Drury Development Corp. v. State Highway Commission of Missouri

CLARK, Presiding Judge. Drury Development Corporation appeals from orders of the State Highway Commission of Missouri (now the Missouri Highway and Transportation Commission) directing removal of three outdoor advertising signs. The Commission found the signs subject to removal without compensation because erected and maintained without permits as required by §§ 226.500 to 226.600, RSMo 1978.1 The circuit court affirmed the decisions of the Commission. The outdoor advertising signs affected by the orders for removal in this case are distinguishable by the two points of error which appellant Drury Development Corporation presents. The first point concerns only sign 78-06-457. The second is applicable to three signs, that last mentioned and additional signs 75-06-388 and 77-10-183. These points will be taken in the order briefed by appellant. As to sign 78-06-457, appellant made application in March 1978 for a permit to erect the sign. In June 1978, although no action had been taken by the Commission to issue the permit or deny the application, Drury proceeded to erect the sign. Thereafter, the notice to remove the sign was issued, the basis for the order being that the sign was erected without a permit and the sign was also in violation of § 226.-540(3)(a) because it was within 500 feet of an existing sign. In its point on appeal, Drury acknowledges the sign was erected without a permit. Drury contends, however, that the permit was improperly denied because the spacing violation was attributable to another illegal sign. The nearby sign, admittedly within 500 feet, was subject to a removal order, also because no permit had been obtained. The proprietor of that sign and Drury were in competition for the location in a contest over priority of applications. Irrespective of whether the competing sign was or was not lawful, Drury fails to take account of § 226.580.1(2) which prohibits maintenance of signs for which no permit has been obtained. Drury takes the position that it is entitled to resort to self-help if, without proper cause, the Commission neglects or refuses to grant a sign permit on application. The remedy to be pursued by a rejected applicant for a sign permit is not to proceed to erect the sign, as Drury did here, but to seek relief by administrative review, § 536.063, or by injunction or original writ, § 536.150. If, as here, it is conceded the offending sign was erected without a permit, the order for removal must be affirmed, whatever the reason may have been for the failure or refusal to grant the permit. As was suggested by the Commission’s order, the means of redress to Drury are to comply with removal and reapply for a permit. As between Drury and the owner of the other sign ordered removed because also erected without a permit, the Commission has indicated the first application for permit properly filed will be accepted. The second and final point Drury presents is applicable to the removal order directed to the sign considered in the first point and to two additional signs erected after March 30, 1972 and maintained without permits. The point is stated as follows: THE TRIAL COURT ERRED IN NOT ORDERING THE RESPONDENT TO [356] IMPLEMENT, OPERATE AND MAINTAIN AN ALTERNATIVE SIGN PROGRAM WITHIN THE RESPONDENT’S RIGHT-OF-WAY BECAUSE SAID ALTERNATIVE SIGNING PROGRAM IS REQUIRED BY LAW IN THAT THE RESPONDENT’S FAILURE TO DO SO IN EFFECT PLACES A HARDSHIP ON THE APPELLANT AND IGNORES THE STATUTORY REQUIREMENTS PLACED UPON THE RESPONDENT BY THE MISSOURI LEGISLATURE. From the brief, it appears that the “alternate sign program” to which Drury refers and which it is claimed the Commission has failed to implement is § 226.535 providing for travel information signs on the highway right-of-way. The section reads as follows: Signs, displays, and devices giving specific information of interest to the traveling public shall be erected and maintained within the right-of-way in such areas, in an appropriate distance from interchanges on the interstate system as shall conform with the rules and regulations promulgated by the highway department. Such rules shall be consistent with national standards promulgated from time to time by the appropriate authority of the federal government, pursuant to Title 23, section 131, paragraph f, of the United States Code. Drury makes the bald assertion, without citation of any authority, “that no signs whatsoever can be removed until the Respondent has embarked on a program to establish logo-signing on the right-of-way.” The statutes do not condition the authority of the Commission to order removal of unlawful signs on implementation of an informational sign program for the traveling public on the right-of-way. Indeed, it is difficult to perceive what relationship exists at all between informational signs on the right-of-way and signs beyond the right-of-way advertising private businesses. In any event, if the owners of billboards, such as Drury, believe the Commission has failed to perform a statutory function, the remedy is by mandamus or injunction, not by erecting unlawful signs. The signs in question were all erected after March 30, 1972 and are being maintained without permits. Drury does not dispute these facts. On these grounds alone, the removal orders must be affirmed. The judgments of the circuit court in cases 78-06-457, 75-06-388 and 77-10-183 are affirmed. KENNEDY, J. concurs. MANFORD, J., dissents in separate dissenting opinion. Footnotes [1] All statutory references are to RSMo 1978.