Outdoor Media Dimensions Inc. v. State

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: De MUNIZ
• Citation: Outdoor Media Dimensions Inc. v. State, 945 P.2d 614, 150 Or.App. 106 (Or. App. 1997)
• Decision Date: 17 September 1997
• Parties: OUTDOOR MEDIA DIMENSIONS INCORPORATED, an Oregon corporation, Appellant, v. STATE of Oregon, Jimmy L. Odom, Julie Evey, and Henry Montes, Respondents. 94-3953-L2; CA A91779.

Page 614

945 P.2d 614

150 Or.App. 106

OUTDOOR MEDIA DIMENSIONS INCORPORATED, an Oregon corporation, Appellant, v. STATE of Oregon, Jimmy L. Odom, Julie Evey, and Henry Montes, Respondents.

94-3953-L2; CA A91779.

Court of Appeals of Oregon.

Argued and Submitted Jan. 13, 1997.

Decided Sept. 17, 1997.

Alan R. Herson, Medford, argued the cause and filed the briefs for appellant.

Rives Kistler, Assistant Attorney General, argued the cause for respondent. With him on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

Before DEITS, P.J., and De MUNIZ and HASELTON, JJ.

De MUNIZ, Judge.

Plaintiff appeals from a summary judgment on its claims for conversion, deprivation of civil rights, 42 U.S.C. section 1983, and declaratory and injunctive relief, in which it raised several constitutional challenges to Oregon's billboard statute. We affirm.

Plaintiff is a corporation that owns three billboards. Its conversion and civil rights claims pertain only to the first billboard, and its declaratory and injunctive relief claims relate to the second and third billboards. On appeal, plaintiff makes 22 assignments of error, many of which address overlapping issues. For the sake of clarity and organization, we address plaintiff's claims in the order that they were pled.

The first billboard was installed along Route 62 in Jackson County, Oregon. Plaintiff placed a religious message on one side and an advertisement for a radio station on the other. On February 19, 1993, the Department of Transportation (department) notified plaintiff that its billboard violated the Oregon Motorist Information Act (OMIA). ORS 377.700 to 377.840 and ORS 377.992.

The OMIA generally prohibits the installation or maintenance of any "outdoor advertising sign" or any "directional sign" visible to motorists traveling on state highways, unless it complies with the OMIA, state administrative rules and federal law, or unless it existed in a commercial or industrial zone on June 12, 1975. ORS 377.715; ORS 377.765(1). ¹ "Outdoor advertising signs" are signs that advertise "[g]oods, products or services which are not sold, manufactured or distributed on or from the premises on which the sign is located," ORS 377.710(22)(a), or those that advertise "[f]acilities not located on the premises on which the sign is located," ORS 377.710(22)(b) (i.e., off-premises signs).

If an outdoor advertising sign existed in a commercial or industrial zone on June 12, 1975, the owner may obtain a permit and allow the sign to remain without violating the statute. ORS 377.712(1); ORS 377.725(2) and (14). ² Permits may be transferred from one person to another, and signs may be relocated either within a commercial or industrial zone or to another commercial or industrial zone, subject to geographic limitations. ORS 377.725(2); ORS 377.767.

The department's notice alleged that plaintiff's billboard violated the OMIA because it was a newly erected off-premises sign for which no permit had been granted and for which no permit can be issued, i.e., it "advertises an activity which is not at the location of the sign," and it was visible from a state highway. The notice further stated that if plaintiff did not request a hearing, or correct or remove the sign within 30 days of the date of the notice, the sign would be subject to removal, and plaintiff would be billed for removal costs.

Plaintiff did not request a hearing but instead attempted for several months without success to obtain a permit. ³ In April 1994, plaintiff removed both signs from the billboard. On September 5, 1994, the department hired a contractor to dismantle and remove the billboard structure. Plaintiff then filed this action, alleging conversion of the structure, among other claims. The department subsequently gave plaintiff permission to retake possession of the structure, which plaintiff did. However, the department billed plaintiff $962.50 in removal costs. In its second amended complaint, plaintiff realleged a conversion and also sought a declaratory judgment that it was not liable to the department for removal costs. The department moved for summary judgment, which the trial court granted.

