State ex rel. Whiteco Industries, Inc. v. Bowers

• Court: Missouri Court of Appeals
• Citation: State ex rel. Whiteco Industries, Inc. v. Bowers, 965 S.W.2d 203 (Mo. App. 1998)
• Decision Date: 27 January 1998
• Docket Number: 72355 and 72356,Nos. 72262,72271,s. 72262
• Parties: STATE of Missouri ex rel. WHITECO INDUSTRIES, INC. d/b/a Whiteco Metrocom, Respondent, v. Conrad W. BOWERS, Mayor of the City of Bridgeton, et al., Appellants. The CITY OF BRIDGETON, Appellant, v. WHITECO INDUSTRIES, INC., et al., Respondents.
• Writing for the Court: JAMES R. DOWD; CRANE, P.J., and RHODES RUSSELL

Page 203

965 S.W.2d 203

STATE of Missouri ex rel. WHITECO INDUSTRIES, INC. d/b/a

Whiteco Metrocom, Respondent, v. Conrad W. BOWERS, Mayor of the City of Bridgeton, et al.,

Appellants.

The CITY OF BRIDGETON, Appellant, v. WHITECO INDUSTRIES, INC., et al., Respondents.

Nos. 72262, 72271, 72355 and 72356.

Missouri Court of Appeals,

Eastern District,

Division Two.

Jan. 27, 1998.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 24, 1998.

Application for Transfer Denied

May 26, 1998.

William A. Richter, Peper, Martin, Jensen, and Hetlage, St. Louis, for appellants.

Patrick C. Dowd, St. Louis, for respondents.

JAMES R. DOWD, Judge.

Whiteco Industries, Inc. ("Whiteco") filed a petition in prohibition to prevent the City of Bridgeton ("Bridgeton") from enforcing its building code and billboard ordinance to its off-premises advertising sign ("sign" or "billboard"). The trial court entered a preliminary order in prohibition. Subsequently, Bridgeton filed a petition for declaratory judgment and injunction against Whiteco, to declare that its building code and billboard ordinance were valid and enforceable as applied to Whiteco's billboard, and to enjoin Whiteco from going forward with its proposed sign modification. The trial court entered summary judgment holding that Whiteco is not required to obtain a permit under Bridgeton's Billboard Ordinance but is required to obtain a permit under Bridgeton's Building Code. The court further held that Bridgeton may not deny a permit under its building code other than for reasons of safety. Affirmed.

Whiteco's billboard is located in Bridgeton and is within 660 feet of the right-of-way of an interstate highway. In 1993, Whiteco obtained a state permit for its billboard. The following year Whiteco decided to upgrade the billboard and submitted its proposal to the Missouri Highway and Transportation Commission. The Commission determined that Whiteco's proposed modification was not new construction, and therefore did not require Whiteco to obtain a new state permit. Whiteco subsequently notified the Mayor of Bridgeton of its intent to modify its billboard. In response, Bridgeton informed Whiteco that before proceeding with the proposed modification it must obtain all necessary approvals and permits. Bridgeton also threatened that it would take all appropriate action under the law to prevent Whiteco from proceeding with the project in violation of its building code and billboard ordinance.

Under Bridgeton's Building Code, a building permit must be obtained before an existing structure can be altered. Bridgeton Ordinance 93-78, Sec. 1. In addition, Bridgeton's Billboard Ordinance regulates the size, lighting, and spacing of billboards and requires billboard owners to obtain a permit prior to erecting, altering, or refacing a billboard. Bridgeton Ordinance 84-54, Sec. 1. Bridgeton's Billboard Ordinance contains the following regulation regarding the spacing of signs: "Along interstate highways and freeways on the federal-aid primary system, no sign structure shall be erected within seven hundred fifty feet of an existing sign on the same side of the highway...." Bridgeton Ordinance 94-15, Sec. 2. Bridgeton's Billboard Ordinance also limits the total height for any sign structure. Under the ordinance, "[t]he maximum total height for any sign structure, including the sign face and supports, measured from the ground to the top of the sign, shall be forty-five feet." Bridgeton Ordinance 94-15, Sec. 2.

The Missouri Billboards Act ("Act"), Secs. 226.500-.600 RSMo 1994, ¹ regulates billboards in this State. The regulations contained in section 226.540, the section of the Act relevant to this appeal, apply to billboards within 660 feet of the right-of-way of an interstate highway in areas zoned industrial or commercial unless a state, county, or municipal zoning authority "has adopted laws or ordinances which include regulations with respect to the size, lighting and spacing of signs, which regulations are consistent with the intent of sections 226.500 to 226.600 and with customary use." Sec. 226.540(7). The Act contains regulations that are different than the regulations contained in Bridgeton's Billboard Ordinance. With respect to the spacing of billboards, the Act prohibits the erection of signs "within five hundred feet of an existing sign on the same side of the highway." Sec. 226.540(3)(a) (emphasis added). Also, although the Act does limit the height of sign faces, including border and trim, to thirty feet, it does not regulate the size of the base or apron, supports, and other structural members. Sec. 226.540(2)(a).

