National Advertising Co. v. Utah State Road Com'n
| Decision Date | 14 June 1971 |
| Docket Number | No. 12198,12198 |
| Citation | 486 P.2d 383,26 Utah 2d 132 |
| Parties | d 132, 2 ERC 1656, 1 Envtl. L. Rep. 20,331 NATIONAL ADVERTISING COMPANY, a corporation, Plaintiff and Respondent, v. The UTAH STATE ROAD COMMISSION et al., Defendants and Appellants. |
| Court | Utah Supreme Court |
Vernon B. Romney, Atty. Gen., Donald S. Coleman, Asst. Atty. Gen., Salt Lake City, for defendants-appellants.
Parsons, Behle & Latimer, Gordon L. Roberts, Salt Lake City, for plaintiff-respondent.
Defendant State Road Commission seeks to reverse a decree of the district court which prohibits it from removing an outdoor advertising sign maintained by the plaintiff National Advertising Company near the intersection of arterial highways, 21st South and Redwood Road in Salt Lake City.
The Commission's position is that the sign in question was erected and is maintained in violation of the 'Highway Beautification Act' 1 and the order of the Commission with respect to said sign. Plaintiff has had a lease on property near the intersection since 1959, and since 1964, has maintained an advertising sign thereon. Subsequent to May of 1967, the effective date of the Highway Beautification Act, and after considerable change in the highways by the construction of an elevated freeway along 21st South, officers of the plaintiff and of the Road Commission met at the site to discuss the erection of a new sign because the old one had practically lost its usefulness. The evidence is in dispute both as to the detail of what was discussed and what was agreed upon, except that both sides understood that it was necessary and desirable that there be some change in the size, height, location, and the direction the sign faced.
Pursuant to the discussion the Road Commission issued a permit for a sign near that intersection. But it recited the same specification of size as the old sign. Consequent thereto the plaintiff erected a considerably larger sign, and about 35 feet north of the old sign, costing about $5,000. Unfortunately, it now appears that there was an overlap in the existence of the signs in that the plaintiff did not remove the old sign until about 60 days after the new one was constructed. Thereafter the Commission, pursuant to notice to the plaintiff, sought to have the new sign removed, and after some hearings and subsequent negotiations and communications between the parties, ordered that it be taken down. Plaintiff thereafter initiated this proceeding in the district court denominating it an appeal from the Commission's ruling; and also stated a separate cause of action seeking an injunction against enforcement of the Commission's order.
The Road Commission interposed the objection that the proceeding in the district court was not commenced within the 30 days its Rule No. 25 allows for taking an appeal from its decision. We agree with the plaintiff that the Commission could not by rule limit the rights a party would have under the law. But it happens to conform with what the law would be anyway. 2 It is true that the record shows a certified mailing to plaintiff of notice of decision several months before the court action was initiated. But it is also true that the plaintiff sought modification and change in the order and that there continued to be negotiations and correspondence between the parties concerning the carrying out of the requirement imposed by the Road Commission until what appears to be a definite and final refusal of the Commission to change its order on July 11, 1969. 3 The court proceeding was initiated within the 30 days thereafter on July 22. We therefore deem it in the interest of justice to accept plaintiff's contention that the trial court was within its prerogative and had jurisdiction to review the action of the Commission. 4
Significant among the findings upon which the trial court based its determination that the defendant should not remove the sign are:
* * * As (of) the effective date of the Highway Beautification Act, said Plaintiff had property rights and outdoor advertising privileges on the property in question. The new sign constructed, reading for American Oil Company, was a continuation of the existence of said outdoor advertising and property rights of plaintiff with the knowledge, consent and lawful permit of the State Road Commission.
Said sign, which the Road Commission seeks to have removed, was the subject of a valid permit granted by the Road Commission, through its authorized officers. The construction and maintenance of that sign was within the intention and purpose of the permit granted.
The court stated further:
Defendants have not offered to pay just compensation for the removal of said sign, nor is there any evidence before the Court that there are funds available for payment of just compensation under these circumstances as required by Utah Code Annotated, Section 27--12--136.11 (1953).
The candid admissions of the Road Commission's own officer Mr. Mercer Smith, who engaged in the negotiations for it, pretty well corroborate and justify the conclusion arrived at by the trial court:
Q I am asking you if you agree with his testimony.
A If a permit was granted, with perhaps a relocation of the sign?
Q. You did discuss the enlargement of the sign?
A Yes.
Q And you stated you had objection?
A No.
Q. And you also discussed the sign would have to be higher to read from the Twenty-First South Expressway?
A True.
* * *
* * *
Q So isn't it a fact, Mr. Smith, even based on your own testimony, that when you...
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Utah Chiropractic Ass'n, Inc. v. Equitable Life Assur. Soc. of U.S., 15345
...timely filed and should have been dismissed. I would affirm the ruling of the trial court and award costs to the respondent. 1 26 Utah 2d 132, 486 P.2d 383 (1971).1 U.C.A.1953, Sec. 31-4-9.2 Rule 81(d), U.R.C.P.3 123 Utah 57, 254 P.2d 454 (1953).4 3 Utah 2d 277, 282 P.2d 845 ...