Lamar Adver. Co. v. Cnty. of L. A.

22 Cal.App.5th 1294

232 Cal.Rptr.3d 394

LAMAR ADVERTISING COMPANY, Plaintiff and Appellant,

v.COUNTY OF LOS ANGELES et al., Defendants and Respondents.

B279643

Court of Appeal, Second District, Division 8, California.

Filed May 8, 2018

Gresham, Savage, Nolan & Tilden, Theodore K. Stream and Andrea Rodriguez, Riverside, for Plaintiff and Appellant.

Mary C. Wickham, County Counsel, Elaine M. Lemke, Assistant County Counsel, Tracy Swann and Casey Yourn, Deputy County Counsel, for Defendants and Respondents.

RUBIN, J.

In 2008, a billboard owned by Lamar Advertising Company was blown over in a windstorm. Lamar rebuilt the billboard and was cited by the Los Angeles County Department of Regional Planning (Department) for violating County zoning ordinances. Lamar appealed the order. A Department hearing officer denied the appeal, and Lamar filed a petition for writ of mandate in the trial court. The trial court denied the petition. Lamar now appeals the ensuing judgment. Lamar argues that it was authorized to rebuild the billboard without interference by local authorities. We find no error and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Erection of the Billboard

In 1967, the Department of Public Works granted a permit to Lamar's predecessor to erect a billboard in an unincorporated area of Acton in Los Angeles County (County) alongside the Antelope Valley Freeway.¹ Lamar later acquired ownership of the billboard. The structure consisted of ten wooden telephone poles supporting a sixty-foot advertising face.

In 1995, the County adopted an ordinance banning billboards in the area where Lamar's billboard was located. (Los Angeles County Code (LACC), § 22.44.126.) Under the ordinance, the subject billboard became a "non-conforming" structure with a five-year amortization period after which time Lamar had to either remove the billboard or secure a permit from the County allowing the billboard to remain. (LACC § 22.56.1540(B)(1)(d); see National Advertising Co. v. County of Monterey (1970) 1 Cal.3d 875, 878, 83 Cal.Rptr. 577, 464 P.2d 33 ["zoning legislation may validly provide for the eventual discontinuance of nonconforming uses within a prescribed reasonable amortization period commensurate with the investment involved"].)

The five-year amortization period passed. Lamar did not secure a permit for the billboard to remain on the property, and the County did not seek to remove the billboard.

2. Lamar's Initial Interest in Upgrading

In August 2007, the Department conducted an investigation into illegal billboards along the Antelope Valley Freeway. A Department employee observed that the posts supporting the subject billboard were "weathered" and "aged," and one had fallen down.

In early 2008, Lamar's real estate manager, Bruce Haney, inquired of a Department zoning enforcement officer, Daniel Geringer, about the guidelines for upgrading the billboard. Lamar sought to repair the structure's support mechanisms. Geringer told Haney that Lamar had to submit a Non-Conforming Review application to the Department in order to obtain permission to repair the billboard. Haney responded that "time, effort and funds" spent on such a review would be "pointless" given the local area was a billboard exclusion zone. Haney then asked what procedures were required for a billboard damaged or blown over due to environmental conditions. Geringer reiterated the previous procedure.

3. The Windstorm and Subsequent Repairs

In November 2008, a windstorm blew over the billboard and toppled one of the support poles to which an electrical box was attached. A photo of the scene after the storm showed eight wooden poles connected to each other by three of the remaining lateral wooden boards. Lamar subsequently installed a new advertising face, new lateral supports, a new electrical box and wiring, and a new catwalk. Five overhead lighting fixtures were replaced with three larger lighting fixtures installed below the advertising face. The advertising face itself was redesigned to cover a smaller surface and rest on only seven poles.

In March 2009, Geringer observed a commercial vehicle working on the advertising face and support structures of the billboard. In April 2009, the Department issued a Notice of Violation to the property owner stating that the billboard was in violation of local zoning ordinances. In June 2009, the Department issued a Final Zoning Enforcement Order ordering the removal of the billboard.

4. The Administrative Appeal

That month, Lamar appealed the Department's order, arguing that it was entitled to rebuild the billboard under California Code of Regulations (Regulations) section 2271, which provides that a billboard owner has 60 days to conduct repairs after receiving notice of damage from CalTrans. The appeal proceeded to an administrative hearing. The hearing officer suggested that Lamar submit a Non-Conforming Use Review application and Lamar agreed. The hearing officer agreed to stay the administrative appeal while Lamar pursued its application.