Bridgeton raises several points of error on appeal. Bridgeton maintains that the trial court erred in holding that it cannot deny a permit under its building code other than for reasons of safety because the issue of the applicability of particular provisions of its building code to Whiteco's proposed billboard modification was not ripe for adjudication. In the alternative, Bridgeton claims that its building code is not preempted by the Act. Bridgeton also contends that the trial court erred in finding that Whiteco is not required to obtain a permit under Bridgeton's Billboard Ordinance. Whiteco raises a single point of error, alleging that the trial court erred in concluding that it was required to obtain a permit under Bridgeton's Building Code.

I. Ripeness

Generally, parties must exhaust adequate administrative remedies before resorting to an action at law or in equity. See, e.g., Drury Displays, Inc. v. City of Richmond Heights, 922 S.W.2d 793, 797 (Mo.App. E.D.1996); State ex rel. J.S. Alberici, Inc. v. City of Fenton, 576 S.W.2d 574, 577 (Mo.App. E.D.1979); Westside Enter., Inc. v. City of Dexter, 559 S.W.2d 638, 640 (Mo.App.1977). As stated recently by our Supreme Court, there are several exceptions to the general requirement of exhaustion. A party is not required to exhaust administrative procedures where: (1) no adequate remedy lies through the administrative process, (2) the authority of the political subdivision to impose particular regulations is challenged, (3) the validity of agency rules or the threatened application thereof is at issue, or (4) the authority of a municipal corporation to enact certain regulations under the statutory enabling acts granting it the power to zone is challenged. Premium Standard Farms, Inc. v. Lincoln Township, 946 S.W.2d 234, 237 (Mo. banc 1997).

In Premium Standard Farms, Inc. v. Lincoln Township, Premium Standard Farms ("Premium") operated a hog farming business located in Lincoln Township. Premium filed a petition for declaratory judgment and an injunction against Lincoln Township to prevent enforcement of zoning regulations that established setback requirements for its livestock feedlots and sewage lagoons. In response to Lincoln Township's argument that Premium had not exhausted administrative procedures, the Supreme Court held that Premium was not required to apply for a variance permit prior to seeking judicial relief because Premium challenged Lincoln Township's authority to impose such regulations. Premium Standard Farms, 946 S.W.2d at 237-38; see also Kuney v. Zoning Bd. of Appeals of the City of De Kalb, 162 Ill.App.3d 854, 114 Ill.Dec. 695, 516 N.E.2d 850, 852 (1987) ("To force plaintiff to apply for a special use permit before filing his claim before this court ... would be tantamount to a forced admission that the restriction applies to him."); Boone County Area Plan Comm'n v. Kennedy, 560 N.E.2d 692, 696 (Ind.App.1990) ("The administrative remedies under the Ordinance were not available to the Kennedys because in their view the proposed use was not covered by the Ordinance unless they abandoned their position the Ordinance did not apply."); Town of Ashland v. Ashland Investment Co., 235 Va. 150, 366 S.E.2d 100, 104 (1988) ("If [the sign owner's position that the ordinance did not apply] should ultimately prevail, it follows the [sign owner] was under no obligation to apply for a sign permit or a variance under the town ordinance. But if the company were to make such application, as the town contends it should, it would necessarily concede that the ordinance was applicable.").

In this case, Bridgeton contends that the issue of whether its building code applies to Whiteco's proposed billboard modification is not ripe for adjudication because Whiteco has not exhausted administrative remedies. Indeed, Whiteco has not applied for a permit under either the building code or the billboard ordinance, and has not commenced its plan to modify its billboard. Bridgeton argues that Whiteco's failure to apply for and appeal the denial of its permit application through the grievance procedures provided in its building code, see Bridgeton Ordinance 93-78, Sec. 1, and billboard ordinance, see Bridgeton Ordinance 84-54, Sec. 1, precluded Whiteco from obtaining judicial relief. We disagree. As in Premium Standard Farms, Whiteco's challenge is to Bridgeton's authority to impose certain regulations on its billboard construction. We believe that compelling Whiteco to utilize the administrative relief provided by Bridgeton before it may seek judicial relief would be tantamount to forcing Whiteco to admit that Bridgeton has the authority to regulate its billboard. We hold that the issue of whether Bridgeton's Building Code and Billboard Ordinance were preempted by the Act was ripe for adjudication. Bridgeton's first point of error is denied.

II. Preemption of Bridgeton's Billboard Ordinance

In construing statutes, our primary focus is to ascertain the intent by giving the plain and ordinary meaning to the language employed by the legislature. Conagra Poultry Co. v. Director of Revenue, 862 S.W.2d 915, 917 (Mo. banc 1993). To discover the legislature's intent,

we must examine the words used in the statute, the context in which the words are used and the problem the legislature sought to address with the...