State ex rel. Missouri Highway and Transp. Com'n v. Alexian Bros. of St. Louis, Inc.

• Decision Date: 23 February 1993
• Docket Number: No. 75037,75037
• Parties: STATE ex rel. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Appellant, v. ALEXIAN BROTHERS OF ST. LOUIS, INC., d/b/a Alexian Brothers Hospital, Respondent.
• Court: Missouri Supreme Court

Page 472

848 S.W.2d 472

STATE ex rel. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Appellant, v. ALEXIAN BROTHERS OF ST. LOUIS, INC., d/b/a Alexian Brothers Hospital, Respondent.

No. 75037.

Supreme Court of Missouri En Banc.

Feb. 23, 1993.

Richard L. Tiemeyer, Chief Counsel, Thomas B. Gilliam, Jr., Sr. Asst. Counsel, Paul R. Ferber, Kirkwood, for appellant.

John S. Pletz, Jefferson City, for respondent.

ROBERTSON, Chief Justice.

In this case we determine whether Section 226.520, RSMo 1986, empowers the Missouri Highway and Transportation Commission ("MHTC") to order removal of a hospital sign erected under authority of a city zoning variance permitting erection of the sign in a residential area. The trial court held that MHTC was without authority to order removal. The court of appeals affirmed. We granted transfer to resolve the conflict between the eastern district's decision in State ex rel. Missouri Highway and Transportation Commission v. Bank of St. Ann, 631 S.W.2d 73 (Mo.App.1982), on the one hand, and the western district's decision in Osage Outdoor Advertising, Inc. v. State Highway Commission of Missouri, 687 S.W.2d 566 (Mo.App.1984), and the southern district's opinion in Superior Outdoor Advertising v. State Highway Commission of Missouri, 641 S.W.2d 480 (Mo.App.1982), on the other. We hold that Section 226.520 authorizes MHTC to order removal of this sign. The judgment of the trial court is reversed and the cause remanded for entry of judgment in favor of MHTC.

I.

In 1982, Alexian Brothers Hospital ("Alexian Brothers"), a not-for-profit corporation offering general hospital services to the public, decided to erect a sign as part of its marketing plan. Alexian Brothers purchased an "unkempt" vacant lot adjacent to Interstate 55 in an area of the City of St. Louis that had been zoned residential. The Board of Adjustment for the City of St. Louis granted a variance to its zoning ordinance and permitted the erection of Alexian Brothers' sign in the residential area.

On March 29, 1983, MHTC notified Alexian Brothers that its sign violated Sections 226.520 and 226.540(1) and ordered its removal. Alexian Brothers sought a hearing and MHTC heard evidence on January 4, 1984. The matter languished until August 14, 1987, when MHTC held Alexian Brothers must remove the sign. Alexian Brothers timely appealed to the Circuit Court of the City of St. Louis. Following a delay that lasted in excess of two years, the matter came to trial. The Court of Appeals, Eastern District, affirmed. MHTC then sought and was granted transfer to this Court.

II.

In response to the carrot of First Lady, Lady Bird Johnson's efforts to beautify the nation's highways and the stick of Congress' conditioning highway funds on the state's compliance with federal highway beautification laws, the General Assembly reluctantly adopted the Missouri Billboard Law in 1965. Sections 226.500-.600; See Section 226.501, RSMo 1986 (containing an otherwise inexplicable quotation of the Tenth Amendment to the United States Constitution).

Section 226.580.1(1), RSMo 1986, authorizes removal of signs "erected after March 30, 1972, contrary to the provisions of Sections 226.500 to 226.600." The question for resolution is whether Alexian Brothers' sign, which was erected after March 30, 1972, is contrary to the provisions of the billboard law and must be removed.

