and is therefore void. Although it is questionable as to whether the constitutionality issue was adequately raised before the board, we will address the matter on the merits because the meaning of the ordinance was thoroughly considered in that proceeding. We note that for purposes of resolving the vested right issue, the trial court ruled, as a matter of law, that the ordinance was ambiguous. We agree that the ordinance could have been more clear, and this lack of clarity contributed to the problem that arose as to how the sign could be situated. We do not believe that the ordinance was so ambiguous as to be unconstitutional. Because statutory interpretation is an issue of law, we may freely draw our own legal conclusions on this point. U.S. Parking Systems v. City of Phoenix, 160 Ariz. 210, 772 P.2d 33 (App.1989).
The ordinance in question provides that off-premise signs must be oriented toward the street frontage of the zone in which the sign is located. City of Kingman, Ariz., Zoning Ordinance No. 135, section XXV, Off-Premise Signs, § 5 (emphasis added). Neal contends that the word "oriented" is vague in the context used, and as proof of his position he points out that soon after the problem with his sign arose, the city amended the ordinance by substituting the word "perpendicular" for "oriented." He relies on Cohen v. State, 121 Ariz. 6, 588 P.2d 299 (1978) for the proposition that when a statute is so vague that men of common intelligence must guess at its meaning and may differ as to how it should be applied, the application of the statute may constitute a denial of due process.
The rules that govern the construction of statutes are to be applied to the interpretation of ordinances. Arizona Found. for Neurology & Psychiatry v. Sienerth, 13 Ariz.App. 472, 475, 477 P.2d 758, 761 (1970). A court must consider the natural meaning of words in the context of the entire ordinance such that all parts are given their intended effect and the ordinance is construed as a harmonious whole. Sandblom v. Corbin, 125 Ariz. 178, 182-83, 608 P.2d 317, 321-22 (App.1980).
We do not believe that the word "orient" is particularly unclear as used in the ordinance. Off-premise signs like the one in question here are designed to attract the attention of motorists. The limitations set out in the Kingman ordinance as to size, location, and orientation are designed to permit signs and at the same time provide that travel on the city streets and highways be safe and efficient. City of Kingman, Ariz., Zoning Ordinance No. 135, section XXV, Purpose and Intent. As one of the board members observed, this allows for road signs that will attract the attention of the traveling public on a particular road without unduly distracting motorists on nearby streets and highways. To serve this purpose, it is reasonable to require that a sign face a particular roadway. While we do not think that "orient" means "perpendicular," and while the term could conceivably be extremely vague in some other context involving the placement of signs, we have no trouble understanding its meaning as it should have been applied to the facts of this case. Webster's New World Dictionary, Second...
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