Iowa Dept. of Transp. v. Nebraska-Iowa Supply Co.

• Decision Date: 22 November 1978
• Docket Number: 61507,Nos. 61110,NEBRASKA-IOWA,s. 61110
• Citation: 272 N.W.2d 6
• Parties: IOWA DEPARTMENT OF TRANSPORTATION, Appellant, v.SUPPLY COMPANY, Appellee. IOWA DEPARTMENT OF TRANSPORTATION, Appellee, v. RIVERS ADVERTISING COMPANY, Paul P. Felton, Greta Felton and Lorna B. McKeown, Appellants.
• Court: Iowa Supreme Court

Page 6

272 N.W.2d 6

IOWA DEPARTMENT OF TRANSPORTATION, Appellant, v. NEBRASKA-IOWA SUPPLY COMPANY, Appellee.

IOWA DEPARTMENT OF TRANSPORTATION, Appellee, v. RIVERS ADVERTISING COMPANY, Paul P. Felton, Greta Felton and Lorna B. McKeown, Appellants.

Nos. 61110, 61507.

Supreme Court of Iowa.

Nov. 22, 1978.

Richard C. Turner, Atty. Gen., Asher F. Schroeder, Franklin W. Sauer, Asst. Attys. Gen., and Robert W. Goodwin, Sp. Asst. Atty. Gen., for Iowa Department of Transportation.

James A. Brewer of Hegland, Newbrough, Johnston, Brewer & Maddux, Ames, for Nebraska-Iowa Supply Co., Rivers Advertising Co., Paul P. Felton, Greta Felton and Lorna B. McKeown.

Considered by REES, P. J., and UHLENHOPP, HARRIS, ALLBEE and LARSON, JJ.

REES, Justice.

We are concerned in this matter with two separate appeals, both emanating from the District Court of Story County, and which are consolidated here for disposition. Both cases involve the application of chapter 306C, The Code, 1975 (Iowa Junkyard Beautification and Billboard Control Act). In the first case the Iowa Department of Transportation (DOT) sought an injunction against Nebraska-Iowa Supply Company (Nebraska-Iowa) for the removal of several billboards owned by defendant allegedly located beyond 660 feet of primary highways within the state. The trial court, the Honorable Paul E. Hellwege presiding, denied the injunctive relief sought by DOT.

In the second case DOT instituted its action against Rivers Advertising Company (Rivers) and the owners of certain real estate upon which Rivers had been maintaining signs. Trial court in the second case, the Honorable Russell J. Hill presiding, entered its decree, declaring Rivers' billboards to be public nuisances and restraining the defendants from interfering with the removal of the billboards by DOT.

The similarity of the issues involved and the disparate results reached by the trial courts led to a consolidation of the cases for appeal.

We shall review first the factual situation in the first case, DOT vs. Nebraska-Iowa, and note later any features which distinguish the second case (Rivers) therefrom.

NEBRASKA-IOWA SUPPLY CO. CASE

In the Nebraska-Iowa case, plaintiff DOT appeals from the judgment of the trial court denying plaintiff's request that it be granted an injunction for the removal of several billboards owned by defendant without being required to compensate the defendant.

DOT filed its petition on March 3, 1976, alleging the defendant had failed to obtain advertising permits for 18 billboards owned by it and located near primary highways in Iowa; that such billboards constituted public nuisances under § 306C.19, The Code, and were thus subject to removal; and that an injunction was necessary to restrain the defendant from interfering with the removal of the billboards. DOT asked that the defendant not be compensated for the signs to be removed. Attached to the petition were 18 separate notices mailed to defendant and owners of the land on which the billboards were situated, in which DOT asserted that Nebraska-Iowa's permit applications had been denied since they had been filed after the statutory deadline of July 31, 1972 set by § 306C.18, The Code. Removal of the billboards was requested on the ground they were being illegally maintained under § 306C.19, The Code. DOT's petition also denied an allegation made by defendant in a letter to the plaintiff dated January 19, 1976, in which Nebraska-Iowa claimed the applications were filed belatedly due to the nonavailability of the forms at one of the plaintiff's offices. Nebraska-Iowa's answer denied all of the allegations of the plaintiff's petition. DOT later amended its petition, stating that four of the billboards had been removed and that the issue generated by its petition as to them was moot, that two of the billboards were within 660 feet of interstate highways, and that the remaining 12 billboards were beyond 660 feet of an interstate highway. Signs within 660 feet of an interstate highway are subject to different regulations under chapter 306B, The Code. This appeal by DOT involves only those signs subject to chapter 306C.

