THE VIRGINIAN-PILOT
Copyright (c) 1994, Landmark Communications, Inc.
DATE: Tuesday, October 18, 1994 TAG: 9410180334
SECTION: LOCAL PAGE: B3 EDITION: FINAL
SOURCE: BY LINDA MCNATT, STAFF WRITER
DATELINE: SMITHFIELD LENGTH: Long : 105 lines
In a legal battle that has pitted two brothers against the town, the Virginia Supreme Court has ordered that Smithfield's only billboard must come down.
But the brothers, who have waged an expensive legal battle for the right to have the billboard they say has provided them both with a steady monthly income, vow they won't give up.
``They may have won the battle, but they haven't won the war,'' said Bob Gale, a 71-year-old retired furniture dealer.
Bronson Gale, 75, agreed.
Neither will say what tactics they plan, but they do say they have never been quitters.
If the town had its way, the billboard wouldn't have been there when the battle began, the Gales say.
Town planners passed zoning ordinances prohibiting such outdoor advertising in the early 1970s, about 10 years after the brothers bought land on South Church Street, Smithfield's major thoroughfare, and erected their sign. The Gales planned to move their downtown store to what was the outskirts of town.
But the new store never got built. Instead, the brothers put up a billboard on the corner of South Church and Heptinstall to advertise their downtown business. When they retired in 1983, they rented out the sign.
``Bob got the income from one side of the sign, I got the income from the other,'' Bronson Gale said.
Each brother was responsible for keeping his side rented. They advertised everything from fried chicken and ice cream to new homes in a major subdivision - until the Virginia Department of Transportation decided to widen South Church from two lanes to five.
Transportation engineers said the billboard had to be moved to make way for the widened road.The Gales learned that they could retain their billboard as long as moving it didn't affect 50 percent of it.
``The original billboard had five posts,'' Bronson Gale said. ``We would have had to have moved two posts to get away from the road.''
That's less than 50 percent by anybody's standards, the Gales figured. So they went through what they thought were the right channels to move the sign. They were granted a variance by the town's Board of Zoning Appeals to move the existing sign.
But when they applied for a zoning permit, Zoning Administrator Kenneth L. McLawhon, now the town manager, stipulated on the permit that it would affect only the existing, 30-year-old sign, which would have to be brought up to current building standards.
The Gales say that would have been impossible. The original sign was mounted on creosote-treated posts that had been sunk in the ground for years. Current regulations, which say a billboard must be able to withstand winds of up to 100mph, require a complicated concrete support system deep in the ground.
So the Gales paid a local outdoor advertising company about $24,000 to build a new, up-to-code sign after brother Bob, the actual land owner, leased the land to the advertising company.
The town objected. The brothers, they said, couldn't build a new sign because their variance applied only to the sign that had existed before the street was widened.
That's when the Gales got feisty. They couldn't move the old sign because it wasn't up to current codes, they say, and a new sign was prohibited.
So they hired a lawyer.
An Isle of Wight Circuit Court judge ruled in August 1993 that the Gales erected a new sign on their property without legal authority and ``contrary to the variance granted.''
The brothers both threw their hands up. ``What else could we do?'' they said almost in unison.
So far, nobody's answered that question.
McLawhon, meanwhile, said the Gales were compensated for the sign when the Highway Department paid for the right of way to the property. They say they got about $6,000 for the sign and $19,000 for the property.
``They knew from day one that a new structure would be unacceptable,'' McLawhon said. ``I'm delighted the Supreme Court has held up the Circuit Court and the town of Smithfield.''
Nobody can say exactly how soon the sign, one of just a handful of privately owned billboards in the state, will have to come down. That will likely be up to the Circuit Court, said Chris Pease, real estate manager with Adams Outdoor Advertising, Norfolk.
But the battle isn't that unusual, Pease said, because many municipalities oppose outdoor advertising.
``We've won some, we've lost some,'' Pease said. ``We'll have to go along with whatever the court tells us to do. But I truly believe the Gales have been treated unfairly. I think they did everything they were told to do, and road blocks were thrown in their path every step of the way.''
The brothers could ask the Supreme Court to reconsider, or, if they feel their constitutional rights have been violated, they could take the matter to federal court, Pease said.
The brothers aren't saying what they plan to do.
``What's the saying? `It's not over until the fat lady sings,' '' Bronson Gale said.
``She hasn't sung yet.'' ILLUSTRATION: JOHN H. SHEALLY II/Staff
The Virginia Supreme Court has ordered brothers Bob, left, and
Bronson Gale to take down this billboard on Church Street in
Smithfield after a long legal battle. They claim officials are
unfairly taking away an important source of income.
KEYWORDS: BILLBOARD VIRGINIA SUPREME COURT by CNB