The last shall be first

Who ever said democracy was simple? And if Bill Clinton can be president without collecting the majority of the votes, why shouldn’t the city of Asheville be able to win a case the same way? In an eight-hour-long legal tango on March 17, city staff defeated two out of three attempts by billboard companies to persuade the Board of Adjustment to hear their appeals. And the city won one of those cases despite seemingly coming out on the losing end of a 3-2 vote — because of a technicality requiring a 4-1 “super-majority” for certain kinds of board decisions.

“Basically, [the board] dismissed our case up-front, although a majority supported our argument,” said Craig Justus, attorney for Fairway Outdoor Advertising. He had argued (for nearly four hours) that Fairway has the right to appeal city staff’s1998 determination that many of the company’s 29 billboards must come down — even though the company was first cited a year earlier, in 1997, for not complying with the size and height restrictions in the city’s sign ordinance.

In an opening statement, City Attorney Bob Oast demanded that the Board Of Adjustment dismiss the appeal outright, because Fairway hadn’t filed it within 30 days of the original citation (received May 19, 1997). Neither had the two other applicants — Outdoor Communications Incorporated and Carl Ricker — both of whom were also first cited in ’97. “The board has no jurisdiction to consider [these] appeals, [because the applicants] have lost their right to appeal by waiting too long: You have to dismiss,” declared Oast.

Three BOA members, however — Darryl Hart, Paul Smith and David Young — weren’t buying Oast’s argument; on a motion by Smith, seconded by Young, they voted to deny Oast’s demand for dismissal. Board members Lauren Malinoff and Dennis Hodgson opposed Smith’s motion.

But in such cases, the motion must win a 4-1 “super-majority” in order to carry the day — so the city’s 2-3 minority position prevailed, explains Assistant City Attorney Martha McGlohon. “Since … a zoning-enforcement administrator had determined that the appeals were not timely, a super-majority [4-1 vote] was required,” she says. State statutes require such votes in a number of situations, McGlohon notes, such as cases where an applicant appeals either a board of adjustment’s denial of a variance or a decision by the city’s zoning-code-enforcement administrator, Sharon Allen.

So, for the three billboard cases heard on March 17, anything less than a 4-1 vote meant that city staff’s decision would stand; in effect, Fairway’s case was dismissed, McGlohon concluded.

And so was Outdoor Communications’ appeal — even though the vote went the other way: Three BOA members (Hart, Malinoff and Hodgson) supported dismissal, while two (Young and Smith) voted to hear the case. Again, a 4-1 vote was required, so Malinoff’s motion to dismiss, seconded by Hart, failed. This time, the majority position prevailed — but it was actually the lack of a fourth vote for dismissal, not the 3-2 majority, that carried the day.

Two different cases, two seemingly opposite votes, yet the result was the same: OCI’s case will not be heard by the board, either.

And both cases appear headed for review by the North Carolina Superior Court.

In the third case, however — concerning Carl Ricker’s billboard on Hendersonville Road, near Crowfields Condominiums — that elusive super-majority vote was actually achieved: BOA members voted 4-1 to deny Oast’s request for dismissal, meaning they will hear Ricker’s appeal.

A gentleman’s agreement

What’s more important — meeting deadlines, or considering extenuating circumstances?

“I voted in favor of [Fairway] because of the evidence,” said Smith, explaining his votes afterward, even as he confessed that he hadn’t been sure himself, even during the meeting, what the exact outcome of each motion had been. “Fairway showed me they have a right to be heard,” Smith asserts: “They were trying to work some things out [with city staff]. They contacted [city staff] and were looking to them to tell them what to do.”

At the BOA meeting, Justus argued that Fairway hadn’t appealed the 1997 citation because company representatives had met with Zoning Code Enforcement Administrator Sharon Allen and other city staff within two weeks of receiving the notice, and that everyone had agreed there were “problems” with it: Specifically, that some signs might have been improperly measured and might actually be in compliance with the 1990 ordinance (or, at least, might be entitled to remain standing during an amortization period). City staff agreed to remeasure the signs in question, Justus maintained.

“There was no attempt to appeal, because [city staff] agreed to remeasure: We took them at their word,” says Justus. Fairway’s appeal, he contends, was based on that subsequent remeasurement, completed nearly a year after the initial notice of violation.

BOA member Smith — calling the 1997 dialogue between Fairway and city staff “a gentleman’s agreement” that should nonetheless be honored — voted that the board should hear the company’s appeal. At the time of the initial violation notice, he pointed out, staff hadn’t mentioned that Fairway had such a limited window of opportunity for filing an appeal (the city is in the process of rewording such notices, to inform recipients about the 30-day limit on appeals).

But Oast told BOA members that both Fairway and Outdoor Communications are “in the business” and that it had been their responsibility (and their attorneys’) to file a timely appeal, back in 1997. And both companies, he added, had been instructed by Allen at that time to take down billboards that should have been removed in 1995, under the terms of the city’s 1990 sign ordinance.

