State ex rel. Nat. Advertising Co. v. State Highway Commission, WD

• Decision Date: 08 September 1981
• Docket Number: No. WD,WD
• Citation: 624 S.W.2d 453
• Parties: STATE ex rel. NATIONAL ADVERTISING COMPANY, Appellant, v. STATE HIGHWAY COMMISSION of the State of Missouri, Respondent. 31684, WD 31685.
• Court: Missouri Court of Appeals

Page 453

624 S.W.2d 453

STATE ex rel. NATIONAL ADVERTISING COMPANY, Appellant, v. STATE HIGHWAY COMMISSION of the State of Missouri, Respondent.

No. WD 31684, WD 31685.

Missouri Court of Appeals, Western District.

Sept. 8, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Oct. 20, 1981. Application to Transfer Denied Dec. 14, 1981.

W. R. England, III, Hawkins, Brydon & Swearengen, Jefferson City, for appellant.

Curtis Frank Thompson, Jefferson City, for respondent.

Before KENNEDY, P. J., SOMERVILLE, C. J., and SHANGLER, J.

SHANGLER, Judge.

The appeal consolidates decisions by the State Highway Commission (now the Missouri Highway and Transportation Commission) that the National Advertising Company remove without payment of compensation seven owned outdoor advertisement structures as in violation of the Billboards Law. The Commission found that the signs were installed after March 30, 1972-the operative date of the Billboards Law-and failed in particulars to conform to the strictures of that enactment. The circuit court affirmed the decisions of the Commission.

National Advertising poses a spate of objections to the decisions of the Commission, and we treat them according to common questions to the extent the congruence of the facts and the points of law on appeal allow.

The enactment of the Billboards Law (§§ 226.500 through 226.600, RSMo 1978) subjects outdoor advertisement structures installed within a prescribed proximity to a primary or interstate highway to the regulation and licensure of the State Highway Commission. The law enacts, among other provisions:

Section 226.520:

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:

(3) 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;

(4) Outdoor advertising located in unzoned commercial or industrial areas as defined and determined pursuant to sections 226.500 to 226.600....

Section 226.540:

Notwithstanding any other provisions of sections 226.500 to 226.600 outdoor advertising shall be permitted within six hundred and sixty feet of the nearest edge of the right-of-way of any interstate or primary highway in areas zoned industrial, commercial or the like and in unzoned commercial and industrial areas as hereafter defined, subject to the following regulations which are consistent with customary use in this state:

(3) Spacing of signs:

(a) Interstate highways and freeways on the federal-aid primary system:

a. No sign structure shall be hereafter erected within five hundred feet of an existing sign on the same side of the highway ;

b. Outside of incorporated municipalities, no structure may be located adjacent to or within five hundred feet of an interchange, intersection at grade, or safety rest area. Said five hundred feet shall be measured from the beginning or ending of the pavement widening at the exit from or entrance to the main traveled way. For purpose of this subparagraph b the term "incorporated municipalities" shall include "urban areas," except that such "urban areas" shall not be considered "incorporated municipalities" if it is finally determined that such would have the effect of making Missouri be in noncompliance with the requirements of Title 23, United States Code, section 131.

(4) As used herein, the words "unzoned commercial and industrial land" shall be defined as follows: That area not zoned by state or local law or ordinance and on which there is located one or more permanent structures used for a commercial business or industrial activity or on which a commercial or industrial activity is actually conducted whether or not a permanent structure is located thereon, together with the area along the highway extending outwardly six hundred feet from and beyond the edge of such activity. (Emphasis added)

The State Highway Commission issued formal notices under § 226.580 to National Advertising to remove seven outdoor advertisement signs as in violation of the several provisions of the Billboards Law. Pursuant to requests for administrative review of the notices, the State Highway Commission examiner conducted hearings. A decision was rendered separately as to each notice (sign) ¹ although the cases were combined, as convenience allowed, for the reception of the proof. The evidence consisted of stipulations, exhibits and the testimony of a permit inspector for the Commission. The final decision of the Commission in each case entered on findings of fact and conclusions of law, ordered the removal of the seven signs.