5. The Non-Conforming Use Review Application

In November 2009, Lamar submitted its application to the Department. The Department prepared a draft order approving the billboard's continued non-conforming use with the condition that Lamar remove the billboard in five years. Lamar rejected the proposed condition. The Department then prepared a revised order approving Lamar's application on the conditions that Lamar deposit $2,000 to compensate the Department for inspections, and indemnify the County for any action to annul the permit. Lamar rejected the proposed conditions and withdrew its application.

6. The Resumption of the Administrative Appeal

Three years later, Lamar resumed its administrative appeal. The hearing officer denied the appeal on the ground Lamar had failed to exhaust its administrative remedies. Lamar filed a petition for writ of mandate for the hearing officer to set aside its denial. The trial court remanded the matter to the hearing officer with instructions to supplement the decision with further findings and analysis.

In June 2014, the hearing officer adopted supplemental findings. The officer found that Lamar's re-erection of the billboard was a new "placement" under the Outdoor Advertising Act (the "State Act"), and violated the billboard exclusion zone. The officer rejected Lamar's claim that the placement of the new billboard was either "customary maintenance" under the State Act or repairs to a "partially destroyed or damaged structure" under LACC section 22.56.1510 such that the reconstruction of the billboard was exempt from local permitting requirements. The hearing officer denied the administrative appeal, concluding the billboard was completely destroyed because every element of the billboard aside from the poles had to be replaced.

7. Lamar Files a Petition for Writ of Mandate Challenging the Findings

In June 2016, Lamar filed a petition for writ of mandate challenging the hearing officer's affirmance of the Department's enforcement order. The trial court denied the petition holding: (1) The re-erection of the billboard was not "customary maintenance" such that the State Act exempted the work from local and state regulation, but was rather a "placement" subject to local permitting requirements; and (2) Substantial evidence supported the hearing officer's finding that the billboard was completed destroyed, not "partially destroyed or damaged" and thus could not be repaired without a permit under LACC section 22.56.1510. Lamar timely appealed.

DISCUSSION

1. Standard of Review

"The claim essentially attacks the [agency's] order as an abuse of discretion. Code of Civil Procedure section 1094.5 permits trial court review of quasi-judicial administrative decisions, that is, decisions that result when the agency has exercised its discretion and applied the governing regulations and law to a particular factual situation. For this purpose, an abuse of discretion is established if the respondent has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. [Citation.] To the extent the question turns on factual disputes, we review the trial court's ruling in the light most favorable to the judgment, considering only whether it is supported by substantial evidence. [Citations.]" ( Golden Gate Water Ski Club v. County of Contra Costa (2008) 165 Cal.App.4th 249, 256–257, 80 Cal.Rptr.3d 876.) Where facts are undisputed or policy concerns are weighed, we review the administrative decision de novo. ( Ibid. )

2. State and Local Regulation of Billboards

"The Outdoor Advertising Act ( Bus. & Prof. Code, § 5200 et seq. )² [ ] regulates advertising displays (i.e., billboards) adjacent to interstate or primary highways in California."³ ( D'Egidio v. City of Santa Clarita (2016) 4 Cal.App.5th 515, 518, 209 Cal.Rptr.3d 176 ( D'Egidio ).) CalTrans is responsible for enforcing the State Act. (§§ 5250–5254.) However, its authority is not exclusive. ( Stearn v. County of San Bernardino (2009) 170 Cal.App.4th 434, 444, 88 Cal.Rptr.3d 330.) Section 5230 authorizes local agencies to impose restrictions on billboards that are equal to or greater than those imposed by the State Act if imposed in compliance with section 5412. ( Ibid. ) Section 5412 provides that, "no advertising display which was lawfully erected anywhere within this state shall be compelled to be removed, nor shall its customary maintenance or use be limited ... without payment of compensation...."⁴

Under section 5412, once a billboard is erected, the owner may undertake "customary maintenance" without interference from local authorities unless the owner is compensated for any loss. "Customary maintenance" is defined in Regulation 2270 as "any activity performed" on an advertising display "for the purpose of actively maintaining the Display in its existing approved physical configuration and size dimensions at the specific location" approved on the CalTrans...