- The North Carolina Court of Appeals has ruled against Asheville in its 10-year legal dispute with a piano bar over a vehicle advertising the business.
- Asheville had been seeking tens of thousands of dollars connected to a 2014 violation of a city ordinance. The city also asked a court to block the business from using the vehicle within the city.
- Appellate judges agreed that the business had resolved the dispute 10 years ago. Asheville could not penalize the business for operating the vehicle within the city for 2 1/2 years after the initial citation.
The North Carolina Court of Appeals has ruled against Asheville in the city’s 10-year legal dispute over a vehicle advertising a local piano bar. The unanimous appellate decision reverses trial court rulings favoring Asheville.
The case dates back to September 2014. An Asheville city code enforcement officer notified owners of the Off the Wagon Dueling Piano Bar that they had violated a city ordinance by parking their vehicle covered with advertising behind the business.
Violation of the ordinance carried a penalty of $100 per day. The business never appealed the ruling but notified city officials that the violation had been corrected because the vehicle had been removed from the parking place.
In January 2017, a different city code enforcement officer issued a citation based on the original 2014 notice. When the business responded that the original complaint had been resolved 2 ½ years earlier, the city attorney “purportedly clarified the situation by alleging the ‘continuous violation’ was due to Petitioners driving the truck containing the sign ‘throughout Asheville for the purpose of displaying the [s]ign’ rather than for the singular parking incident” in 2014, according to the Appeals Court opinion.
By August 2018 the city filed suit against the business, “seeking injunctive relief to enjoin further use of the truck with the sign and the collection of civil penalties purportedly amounting to $57,500.” The penalty continued to grow at a rate of $100 per day.
The business filed its own legal action against Asheville.
“Petitioners and the City disagree about the nature of the violation cited within the notice,” wrote Judge John Tyson. “The City argues Petitioners violated section 7-13-3(3) by continuously driving the truck identified in the notice within city limits for over two years after the cited violation. Petitioners argue the violation cited the specific instance of their truck being parked behind their business. We agree with Petitioners.”
“The City contends the inherently mobile nature of a vehicle expands the scope of Section 7-13-3(3) to include the vehicle’s operation throughout the city, not only in a singular location at a specified time. However, the plain language of Section 7-13-3(3) states it does not apply to every vehicle in ‘operation throughout the city’ but only to those ‘that are parked or located for the primary purpose of displaying [advertisements],’” Tyson explained.
“The plain language of UDO Section 7-13-3(3), ‘narrowly’ or ‘strictly’ ‘construed in favor of the free use of property,’ precludes an interpretation of the specific violation alleged within the notice as being Petitioners driving the identified truck in ‘operation throughout the city’ in 2014 and for two and a half years thereafter,” the Appeals Court opinion continued.
Asheville never produced additional evidence that the vehicle was parked again the spot that produced the initial violation, according to the Appeals Court.
“The uncontested evidence shows Petitioners moved their vehicle the same day the initial photographs contained in the notice were taken, and they had removed their vehicle before they had received the 2014 notice,” Tyson wrote. “Petitioners timely notified the City of their removal and abatement. Under these circumstances, the burden of proving Petitioner’s continued violation of the local zoning ordinance remains upon the City.’
“For the 2014 notice to support any further action, the City was required to show evidence of and prove the continuing specified violation past Petitioners’ notice of removal and abatement,” he added.
Judges Valerie Zachary and Jefferson Griffin joined Tyson’s opinion.