CHANCELLOR MEDIA WHITECO OUTDOOR CORPORATION v. DOT

• Decision Date: 24 July 2001
• Docket Number: No. 1D99-4725.,1D99-4725.
• Citation: 796 So.2d 547
• Parties: CHANCELLOR MEDIA WHITECO OUTDOOR CORPORATION, Appellant, v. STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellee.
• Court: Florida District Court of Appeals

796 So.2d 547

CHANCELLOR MEDIA WHITECO OUTDOOR CORPORATION, Appellant, v. STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellee.

No. 1D99-4725.

District Court of Appeal of Florida, First District.

July 24, 2001.

Opinion on Motion for Clarification October 9, 2001.

Gerald S. Livingston and Aileen M. Reilly of Livingston & Reilly, P.A., Orlando, for Appellant.

Pamela S. Leslie, Marianne A. Trussell and Vance W. Kidder of Florida Department of Transportation, Tallahassee, for Appellee.

ALLEN, C.J.

Chancellor Media Whiteco Outdoor Corporation (the appellant) challenges a final order of the Florida Department of Transportation (the appellee) by which the appellant was ordered to remove six of its outdoor advertising signs located adjacent to U.S. Highway 1 and Interstate 95 in Brevard County, Florida. We affirm the final order, but we certify conflict between our decision and a decision of the Fifth District Court of Appeal.

This case involves the Highway Beautification Act of 1965 and Florida's response to this federal legislation. The general purpose of the Highway Beautification Act is to establish a control system for outdoor advertising on the federal interstate and primary highway system. 23 U.S.C. § 131. The states are given the primary task of providing for effective control over outdoor advertising, subject to oversight by the secretary of the United States Department of Transportation. If a state does not make provision for effective control of outdoor advertising, a ten percent reduction in the federal-aid funds for the state's highways may be imposed until such time as the state makes such provision. 23 U.S.C. § 131(b).

In order to secure its full share of federal highway funds, Florida has entered into an agreement (the federal-state agreement) with the United States Department of Transportation relating to the size, lighting, and spacing of signs in accordance with the requirements of the federal act and federal regulations. Pursuant to section 479.02(1), Florida Statutes, administration and enforcement of the agreement have been delegated to the appellee, and the appellee has adopted rules consistent with this responsibility. See Fla. Admin. Code Ch. 14-10.

Signs which do not conform to size, lighting, and spacing requirements are generally prohibited and must be removed. 23 U.S.C. § 131(r). However, in accordance with a federal regulation, a state administrative rule, and the grandfather clause of the federal-state agreement, an exception has been carved out for nonconforming signs which preexisted the federal-state agreement. So long as a grandfathered sign remains in substantially the same condition as it existed when it became nonconforming, the prohibition will not apply. 23 C.F.R. § 750.707(c) & (d)(5). And the federal regulation further provides in relevant part as follows:

The [grandfathered] sign may continue as long as it is not destroyed.... If permitted by State law and reerected in kind, exception may be made for signs destroyed due to vandalism and other criminal or tortious acts.

23 C.F.R. § 750.707(d)(6). In accordance with the authority granted by the federal regulation, the appellee has enacted a rule authorizing reerection in kind of a grandfathered sign destroyed by vandalism or other criminal or tortious act. Fla. Admin. Code R. 14-10.007(f).

The appellant owned six grandfathered signs which it lawfully maintained in accordance with the federal regulation, the state administrative rule, and the grandfather clause of the federal-state agreement. When the signs were destroyed by wildfire in the summer of 1998, the appellant erected the new signs at issue in this case. They are substantially identical to the destroyed signs in size, construction, and location. Following erection of the new signs, the appellee issued notices of violation alleging that the new signs were nonconforming and had to be removed. The appellant responded by petitioning for administrative proceedings.

Following a formal administrative hearing, the administrative law judge entered a recommended order. Finding that the wildfire that destroyed the grandfathered signs had been caused by lightning rather than a criminal or tortious act, the administrative law judge recommended that the appellant be required to remove the new signs. In its final order, the appellee adopted the recommended order in its entirety and ordered the appellant to remove the signs.

