concurring
in the result:
Although I disagree with some of the court’s statements in its opinion, I agree that the district court’s judgment for the City as a matter of law cannot stand, and that the case should be remanded to that court for trial proceedings.
The City requires that before beginning the construction of a billboard, one must apply for and receive a permit. Valley did not do so. Instead, it began construction and laid concrete foundations for five billboards. After this work had been done without a permit, it then sought a permit from the City, which rejected its request.
If that were all the case involved, the outcome would be clear and simple. Because Valley had not complied with the City’s permit requirement and offered no explanation, reasonable or otherwise, for its failure to do so, the City justifiably rejected Valley’s belated efforts to cure its noncompliance by its attempt retroactively to obtain' a permit. Although Valley now states that applying for a permit before starting construction would have been futile, there is no way of knowing what the City would have done if an application had been filed. If Valley had made a good faith endeavor to obtain a permit before beginning construction, perhaps the differences between Valley and the City over the appropriate location of the billboards could have been settled through compromise.
The situation, however, is not that simple. The City’s permit procedure includes detailed provisions by which it may grant a permit after construction has been begun or even been completed. Valley attempted to invoke that procedure, but the City rejected Valley’s belated attempt to obtain a permit on grounds that at least suggest that the City had already decided not to authorize retroactively Valley’s billboards. The City’s stated reasons for returning the second permit application, after construction of the billboards had been completed, were that Valley had improperly identified the color and material used for the uprights and had not given precise street addresses for two of the billboards. As the court suggests in its opinion, these deficiencies seem more appropriate to be dealt with through a correction letter than by rejecting the application.
I concur in the result in this case because I think that the further explication and development of the facts that the court’s opinion apparently contemplates would facilitate the ultimate final disposition of this complex and complicated case. I hope that evidence would be developed addressing these items: (1) Valley’s reasons, if any, for not seeking a permit before beginning construction of the billboards (other than its claim that such application would have been futile); and (2) the City’s reasons for apparently not considering the merits of Valley’s retroactive request for a permit or for denying that request (other than the City’s apparent position that it has absolute discretion to grant or deny a permit without stating a reason).