Cases 78-04-349, 78-04-350, 78-04-351

This triad of signs was installed on the east side of Interstate 435 between the Route 12 (Truman Road) crossover to the north and the Route 78 crossover to the south. The notices to remove the signs cited three incidences of illegality:

(1) each sign was erected after March 30, 1972 in violation of § 226.540.

(2) each sign was spaced within 500 feet of an existent sign in violation of § 226.540(3)(a)a

(3) each sign was located outside an incorporated municipality and within 500 feet of an interchange in violation of §§ 226.520(4) and 226.540(3)(a)b. ²

The notices recited also that removal of the signs was the only remedy possible to correct the unlawfulness-to comply with the requirement of § 226.580.3 that the notice specify the action necessary to allay the violations. Thus, the theory of the citations and of the Commission proof was that the three signs-349, 350, 351-were installed on or after March 30, 1972 (and so under the governance of the Billboards Law) and as erected were in violation of two separate enactment provisions: each sign was within 500 feet of another sign on the same side of the highway, and each sign-located outside an incorporated municipality-was within 500 feet of an interchange. The proof of any violation renders an outdoor advertisement sign within the governance of the Billboard Laws subject to removal. § 226.580.1(1).

The Commission found as fact that the three signs were erected after March 30, 1972-not otherwise excepted from the operation of the law (§ 226.520)-were each within the prohibited space of 500 feet of an existent sign, and were each within the prohibited proximity of within 500 feet of an interchange outside of an unincorporated municipality. ³ The appeal contends that these findings are no more than statements of ultimate fact unsupported by a preface of basic facts found and so insufficient for judicial review, and in any event do not rest on substantial evidence.

There was evidence by the Commission through permit inspector Bergschneider that the official inventory show that the three signs-349, 350, 351-were not in existence on March 30, 1972. National Advertising made proof of lease agreements with the landowner on July 14, 1969, for advertisement sign display and, thereafter, on November 3, 1971, obtained a permit from the City of Blue Summit ⁴ for the erection of the signs and, then, on February 25, 1976, obtained an order from the county Board of Zoning Adjustment to permit the maintenance of the signs (349, 350, 351) at those locations. This evidence constitutes a substantial basis for the Commission finding of fact that: "The signs (349, 350, 351) were erected after March 30, 1972." That finding was tantamount to a determination that whatever de facto validity the permit may have had on November 3, 1971 (then issued under color of municipal authority) lapsed after November 18, 1971 (when the municipal incorporation was invalidated), and that National Advertising did not construct the signs before the legal effectiveness of the permit expired-on November 18, 1971. That ultimate determination of fact was supported by the further evidence that signs 349, 350, 351 did not appear on the March 30, 1972, official Commission inventory, and by the National Advertising initiative in year 1976 for a permit from the county authority to maintain the signs at those locations. The neglect by National Advertising to make late proof by affidavit from the construction company "erecting (the) signs which are the subjects of Hearings 349, 350 and 351, indicating the date or day upon which those signs were erected"-as voluntarily stipulated-allows the adverse inference that the signs were not in place by March 30, 1972-as found by the Commission decision. Contrary to contention, the lack of direct proof as to the actual dates of the sign construction does not impair the Commission decision. The statutory inquiry (as to the violations cited) is only whether the signs were in place on March 30, 1972, and not when they were installed. § 226.520 and § 226.540. National Advertising notes that the Commission dealt with a contested question of fact. Where the determination of ultimate fact rests on substantial evidence-as does the determination that the signs were erected after March 30, 1972-a court of review has no authority to reassess the disputed proof and impose that judgment on the administrative body. Smith v. Missouri State Highway Commission, 488 S.W.2d 230, 235(2) (Mo.App.1972).

National Advertising contends also that the finding: "The signs were erected after March 30, 1972" states the ultimate fact but neglects the basic facts from which that determination derives, and so impairs our function of review. However insufficient such a declaration of fact may be unaided, that finding rests on the predicate of other findings made expressly: "(A)lthough applicant did obtain building permits for the signs from Blue Summit, Missouri, on November 3, 1971 ... there is no evidence the signs were erected before the order of incorporation of the town of Blue Summit, Missouri...