Nextmedia Outdoor, Inc. v. Vill. of Howard

• Decision Date: 14 April 2015
• Docket Number: No. 2014AP1005.,2014AP1005.
• Citation: 865 N.W.2d 885 (Table),362 Wis.2d 539
• Parties: NEXTMEDIA OUTDOOR, INC., predecessor in interest to Lamar Central Outdoor, LLC, Plaintiff–Respondent, v. The VILLAGE OF HOWARD, Wisconsin and The Zoning Board of Appeals of the Village of Howard, Defendants–Appellants.
• Court: Wisconsin Court of Appeals

362 Wis.2d 539
865 N.W.2d 885 (Table)

NEXTMEDIA OUTDOOR, INC., predecessor in interest to Lamar Central Outdoor, LLC, Plaintiff–Respondent
v.
The VILLAGE OF HOWARD, Wisconsin and The Zoning Board of Appeals of the Village of Howard, Defendants–Appellants.

No. 2014AP1005.

Court of Appeals of Wisconsin.

April 14, 2015.

Opinion

¶ 1 HRUZ, J.

NextMedia Outdoor, Inc. (NextMedia) owned a legal, nonconforming billboard sign in the Village of Howard (the Village) that was displaced as the result of a Wisconsin Department of Transportation (DOT) highway project. NextMedia sought to have the sign “realigned”—i.e., moved to a different spot on the same property—pursuant to a newly enacted state law. Accordingly, it filed an application for realignment with the Village, which the Village denied under a local ordinance implementing the new state law. NextMedia appealed to the Zoning Board of Appeals of the Village of Howard (the Board), which reversed the Village's decision and authorized NextMedia to realign the sign with certain conditions.

¶ 2 The DOT objected to the Board's decision, advising the Village it had acquired, by condemnation, NextMedia's permit rights to the sign months prior to the Board's decision. The Village then filed a motion for reconsideration, and the Board held a second hearing on the matter. The Board reversed its earlier decision, concluding NextMedia's right to apply for realignment ceased when the DOT acquired NextMedia's permit rights. NextMedia sought certiorari review, and the circuit court agreed with NextMedia and entered a judgment concluding the Board lacked reconsideration authority and erred as a matter of law by considering the evidence submitted during the reconsideration proceedings.

¶ 3 We reverse the circuit court. We conclude the Board had inherent authority, based on long-standing Wisconsin precedent, to reconsider a decision based on mistake, such as occurred here. We further conclude the evidence submitted on reconsideration was sufficient to establish that the Board's earlier decision was fundamentally rooted in its mistaken beliefs that NextMedia still owned permit rights to the sign and that the DOT had proposed realignment of the sign. We also reject NextMedia's other arguments, including that the Board erred as a matter of law, that it should be estopped from reconsidering its prior decision, and that the Board's reconsideration decision was unreasonable and contrary to the concepts of due process and fair play.

BACKGROUND

¶ 4 As of early 2012, NextMedia owned ten outdoor billboard signs located on properties in the Village. One such sign—known as the “Wallaby's sign” because of its proximity to Wallaby's restaurant—was constructed in 1984 on leased land near Highways 29 and 41.¹ The Wallaby's sign continued as a legal, nonconforming use after the Village prohibited new billboard signs.

¶ 5 At some time prior to October 2011, the DOT began planning significant changes to Highways 29 and 41. The Wallaby's sign was in the path of a planned overpass, and the DOT required it to be removed. The DOT later observed that the site would eventually be “buried beneath more than 20 feet of earthwork.” The proposed highway design was such that the overpass would rise much higher than the sign, so that the sign, even if moved nearby, would no longer be visible to traffic unless it was also raised. NextMedia, along with the underlying property owner, attempted to negotiate a resolution with officials in the DOT's Green Bay office that would allow them to move the sign to a different location on the same property. This process is known as “realignment” under what was at the time a new law. See 2011 Wis. Act 32, § 2233m (codified at Wis. Stat. § 84.30(5r) ).²

¶ 6 Wisconsin Stat. § 84.30(5r) governs the realignment of nonconforming signs due to state highway projects. “Realignment,” as used in the statute, is a term of art defined as “relocation on the same site.” Wis. Stat. § 84.30(5r)(a). Under § 84.30(5r), the DOT proposes realignment of a noncom-forming sign, after which it must notify the municipality or county (whichever created the ordinance that produced the nonconformity) of the proposal. Wis. Stat. § 84.30(5r)(c). The municipality or county may then request that the DOT acquire the sign in lieu of realignment. Id. If the DOT, pursuant to the municipality or county's request, successfully condemns the sign, the municipality or county must then pay to the DOT an amount equal to the condemnation award, minus whatever relocation costs the DOT would have paid if the sign had been realigned instead. Id.