Alexian Brothers contends that its sign conforms to the law for four reasons: First, the variance granted Alexian Brothers by the board of adjustment constitutes "other authority of law," within the meaning of Section 226.520(3); second, Section 226.520(6) expressly permits hospital advertising signs; third, Alexian Brothers' sign does not violate Section 226.540 in that the sign is not in a commercial or industrial area; and fourth, (a theory announced initially in oral argument) the eastern district's decision in Bank of St. Ann constitutes "other authority of law" within the meaning of Section 226.520(3). We turn now to consider these arguments.

A.

Section 226.520(3) permits the erection of an outdoor advertising sign after March 30, 1972, "in areas which are zoned industrial, commercial or the like as provided in sections 226.500 to 226.600 or under other authority of law." Alexian Brothers argues that the phrase "under other authority of law" includes authority evidenced by a variance granted in accordance with municipal law. In support of its position, Alexian Brothers cite Bank of St. Ann, which concludes "[t]he administrative act of ... granting respondents a special use permit ... constituted 'other authority of law' under § 226.520.3." As in this case, the St. Ann special use permit authorized the erection of a sign in a residential area.

MHTC counters with Osage Outdoor Advertising and Superior Outdoor Advertising. Both cases held that the statutory phrase "other authority of law" does not permit local government to "permit that which the state forbids." Superior Outdoor Advertising, 641 S.W.2d at 485.

We construe statutes only where they are ambiguous. The disparate results in appellate cases is ample testimony to the ambiguity in Section 226.520(3). Where a statute is ambiguous, we construe that statute in a manner consistent with the legislature's intent, giving meaning to the words used within the broad context of the legislature's purpose in passing the law. Given these sure guidelines, the task is nevertheless made difficult when the legislature's language reflects obvious fidgeting under the federal thumb.

Section 226.520 purports to ban the erection or maintenance of outdoor advertising signs with 660 feet of the right-of-way of an interstate or primary highway. Subsection (3) provides an exception to this prohibition. It is worthwhile to recite subsection (3) within its context.

On and after March 30, 1972, no outdoor advertising shall be erected or maintained within six hundred sixty feet of the nearest edge of the right-of-way and visible from the main traveled way of any highway which is a part of the interstate or primary system in this state except the following:

* * * * * *

Outdoor advertising located in areas which are zoned industrial, commercial or the like as provided in sections 226.500 to 226.600 or under other authority of law;

Subsection (3) of the statute is most easily construed if its component phrases are considered individually. First, subsection (3) permits the erection or maintenance of signs "located in areas which are zoned industrial, commercial or the like." Thus, signs are permitted only in commercial or industrial areas. Section 226.540(5) defines "commercial or industrial activities" to mean those areas "which are generally recognized as commercial or industrial by zoning authorities in this state." Section 226.540(5)(f) tells us that "the words 'zoned commercial or industrial area' shall refer to those areas zoned commercial or industrial by the duly constituted zoning authority of a municipality." In this light, the phrase "or the like" modifies "industrial, commercial" and recognizes that some other nomenclature is acceptable, e.g., manufacturing, provided the statutory purpose is met.

Next is the troublesome phrase, "as provided in sections 226.500 to 226.600 or under other authority of law." Read within the whole of the billboard law, the phrase means "as provided in sections 226.500 to 226.600 or as defined under municipal zoning law." Thus, Section 226.520(3) permits the erection or maintenance of an outdoor advertising sign if the municipal zoning law permits activities generally regarded as commercial or industrial, even if the municipal nomenclature is different. Section 226.520(3) does not permit a municipality to authorize a sign in a residential area. To allow Alexian Brothers' sign to stand would be to allow a municipality to permit what state law expressly forbids. "As a matter of sovereignty the [city] ... may not permit that which the state forbids." Superior Outdoor Advertising Co., 641 S.W.2d at 485.

As must be obvious by now, we think Bank of St. Ann is erroneously decided. It is overruled. An erroneous decision of the court of appeals is not "other authority of law." For the same reason that municipal law cannot overrule state law, a...