Republic Outdoor Advertising v. Utah Dep't of Transp.

• Decision Date: 23 June 2011
• Docket Number: No. 20081058–CA.,20081058–CA.
• Citation: 2011 UT App 198,685 Utah Adv. Rep. 40,258 P.3d 619
• Parties: REPUBLIC OUTDOOR ADVERTISING, LC, Plaintiff and Appellant,v.UTAH DEPARTMENT OF TRANSPORTATION, DIVISION II; R.O.A. General, Inc.; and South Salt Lake City, Defendants and Appellees.
• Court: Utah Court of Appeals

258 P.3d 619

685 Utah Adv. Rep. 40

2011 UT App 198

REPUBLIC OUTDOOR ADVERTISING, LC, Plaintiff and Appellant,

v.UTAH DEPARTMENT OF TRANSPORTATION, DIVISION II; R.O.A. General, Inc.; and South Salt Lake City, Defendants and Appellees.

No. 20081058–CA.

Court of Appeals of Utah.

June 23, 2011.

Steven A. Wuthrich, Montpelier, Idaho, for Appellant.Mark L. Shurtleff, Brent A. Burnett, Paul H. Roberts, Leslie Van Frank, and Bradley M. Strassberg, Salt Lake City, for Appellees.Before Judges DAVIS, THORNE, and ROTH.

OPINION

ROTH, Judge:

¶ 1 Republic Outdoor Advertising, LC (Republic) appeals the district court's grant of summary judgment to R.O.A. General, Inc. (Reagan), the Utah Department of Transportation (UDOT), and South Salt Lake City (the City). We affirm.

BACKGROUND

¶ 2 This case arises from administrative proceedings before UDOT and the City involving permits for competing billboards along the I–15 corridor in South Salt Lake City.¹

¶ 3 In February 1998, Reagan filed an application with UDOT for a permit to remove an existing billboard—the Swanson billboard—and build another billboard—the Lindal billboard-about 300 feet away. UDOT initially denied the Lindal permit, and Reagan pursued the matter administratively, eventually appealing to the district court. In 2000, however, Reagan agreed to dismissal without prejudice of its district court appeal in order to negotiate a settlement with UDOT. No further activity occurred respecting the Lindal permit until 2002. In the meantime, however, the property that was the proposed location for the Lindal billboard was subdivided, and Reagan released its billboard lease interest in the particular parcel on which the Lindal billboard was to be built. In addition, the permit that had been issued to Reagan by the City for the Lindal billboard lapsed in April 2002.²

¶ 4 In May 2002, Republic applied to UDOT for a permit to erect a billboard—the Deck Hockey billboard.³ However, the Deck Hockey billboard and the Lindal billboard conflicted: the proposed locations for the two billboards were within 500 feet of one another, and billboards constructed along I–15 must be separated by at least 500 feet. See Utah Code Ann. § 72–7–505(3)(a) (2008) (stating that signs “may not be closer than 500 feet to an existing off-premise sign” when “adjacent to an interstate highway”). UDOT further applies a first-in-time, first-in-right rule to billboard permit applications. Thus, the Lindal permit preceded the Deck Hockey permit and would be considered first.

¶ 5 As early as May 2002 but no later than November 2002, Republic became aware of the conflict between its Deck Hockey billboard and Reagan's Lindal billboard and that UDOT was considering the Deck Hockey permit behind the Lindal permit. Republic was thus aware that approval of the Lindal permit would mean denial of the Deck Hockey permit. During this same time period, Republic also believed that the permit the City had issued to Reagan for the Lindal billboard had lapsed, and Republic believed that the absence of a permit from the City could potentially preclude UDOT from approving Reagan's application for the Lindal permit. When Republic contacted UDOT about the competing permit applications, however, Republic was told that private negotiations were ongoing between UDOT and Reagan regarding the Lindal permit that were basically “a done deal.” Thereafter, Republic took no action to intervene in the Lindal permit proceeding.

¶ 6 In January 2003, UDOT approved Reagan's Lindal permit. And in July 2003, UDOT denied Republic's Deck Hockey permit on the basis that the proposed location for the Deck Hockey billboard was within 500 feet of the Lindal billboard. Following UDOT's approval of the Lindal permit, Reagan built the Lindal billboard but not in the location specified on the permit application. Rather, because the property that had been the proposed location for the Lindal billboard had been subdivided, Reagan built the Lindal billboard ninety feet away from the Swanson billboard rather than the 300 feet originally proposed. The dimensions of the Lindal billboard as built were also different than the dimensions that were originally specified on the permit application. The permit application was not amended to reflect the change in location; the permit application was, however, amended to reflect the change in dimensions. Further, the Swanson billboard was never removed.⁴

¶ 7 After UDOT denied the Deck Hockey permit, Republic filed a timely administrative appeal. Republic, however, did not challenge the basis of UDOT's denial of its Deck Hockey permit—that the proposed location of the Deck Hockey billboard was impermissibly within 500 feet of Reagan's Lindal billboard. Rather, Republic challenged the validity of the Lindal permit itself.⁵ After failing to obtain relief through the administrative process, Republic appealed to the district court in March 2004.