Trial was had to the court, resulting in the filing of findings of fact, conclusions of law and decree on February 17, 1977. The court found the billboards to have been erected between 1969 and 1971, and that they were valued between $2500 and $3500 each. The court found that eight of the signs were no longer in existence, and that the issue as to them was moot. One of the remaining signs was found to be within 660 feet of the interstate highway and thus subject to the provisions of chapter 306B, rather than chapter 306C. The court found that an agent of defendant Nebraska-Iowa had attempted to obtain permit application forms at the plaintiff's Council Bluffs office in late July, but that the office did not have the proper forms. Forms were later obtained by the agent during the first week of August at plaintiff's Atlantic, Iowa, office. The court held that although defendant submitted its applications on August 22, 1972, it was not informed until November 4, 1975 of the denial of said applications due to their untimely filing. The court further found that the DOT departmental rule based on chapter 306C dealing with billboards did not become effective until September 27, 1973, and would not be applied to this case.

As to the nine billboards of Nebraska-Iowa still in existence more than 660 feet from a primary highway, the court denied the plaintiff's request for an injunction, concluding chapter 306C contained no authorization for removal without compensation and that such removal would be contrary to §§ 306C.15, 306C.16 and 306C.17.

On February 24, 1977 DOT moved to enlarge or amend the findings and conclusions of the trial court, requesting a finding as to whether Nebraska-Iowa could be allowed to apply after July 31, 1972, and then assessed fees in lieu of removing the signs upon payment of just compensation. The motion was overruled on the grounds that the relief requested had not been sought in the petition nor was there evidence in the record with reference to such claim.

Following said ruling, timely appeal of the trial court's judgment was taken to this court.

RIVERS ADVERTISING COMPANY CASE

The case of DOT vs. Rivers differs in that the trial court there concluded that chapter 306C, The Code, did authorize the uncompensated removal of billboards for which applications had not been received as of July 31, 1972; that such regulation and removal constituted permissible exercises of the police power of the State of Iowa; and that proceedings pursuant to chapters 306B and 306C did not constitute "takings" in violation of the Fifth and Fourteenth Amendments to the United States Constitution or the Iowa Constitution. In Rivers the trial court directed the issuance of a writ of injunction from which order and decree Rivers has appealed.

As noted above, these two cases have been consolidated into one appeal for disposition before this court.

The following issues are stated for review:

(1) Does the uncompensated removal of billboards authorized by chapter 306C, The Code, constitute a valid exercise of the police power of the state and thus does not offend the Fifth and Fourteenth Amendments to the Constitution of the United States and Article I, Section 9, of the Constitution of the State of Iowa?

(2) May the Department of Transportation refuse to issue a permit when it did not make application forms available at its district office during the critical period of July, 1972?

(3) Is the allowance of a period of 30 days after the effective date of chapter 306C, The Code, in which applications for permits may be made, an unreasonable, arbitrary and capricious violation of due process of law under the federal and Iowa constitutions?

We note preliminarily that defendants in both cases challenge the applicability of DOT rules promulgated after July 31, 1972. We do not reach that question as we find the conclusions of the trial courts to have been based on statutory grounds rather than upon departmental rules.

I. DOT contends that if a person or corporation fails to acquire a permit for a billboard in accordance with § 306C.18, The Code, such billboard is subject to removal as a public nuisance without the payment of compensation, pursuant to § 306C.19, The Code. Section 306C.18 provides in relevant part:

" * * * The owner of every advertising device regulated by the provisions of this chapter . . . shall be required to make application to the department for a permit.* "

" * Application for initial permit before July 31, 1972."

Section 306C.12 makes clear the applicability of the permit requirement to the signs which are involved in this case:

" * * * An advertising device shall not be constructed or reconstructed beyond the adjacent area in unincorporated areas of the state if it is visible from the main-traveled way of any interstate or primary highway except for advertising devices permitted in section 306C.11, subsections 1 and 2, and municipal recognition signs erected by any city or town. Any advertising device permitted beyond an adjacent area in unincorporated areas of the state shall be subject to the applicable permit provisions of section 306C.18."

Therefore, billboards and advertising devices beyond the adjacent areas, i. e., beyond the 660-foot limit adjacent to the rights of way of primary highways are subject to regulation and the permit requirements of chapter 306C.

Section 306C.19 provides:

"Any advertising device erected or maintained after July 1, 1972, in violation of this division or the rules promulgated by the department, is a public nuisance and may be removed by the department upon thirty days' notice, by certified mail, to the owner of the advertising device and to the owner of the land on which the advertising device is located. * * * "

Any signs for which permit applications were not filed as of...