Natural Resources v. Missouri Hwy & Trans.

• Decision Date: 30 April 2003
• Docket Number: No. 25084.,25084.
• Citation: Natural Resources v. Missouri Hwy & Trans., 107 S.W.3d 451 (Mo. App. 2003)
• Parties: NATURAL RESOURCES, INC., d/b/a Key Outdoor d/b/a Elliott/McDonald Outdoor Advertising, Petitioner-Appellant, v. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Respondent-Respondent.
• Court: Missouri Court of Appeals

107 S.W.3d 451

NATURAL RESOURCES, INC., d/b/a Key Outdoor d/b/a Elliott/McDonald Outdoor Advertising, Petitioner-Appellant, v. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Respondent-Respondent.

No. 25084.

Missouri Court of Appeals, Southern District, Division Two.

April 30, 2003.

Motion for Rehearing and Transfer Denied May 22, 2003.

Application for Transfer Denied July 1, 2003.

John E. Curran, M. Nichole George, Curran & Associates, Camdenton, for Appellant.

Bryce D. Gamblin, Rich Tiemeyer, Missouri Highway and Transportation Commission, Chesterfield, for Respondent.

KENNETH W. SHRUM, Judge.

This is an appeal from a judgment of the circuit court of Camden County which affirmed a final decision of the Missouri Highway and Transportation Commission ("Commission"). The Commission found that the Missouri Department of Transportation ("MoDot") properly terminated a permit for outdoor advertising granted to Natural Resources, Inc. ("Appellant"). This appeal involves numerous allegations of error raised by Appellant. Having found merit in Appellant's first claim of Commission error, however, we need not look further. We reverse the final decision and order of the Commission.

STANDARD OF REVIEW

This court will review the decision of the Commission, and not that of the circuit court, to determine whether it was supported by competent and substantial evidence; whether it was arbitrary, capricious, or unreasonable; or whether the Commission abused its discretion. Icehouse Cold Storage v. State Highways and Transp. Comm'n, 23 S.W.3d 651, 653[1] (Mo.App.2000). Since MoDot's regulatory authority over outdoor advertising is derived from statutes, we must construe the relevant legislation in light of the purposes the legislature sought to accomplish and the evils it intended to cure. Person v. Scullin Steel Co., 523 S.W.2d 801, 803 (Mo. banc 1975). Unambiguous provisions in statutes and regulations must be given their plain and ordinary meaning. Long v. Interstate Ready-Mix, L.L.C., 83 S.W.3d 571, 576 (Mo.App.2002); Whiteman v. DelJen Const., Inc., 37 S.W.3d 823, 829[4] (Mo.App.2001).

To determine if a statute or regulation is unambiguous, this court looks to whether the language is plain and clear to a person of ordinary intelligence. Long, 83 S.W.3d at 576[8]. The ordinary meaning of a word is usually derived from the dictionary when a word used in a statute or regulation is not defined therein. Id. at 576[9]; Whiteman, 37 S.W.3d at 829[5].

FACTS

There are two primary questions involved in this appeal: First, what is the meaning of the term "outdoor advertising" as used in Missouri's "Billboard Law," §§ 226.500-600; and second, whether an increase in "size or area of a sign" occurs (within the meaning of 7 CSR 10-6.060(3)) when an advertising message is put on a sign.¹ These questions arise from the following undisputed facts.

Appellant applied to MoDot in January or February of 1999 for permission to "erect and/or maintain outdoor advertising." The application was for a "sign" on the north side of Highway 54 in Cole County, 1.5 miles west of the intersection of Highway 54 and Route CC. The application described the proposed sign as a "[d]ouble-decked," "V-Type," "illuminated" sign, totalling 1200 square feet (30 feet in height by 40 feet wide).

A "V-type" sign is one described in Commission's regulations as follows: "A back-to-back sign, double-faced sign or V-Type sign is a sign with two (2) sides or outdoor advertising faces owned by the same sign owner which are physically contiguous, or connected by the same structure ...." 7 CSR 10-6.040(4). A V-type sign is treated as one sign by statute (§ 226.540.2(b)) and regulations (7 CSR 10-6.015(1);7 CSR 10-6.040(4)) to determine if it complies with sizing, lighting, spacing, and location requirements.²

On March 8, 1999, MoDot granted Appellant a permit to "maintain outdoor advertising" in accordance with its application. The permit required that the "sign" be "erected" within 120 days, otherwise it was void.

Appellant then built the sign on Route 54 in Cole County at the prescribed location and in accordance with the permit's provisions. The entire billboard was built by May 15, 1999, well within the 120-day time limit specified by the permit. By that date, the west side of the structure contained an advertising message, but no advertising was in place on the east side thereof. Even so, the east side contained "stringers" which were described as the boards to which the advertising message would be affixed.

