finding reconstruction resulted in a substantial change to nonconforming sign, where owner added new sign face, and changed dimensions and support posts
How later courts described this case
- finding reconstruction resulted in a substantial change to nonconforming sign, where owner added new sign face, and changed dimensions and support posts
- reconstructing billboard’s existing support system by removing wooden supports and replacing them with steel supports was not maintenance and repair
Written by the judges who cited it.
The opinion
RILEY, Judge,
concurring in part and dissenting in part
I respectfully dissent to the remand of this case back to the Indiana Dept, of Transportation “for a hearing to determine the zoning of the properties on which the signs are located.”
Reliance on hearsay in support of a finding is not the dispositive issue. The law only precludes reliance solely on objected-to hearsay as the entire basis of an administrative decision. Ind.Code 4-21.5-3-26(a).
Our standard in reviewing an administrative agency prohibits us from reweighing evidence and reassessing witness credibility and we must accept the facts as found by the administrative body if they were based upon substantial evidence and did not violate any constitutional, statutory or legal principle. Phegley v. Indiana Dep’t of Highways, 564 N.E.2d 291 (Ind.Ct.App.1990).
The majority holds that because the ALJ’s finding may be supported by hearsay such as affidavits, zoning ordinances and maps that this single finding would change the holding of the administrative decision. I do not believe, as the majority holds, that we are engaging in “semantic sophistry” to affirm the ALJ’s decision that U.S. Outdoor’s substantial alteration of its billboards destroys their status as non-conforming signs. Because of this status, the signs would not fall under any category that would allow them to obtain permits under Indiana law. I would affirm the trial court’s judgment that affirmed INDOT’s denial of the permits.
I concur in the majority opinion on Issues II, III, IV, and V.