State Through Dept. of Highways v. National Advertising Co.
| Citation | 356 So.2d 557 |
| Decision Date | 06 February 1978 |
| Docket Number | No. 6272,6272 |
| Parties | STATE of Louisiana Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellee, v. NATIONAL ADVERTISING COMPANY, Defendant-Appellant. |
| Court | Court of Appeal of Louisiana (US) |
Sanders, Downing, Kean & Cazdessus by R. Gordon Kean, Jr., Baton Rouge, Plauche, Smith, Hebert & Nieset by Reid K. Hebert, Lake Charles, for defendants-appellants.
Jonathan C. Harris, Baton Rouge, for plaintiff-appellee.
Before GUIDRY, FORET and JOHNSON, JJ.
The State of Louisiana, through the Department of Highways instituted this suit against National Advertising Company pursuant to LSA-R.S. 48:461 et seq., entitled "Control of Outdoor Advertising and Junkyards," to compel the removal of numerous outdoor advertising signs owned by defendant along Interstate Highways Nos. 10 and 210 in Calcasieu Parish. This suit was consolidated, in the trial court and on appeal, with eight other similar suits against other outdoor advertising companies. Separate judgments are being rendered on this date in each case.
This litigation has previously been before this court on an exception of prematurity where we held that the effective date of LSA-R.S. 48:461 et seq. was July 27, 1966. State of Louisiana, Through the Department of Highways v. Lamar Advertising Company of Louisiana, Inc., 304 So.2d 779 (La.App. 3 Cir. 1974), writs refused La., 305 So.2d 539. All of the signs in question were erected between July 27, 1966 and January 31, 1972, the latter being the date of the "compliance agreement" between the State of Louisiana and the U. S. Department of Transportation. These dates are significant because it is during this "hiatus" period that appellant contends there were no effective rules determining what areas were appropriate for outdoor advertising. The issues presented on this appeal are:
(1) Is appellant entitled to a judicial determination of what constitutes an "unzoned commercial or industrial area appropriate for outdoor advertising" pursuant to LSA-R.S. 48:461.4(d)? If so, what criteria should govern that determination?
(2) Is the doctrine of equitable estoppel applicable?
(3) Whether State standards exceeded Federal regulations in violation of LSA-R.S. 48:461.3 at the time these signs were erected?
(4) Whether these signs are "legal" by virtue of the "compliance agreement"?
(5) Has the State's cause of action, by virtue of LSA-R.S. 48:461 et seq., prescribed pursuant to LSA-R.S. 9:5625?
(6) Does LSA-R.S. 48:461 et seq. violate the First and Fourteenth Amendments to the U. S. Constitution and the corresponding provisions of the 1921 and 1974 Louisiana Constitutions?
(7) Does LSA-R.S. 48:461 et seq. unconstitutionally delegate legislative authority to an administrative agency?
A brief history of LSA-R.S. 48:461 et seq. is necessary in order to provide a better understanding of the disposition of this case. In 1965 the U. S. Congress enacted the "Highway Beautification Act," 23 U.S.C. § 131 et seq., in order to encourage the states to control outdoor advertising along the interstate and primary highway systems, in a manner consistent with a "national policy" declared in the act. After January 1, 1968, the Secretary of Commerce (now, Transportation) was authorized to reduce the federal aid highway funds, which would otherwise be apportioned to a state, by 10% If the Secretary determined the state had not made provision for effective control of outdoor advertising. 23 U.S.C. § 131(b).
In response to the stimulus provided by the "Highway Beautification Act", the Louisiana Legislature adopted Act 474 of 1966, presently LSA-R.S. 48:461 et seq. The purpose of the Act is stated generally in LSA-R.S. 48:461 as follows:
"The Legislature finds and declares that outdoor advertising and maintenance of junkyards are legitimate commercial uses of private property and, for the purpose of promoting the public safety, health, welfare, convenience and enjoyment of public travel, to protect the public investment in public highways, and to preserve and enhance the scenic beauty of lands bordering public highways, it is hereby declared to be in the public interest to regulate and restrict the erection and maintenance of outdoor advertising and the establishment, operation and maintenance of junkyards in areas adjacent to the Interstate and Primary Highway Systems within this State."
