Adams Outdoor Adver., L.P. v. Cnty. of Dane

• Decision Date: 02 February 2012
• Docket Number: No. 2010AP178.,2010AP178.
• Citation: 2012 WI App 28,811 N.W.2d 421,340 Wis.2d 175
• Parties: ADAMS OUTDOOR ADVERTISING, L.P., Plaintiff–Respondent, Town of Madison, Involuntary–Plaintiff, v. COUNTY OF DANE, Defendant–Appellant.
• Court: Wisconsin Court of Appeals

340 Wis.2d 175

811 N.W.2d 421

2012 WI App 28

ADAMS OUTDOOR ADVERTISING, L.P., Plaintiff–Respondent,^†

Town of Madison, Involuntary–Plaintiff,

v.COUNTY OF DANE, Defendant–Appellant.

No. 2010AP178.

Court of Appeals of Wisconsin.

Oral Argument Aug. 17, 2010.

Opinion Filed Feb. 2, 2012.

On behalf of the defendant-appellant, the cause was submitted on the briefs of and oral argument by David R. Gault, assistant corporation counsel, of Dane County Corporation Counsel, Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Thomas S. Hornig and Kraig A. Byron of Von Briesen & Roper, S.C., Madison. There was oral argument by Thomas S. Hornig.

Before LUNDSTEN, P.J., VERGERONT and HIGGINBOTHAM, JJ.

HIGGINBOTHAM, J.

¶ 1 Dane County appeals a circuit court's declaratory judgment holding that a town billboard ordinance enacted pursuant to WIS. STAT. § 60.23(29) (2009–10)¹ (the "town billboard statute") preempts a county's billboard ordinance enacted under WIS. STAT. § 59.69(1) and (4) (the "general zoning statute").² This dispute stems from Adams Outdoor Advertising, L.P.'s efforts to construct an advertising billboard on a highway located in the Town of Madison. Adams sought permits from the Town and from the Wisconsin Department of Transportation to construct the billboard, but not from Dane County. Adams brought a declaratory judgment action in circuit court to clarify whether Adams was required to obtain a billboard construction permit from the County. The court granted summary judgment in favor of Adams, declaring that, because the Town's billboard ordinance preempts the County's billboard ordinance, Adams was not required to obtain a permit from the County before constructing the billboard.

¶ 2 The County argues on appeal that the circuit court erred by declaring that the Town of Madison's billboard ordinance, which was enacted pursuant to the town billboard statute, preempts the County's billboard ordinance, which was enacted under the County's general zoning authority. We conclude that where, as in this case, a town approves a county zoning ordinance that includes a billboard ordinance enacted pursuant to the procedures set out in WIS. STAT. § 59.69(5)(c), the town's billboard ordinance adopted under the town billboard statute does not preempt a county's authority to regulate billboards in that town. Therefore, under the facts of this case, we conclude the Town's billboard ordinance does not preempt the County's billboard ordinance. We, therefore, reverse the summary judgment order entered in favor of Adams Outdoor Advertising, L.P. and grant summary judgment in favor of Dane County.

PROCEDURAL BACKGROUND

¶ 3 Adams Outdoor Advertising, L.P. commenced this action for declaratory relief, seeking an order from the circuit court declaring, among other things, that the County lacked legal authority to regulate advertising signs that fall within the regulatory jurisdiction of the Town under WIS. STAT. § 60.23(29). The County answered and counterclaimed, seeking declaratory and injunctive relief. The parties stipulated to all relevant facts (which are set forth below) and filed cross motions for summary judgment. The issue to be decided on summary judgment, as characterized by the parties, was:

When a town has enacted an ordinance regulating outdoor advertising signs pursuant to WIS. STAT. § 60.23(29), is a permit applicant subject to such a Town ordinance also subject to a County zoning ordinance purporting to regulate the same outdoor advertising sign[.]

To decide the issue, the circuit court had to determine whether the Town's billboard ordinance preempted the County's billboard ordinance.

¶ 4 The circuit court rendered an oral decision and concluded that the legislature, by enacting WIS. STAT. §§ 59.70(22) and 60.23(29), both of which specifically address regulation of billboards, intended these two statutes to govern the regulation of billboards. We understand the circuit court to have concluded that when, as here, a town has enacted a billboard ordinance under § 60.23(29), that ordinance preempts a county billboard ordinance enacted under the more general authority conferred in the county zoning statute, WIS. STAT. § 59.69. Applying this construction of these statutes, the circuit court granted declaratory relief in favor of Adams, ruling that the Town's billboard ordinance preempted the County's billboard ordinance. The County appealed.