¶ 7 After Wis. Stat. § 84.30(5r) became effective, the Village amended its ordinance governing nonconforming signs. SeeVillage of Howard, Wis., Ordinance 2011–19, § 1 (Nov. 14, 2011) (the Ordinance). Whereas the Village Code of Ordinances (the Village Code) previously prohibited a nonconforming sign's relocation or replacement, the Ordinance now permitted such activities in a limited set of circumstances. The amendment added the following subsection:

If a highway project of the [DOT] causes the realignment of a nonconforming sign per Section 84.30(5r) of the Wisconsin State Statutes, such sign may be relocated on the same site as long as no modifications or alterations are made to the sign other than those specifically necessary to move the structure. Such realignment or relocation of the sign shall not affect its nonconforming status under this ordinance.

Id.

¶ 8 Ultimately, NextMedia was unsuccessful in its efforts to persuade DOT officials to propose realignment of the sign. The DOT appears to have believed the Village would not allow realignment because the height adjustment necessary was beyond the modifications or alterations permitted by the Ordinance, in which case the DOT believed it would be subject to an inverse condemnation claim from NextMedia. Rather than risk such an outcome, the DOT's Green Bay office notified NextMedia that the DOT was preparing an “offering package” and would be acquiring NextMedia's sign rights via condemnation instead.

¶ 9 NextMedia was undeterred. On October 13, 2011, NextMedia's attorneys wrote to the DOT secretary, urging that the DOT revisit NextMedia's realignment proposal. Then, on October 25, 2011, NextMedia submitted an application to the Village requesting “a permit to realign the sign on the same parcel pursuant to [Wis. Stat. § 84.30(5r) as a] result of an order to vacate due to [the] State Hwy 41 improvement project.” The application called for moving the sign approximately fifty feet south of its former location on the same parcel, and for the replacement of three “I” beam supports with four larger beams to account for an increase in the sign's height.

¶ 10 The Village's Director of Code Administration, James Korotev, denied NextMedia's realignment application. He concluded the proposed realignment would not comply with the Ordinance because NextMedia's proposal contained modifications and alterations beyond what was necessary to move the structure. Specifically, Korotev concluded NextMedia improperly sought to (1) build a new sign out of new materials; (2) incorporate new digital facing on one side of the billboard; and (3) increase the height of the sign by forty-five feet. NextMedia responded that it was abandoning its request for digital facing, and that, contrary to Korotev's decision, the remainder of the proposed modifications were permissible under the Village Code. Korotev apparently declined to reconsider his decision.

¶ 11 NextMedia appealed Korotev's decision to the Board on December 14, 2011. The Village opposed the appeal on numerous grounds, among them its belief that the DOT paid a relocation award and therefore had paid just compensation to acquire NextMedia's sign interests. NextMedia responded on May 8, 2012, asserting that, under a recent Wisconsin Supreme Court decision, it was entitled to both relocation expenses and the fair market value of any property taken. Even though NextMedia acknowledged it had received $37,625 in relocation expenses from the DOT, it claimed it had not yet reached an agreement with the DOT about the fair market value of NextMedia's property interests for condemnation purposes. Accordingly, NextMedia asserted it could proceed with the appeal because it had not yet been compensated for any taking.

¶ 12 Following a public hearing on May 10, 2012, the Board reversed the Village's decision. It approved realignment of the Wallaby's sign with certain conditions, including that the sign be supported by three beams, and that the “structure of the sign above the supports be a replica or as close to the original as [is] structurally [possible]....” Critically, the Board perceived NextMedia's realignment request to have been initiated by a realignment proposal from the DOT under Wis. Stat. § 84.30(5r), thereby triggering the Ordinance.

¶ 13 On July 11, 2012, the Village requested that the Board reconsider and vacate its May 10, 2012 decision. The Village's motion was supported by an affidavit from Korotev, who averred that DOT attorney John Sobotik had contacted him on July 5, 2012. Sobotik, in an email attached as an exhibit to Korotev's affidavit, asserted the DOT had, in fact, acquired all of NextMedia's signing rights, including its permit rights, months before the May 10, 2012 hearing. Other exhibits showed that on February 10, 2012, the DOT recorded an award of...