¶ 8 In the fall of 2005, during the course of Republic's district court appeal, Reagan applied to UDOT and the City for permits to build another billboard—the Wilderness billboard. The proposed location of the Wilderness billboard was at least 500 feet away from the Lindal billboard but was within 500 feet of the proposed location for Republic's Deck Hockey billboard. The City and UDOT granted Reagan the Wilderness permits in September and October 2005, respectively. The Wilderness billboard was erected in January 2006, and Reagan subsequently removed the Lindal billboard. In February 2006, Republic requested from the City a copy of Reagan's application for the Wilderness permit.

¶ 9 After the Wilderness billboard was built, Republic applied to the City for a permit for another billboard—the Network billboard. The Network billboard, however, was within 500 feet of the newly-built Wilderness billboard, and the City denied the Network permit in April 2006 on that basis. Republic filed an administrative appeal of the decision. But Republic did not challenge the City's basis for denying the Network permit—that the proposed location for the Network billboard was impermissibly within 500 feet of the Wilderness billboard. Rather, Republic argued that Reagan's Wilderness permits should never have been granted because the Wilderness billboard was within 500 feet of the location Republic had proposed for the Deck Hockey billboard.⁶ Republic's main contention in challenging the Wilderness billboard was that if its district court appeal of UDOT's denial of the Deck Hockey permit succeeded, then the Wilderness billboard could not remain in place because the Deck Hockey billboard was first-in-time and the two billboards would be impermissibly within 500 feet of one another.

¶ 10 Meanwhile, in October 2006, during Republic's appeal of UDOT's denial of the Deck Hockey permit, the district court ordered Republic to join Reagan as a party because Republic's claims could potentially affect the validity of Reagan's Lindal permit. In joining Reagan as a party, however, Republic also amended its complaint to challenge not only the validity of the Lindal permit but also to challenge the validity of Reagan's Wilderness permits issued by UDOT and the City. Republic also joined the City as a party with respect to its Wilderness permit claims.

¶ 11 Reagan, UDOT, and the City moved for summary judgment, which the district court granted, concluding that it lacked subject matter jurisdiction to consider Republic's challenges to the validity of the Lindal permit and the Wilderness permits because Republic had failed to exhaust its administrative remedies. Having concluded that it lacked subject matter jurisdiction to consider the validity of the Lindal permit, the district court also granted summary judgment to UDOT, concluding that UDOT had properly denied the Deck Hockey permit on the basis that the proposed location for the Deck Hockey billboard was within 500 feet of the Lindal billboard. Republic appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 12 Republic challenges the district court's grant of summary judgment. In granting summary judgment, the district court concluded that it did not have subject matter jurisdiction to consider Republic's claims to the extent they concerned the validity of the Lindal permit issued by UDOT and the Wilderness permits issued by UDOT and the City because Republic had failed to exhaust administrative remedies. A district court's grant of summary judgment is reviewed for correctness, viewing all facts and reasonable inferences in favor of the nonmoving party. See Western Water, LLC v. Olds, 2008 UT 18, ¶ 14, 184 P.3d 578. Similarly, whether a court lacks subject matter jurisdiction due to a party's failure to exhaust administrative remedies is a question of law, reviewed for correctness.⁷ See id. ¶¶ 15–18; Decker v. Rolfe, 2008 UT App 70, ¶¶ 7–8, 10, 180 P.3d 778.

¶ 13 Republic also argues that the district court failed to properly conduct a trial de novo of UDOT's denial of the Deck Hockey permit because it granted summary judgment to UDOT based only on whether the proposed location for the Deck Hockey billboard was within 500 feet of the Lindal billboard and refused to consider evidence relating to the validity of the Lindal permit. Whether the district court appropriately granted summary judgment on de novo review is a question of law, reviewed for correctness. See Archer v. Board of State Lands & Forestry, 907 P.2d 1142, 1145 (Utah 1995) (“[W]e examine, without deference, the district court's legal conclusions and determine whether, on de novo review, the district court properly granted summary judgment.”).

ANALYSIS

I. Summary Judgment

¶ 14 Summary judgment is proper if “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Utah R. Civ. P. 56(c). Summary judgment is an appropriate mechanism to decide whether a court has subject matter jurisdiction, see Holladay Towne Ctr., LLC v. Holladay City, ...