A legislative change in the Billboard Law took effect August 28, 1999. In part, this legislation reduced the maximum allowable size for outdoor advertising from 1200 square feet to 800 square feet. It also provided that if a sign existed on August 28, 1999, that complied with pre-August 28, 1999, law, such sign would be denominated as "nonconforming," but could remain (although in non-compliance with existing law). Relevant regulations then in effect established "criteria for maintenance of nonconforming signs," including a prohibition against increasing the size of such sign.³

The major contention in this case involves the Commission's conclusion that the sign "was increased in size" by the addition of an advertising message affixed to the east side after the new legislation became effective. MoDot's "permit specialist" testified that the only thing that changed was the added message. The permit specialist further claimed, in deposition testimony admitted at trial, that "the sign is not the structure. The sign is the message." This was the sole reason that MoDot ordered termination of the permit and removal of the sign.

The Commission upheld MoDot's actions. Appellant then sought review of the decision in the circuit court of Camden County. This appeal was lodged after the circuit judge affirmed Commission's order.

DISCUSSION AND DECISION

Appellant's first point maintains the Commission committed reversible error when it concluded that adding a "message" to a lawful nonconforming V-type sign constituted a violation of state regulations that prohibit expansion of a nonconforming sign. The Commission responds that Appellant was required to "erect a sign structure and place advertising on it" within the 120-day time limit specified by the permit. (Emphasis supplied.) The Commission argues that Appellant failed to place advertising on both sides of the V-Type sign; consequently, the east side of the sign was not considered "regulated outdoor advertising." Continuing, the Commission claims the addition of an advertising message constituted a change in size of the nonconforming sign in violation of 7 CSR 10-6.060(3)(C).⁴

To explain its position, the Commission relies heavily upon § 226.510(3). The statute defines "outdoor advertising" as follows: "[A]n outdoor sign, display, device, figure, painting, drawing, message, plaque, poster, billboard, or other thing designed, intended, or used to advertise or inform ...." (Emphasis supplied.) Going further, the Commission asserts:

"[B]ased on the state statute, it is clear that `outdoor advertising' is not the sign structure itself, but the message. Outdoor advertising does not become regulated when the hardware for the sign goes into the ground, but when the message is attached. Anyone could build a sign structure at any place along the highways without having a permit; however state regulation only attaches whenever advertising is placed on the sign and it is at that time statutes must be complied with."

This court cannot fathom that the Commission would actually want us to accept such an argument given the purpose of the Billboard Law, its breadth as gleaned from the statutory description of "outdoor advertising," and the permit requirements for this law.

First, the Commission's argument that state regulation only attaches when advertising is put on the sign runs counter to the underlying purpose of the law. Its purpose is "to promote highway safety, to promote convenience and enjoyment of highway travel, and to preserve the natural scenic beauty of highways and adjacent areas." § 226.500. "A blank billboard is just as contrary to that purpose as is a billboard with advertising." Outdoor Media Dimensions Inc. v. State, 150 Or.App. 106, 945 P.2d 614, 619 n. 6 (1997).⁵ Regulation of billboards is deemed necessary because the medium itself is objectionable, not because of the messages they convey. John Donnelly & Sons v. Campbell, 639 F.2d 6, 8 (1st Cir.1980); Metromedia, Inc. v. City of San Diego, 26 Cal.3d 848, 164 Cal.Rptr. 510, 610 P.2d 407, 418 (1980). To accept the Commission's argument would ignore the fact that the natural beauty of the countryside is more adversely affected by the billboard structure than by the message itself.⁶

Second, the legislature sought to achieve its stated purpose by regulating all "outdoor advertising." In doing so, it broadly defined "outdoor advertising" to include, inter alia, "an outdoor sign ..., message .., billboard, or other thing designed, intended, or used to advertise or inform." § 226.510.3. Thus, every regulatory power given MoDot over "outdoor advertising" includes empowerment over, among other things, the "message," or the "sign," or the "billboard," or any "other thing designed ... to advertise."⁷ There is simply no authority, statutory or otherwise, that supports the Commission's argument that an "outdoor advertising" device must carry a message before it is subject to regulation.

Third, the Commission's argument wholly disregards the permit provisions of the Billboard Law and case law relevant thereto. Specifically, § 226.580 makes it unlawful for any person to erect "outdoor advertising," i.e., a billboard, within 660 feet of the right-of-way of a primary highway unless a permit is obtained. Osage Outdoor Adver. v. Mo. Highway and Transp. Comm'n, 677 S.W.2d 389, 390 (Mo.App. 1984). If an outdoor advertiser resorts to self-help and erects a sign...