City could not use zoning regulation to deny sign registration says Austin Court of Appeals

National Media Corporation and Anchor Equities, Ltd. v. City of Austin, 03-12-00188-CV (Tex. App. – Austin, August 27, 2014).

This is a board of adjustment case involving a sign permit. The Austin Court of Appeals reversed the granting of the City’s summary judgment motion and remanded.

The court does not go into much factual detail and only references facts relating to the analysis.   This makes the analysis difficult to apply to other situations, however, some use of the opinion is possible. National Media Corporation and Anchor Equities (“Plaintiffs”) contend the City’s zoning code regarding “abandonment of non-conforming use” was improperly used to deny a sign registration permit and the Board of Adjustment abused its discretion when it affirmed the denial. The trial court granted the City’s summary judgment motion and the Plaintiffs appealed.

The court noted that an entity acts arbitrary and capriciously when it acts in a way or enforces regulations that do not give a party the ability to “know what is expected of them in the administrative process.”  Based on the City’s previous history of using the sections and the wording of the various codes (which the court does not provide) the panel simply states the Plaintiffs could not have known or expected the City to use that zoning provision to deny the sign registration application.  In other words, the panel thought the City’s use of that section (whatever it was) was a stretch to try and apply. The court then stated that under statutory construction principles, the code sections are not related to each other or have the same general purpose so should not be interpreted together. The zoning regulations and the sign ordinance were not designed to interconnect. The sign regulations are specific in nature designed to regulate signs and their usage/placement while the zoning regulation being argued is general and makes no reference to signs. As a result, the specific controls over the general and the more recent controls over the older. The City applied the wrong ordinance and the City and Board abused its discretion in denying the application. The summary judgment is reversed and the case is remanded.

If you would like to read this opinion click here. Panel: Chief Justice Jones, Justice Puryear and Justice Goodwin.  Memorandum Opinion by Justice Puryear. The attorneys listed for the appellants are Mr. Kurt H. Kuhn, Mr. Eric B. Storm, and Ms. Lisa Bowlin Hobbs.  The attorney listed for the City is Ms. Chris Edwards.