Stephenson's Restaurants, Inc. v. Missouri State Highway and Transp. Com'n

Decision Date24 January 1984
Docket NumberNo. WD,WD
Citation666 S.W.2d 437
PartiesSTEPHENSON'S RESTAURANTS, INC., and Great White Rabbit, Inc. d/b/a Stephenson's Apple Tree Inn Restaurant, Respondents, v. MISSOURI STATE HIGHWAY AND TRANSPORTATION COMMISSION, Appellant. 34282.
CourtMissouri Court of Appeals

Bruce A. Ring, Chief Counsel, Dennis J. Redel, Asst. Counsel, Jefferson City, for appellant.

Sharon A. Cooney, Smith, Gill, Fisher & Butts Inc., Kansas City, for respondents.

Before SOMERVILLE, P.J., and SHANGLER and MANFORD, JJ.

SHANGLER, Judge.

This appeal involves construction of the Billboards Law §§ 226.500 through 226.600, RSMo Supp.1982]. The final decision of the Missouri State Highway and Transportation Commission determined that an off-premises outdoor sign owned and displayed by Stephenson's Restaurants, Inc. and Great White Rabbit, Inc., dba Stephenson's Apple Tree Inn, violated the space interval provisions of the Law, and so ordered removal. The circuit court reversed the decision of the Commission on the ground that the sign was exempt from the control of the Billboards Law under the terms of § 226.540(6). The Commission appeals.

The respondents Stephenson's erected an outdoors and off-premises advertisement sign located .67 miles south of Route 45 and within 660 feet of the Interstate 29 right-of-way and visible from the main traveled way of that interstate route. The sign is within 250 feet of an existent sign on the same side of Interstate 29, but an outer roadway--N.W. Prairie View Road--intervenes between the traveled way of Interstate 29 and the sign. The sign rests within the corporate boundary of Kansas City [a municipal zoning authority within §§ 226.500 through 226.600], and at the time of construction the site was zoned for commercial use by the City. The sign was erected under permit from the City issued pursuant to enacted ordinances.

Chapter 65 of the municipal ordinances regulates the size, lighting and space intervals of signs in areas zoned for commercial use. Ordinance § 65.220 designates:

No outdoor advertising sign structure, hereafter erected, shall be less than two hundred feet from any other existing outdoor advertising sign structure on the same side of the street; provided, however, as to limited access trafficways and interstate highways, the minimum distance between outdoor advertising sign structures on the same side of the street shall not be less than eight hundred feet.

The Billboards Law, however, prescribes [§ 226.520]:

[N]o outdoor advertising sign 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. [emphases supplied]

The dispensation § 226.520(3) accords an outdoor advertisement structure in an area zoned for commercial use [the encroachment of the sign within 660 feet of the interstate right-of-way], however, is subject to the conditions enumerated in § 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 ... subject to the following regulations which are consistent with customary use in this state:

(1) Lighting:

* * *

(2) Size of signs:

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(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. [emphasis added]

The subject sign, as we note, was in an area zoned by the municipality for commercial use, and was installed within 250 feet of a preexistent sign, stands within 660 feet of the I-29 right-of-way, and is visible from the main traveled way of that thoroughfare. The Commission issued a notice to Stephenson's that the sign violated the space interval requirement [500 feet] of § 226.540(3) and ordered removal. Administrative review affirmed the order. Stephenson's took judicial review and the circuit court adjudged that § 226.540(6) operated to exempt the sign from the Billboards Law.

The text of § 226.540(6) provides:

In zoned commercial and industrial areas, whenever 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, then from and after the effective date of such regulations, and so long as they shall continue in effect, the provisions of this section shall not apply to the erection of signs in such areas, nor shall any state permit or permit fees be required. [emphasis added]

On this appeal, the Commission contends that the 250 feet space interval prescribed for outdoor advertisement signs in areas zoned for commercial use by ordinance Section 65.220 infringes the Spacing of Signs § 226.540(3) of the statutes and customary use and so violates the Billboards Law. The judicial review of a contested administrative case in the court of appeals is of the agency decision, and not the judgment of the circuit court. Fleming Foods of Missouri, Inc. v. Runyan, 634 S.W.2d 183, 184[1, 2] (Mo. banc 1982); § 536.140, RSMo 1978. The appeal presents a question of law and so is a matter for the independent judgment of the court of review. The conclusion adopted by the Commission from a construction of the Billboards Law, therefore, does not control our decision. Kansas City v. Missouri Commission on Human Rights, 632 S.W.2d 488, 490[1, 2] (Mo. banc 1982).

The Billboards Law [§§ 226.500 to 226.600] manifests a purpose, among others to preserve the natural scenic beauty of highways and so promote the enjoyment of travel upon these thoroughfares. To that end, the Billboards Law regulates outdoor advertisement signs and prohibits the erection or maintenance of any such device within 660 feet and visible from the main traveled way of an interstate or primary highway [per § 226.520]. That statute ameliorates the proximity restriction by the exceptions enumerated in subsections (1) through (5) of § 226.520: among them, subsection (3)--outdoor advertisement signs in areas zoned commercial "as provided in sections 226.500 to 226.600 [the Billboards Law] or under other authority of law."

Stephenson's concedes its sign comes within the general prohibition of the Billboards Law because sited within 660 feet of Interstate 29. It contends, nevertheless, that since the sign is sited in a commercial area, the device was invested as a lawful use because it satisfied one of the alternative exceptions of subsection (3) to § 226.220: that an outdoor advertisement sited in an area zoned commercial conformable to §§ 226.500 to 226.600 [the Billboards Law] or under other authority of law avoids the 660 feet proximity restriction. That amelioration, however, is subject to the express conditions of § 226.540 that an outdoor advertisement shall be permitted within 660 feet of the highway in an area zoned for commercial use subject to the enumerated regulations which are consistent with customary use in this state :

§ 226.540, subsection (3), Spacing of Signs

* * *

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

Stephenson's concedes also that if the sign is subject to that provision, then the alternative exception of § 226.520(3) that a sign in a commercial area be conformable to the provisions of the Billboards Law would not be satisfied--because the subject sign is within 250 feet of an existent advertisement. Stephenson's argues, however, that its sign is not subject to the provisions of the Billboards Law because it exists under other authority of law --the city ordinance--and so conforms with the other alternative of § 226.520(3) which validates a sign notwithstanding a nearer proximity to the highway than 660 feet.

That syllogism is faulty.

To give effect to its declared purpose, the Billboards Law prohibits an outdoor advertisement visible from the highway within a proximity of 660 feet of the way [§ 226.520]. That prohibition is ameliorated to allow such a sign within that proximity in an area zoned for commercial use, but only if as "provided in sections 226.500 to...

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