And The Sign Came Tumbling Down . . .

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In a recent inverse condemnation action, the owner of a “wallscape”[a billboard sign on the side of a building], West Washington Properties, LLC, argued that the California Department of Transportation (“Caltrans”) was barred from enforcing the Outdoor Advertising Act (Business and Professions Code section 5200, and following) (“the Act”), because it had not issued a notice of violation of the Act in the 20 years the sign had been on display on the building.  The lower court rejected these arguments and the court of appeal affirmed.   (See, West Washington Properties, LLC v. California DOT (Oct. 10, 2012) Cal.App.4th, No. B233295)

The wallscape had been on display since 1984 without a permit.  West Washington Properties purchased the building in 1999 in part based upon the over $12,000,000 the sign was valued to be worth over the years of future advertising.  In 2006, a Caltrans field inspector took note of the sign and determined it violated the Act because it required, but did not have, a permit and it was too large given its proximity to the interstate. West Washington argued that Caltrans was barred from issuing the violation or requiring a permit because it had been over five years since the sign was erected and therefore the sign was presumed to be legal and on the grounds of equitable estoppel [reliance on lack of permit].  

The court found that the lack of a permit may rebut the presumption of lawful erection if Caltrans establishes a permit was required for the display and none was sought or issued.  Such as in this case.  In the underlying action, the two sides had stipulated that the display fell under the purview of the Act, that no one ever sought a permit for the display, that the wallscape was larger than 1,200 square feet and in a business area within 660 feet of an interstate.  Thus, at the time of its creation, the sign required a permit, and therefore, was not lawfully erected.

The court also found that non-enforcement of the placement of billboards in violation of the Act would essentially be permitting the expansion of a nonconforming use in violation of a law intended to benefit the public and which represented a strong public policy - - preventing nuisances.  West Washington also failed to show its reliance on Caltrans’ inaction was reasonable.  It purchased the building without any affirmative statements or actions from Caltrans that a permit was not required or that Caltrans would not issue a violation.  Indeed, West Washington’s principal testified it did not attempt to determine whether the wallscape had a valid Caltrans’ permit prior to purchase.   The sign was required to be removed.        

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