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10/19/93 NATIONAL ADVERTISING COMPANY v. MISSOURI

October 19, 1993

NATIONAL ADVERTISING COMPANY, PLAINTIFF-APPELLANT
v.
MISSOURI STATE HIGHWAY AND TRANSPORTATION COMMISSION AND THE CITY OF ST. LOUIS, DEFENDANTS-RESPONDENTS



Appeal from the Circuit Court of the City of St. Louis. Hon. Timothy J. Wilson.

Kent E. Karohl, Judge, Kathianne Knaup Crane, P.j., & Lawrence G. Crahan, J., concur.

The opinion of the court was delivered by: Karohl

Plaintiff appeals after trial court decreed, inter alia, St. Louis City Zoning Ordinance #60704, which prohibits the construction of any new off-premises commercial signs as of March 11, 1988, is valid and not preempted by the Missouri Billboards Act § 226.500 to § 226.600 RSMo. Cum. Supp. 1990 (partially revised 1992), which permits said signs. We reverse.

Plaintiff, National Advertising Co. (National), engages in the business of erecting signs upon which advertisements are displayed. Currently at issue are two privately-owned parcels of land zoned industrial and located within the City of St. Louis along an interstate highway. On these parcels, plaintiff wishes to erect and maintain off-premises commercial signs. However, St. Louis zoning ordinance #60704 prohibits the construction of new off-premises commercial signs as of March 11, 1988.

National filed permit applications with the Missouri State Highway and Transportation Commission (Commission), which is responsible for administering and enforcing the Missouri Billboards Act, § 226.500 to § 226.600, RSMo. Cum. Supp. 1990 (partially revised 1992), (the Act). State permit inspectors determined that both proposed signs complied with all provisions and regulations of the Act. However, on February 14, 1989, the Commission refused to issue state permits because as of that date, state permits were not required for signs in areas zoned commercial or industrial. After a 1992 revision in the Act, permits were issued to National.

National filed suit in Cole County against both the Commission and the City of St. Louis. National wanted the court to declare the zoning ordinance was preempted by the Act. The Circuit Court held the ordinance was not preempted by the Act, and therefore, the Commission was not required to issue state permits. Plaintiff appealed. In January of 1991, the Missouri Court of Appeals, Western District, decided on jurisdictional grounds the case had been improperly tried in Cole County and should have been brought in St. Louis.

The same cause was retried September 10, 1991, in St. Louis Circuit Court. The St. Louis court also decided the Commission was not required to issue permits to National because the Act did not preempt the zoning ordinance. We disagree.

Our legislature recently amended the Billboards Act. The amendment, which took effect August 28, 1992, changed the Act to now require state permits for signs on land zoned commercial or industrial. Section 226.540(7)(a) Cum. Supp. 1992. National then reapplied for state permits. On March 2, 1993, the Commission issued permits for each proposed sign.

This change in the statute rendered moot one issue on appeal regarding whether the Commission is required to issue permits for signs on land zoned industrial or commercial within the City of St. Louis. Subsequently, National filed a motion to dismiss the appeal as to the Missouri Highway and Transportation Commission; and on March 31, 1993, we dismissed that part of the appeal. The City of St. Louis remains as the sole respondent.

The only issue on appeal is whether the Missouri Billboards Act preempts St. Louis City Zoning Ordinance #60704. We hold it does because the ordinance conflicts with the express purpose of the Act.

This case was tried on stipulated facts. We therefore need only review the trial court's Conclusions of law. Schroeder v. Horack, 592 S.W.2d 742, 744 (Mo.banc 1979). The trial court's judgment will be sustained unless it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

When construing statutes, we must ascertain the legislature's intent by considering the plain and ordinary meaning of the words used in the statute. Jones v. Dir. of Revenue, 832 S.W.2d 516,

517 (Mo.banc 1992). Additionally, the statute must be viewed as a whole and read in its entirety. A.B. v. Frank, 657 S.W.2d 625, 628 (Mo.banc 1983); Stanley v. Mo. Dir. of Revenue, 623 S.W.2d 246, 248 (Mo.banc 1981).

An ordinance may supplement or enlarge upon the provisions of a state statute by requiring more than what is required in the statute. Page Western v. Community Fire Protection, 636 S.W.2d 65, 67-68 (Mo.banc 1982); Monsanto Co. v. Cox, 791 S.W.2d 483, 48 (Mo.App. 1990). However, if the "expressed or implied provisions of each are inconsistent and in irreconcilable conflict," then the ordinance is voided or annulled by the state statute. Page Western v. Community Fire Protection, 636 S.W.2d at 6; Morrow v. City of Kansas City, 788 S.W.2d 278, 28 (Mo.banc 1990). To determine if a conflict exists, the test is whether ...


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