Libra Group, Inc. v. State

Decision Date29 January 1991
Docket NumberCA-CV,No. 1,1
Citation805 P.2d 409,167 Ariz. 176
PartiesLIBRA GROUP, INC., an Arizona corporation, Plaintiff-Appellant, v. The STATE of Arizona and Charles L. Miller, in his capacity as the Director of the Arizona Department of Transportation, Defendants-Appellees, and Pima County, a body politic and corporate of the State of Arizona, Intervenor-Appellee. 89-477.
CourtArizona Court of Appeals
OPINION

EUBANK, Judge.

Libra Group, Inc., appeals from the trial court's grant of summary judgment in favor of the State of Arizona, the director of the Arizona Department of Transportation (ADOT) and Pima County. Because we hold that A.R.S. §§ 28-2101 through 28-2110 (Arizona Highway Beautification Act or Arizona act) recognizes the concurrent authority of state and local governments to regulate outdoor advertising signs along Arizona highways, we affirm.

I. FACTS AND PROCEDURAL HISTORY

According to the stipulated facts, Libra Group, Inc. (plaintiff) filed with ADOT approximately sixty-five applications to erect and maintain outdoor advertising signs on leased property located along interstate, primary, and secondary highways in Arizona. A number of the proposed advertising sign locations were within the incorporated municipalities of Chandler, Glendale, Mesa, Peoria, Phoenix, South Tucson and Tucson, Arizona, and in Pima County, Arizona. The municipalities and Pima County (local governments) have enacted comprehensive zoning ordinances or regulations controlling the size, lighting, and spacing of outdoor advertising in zoned commercial and industrial areas along highways. None of the local governments has filed a request with the director of ADOT to impose local control over outdoor advertising signs along the highways, nor has the director certified any of the local governments' zoning ordinances to the United States Secretary of Transportation, pursuant to A.R.S. § 28-2107.

The plaintiff filed a complaint, requesting the superior court to declare that it was entitled to construct and maintain signs at locations for which it had obtained state permits without complying with the local governments' zoning regulations, and to enjoin the state from conditioning the issuance of future permits on compliance with those regulations, because none of the local governments had complied with A.R.S. § 28-2107. The plaintiff later moved for summary judgment, arguing that it had the right to construct signs on the permitted sites, both as a matter of law and under a vested rights theory, and to declare that ADOT had no legal authority to revoke these permits or to condition the issuance of future permits on compliance with the local governments' ordinances and regulations.

ADOT and intervenor Pima County filed cross-motions for summary judgments, taking the position that under the Arizona act, a highway advertising sign must comply with both state and local law. The trial court denied the plaintiff's motion for summary judgment, and granted the motions for summary judgment filed by ADOT and Pima County. In the judgment, the trial court specifically found that the allegedly conflicting provisions of the Arizona Highway Beautification Act established "not the preemption of zoning regulations and ordinances by the state, but rather a dual system of zoning regulation with minimum standards established by the state." The plaintiff timely appealed this judgment.

II. BACKGROUND

Congress enacted the Highway Beautification Act of 1965 (the "federal act") to control outdoor advertising signs adjacent to highways. Pub.L. No. 89-285, 79 Stat. 1028 (1965) (codified at 23 U.S.C. § 131). To promote the control of advertising signs, the federal act provides that a state determined not to have provided "effective control" of specified advertising signs along the interstate and primary highway systems would be subject to having its share of federal-aid highway funds reduced by ten percent. 23 U.S.C. § 131(b). The federal act sets forth certain standards for "effective control," and provides that each state and the Secretary of Transportation may enter into an agreement for the erection and maintenance of certain signs adjacent to a highway within industrial or commercial areas. 23 U.S.C. § 131(d). Following enactment of the federal act, most states adopted statutes to provide "effective control" of advertising signs along federally-funded highways. 1

In 1970, Arizona adopted statutes regulating outdoor advertising within 660 feet of the edge of the right-of-way along Arizona highways. Laws 1970, ch. 214, § 1 (codified at A.R.S. §§ 18-711 et seq., repealed by Laws 1973, ch. 146, § 85.) 2 In 1971, Arizona entered into an agreement with the United States concerning:

the regulation of outdoor advertising in all business areas, unzoned commercial or industrial areas and zoned commercial or industrial areas within 660 feet of the nearest edge of the right-of-way of all portions of the interstate and primary highway systems within the State of Arizona in which outdoor signs, displays and devices may be visible from the main-travelled way of said systems.

