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Lamar Central Outdoor, LLC v. Department of Transportation

California Court of Appeals, Second District, Eighth Division

November 22, 2013

LAMAR CENTRAL OUTDOOR, LLC, Plaintiff and Appellant,
v.
DEPARTMENT OF TRANSPORTATION et al., Defendants and Respondents

APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BS131919 Soussan Bruguera, Judge.

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[Copyrighted Material Omitted]

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COUNSEL

Steptoe & Johnson and Michael F. Wright for Plaintiff and Appellant.

Ronald W. Beals, Chief Counsel, Jeanne E. Scherer, Deputy Chief Counsel, Jose Aguirre, Assistant Chief Counsel, Navtej S. Bassi and Matthew B. George for Defendants and Respondents.

OPINION

BIGELOW, P. J.

This appeal arises from a judgment denying a petition for writ of administrative mandate. The case presents issues concerning the

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proper interpretation of the Outdoor Advertising Act (hereafter, the Act).[1] Lamar Central Outdoor, LLC (Lamar) filed a petition for writ of administrative mandate to vacate a decision of the California Department of Transportation[2] (Department) denying Lamar’s application for a permit for an electronic “message center” placed next to a public highway.[3] The trial court denied Lamar’s writ petition, and entered judgment in favor of the Department. Lamar appeals. We affirm.

FACTS

In 1995, Lamar built a wooden, double-sided, “static” billboard next to Highway 58 (Rosedale Highway) in Kern County pursuant to an outdoor advertising permit issued by the Department. The billboard site is located in an unincorporated area of the county, just outside the City of Bakersfield city limits. The billboard site is located in an area zoned for medium industrial uses, and is within 1, 000 feet of numerous business and commercial activities.

In August 2008, Lamar filed a permit application for an electronic message center at the site of its existing static billboard. This application did not reach the Department. In September 2008, Lamar converted the western face of its static billboard to an electronic message center. The location of Lamar’s electronic message center is approximately 679 feet to the east of a pre-existing electronic message center. Lamar’s electronic message center consists of a “flat screen” messaging area with light-emitting diodes or LED’s. Messages are alternated by changing the color of the LED’s. Evidence presented by the Department in the trial court showed that, during a site visit in 2009, five advertisements continuously “cycled” on Lamar’s electronic message center. Each message lasted about five seconds; one entire cycle lasted about 25 seconds, and then repeated. Evidence presented by Lamar in the trial court

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showed that messages on its electronic message center “change[] less frequently than every four seconds, ” and do not “blink” or employ “moving” lights. Lamar’s evidence also asserted that messages displayed on its electronic message center “do not turn on or off, ” but this must be considered in context in that one message must necessarily “turn off” in order for a different message to “turn on.” The trial court found as a matter of law, that “all” electronic message centers which “cycle” through different advertising copy use lighting that is, “by definition, ‘intermittent.’”

In March 2009, Lamar submitted another permit application. In May 2011, the Department denied Lamar’s permit application on the ground that its electronic message center was located within 1, 000 feet of two already-existing electronic message centers on the same side of Highway 58. The Department concluded that this spacing violated the Act, specifically, section 5405, subdivision (d)(1).

In May 2011, Lamar filed a petition for writ of administrative mandate seeking to vacate the Department’s decision to deny the permit and to compel it to grant Lamar’s application for a permit. The Department filed a cross-complaint seeking injunctive relief ordering Lamar to cease using its electronic message center. The parties tried the cause to the trial court in January 2012, and the court took the matter under submission. Shortly thereafter, the court issued a statement of decision which set forth the bases for ruling that Lamar failed to meet its burden to show that the Department’s denial of the permit application was unreasonable or legally incorrect.

In June 2012, the parties executed a stipulation to dismiss Lamar’s remaining causes of action and the Department’s cross-complaint. The stipulation reads in part:

“6. The parties wish to minimize further proceedings in [the trial] court and to proceed with Lamar’s appeal [on its petition for writ of administrative mandate] as expeditiously as possible. To that end, the parties wish to facilitate issuance of a final judgment that expressly resolves all remaining causes of action.

“7. The parties therefore have agreed to dismiss, without prejudice, Lamar’s fourth, fifth and sixth causes of action and [the Department’s] cross-complaint, also without prejudice....” (Italics added.)

On July 2, 2012, the trial court entered an order on the parties’ stipulation. On the same date, the court signed and entered judgment in favor of the Department on Lamar’s writ petition.

Lamar filed a timely notice of appeal.

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