People ex rel. Dept. of Transportation v. Ad Way Signs, Inc., No. H009771

• Decision Date: 16 March 1993
• Docket Number: No. H009771
• Citation: 17 Cal.Rptr.2d 496,14 Cal.App.4th 187
• Parties: The PEOPLE ex rel. DEPARTMENT OF TRANSPORTATION, Plaintiff and Respondent, v. AD WAY SIGNS, INC., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 496

17 Cal.Rptr.2d 496

14 Cal.App.4th 187

The PEOPLE ex rel. DEPARTMENT OF TRANSPORTATION, Plaintiff and Respondent, v. AD WAY SIGNS, INC., Defendant and Appellant.

No. H009771.

Court of Appeal, Sixth District, California.

March 16, 1993.

Rehearing Denied April 6, 1993.

Review Denied June 24, 1993 ^*.

[14 Cal.App.4th 190] Scott S. Furstman, for appellant and defendant.

William M. McMillan, Joseph C. Easley, and O.J. Solander, for respondent and plaintiff.

PREMO, Acting Presiding Justice.

Ad Way Signs, Inc. (hereafter, Ad Way) ¹ erected a billboard next to Highway 101 in Santa Clara County as specified in its permit, moved the billboard without a new permit, and returned it to the original location when the California Department of Transportation (hereafter, Caltrans) either cancelled or threatened to cancel the original permit. Several years later, Caltrans again cited the billboard for being placed without a permit, and brought an action for declaratory relief. The trial court granted summary judgment to Caltrans, declared the billboard a public nuisance, and ordered its removal.

Ad Way raises numerous issues on appeal, among them the claim that the nine-foot movement, for safety reasons, was not a "placing"; that because Caltrans agreed either not to cancel the permit or to rescind the cancellation if the billboard was restored, Caltrans is estopped from asserting that the replacement of the sign was a "placing" in violation of statute; and that if there was a valid cancellation of its permit, Caltrans's action in cancelling the permit without giving Ad Way a hearing deprived it of its constitutional right to procedural due process.

FACTS

Caltrans issued Permit No. 21502 to Ad Way on August 4, 1969. The permit authorized a sign 12 feet high with a 12- by 30-foot display area to be placed on the west side of highway 101 at highway post mile 36.41L. ² Appellant erected a billboard with those specifications.

It remained at that location until the summer of 1981 (since 1979 as a legal nonconforming use), ³ when appellant moved the billboard approximately nine feet onto land owned by the Santa Clara Valley Water District without the district's permission, and expanded the display area. The property from which the billboard came had become the site of an unauthorized dirt "go-cart" race track which came within two feet of a supporting pole of the billboard. Somebody had piled used tires against that pole as a safety measure, and the billboard had been vandalized on numerous occasions. Finally, in early 1981, someone attempted to burn it down.

As a result of the move, on December 2, 1981, respondent issued citation No. 11452, which announced: "You are hereby notified that the display described is in violation of the Outdoor Advertising Act, ⁴ and may be removed and destroyed if action toward legalizing it is [not] taken prior to 1-5-82." Two boxes next to the preprinted violations were checked: "PERMIT NOT OBTAINED PRIOR TO INSTALLATION OF DISPLAY ..." and "OTHER L/S--Display upgraded from 12X30X8 to 12X40X15 and a total rebuild of the structure from wood to metal. Please remove entire display."

Ad Way immediately requested its liaison with Caltrans, George Waldie, who at that time was executive director of the California Owned Outdoor Advertising Association, ⁵ to contact "Mr. [Stan] Lancaster [chief of Caltrans's Outdoor Advertising Branch] and advise him that we intended to do whatever was necessary to correct the problem and preserve Permit No. 21502." Waldie contacted Lancaster, who responded on August 3, 1982, with a letter to Ad Way informing it that a new permit for the nonconforming location could not be issued. The letter stated: "Under the provisions of the Outdoor Advertising Act and the California Administrative Code [now, California Code of Regulations] [ ⁶ Title 4, Chapter 6, customary maintenance [ ⁷ is allowed in maintaining a sign as well as replacing a downed or damaged structure provided the replacement cost does not exceed 50% of the appraised value of the sign in its' [sic ] preexisting state. However, this office must be notified of your plans and be provided a reasonable time schedule for the completion of the job."

The letter warned: "So, unless we hear from you within 30 days we will have to cancel the permit and remove it from our compensable sign list."