Arizona-Federal Agreement (November 18, 1971) (authorized by A.R.S. § 18-716 (Supp.1970)). It is undisputed that the Arizona act was adopted to comply with the terms of the federal act, 3 in order that Arizona would receive its full share of federal highway funds.

Under the Arizona act, outdoor advertising signs are prohibited adjacent to highways if the sign is directed at and can be read from the highway, unless the advertising sign falls within specific exceptions. A.R.S. §§ 28-2102, 28-2103. The exceptions allow lawfully placed advertising signs within 660 feet of the right-of-way in business areas or in zoned or unzoned commercial or industrial areas. A.R.S. § 28-2102, subd. A(4), (5). Such outdoor advertising signs must bear state permits, except that signs "along highways in the secondary system which are not state highways need only bear permits required by the responsible county or municipal authority." A.R.S. § 28-2102, subd. B.

III. DISCUSSION

The issue on appeal is whether the Arizona act preempts Arizona local governments from enforcing their outdoor advertising ordinances and regulations against signs regulated by the Arizona act, when a local government has not made a formal request to assume control over such signs, nor has the director of ADOT certified the local ordinance to the Secretary of Transportation pursuant to A.R.S. § 28-2107. 4

The plaintiff argues that the Arizona Highway Beautification Act preempts local regulation of advertising signs adjacent to highways, except when local authorities make an appropriate request to the ADOT director, who in turn must make the appropriate certification to the Secretary of Transportation. 5 ADOT and Pima County argue, however, that the Arizona act provides for dual state and local control of advertising signs adjacent to Arizona highways, and that A.R.S. § 28-2107 provides a method by which local government can exercise exclusive control over such advertising signs.

Because the interpretation of an Arizona statute involves legal rather than factual questions, we are not bound by the trial court's conclusions of law, and conduct a de novo review of the applicable statutes and regulations. Arnold v. Arizona Department of Health Services, 160 Ariz. 593, 603, 775 P.2d 521, 531 (1989); Arizona State Board of Accountancy v. Keebler, 115 Ariz. 239, 241, 564 P.2d 928, 930 (App.1977).

A. Preemption

To resolve the issue of whether the Arizona act preempts local control of advertising signs adjacent to highways, we must determine whether the subject matter of regulation is of statewide or local concern, and whether state legislation has appropriated the field in this area. Flagstaff Vending Co. v. City of Flagstaff, 118 Ariz. 556, 559, 578 P.2d 985, 988 (1978). Accord Cota-Robles v. Mayor and Council of Tucson, 163 Ariz. 143, 146, 786 P.2d 994, 997 (App.1989), citing State v. Mercurio, 153 Ariz. 336, 340, 736 P.2d 819, 823 (App.1987). We find that the regulation of outdoor advertising signs along highways in Arizona is a matter of mixed statewide and local concern, and that the state statute does not appropriate the entire field, but recognizes concurrent control by local zoning authorities, as long as local regulations are more restrictive than and consistent with state law.

1. Regulation of Advertising Signs of Mixed Statewide and Local Concern

Under Arizona law, zoning is a matter of statewide concern. Levitz v. State, 126 Ariz. 203, 204, 613 P.2d 1259, 1260 (1980); City of Scottsdale v. Scottsdale Associated Merchants, Inc., 120 Ariz. 4, 5, 583 P.2d 891, 892 (1978). Arizona law also recognizes local authorities' interest in zoning matters, as the Arizona legislature has delegated zoning powers to local authorities. A.R.S. § 9-462.01 (municipalities); A.R.S. §§ 11-802, 11-806 (counties). Advertising sign regulation, as part of zoning, is a matter of statewide concern. Levitz, 126 Ariz. at 205, 613 P.2d at 1261. Regulating signs and billboards is also a matter of local concern, and the power to regulate signs and billboards has been delegated to local authorities. A.R.S. § 9-462.01, subd. A(2) (specific delegation to municipalities); A.R.S. §§ 11-802, 11-806 (general delegation of zoning power to counties).

This delegation of authority is not absolute. Arizona law limits local authorities' exercise of their zoning power in specific instances when it imposes statewide requirements, such as due process hearing requirements, A.R.S. §§ 9-462.04, 11-829, and requirements for eliminating...

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