In order to provide the proper background for the sections of the statute at issue here, we quote a large portion of it as follows:
§ 461.2 Limitations of outdoor advertising devices
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 the interstate or primary highways in this state except the following:
(a) Directional and other official signs and notices, which shall include but not be limited to signs and notices pertaining to natural wonders, scenic and historic attractions, as authorized or required by law.
(b) Signs, displays and devices advertising activities conducted on the property upon which they are located.
(c) Signs, displays and devices advertising the sale or lease of property upon which they are located.
(d) Signs, displays and devices located in areas which are zoned industrial or commercial under authority of law.
(e) Signs, displays and devices in unzoned commercial or industrial areas which areas shall be determined from actual land uses and defined by regulations to be promulgated by the department. (Emphasis added.)
§ 461.3 Regulation of advertising
The department is hereby authorized to promulgate regulations governing the issuance of permits, including the collection of reasonable fees therefor, for the erection and maintenance of outdoor advertising coming within the exceptions contained in subsections (a), (d) and (e) of R.S. 48:461.2, consistent with the safety and welfare of the traveling public, and as may be necessary to carry out the policy of the state as declared in this Part, and consistent with the national standards promulgated by the Secretary of Commerce pursuant to Title 23, United States Code.
Such regulations shall not exceed the standards required by federal law and the Secretary of Commerce to entitle the department to receive the maximum amount of federal-aid highway funds. (Emphasis added.)
§ 461.4 Recognition of customary uses
Notwithstanding any other provisions of this act, outdoor advertising shall be permitted in areas zoned industrial or commercial and in unzoned commercial and industrial areas as hereafter defined, subject to the following regulations which are declared to be consistent with customary use in this state:
(a) Lighting
1. No revolving or rotating beam or beacon of light that simulates any emergency light or device shall be permitted as part of any sign. Flashing red, green or amber devices shall not be permitted upon a sign; however, illuminated signs which indicate such customary public service information as time, date, temperature or other similar information shall not be prohibited.
2. External lighting, such as flood lights, thin line and gooseneck reflectors are permitted, provided the light source is directed upon the face of the sign and is effectively shielded so as to prevent beams or rays of light from being directed into any portion of the main traveled way of the interstate or federal-aid primary highway.
3. No sign shall be permitted to project into the direct line of vision of any official traffic control signal, from any point in a moving traffic lane of an interstate or federal-aid primary highway within six hundred sixty feet of and approaching such signal.
(b) Size of Signs
1. For signs which are located within six hundred sixty feet of the nearest edge of the right of way on Interstate and Primary systems the maximum area of a sign face shall be twelve hundred square feet.
2. All dimensions include border and trim, but exclude supports.
3. Double-faced or V-type signs shall be considered one sign structure. Maximum size of signs shall apply to each face. Two signs shall be permitted in any facing provided that the total area of such facing shall not exceed twelve hundred square feet.
4. The highest point of any signs, except roof signs, shall not extend more than sixty feet measured from either the ground level at its supports or the nearest edge of the right of way of the interstate or primary highway, which ever is higher in elevation.
(c) Spacing of signs
1. Signs shall conform to all applicable building codes and ordinances.
2. No two sign structures facing in the same direction subject to regulations under this act shall be spaced less than one hundred fifty feet apart unless separated by a building, structure, or roadway.
3. All signs are required to maintain the same set-back as other principal buildings and structures or the establishing building lines, whichever is less.
4. No sign may be located in such a manner as to prevent the driver of a vehicle from having a clear, unobstructed view of official signs and approaching merging or intersecting traffic and driveways.
(d) "Commercial and industrial areas" consistent with zoning principles and standards applicable in this state, include: all land so zoned, all unzoned land within one thousand feet of any commercial or industrial activity other than outdoor advertising; all land lying within one thousand feet of any two such unzoned areas; and all other unzoned lands appropriate for outdoor advertising which are determined to be unzoned commercial or industrial areas by any court of this state.
(e) The following signs shall not be permitted:
1. Signs which are obsolete.
2. Signs which are illegal under state laws or regulations.
3. Signs that are not clean and in good repair.
4. Signs that are not securely affixed to a substantial structure.
5. Signs which attempt or appear to attempt to regulate, warn, or direct the...
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