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Judge sides with Sylva

By Lynn Hotaling

The town of Sylva and a local businessman are still headed for court in the first legal battle over provisions in the town's year-old zoning ordinance.

Though Judge Steve Bryant ruled in the town's favor on four of five issues Wednesday (Nov. 10), he declined to rule on the question of whether the town was retaliatory and discriminatory in its enforcement of its sign ordinance. His ruling indicates that what he termed the "unevenness by which the new ordinance has been applied," is a question for a jury to decide.

The judge did rule in favor of the other two counts of the plaintiff's motion for summary judgement and threw out defense arguments that the sign is 1) grandfathered in because a building permit was obtained and substantial investment was made prior to passage of the sign ordinance and 2) that the sign is exempt because it is attached to a commercial vehicle.

At issue in the suit is the legality of an Exxon sign erected by R.J. Humes last December at Triple B convenience store in Lovesfield. Town attorney Eric Ridenour last month filed a motion for summary judgment, asking for an end to a lawsuit he filed in February on Sylva's behalf.

Judge Bryant heard arguments Monday in support of three motions filed by Ridenour and Humes' attorney Tom Jones. He then took the matter under advisement until Wednesday morning. Attorney Jones led off in support of his motion that the lawsuit be dismissed on the grounds that the defendant, Humes, never received a ruling from the town's zoning board on an appeal he filed last December.

Dale Nations, who was then Sylva's zoning administrator, refused Humes a permit for a sign at his convenience store. Humes appealed that ruling and a hearing was scheduled. However, Humes erected the sign Dec. 9, just one day prior to the planned hearing. Because Humes never received a ruling, Jones said, the suit should be dismissed.

Town attorney Ridenour countered that once the sign, which is both larger and taller than town ordinances allow, was erected without a permit or permission, the zoning board no longer had authority over the matter. "The zoning board can grant a variance or special use permit," Ridenour said. "It cannot blatantly disregard the law."

Judge Bryant denied the motion to dismiss. With regards to motions for summary judgement, filed by each side, Jones listed several possible defenses. Jones contended that the town's actions toward Humes were retaliatory and discriminatory, and he argued that Humes' sign should be allowed since Humes had obtained a building permit for his convenience store prior to passage of the town's zoning law. Jones also said that Humes had expended a substantial amount of money in construction before the new zoning law and that Humes had definitely ordered the sign before the new ordinance took effect.

Ridenour countered by displaying a copy of the Nov. 1998 order for the Exxon sign in question. Jones' second defense is based on a stipulation in Sylva's zoning law that a sign is exempt if it is attached to a commercial vehicle. Because Humes chained a mail truck to the sign, Jones said, that makes the sign exempt.

Upon questioning from Judge Bryant, Jones admitted the sign is set in concrete. "I believe the ordinance says a sign attached to a vehicle is exempt, not a vehicle attached to a sign," Ridenour responded.

A request for summary judgment asks that a judge consider the evidence and make a ruling based on undisputed fact and applicable law, Ridenour said last month. Such a judgment would eliminate the need for a jury trial.

The February lawsuit ended a two-month stalemate between Sylva officials and Humes. Town officials first ordered the sign's removal Dec. 10. Humes appealed that ruling, but Sylva leaders rejected his appeal Jan. 7, and said the sign must come down. One month later, on Feb. 10, Ridenour filed suit on the town's behalf in Jackson County District Court.

That complaint asked the court to order the sign's removal, issue an injunction restraining the erection of other signs on the premises and to issue a permanent injunction preventing the erection of any signs without a permit from Sylva's zoning administrator.

It also requests a fine be levied against the sign owner and that Humes be required to reimburse the town for all attorney fees and costs associated with the suit. Humes response specifically requested a jury trial.

The main sticking point for Sylva board members last January seemed to be that Humes had the sign installed after his request for a sign permit was denied and just one day before his appeal was scheduled to be heard by the town's zoning committee.

"You've made the issue that the law in Sylva doesn't apply to you but only to the rest of us," board member Maurice Moody said at that time.

For his part, Humes did not deny that the sign was put up without permission. Sylva's sign law, he maintained Feb. 7, is "too restrictive and not in keeping with what other area towns are doing with regard to signage."

Back to Archive: 11-11-99.