The opinion
Filed 5/8/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
LAMAR ADVERTISING COMPANY, B279643
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS141216)
v.
COUNTY OF LOS ANGELES et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Amy Hogue, Judge. Affirmed.
Gresham, Savage, Nolan & Tilden, Theodore K. Stream
and Andrea Rodriguez, 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.
__________________________
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 We use “billboard” in a colloquial sense because, as we
discuss, this appeal involves the consideration of several terms in
state statutes and a county ordinance. “Billboard” is not one of
those terms but we acknowledge it has an everyday use.
2
1 Cal.3d 875, 878 [“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
3
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
4
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
5
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.)
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.) [] regulates advertising displays (i.e., billboards) adjacent
2
2 All further statutory references are to the Business and
Professions Code unless otherwise specified.
6
to interstate or primary highways in California.”3 (D’Egidio v.
City of Santa Clarita (2016) 4 Cal.App.5th 515, 518 (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.) 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
3 An “ ‘advertising display’ refers to advertising structures
and to signs.” (§ 5202.)
4 Section 5412 provides: “Notwithstanding any other
provision of this chapter, 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, whether or not the removal or limitation is pursuant to
or because of this chapter or any other law, ordinance, or
regulation of any governmental entity, without payment of
compensation, as defined in the Eminent Domain Law . . . .”
7
approved physical configuration and size dimensions at the
specific location” approved on the CalTrans permit.5
The State Act expressly recognizes local authorities’ power
to regulate the “placement” of a billboard. (E.g., §§ 5229, 5231.)
For example, section 5231 allows local authorities to require a
permit for placement of a sign. The State Act defines
“placement” as not only erecting, but “maintaining” billboards.
(§ 5225.) “ ‘Maintaining’ necessarily takes place after the initial
construction of the billboard, and such activity is excluded from
the definition of ‘placement’ only if it constitutes ‘customary
maintenance.’ Therefore, re-erection amounts to a ‘placement’ of
the billboard. [Citations.]” (Viacom Outdoor, Inc. v. City of
Arcata (2006) 140 Cal.App.4th 230, 243 (Viacom).) Thus, under
state law, a municipal authority may require a billboard owner to
obtain a permit before reconstructing a billboard blown over in a
storm. (Id. at pp. 246–247.)
3. The Trial Court Properly Denied the Petition for Writ of
Mandate
On appeal Lamar claims the trial court’s judgment is wrong
under both state and local law. First, Lamar argues that the
rebuilding of the billboard constituted “customary maintenance”
protected by the State Act, not a “placement” subject to local
5 Regulation 2270 provides: “ ‘Customary maintenance’
means any activity performed on a 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 application for State Outdoor Advertising
Permit, or at the specific location officially recorded in the records
of the Department for a legally placed Display, for the duration of
its normal life.”
8
permitting requirements. According to Lamar, the trial court’s
finding that the billboard was completely destroyed and,
therefore, was re-erected as a new “placement,” was both based
on an erroneous interpretation of “destroyed” and was not
supported by substantial evidence. Lamar also argues that
LACC section 22.56.1510 specifically authorized it to conduct
repairs. Lamar contends that, as defined in that ordinance, its
rebuilding of the billboard constituted routine repairs to a
“damaged” or “partially damaged” billboard. (LACC §
22.56.1510(G).) We find neither argument persuasive.
Many of Lamar’s arguments are predicated on its
interpretation of the word “destroyed” and other terms used in
the applicable statutes and the county ordinance. As to the State
Act, we ultimately conclude that Lamar’s re-erection of the
billboard was a statutory “placement.” As to the County
ordinance, we conclude that, under the plain and ordinary
meaning of “destroyed” under LACC section 22.56.1510,
substantial evidence supports the finding that the windstorm
destroyed the billboard. In light of these interpretations, we
conclude the billboard’s reconstruction was properly subject to
the County’s permitting requirements, and the trial court’s ruling
was correct.
A. The State Act and Regulations
Lamar argues that the work done on its billboard qualifies
as “customary maintenance” and not a new placement under two
regulations and the State Act itself. We address each separately.
i. Regulation 2270
Lamar contends that section 5412 prohibited the County
from regulating the rebuilding of the billboard without
compensation. Specifically, Lamar argues that the re-erection of
9
the billboard was not a “placement” but fell within section 5412’s
definition of “customary maintenance.” According to Lamar,
section 5412 prohibited the County from “limiting” the repairs
through a permit process.