FACTS

¶ 5 The parties stipulated to all relevant facts for purposes of summary judgment and this appeal. From this stipulation, the facts below are relevant for our opinion.

1. [Adams] owns a sign structure on property legally described as: Southeast ¼ of the Northeast ¼ of Section 35, Township 7 North, Range 9 East, lying 2421 feet East of U.S. Highway 14/Park Street. This property is located within the legal boundaries of the Town of Madison, and the Town of Madison maintains the roadways abutting the property upon which the sign is situated.

2. Before construction of the sign structure described in Para. 1, [Adams] applied for permits from the Town of Madison and the Wisconsin Department of Transportation.... [Adams] secured permits from the Town of Madison and the Department of Transportation before commencing construction of the subjection [sic] sign structure.

3. The aforementioned applications which were both signed by Jason Saari, as the Real Estate Manager of [Adams], recite that the sign has two faces that are each 14 feet by 48 feet. Each face having a square footage of 672 feet for a total square footage of the sign of 1,344 square feet....

4. In late 2008/early 2009, [Adams] erected the sign described in Para. 1 having a total dimensional area of 1,344 square feet.

5. The County claims that its authority to regulate the sign at issue emanates from Wis. Stat. § 59.69(4), which defines the power of a county regarding zoning regulation:

(4) EXTENT OF POWER. For the purpose of promoting the public health, safety and general welfare the board may by ordinance effective within the areas within such county outside the limits of incorporated villages and cities establish districts of such number, shape and area, and adopt such regulations for such district as the board considers best suited to carry the purposes of this section.

6. The Dane County Board of Supervisors has enacted an ordinance pursuant to Wis. Stat. § 59.69 for the regulation of zoning within the areas within the county outside the limits of incorporated villages and cities, which is codified as Chapter 10 of the Dane County Code of Ordinances.

7. The subject sign is located on real property located in the Town of Madison, which is in Dane County but outside the limits of incorporated villages and cities.

8. [Adams] erected the subject sign without obtaining a Dane County zoning permit.

9. Jason Saari states in Para. 6 of his Affidavit that "I personally applied for the sign permits for the subject sign structure. When I did so, it was my understanding that the Town of Madison has exclusive jurisdiction over regulation of the subject sign structure at the local level. That remains my understanding."

10. The Town of Madison Application For Off–Premise Billboard Permit, submitted by the Plaintiff on August 5, 2008 states on Page 2:

Said applicant, its successors or assigns, acknowledges that the installation and maintenance of said Billboard might be subject to Dane County Zoning. The applicant, its successors or assigns assumes all risks if it fails to obtain Dane County Zoning's approval prior to installing said Billboard.

11. The Wisconsin Department of Transportation Outdoor Sign Installation Application and Permit submitted by the Plaintiff on March 14, 2008 states on Page 2:

The permittee shall comply with all of the following: ... All local laws and regulations including, but not limited to, local zoning or outdoor advertising control ordinances. Issuance of a permit by the Department does not relieve the applicant from obtaining all other permits required by law from any other state or federal agency, county, or municipality.

12. Wis. Stat. § 59.70(22) BILLBOARD REGULATION, provides as follows with regard to County regulation of billboards:

The board may regulate, by ordinance, the maintenance and construction of billboards and other similar structures on premises abutting on highways maintained by the county so as to promote the safety of public travel thereon. Such ordinances shall not apply within cities, villages and towns which have enacted ordinances regulating the same subject matter.

13. Wis. Stat. § 60.23(29) BILLBOARD REGULATION, provides as follows with regard to Town regulation of billboards:

The town board may:

Enact and enforce an ordinance, and provide a forfeiture for a violation of the ordinance, that regulates the maintenance and construction of billboards and other similar structures on premises abutting on highways in the town that are maintained by the town or by the county in which the town is located so as to promote the safety of public travel on the highways.

14. The County acknowledges that the Town of Madison has adopted a valid ordinance regulating billboards pursuant to Wis. Stat. § 60.23(29).

15. The County acknowledges that [Adams] was required to secure a permit from the Town of Madison for the subject sign structure as a result of the ordinance adopted by the Town pursuant to Wis. Stat. § 60.23(29).

STANDARD OF REVIEW

¶ 6 We review a grant of summary judgment de novo, applying the same methodology as the circuit court. State v. Bobby G., 2007 WI 77, ¶ 36, 301 Wis.2d 531, 734 N.W.2d 81. Summary judgment is appropriate when the affidavits and other submissions show that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. WIS. STAT. § 802.08(2).

¶ 7 This case requires us to interpret and apply statutes to undisputed facts, which presents a question of law subject to de novo review. Harnischfeger Corp. v. LIRC, 196...