MuskogeePhoenix.com, Muskogee, OK

Local News

March 20, 2014

Portable sign ban blocked again

Judge: Ordinance conflicts with state law

A Muskogee County judge struck down the city’s portable sign ban as unenforceable because it conflicts with state law.

District Court Judge Thomas H. Alford, in his two-page opinion, agrees with the city of Muskogee that it has the authority to regulate signage. But that authority, Alford states, is limited by state law.

“The city, as a home-rule charter city, has the authority to enact such legislation,” Alford states in his order, which was filed Wednesday afternoon. “However, under no circumstances can such municipal legislation directly conflict with existing state law.”

D.D. Hayes, who represents the owners of two sign companies who twice challenged the city’s efforts to ban portable signs, said he and his clients “are pleased” with Alford’s ruling. Hayes has argued since 2007 on behalf of Kenneth Lane and Tim Lipe whose sign companies would have been impacted by the city’s attempts to ban portable signs.  

“It was the right decision based on state law,” Hayes said, noting the decision is aligned with a prior appellate court ruling. “I agree with Judge Alford’s ruling — I am pleased, and my clients are pleased with the decision.”

City Attorney Roy Tucker said he plans to discuss the ruling with city councilors Monday during their regular meeting. City councilors, he said, will decide to appeal Alford’s decision or let it stand unchallenged.

“Obviously, there is no dispute as to what the state law is, but our position has always been that as a home-rule city we have the authority to establish zoning regulations,” Tucker said. “That authority gives us the power to regulate matters that are purely of local concern regardless of whether they conflict with state law.”

City officials initiated efforts to ban portable signs in 2006 after a tourism expert said they detract from the community’s appearance. A district court judge upheld the city’s ban, but the decision was overturned on appeal.

The Oklahoma Court of Civil Appeals ruled the first ban was unenforceable because, among other reasons, it failed to grant an exemption for existing signs. Oklahoma law “prohibits termination of any lawfully erected non-conforming sign unless such sign is altered to increase its nonconformity or is abandoned for a period of more than two years.”

Trying to work around the court’s ruling, city officials crafted a second ordinance in 2008 that granted a three-year phase-in period. When that period expired, Lane and Lipe challenged the revised ordinance on similar grounds and won at the district court level.

Tucker estimates there are about 45 nonconforming portable signs that remain within the city limits. Many portable signs were removed or abandoned while the legal challenges were pending.

Reach D.E. Smoot at (918) 684-2901 or dsmoot@muskogeephoenix.com.

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