In one of its arguments on appeal the appellant asserts that it was entitled to erect and maintain the new signs by virtue of a state law enacted following the 1998 wildfires. The 1999 law provides:

Notwithstanding any other law, regulation, or local ordinance to the contrary, the owners of any nonconforming buildings, houses, businesses, or other appurtenances to real property which were damaged or destroyed during the wildfires that occurred during June and July of 1998, may elect to repair or rebuild such nonconforming structures in like-kind, unless prohibited by Federal law or regulation.

Ch. 99-292, § 24, Laws of Fla.

The administrative law judge and the appellee concluded that this legislative enactment (section 24) provided no authority for the erection of the new signs because such was prohibited by 23 C.F.R. § 750.707. But the appellant disagrees and argues that erection of the new signs is not "prohibited" by the federal regulation because the regulation does not expressly forbid the erection of a like-kind sign to replace a grandfathered sign which has been destroyed by wildfire.

Although the federal regulation does not expressly prohibit the erection of a like-kind sign to replace a grandfathered sign which has been destroyed by wildfire, such would constitute a violation of the federal regulation and the Highway Beautification Act. The federal regulation prescribes the contours of the narrow grandfather exception to the 23 U.S.C. § 131 requirement that a state must remove nonconforming signs from federal highways in order to qualify for its full share of federal highway dollars. Subsection (c) of the regulation provides that a grandfather clause only allows an individual grandfathered sign at its particular location for the duration of its normal life subject to customary maintenance. Subsection (d) then provides that a grandfathered sign may continue as long as it is not destroyed. But it further provides that, if permitted by state law and reerected in kind, exception may be made for grandfathered signs destroyed due to vandalism and other criminal or tortious acts. 23 C.F.R. § 750.707(c) & (d). Grandfathered signs therefore lose their exemption once they are destroyed by noncriminal, nontortious acts, and a state would violate the federal regulation and the Highway Beautification Act by permitting a nonconforming replacement sign.

The appellant contends that the regulation's reference to criminal or tortious acts does not necessarily provide an exhaustive recitation of the circumstances under which a state might authorize erection of a new nonconforming sign. We reject this contention because the criminal and tortious acts exception is recited in the regulation immediately following recitation of the general proposition that a grandfathered sign may continue "as long as it is not destroyed." Because an open-ended exception to this general proposition would render the general proposition meaningless, such was obviously never intended.

The appellant also argues that the appellee's construction of section 24 "is inconsistent with other states that have allowed their sign regulations to vary from the federal regulations, despite allegations that federal funds would be lost." Although the section 24 phrase "unless prohibited by Federal law or regulation" might be read as applying only where there is an explicitly-stated federal prohibition against erection of a new like-kind sign to replace a grandfathered sign destroyed by wildfire, it is unlikely that the legislature intended so narrow an application of this language. Florida has exerted considerable effort over the last 30 years in complying with the Highway Beautification Act in order to protect its full share of federal highway funds. The federal-state agreement has been executed, legislation required for compliance has been enacted, and comprehensive state administrative rules have been enacted. The legislature surely did not intend to cast aside these years of effort and imperil the state's share of future federal highway funds simply to allow erection of some nonconforming highway billboards. We instead conclude, as respecting highway signs, that the legislative intent was to authorize erection of new like-kind signs to replace grandfathered signs only if erection of the signs would not be contrary to the Highway Beautification Act and the federal regulations. Because the appellant's nonconforming signs do not satisfy this condition, they are not authorized.

Our decision in this case conflicts with the decision in Chancellor Media Whiteco Outdoor v. Department of Transportation, (Fla. 5th DCA 2001). We therefore certify conflict between these decisions.

The order under review is affirmed.

PADOVANO, J., CONCURS; BENTON, J., DISSENTS WITH WRITTEN OPINION.

BENTON, J., dissenting.

I respectfully dissent. The majority opinion fails to give effect to plain language in a state law (Section 24) enacted in the wake of the 1998 wildfires to facilitate replacing structures lost in the conflagration.¹ Section 24 reads:

Notwithstanding any other law, regulation, or local ordinance to the contrary, the owners of any nonconforming buildings, houses, businesses, or other appurtenances to real property which were damaged or destroyed during the wildfires that occurred during June and July of 1998, may elect to repair or rebuild such nonconforming structures in like-kind, unless prohibited by Federal law or regulation.

Ch. 99-292, § 24, at 3236, Laws of Fla. By authorizing...