OCI attorney Kim Lyda, however, countered that the company hadn’t found out about the violation in time to meet the 30-day deadline in 1997, because Outdoor Communications had bought the billboard company from Mike Summey at the end of May — after the notice had been sent (to Summey).

Responded Oast: “I don’t know whether [OCI] didn’t ask or didn’t get an answer [from Summey about pending violations]. They say they didn’t know — that’s their problem.” OCI, said Oast, was already “in the [billboard] business” and could easily have found out about any pending violations.

“There was a lot of he-said/she-said, but I voted to hear both cases,” recalls Board member Young. In the Outdoor Communications case, he observes, “If anybody needed to bear the burden of informing OCI, it was Summey. He sold the company to them the same month he got those [notices of] violations.” But because OCI never directly received the violation notices, the company may have been lulled into thinking the issue was on hold, figures Young.

As for Fairway, its representatives were busy trying to work out the measurement dispute. “Let’s give them both the benefit of the doubt and hear [these cases], and not say ‘that’s it!’ and throw them out on a technicality,” Young suggests.

A long and winding road

Other board members, on the other hand, showed less sympathy for the sign companies’ plight.

Malinoff, for example, agreed with the city’s point of view at the March 17 BOA meeting. “We finally just said, ‘Hey, it was up to you to make sure there were no outstanding violations,'” she says, commenting on the outcome of the OCI case. Although she’s the newest Board of Adjustment member, Malinoff is already gaining a reputation for going strictly by the book. “Each of these petitioners had legal counsel,” she maintains. “They were aware their billboards were in violation since 1990 and, because of that, when they received the notice of violation in 1997, they should have filed an appeal immediately — but they didn’t.” Malinoff recalls that she had been particularly swayed by Oast’s reference to recent Superior Court decisions affirming that, when appeals are filed in response to later clarifications — instead of the initial notice — boards of adjustment don’t have jurisdiction.

Hodgson agrees. “I don’t think [Fairway] proved their case. They had an obligation to file [an appeal], regardless of whether they had questions about the notice,” he reflects. As for OCI’s argument that the actual notice of violation had gone to Summey, not to OCI, Hodgson responds, “That’s simplistic, to think that you can duck out of the ordinance like that.” When someone buys property, he notes, any outstanding tax liens or other such judgments are transferred to the new owner.

But however much the different BOA members may have disagreed about these cases, they were practically unanimous in groaning about how long the meeting lasted [Chairman Hart was unavailable for comment]. “It was a lot of politics,” said Smith, who believes that Justus’ four-hour performance was conducted just to bolster Fairway’s case on appeal. “I think they were planning on [taking it to] Superior Court all along. We sat there for eight hours, while they built a record.”

The tedious questions, frequent objections by Oast, and occasional prodding by Chairman Hart and board member Malinoff to speed things along were so time-consuming, in fact, that dozens of Coalition for Scenic Beauty members (who had turned out to protest the billboards) had left long before Justus completed his marathon questioning session.

Afterward, several board members also complained that the petitioning attorneys had been unduly rough on city staff during the meeting. After sending out hundreds of violation notices during the spring and summer of 1997, those staffers had been short-handed and scrambling to handle the many questions they were getting bombarded with. As Hodgson put it, “[The attorneys] asked [Allen] questions that were almost impossible to answer, [like] ‘Do you remember a meeting that happened [two] years ago?’ I thought that line of questioning was unfair.”

What’s the next step in these legal maneuvers? Justus reports that Fairway will appeal to Superior Court the moment it receives a written summary of the March 17 hearing. “The facts benefit us,” he insists, defending his admittedly time-consuming strategy at the meeting. His questioning of Allen, he argues, demonstrated that “the city acknowledged the [1997] notice was wrong.” City staff agreed to remeasure, did so a year later, and issued what is, in Fairway’s view, a new and final decision — which the company has a right to appeal.

And that, Justus calculates, could take six months to a year.

But Frank Martin, president of the Coalition for Scenic Beauty, isn’t shedding any tears on the companies’ behalf. While the appeals are being considered, the billboards remain standing — and collecting hefty rents — he points out.

Hodgson, summing up his feelings about the grueling meeting, confessed, “Frankly, we were all a little bit out of our depth, because we’re not lawyers.”

And though Ricker did persuade the BOA to hear his appeal, there’s no word yet on when that will happen. Says a city staffer, “We have to wait for the lawyers to get back with us on that.”

About Margaret Williams
Editor Margaret Williams first wrote for Xpress in 1994. An Alabama native, she has lived in Western North Carolina since 1987 and completed her Masters of Liberal Arts & Sciences from UNC-Asheville in 2016. Follow me @mvwilliams

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