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08/02/83 STATE MISSOURI EX REL. WHITE ADVERTISING

August 2, 1983

STATE OF MISSOURI EX REL. WHITE ADVERTISING INTERNATIONAL, RESPONDENT
v.
STATE HIGHWAY COMMISSION OF MISSOURI, APPELLANT



From the Circuit Court of Cole County; Civil Appeal; Judge Byron L. Kinder.

Before Turnage, P.j., Pritchard, Kennedy, JJ.

The opinion of the court was delivered by: Kennedy

This is an appeal by the State Highway Commission from a judgment of the Circuit Court of Cole County vacating an order of the Commission requiring a certain highway sign of White Advertising International to be removed.

We reverse the judgment of the trial court and reinstate the order of the Commission.

White Advertising International erected an outdoor advertising sign adjacent to Route 65 in Christian County, Missouri, one-half mile south of the point where Route 14 intersects the same. The sign was erected November 18, 1971. The Commission had issued a permit for said sign under date of September 9, 1971, pursuant to a written application of White Advertising which was filed August 23, 1971.

The application for permit, filed before the erection of the sign, had represented the location of the sign as being "within 1000 feet of an existing commercial or industrial activity, . . . being car dealer." The words "car dealer" are printed by hand, while the other words were printed on a form supplied by the Commission. The form listed the several situations in which a sign could be lawful, none of the others of which applied to this sign. Actually, as will be shown later in this opinion, the sign was 2,376 feet from any car dealer's premises. The application said, "Applicant understands and agrees that the license to be issued for said sign is conditioned upon complete compliance with existing laws and upon the verity of the representation herein made by applicant and that same is invalid should the sign involved be found to be nonconforming under Missouri law."

The first permit (September 9, 1971) expired by its terms on December 31, 1971. The permit was renewed March 13, 1972, apparently automatically without another application by White Advertising. This permit expired by its terms on December 31, 1972.

An "Application to Renew Current Permit to Maintain Outdoor Advertising," dated January 12, 1973, was filed by White Advertising. This application was on a printed form furnished by the Commission. In the upper right-hand corner of the application is printed the words "permanent permit." There had been no such designation on the first application filed by White Advertising, nor any such designation on either of the two annual permits which had been issued. *fn1 Mr. Hayter, permit inspector for District 8 of the Highway Commission, found upon inspection that there was no commercial or industrial activity within 1,000 feet of the sign. As a matter of fact, the nearest commercial or industrial activity was the Campbell Ford dealership, which was located 2,376 feet from the sign. The Commission therefore did not grant the application of White Advertising for the "permanent permit."

The sign remained where it was with no current permit. On October 11, 1978, the Commission gave notice to White Advertising to remove the sign. The reason given by the notice was that "he sign was erected after January 1, 1968, but before March 30, 1972, contrary to the: . . . location provisions of Sections 226.520 and 226.540 RSMo 1969." This notice to remove sign precipitated the present certiorari action, which resulted in the circuit court order appealed from, holding the Commission order to remove sign "not authorize."

There is no doubt the sign was unlawfully located from the time of its erection in 1971 down to and including the time of the hearing in the present case. The only attempted justification for the sign's location was its proximity to a "commercial or industrial activity." It was upon that representation that the original permit was issued, and it was upon that contention that its location is sought to be defended both in the circuit court and here.

The parties stipulated that the sign at the time of the hearing (May 13, 1982) was 2,376 feet from the Campbell Ford dealership. They further stipulated that in January 1973 when Mr. Hayter made his inspection, "there was no commercial or industrial activity within 1,000 feet of the sign." They further stipulated that:

Bill Hayter, permit inspector for Respondent's District 8, if called to testify, would state that he is familiar with the location of the sign. Although Mr. Hayter did not become permit inspector for this District until June, 1972, he has lived and worked in this area since before the sign's erection (i.e. November 18, 1971), and he would testify that at the date of erection of the sign the closest commercial or industrial activity was the Campbell Ford dealership at the junction of Route 14 and Route 65. Mr. Hayter would also testify that the Campbell Ford dealership never extended any further than it is at present.

White Advertising contends, in the face of the foregoing stipulation, that this does not prove that the sign at the time of its erection (November 18, 1971) was not within 1,000 feet of a commercial or industrial activity. The trial court adopted as its findings of fact the fact stipulation of the parties. The court then states as a "Conclusion of law" that "here is no direct evidence that the sign was not within 1,000 feet of a commercial or industrial activity at the time it was erected."

White Advertising takes the position that the Commission has the burden of proof to prove the allegations of its notice, and that it ...


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