The department is entitled to summary judgment under ORCP 47 if the pleadings, depositions and affidavits show that there is no genuine issue of material fact, and that the department is entitled to judgment as a matter of law. Hamilton Properties, Inc. v. Associated Grocers, 144 Or.App. 171, 176, 925 P.2d 1237 (1996). On review, we view the record in the manner most favorable to plaintiff to determine whether an objectively reasonable juror could return a verdict for plaintiff on the summary judgment evidence. Barber v. George, 144 Or.App. 370, 372, 927 P.2d 140 (1996), rev den 324 Or. 560, 931 P.2d 99 (1997). Because the facts underlying plaintiff's first claim are undisputed, there are no genuine issues of material fact, and we need only determine whether the department was entitled to judgment as a matter of law. FOPPO v. State of Oregon, 144 Or.App. 535, 539, 928 P.2d 335 (1996); Mitchem v. Rice, 142 Or.App. 214, 217, 920 P.2d 1121, on recons 143 Or.App. 546, 923 P.2d 1347, rev den 324 Or. 394, 927 P.2d 600 (1996).

Plaintiff's declaratory judgment action depends directly on its conversion claim; if there was no conversion of the billboard structure, then plaintiff is not entitled to a declaratory judgment that it was not liable for the cost of removing that structure. We therefore begin by addressing plaintiff's conversion claim.

An action for conversion lies when there has been

"an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel." Mustola v. Toddy, 253 Or. 658, 663, 456 P.2d 1004 (1969) (quoting Restatement (Second) Torts § 222a at 431 (1965)).

Generally, when property is lawfully taken, there is no conversion. Boling v. Parrett, 21 Or.App. 823, 825-26, 536 P.2d 1272 (1975).

The department argues that there was no conversion, because ORS 377.775 authorized the removal of the structure as a "nonconforming" sign, which is defined as a sign "that is subject to, but does not comply with," the OMIA. ORS 377.710(21). ⁴ ORS 377.775(3)(b) provides that, if "the sign is not made to comply or is not removed and if the owner does not request a hearing within the time required," the director ⁵ "may remove and destroy or otherwise dispose of the sign." The department contends that the "time required" is 30 days from the date of the notice, and when plaintiff failed to seek a hearing, or correct or remove the sign by that date, the director had authority to remove it.

For purposes of its conversion claim, plaintiff apparently concedes that its billboard violated the OMIA because it was installed without a permit. It argues, however, that ORS 377.775 authorizes only the removal of non-complying signs and that plaintiff brought its billboard into compliance by removing the religious and commercial advertising. We disagree.

It is true that once plaintiff removed the advertising, the billboard was no longer an "outdoor advertising sign" as defined by ORS 377.710(22). However, that did not bring the billboard into compliance with the statute. ORS 377.775(3) gave plaintiff 30 days from the date of the notice to make the sign comply, remove it or request a hearing. As noted, plaintiff did not request a hearing. Compliance means obtaining a permit, ORS 377.725, and removal of the "sign" means removal of the "structure." See ORS 377.710(29) and (33) ("sign" includes "the sign structure," which means "the supports, uprights, braces, framework and display surfaces of a sign"). ⁶ Plaintiff took none of these actions within the required time period, and the department therefore had authority to remove the entire billboard structure, whether or not plaintiff had removed the display advertising. ⁷

Plaintiff does not argue that the department's 14-month delay in acting otherwise divested it of that authority. Furthermore, plaintiff's constitutional challenges to the OMIA itself are confined to its second and third claims--that is, plaintiff does not contend that the department effected a conversion because the provisions of the OMIA on which it relied are unconstitutional. Accordingly, there was no conversion, and the department was entitled to judgment as a matter of law on that claim. Because the department had authority to remove the structure, plaintiff also was not entitled to a declaratory judgment that it was not liable for the department's cost of removing it. Summary judgment was therefore proper on the entire first claim.

Plaintiff next argues that the trial court erred in granting summary judgment on its second claim, a civil rights action brought under 42 U.S.C. section 1983 against three department employees. Plaintiff alleged that Odom, Evey and Montes (defendants), acted under color of law in depriving plaintiff of its constitutional rights by ordering the radio advertisement removed and by removing the billboard structure.

Plaintiff first asserts that it was deprived of its right to free speech, arguing that the OMIA violates the First Amendment ⁸ under Metromedia, Inc. v. San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981), a plurality opinion addressing a billboard law similar to the OMIA.

In Metromedia, the Supreme Court considered a city ordinance that permitted billboards advertising goods and services available on the property where the sign was located and prohibited those advertising goods or services produced or offered elsewhere. The ordinance also provided 12 exceptions to the general prohibition for particular types of signs, whether on-site or off, including government signs, historical plaques, religious symbols, "for sale" or "for lease" signs, and temporary political...