Boyce Industries, Inc. v. Missouri Highway and Transp. Com'n
| Decision Date | 24 April 1984 |
| Docket Number | No. WD34020,WD34020 |
| Citation | 670 S.W.2d 147 |
| Parties | BOYCE INDUSTRIES, INC., d/b/a Missouri Neon and Plastic Advertising Company, Appellant, v. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Respondent. |
| Court | Missouri Court of Appeals |
Alex Bartlett, John S. Pletz, Bartlett, Venters & Pletz, Jefferson City, for appellant.
Bruce A. Ring, Chief Counsel, Dennis J. Redel, Asst. Chief Counsel, Missouri Highway and Transp. Com'n, Jefferson City, for respondent.
Before CLARK, P.J., and DIXON and NUGENT, JJ.
Boyce Industries, Inc., appeals the judgment of the circuit court affirming the decision of the Highway and Transportation Commission terminating the nonconforming status of two highway signs and requiring their removal without compensation.
Boyce asserts the Commission regulations relied upon for removal violate the statutory direction to limit regulations to those minimally necessary to prove compliance with federal law, that there is no statutory authority directing removal of the signs and that the challenged rule is arbitrary and capricious.
The two billboards are located in Taney and Greene counties and were erected prior to any regulation affecting billboards. The Greene County sign was damaged in a truck collision. The poles of the Taney County sign were cut by vandals. There is no dispute that both were nonconforming signs under the Billboard Act, §§ 226.500 to 226.600, RSMo 1978. In both instances Boyce, with knowledge of the existence of the Commission's regulation, replaced the original wood supporting poles with steel poles. The Commission, upon notice and hearing, ordered the signs removed without compensation, alleging a violation of 7 CSR 10-6.060(3)(B), which states:
Reasonable maintenance and repair of nonconforming signs is permissible. However, violation of any one or more of the following subsections (A) to (E) of this section (3) disqualifies any sign from being maintained as a nonconforming sign and subjects it to removal by the State Highway Commission without the payment of just compensation. When a sign is maintained in violation of any subsections (A) to (E), the district engineer shall issue a notice to terminate nonconforming sign to the signowner and owner of the real property on which the sign is located.
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(B) Type of materials. The type of materials used in the construction of a sign shall not be changed after the date the sign becomes a nonconforming sign, except that a change of facing, panels, message or advertising does not constitute a change of type of materials.
This ruling of the Commission was upheld by the circuit court, which held that the foregoing rule was valid and enforceable.
Boyce first contends that the prohibition of 7 CSR 10-6.060(3)(B) against a change in the "type of materials" in a nonconforming sign is invalid. Boyce argues invalidity upon the premise that the language of § 226.530, "to promulgate only those rules and regulations of minimal necessity and consistent with customary use," limits the power of the Commission to issue only those rules minimally necessary to be in compliance with federal laws and applicable rules. In support of the argument, Osage Outdoor Advertising, Inc., v. State Highway Commission, 624 S.W.2d 535, 537 (Mo.App.1981), is cited for its language:
It is clear from §§ 226.500 to 226.600 that the legislature undertook to do the bare minimum by way of regulating the outdoor advertising which it could do and still not suffer the loss of federal highway funds. It is abundantly clear that the legislature did not intend for the Commission to make extensive rules and regulations and it specifically limited the Commission to making those rules and regulations of minimal necessity which would insure that Missouri would not suffer any loss of federal money. It is further clear from these sections that the legislature carefully specified those signs which could be removed with and without compensation.
(emphasis added) (footnote omitted). Boyce concedes that the Commission is required by federal regulation to make some lawful rule for reasonable repair and maintenance of nonconforming signs and cites 23 CFR § 750.707(d)(5):
The [nonconforming] sign must remain substantially the same as it was on the effective date of the State law or regulations. Reasonable repair and maintenance of the sign, including a change of advertising message, is not a change which would terminate nonconforming rights. Each State shall develop its own criteria to determine when customary maintenance ceases and a substantial change has occurred which would terminate nonconforming rights.
(emphasis added).
Boyce concludes that the federal rule does not require anything other than "some reasonable rule" and that the Commission was not required to go beyond the bare minimum by way of regulations concerning maintenance of nonconforming signs.
This argument by Boyce assumes that the Commission is acting in a vacuum in its statutorily mandated role. This is not so. There is a well-developed body of precedent in this state concerning the regulation of nonconforming uses.
The federal regulation leaves to the states the task of adopting standards for the determination of reasonable repair and maintenance. Deference to state standards in the determination of the loss of the right of nonconforming use is compelled by state constitutional standards relating to the taking of private property. There are wide variances in the state laws construing and applying constitutional prohibitions against a taking of property without just compensation. See Annot., 80 A.L.R.3d 630 (1977). A federal regulation that purported to vary state constitutional standards would raise serious constitutional questions. As a first principle, the federal rule does not require the enactment of regulations contrary to existing state doctrine in the application of Missouri Constitution Article I, § 10 and Article I, § 26. Missouri authority protects a preexisting use from a taking without compensation under the exercise of the police power. Missouri Rock, Inc. v. Winholtz, 614 S.W.2d 734 (Mo.App.1981). The protection afforded to a nonconforming use is not absolute and is subject to limitations as to the extension of the use, both in a functional and a temporal sense, and this is particularly true in cases involving billboards.
The Billboard Act is in essence a zoning of property adjacent to highways. Mississippi State Highway Commission v. Roberts Enterprises, 304 So.2d 637 (Miss.1974). All zoning restrictions are required to exempt from their immediate operation existing nonconforming uses. City of Monett, Barry County v. Buchanan, 411 S.W.2d 108, 115 (Mo.1967). The intent of zoning restrictions is to decrease and diminish nonconforming uses in the public interest. Hoffmann v. Kinealy, 389 S.W.2d 745, 750 (Mo. banc 1965). Prohibitions upon extensive reconstruction (75%) of a nonconforming use have been upheld. City of Monett, supra. Limitations upon changes prolonging the useful life of a nonconforming use have been sustained and violations of such limitations have been found to destroy the nonconforming use. Brown v. Gambrel, 358 Mo. 192, 213 S.W.2d 931 (1948); Women's Christian Association of Kansas City v. Brown, 354 Mo. 700, 190 S.W.2d 900 (1945). The primary purpose of the Billboard Act is to obtain removal of unlawful signs. State ex rel. State Highway Commission v. Heil, 597 S.W.2d 257 (Mo.App.1980). In University City v. Diveley Auto Body Co., ...
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