Hill contacted Lancaster on August 16 and received an extension of time. However, it was not until October 1982 that Lancaster, after meeting with Hill and Waldie at the site, agreed to allow appellant to return the display to its original location and configuration. ⁸

According to Waldie, it was the uniform practice for Caltrans to allow any cited deficiencies to be corrected and upon correction to take no further action. "Such an agreement was common and normal for Caltrans to enter into."

This agreement is well within the discretion of the department. The chief engineer has the authority to review a determination that a billboard is in violation of the Outdoor Advertising Act. (Reg., § 2519.) In addition, "Advertising displays that have been destroyed or fallen as the result of criminal or tortious acts [appellant's asserted justification for moving the billboard in the first place] may be repaired or reconstructed in kind" in accordance with time limits set by Caltrans. (Reg., § 2272.)

Ad Way restored the billboard by the second week of November 1982.

However, about a year and a half later, on May 25, 1984, Lancaster sent appellant a letter recalling that "we had agreed to allow you to return the display to its original location and configuration some time ago." Lancaster then complained that "[t]he display was returned to its original location but has never been returned to the original size or height. It is now 12' X 40', 14' above the ground while its original approved size is 12' X 32', 8' above ground...." The letter concludes with an offer to discuss any questions, but restricts the "negotiable subjects" to "the times of compliance."

Hill responded by contacting Lancaster and telling him that "Permit No. 21502 covered a 12 X 30 display, 12 fee [sic ] above the ground and that the display on the site was 12 X 30, 12 feet with temporary 'add-ons' [ (temporary alteration of the outside dimensions of a display incident to a change of copy (Reg., § 2270, subd. (a)(1)) ] that I felt were permitted by the Regulations."

However, over five years later Hill received Citation No. 21358 which "superceded" a Citation No. 11292. ⁹ Citation No. 21358 charged that a permit was not obtained prior to the installation of a display in violation of sections 5230 to 5366, and that the display was primarily to be viewed from a landscaped freeway in violation of section 5440. Although Hill disputed Lancaster's claim that the billboard exceeded the permitted height limit, he claimed to have discontinued the use of add-ons.

In the superior court, Hill claimed that the sign height had remained the same since 1982, and that the board then "in place at post mile 36.47 [sic ] is exactly in the configuration identified in Permit No. 21502, has no add-ons, is in accordance with Ad Way's 1982 agreement with Mr. Lancaster and has attached to it the requisite identification plate."

Nevertheless, on February 7, 1991, Caltrans filed suit for declaratory relief alleging that the billboard was placed and maintained in violation of the requirement that a permit be secured before a billboard is erected. (§ 5350.)

In support of its motion for summary judgment, Caltrans declared that Permit No. 21502 was cancelled on October 8, 1982, and that appellant's restored display was a "new and unpermitted display."

The trial court granted respondent's motion for summary judgment, declaring that the outdoor advertising display was "unlawfully placed and is being unlawfully maintained without a permit from plaintiff...."

The evidentiary basis cited by the court consisted of Lancaster's statement that a permit was not issued for the display and that there was no identification number plate furnished by Caltrans on the display. In addition, the court relied on appellant's responses to Request for Admissions No. 6 and Interrogatory No. 32.

Appellant answered "admit" to the request for admission "[t]hat sometime in December of 1981, ADWAY SIGNS INC. or JIM HILL removed or caused removal of the display permitted by State Permit No. 21502; thereafter, State Permit No. 21502 was cancelled by plaintiff."

Interrogatory No. 32 commanded appellant to state how the display that was in place at the time the interrogatory was propounded on June 11, 1991, related to a photograph of the billboard which was the subject of the September 26, 1989, Citation No. 21358. The photographed billboard had five supporting poles and a panel larger than the billboard frame which was attached to the display area of the billboard.

Appellant described the display that was in place on June 11, 1991, as having four poles, being 12 feet high, and having 12- by 30-foot panels. Comparing the two, his answer no. 32, read: "Same sign with 'add ons' deleted and one supporting pole removed."

The trial court's recitation of the evidence continued: "[Appellant] offered no evidence in opposition to this fact [the lack of a permit] except to contend that 'it did or should have had, a permit to erected [sic ] and maintain the subject billboard,' based on an oral agreement with plaintiff. However, for reasons stated in the 'Order on Motion for Summary Judgment' dated December 3, 1991, the oral agreement provides no such basis."

The Order on Motion for Summary Judgment ¹⁰ stated: "The evidence shows that Ad Way has no current permit for the subject sign. Business and Professions Code section 5360 requires renewal of permits on January 1 of each year. Even if it is assumed that the State had not complied with the alleged oral agreement of the parties with respect to permit no. 21502,...