In support, Lamar cites to Regulation 2270 which defines
“customary maintenance” as used in section 5412 as “any activity
performed on a 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
application for State Outdoor Advertising Permit . . . for the
duration of its normal life.” Subdivision (a) of Regulation 2270
specifies activities included in “customary maintenance,” such as
“changing of the advertising message” or “adding a light box.”6 (4
C.C.R. § 2270(a).) Subdivision (b) specifies that “customary does
not include . . . [for example,] increasing any dimension of a
facing . . .”7 (4 C.C.R. § 2270(b) (emphasis added).)
6 Regulation 2270(a) provides: “Customary maintenance
includes the following activities: (1) Changing of the advertising
message. (2) Adding an Extension to an outside dimension of a
Display as incident to the copy for a temporary period up to three
years. (3) The sale, lease, or transfer of the Display or its Permit.
(4) Adding a Light Box.”
7 Regulation 2270(b) provides: “Customary does not include
the following (all of which acts are considered as a ‘placing’ of a
new advertising Display): (1) Raising the height of the Display
from ground level. (2) Relocating all or a portion of a Display. (3)
Adding a back-up Facing to a single Facing Display. (4)
Increasing any dimension of a Facing except as permitted by
Section 2270(a)(2). (5) Turning the direction of a Facing.
(6) Adding illumination or a Changeable message, including, but
not limited to, ‘tri-vision’ signs, with the exception of a light box.”
10
Lamar argues that its reconstruction of the billboard was
“customary maintenance” under Regulation 2270 because (1)
Lamar installed a smaller wood surface and Regulation 2270’s
definition excludes “increasing any dimension of a facing” (4
C.C.R. § 2270(b)); and (2) adding a light box is expressly included
as customary maintenance (4 C.C.R. § 2270(a)).
We conclude that Lamar’s reconstruction of the billboard
did not “actively maintain[] the Display in its existing approved
physical configuration and size dimensions,” and therefore, did
not constitute customary maintenance under Regulation 2270.
First, Lamar’s argument that the definition automatically allows
erecting a smaller billboard face on fewer posts than approved by
the state permit is belied by the regulation’s mandate that the
customary maintenance not alter the billboard’s existing “size
dimensions” or approved “physical configuration.”
Second, although Lamar argues that its addition of an
electrical box is equivalent to the addition of a “light box” allowed
under the customary maintenance definition, the regulations
elsewhere define “light box” as a “sign cabinet” that has a lighted
message. (4 C.C.R. § 2242(q).) Accordingly, Lamar’s addition of
an electrical box does not qualify as a “light box” that a billboard
owner may add as part of customary maintenance.
Third, Lamar’s repairs were not merely incidental to
erecting a smaller billboard, but included new lighting, a new
electrical box and wiring, new lateral supports, and a new
catwalk. Essentially, the repairs replaced and upgraded the
entire display mounted on the posts. Because of Lamar’s
alteration of the size dimensions and addition of several new
components to the physical configuration, the reconstruction of
11
the billboard did not fall within Regulation 2270’s definition of
“customary maintenance.”
ii. Regulation 2271
Lamar next cites Regulation 2271. Regulation 2271
provides that a billboard “is destroyed and not eligible for
customary maintenance when for 60 days after notice from
[CalTrans], it remains damaged and is not used for the purpose of
outdoor advertising in the configuration . . . approved by
[CalTrans].”8 (4 C.C.R. § 2271(a).)
Lamar acknowledges that Regulation 2271 deals with the
procedures for maintaining a CalTrans permit, but argues that
the regulation also sets forth the definition of “destroyed” as used
in the State Act generally and inferentially as used in the county
ordinance. Specifically, Lamar argues that, under Regulation
2271, a billboard is only destroyed if it is not rebuilt within 60
days of notice from CalTrans. Its billboard was not “destroyed”
because Lamar repaired the billboard “prior to even receiving a
notice from CalTrans.” Lamar then concludes that because the
billboard was not destroyed, the reconstruction was not a
placement, but only customary maintenance. We disagree.
Regulation 2271 does not purport to define when a
billboard is only damaged and not destroyed. “Regulation 2271
addresses only certain circumstances that will not result in loss
of a CalTrans permit.” (Viacom, supra, 140 Cal.App.4th at
p. 242.) It follows that the regulation does not address the
8 Regulation 2271(a) provides: “A Display is destroyed and
not eligible for customary maintenance when for 60 days after
notice from the Department, it remains damaged and is not used
for the purpose of outdoor advertising in the configuration (size,
Facings, location, structure) approved by the Department.”
