State ex rel. Whiteco Metrocom v. State Highway and Transp. Com'n, WD
| Decision Date | 02 April 1985 |
| Docket Number | No. WD,WD |
| Citation | 689 S.W.2d 366 |
| Parties | STATE of Missouri ex rel. WHITECO METROCOM, f/d/b/a White Advertising International, Appellant, v. STATE HIGHWAY AND TRANSPORTATION COMMISSION of the State of Missouri, Respondent. 36073. |
| Court | Missouri Court of Appeals |
Stephen G. Newman, Hawkins, Brydon and Swearengen P.C., Jefferson City, for appellant.
Bruce A. Ring, Chief Counsel, Dennis J. Redel, Asst. Counsel, Missouri Highway and Transp. Com'n, Jefferson City, for respondent.
Before CLARK, P.J., and TURNAGE and KENNEDY, JJ.
Appellant owns an outdoor advertising sign located in Marion County on Route 36. In March, 1978, the Commission notified appellant to remove the sign because it was in violation of the location provisions contained in §§ 226.520 and 226.540, RSMo.1969. Appellant obtained review of the removal order and appeals the decision by the circuit court of Cole County affirming the original commission decision. Affirmed.
The facts of the case were stipulated. The sign was erected May 30, 1968. It is therefore a pre-existing non-conforming sign entitled to a permit if it was in compliance with the location and other requirements of the statutes which preceded § 226.550.2(2) and the other sections of the Billboard Act, RSMo.1978. The further facts stipulated were that Marion County did not adopt comprehensive zoning until October 1, 1969 after the subject sign was erected, that the land on which the sign is located is zoned agricultural and that the sign is situated within 660 feet of the Route 36 right-of-way.
In the first point, appellant contends the decision ordering removal of the sign must be reversed because recourse to the Marion County zoning law adopted after appellant's sign was in place gives the zoning law retrospective effect in violation of Article I, § 13 of the Missouri Constitution prohibiting ex post facto laws. We do not reach the merits of this proposition. Appellant made no mention of the constitutional claim in proceedings before the Commission or in its petition for review in the circuit court. Constitutional questions must be presented at the first opportunity. Independent Stove Co., Inc. v. State Highway Commission, 625 S.W.2d 246 (Mo.App.1981). Appellant waived its right to raise the issue when it did not present the contention in its appearance before the Commission and it may not raise the claim for the first time on appeal. Osage Outdoor Advertising Inc. v. State Highway Commission, 687 S.W.2d 566 (Mo.App.1984).
In the second point, appellant asserts that the Commission failed to carry its burden of proving the subject sign to be unlawful because the Commission did not prove the sign was not located within one thousand feet of a commercial or industrial activity. Some explanation of the intricacies of the statutes is necessary to understand the claim.
Under § 226.550.2(2), RSMo.1978, signs erected before March 30, 1972 but on or after January 1, 1968 are entitled to receive a permit if the sign was lawfully in place under existing law when the sign was erected. As regards the subject sign, its location within 660 feet of the nearest highway right-of-way was unlawful under the prior statute, § 226.520, RSMo.1969 unless the sign came within the exception of § 226.520(5), RSMo.1969. That exception permits such signs if they are located in unzoned commercial or industrial areas as defined and determined pursuant to §§ 226.500 to 226.600.
Section 226.540.4, RSMo.1969 relevant here defines unzoned commercial or industrial areas as all unzoned land within one thousand feet of any commercial or industrial activity other than outdoor advertising. Thus, appellant's sign was lawfully erected in 1968 only if, at the time, it was within one thousand feet of...
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