12
County’s requirement that Lamar apply for a permit prior to
rebuilding the billboard. At most Regulation 2271 defines
conditions under which a billboard is deemed “destroyed” under
the State Act. It does not purport to define the term for all
purposes. Rather, Regulation 2271 creates a limited exception to
an owner’s right to conduct customary maintenance: the owner
forfeits the right of customary maintenance if the owner has not
responded in a timely manner to a CalTrans notice of damage.
iii. The State Act’s Definition of “Advertising
Display”
Lamar next argues that the trial court used an incorrect
definition of “advertising display” under the State Act when it
concluded the billboard was destroyed and “not eligible for
customary maintenance.” The State Act expressly regulates
“advertising displays,” which is the term one court has equated
for the common term billboard. (D’Egidio, supra, 4 Cal.App.4th
at p. 518.) Here, the trial court concluded that because the entire
advertising display fell over in the windstorm, the billboard was
completely destroyed and its re-erection was a placement. Lamar
argues that an “advertising display” is reasonably interpreted as
the entire billboard structure, including the support poles. Under
its interpretation, because some of the support poles did not fall
over in the windstorm, the advertising display was not
completely destroyed. We disagree.
The State Act uses the term advertising display as follows.
An “ ‘advertising display’ refers to advertising structures and to
signs.” (§ 5202.) An “advertising structure” “means a structure
of any kind or character erected, used, or maintained for outdoor
advertising purposes, upon which any poster, bill, printing,
painting or other advertisement of any kind whatsoever may be
13
placed . . . .” (§ 5203.) “The verb, ‘to place’ and any of its
variants, as applied to advertising displays, includes the
maintaining and the erecting, constructing, posting, painting,
printing, tacking, nailing, gluing, sticking, carving or otherwise
fastening, affixing or making visible any advertising display on or
to the ground or to any tree, bush, rock, fence, post, wall,
building, structure or thing.” (§ 5225 (emphasis added).)
We interpret the above provisions to define an “advertising
display” as a “structure” with a flat surface “upon” which an
advertisement is “placed.” (§§ 5202 & 5203.) Section 5225, in
turn, provides that an “advertising display” is “place[d]” when it
is “affix[ed]” “to any . . . post.” Accordingly, the statute clearly
distinguishes the “advertising display”—the flat structure
displaying the advertisement—from the posts upon which it is
mounted.
Here, Lamar replaced the billboard mounted upon the
posts. In other words, it replaced the entire “advertising display.”
This interpretation belies Lamar’s claim that it only engaged in
“customary maintenance” of the existing billboard. We agree
with our colleagues in the First District that “re-erection
amounts to a ‘placement’ of the billboard” under the State Act,
and is properly subject to local permitting requirements.
(Viacom, supra, 140 Cal.App.4th at p. 243.)
B. LACC Section 22.56.1510
Lamar argues that, even if the State Act authorized the
County generally to regulate the reconstruction of its billboard,
the County’s own ordinance exempted Lamar’s reconstruction
from the permitting process. Lamar cites to LACC section
22.56.1510 which provides: “Any building or structure
nonconforming due to use and/or standards which is damaged or
14
partially destroyed may be restored to the condition in which it
was immediately prior to the occurrence of such damage or
destruction, provided: (1) that the cost of reconstruction does not
exceed 50 percent of the total market value of the building or
structure . . .; and (2) that all reconstruction shall be started
within one year from the date of the damage and be pursued
diligently to completion.” (LACC § 22.56.1510(G) (emphasis
added).)
Lamar contends that this ordinance defines when a
structure is “damaged” or “partially destroyed” such that repairs
“may be” performed subject to the cost and time limitations.
Lamar refines its argument as follows: “if repairs to a non-
conforming structure satisfy these two requirements”—(1) the
cost does not exceed 50 percent of the fair market value, and
(2) repairs are started within a year of the date of the damage—
“by definition, the structure is simply ‘damaged’ or ‘partially
destroyed’ and reconstruction is expressly authorized.” Lamar
points out that because its repairs were indisputably less than
50 percent of the billboard’s fair market value and begun in a
timely fashion, the billboard was only “damaged or partially
destroyed,” and Lamar needed no permit.
We disagree that LACC section 22.56.1510 defines the
terms “damaged” or “partially destroyed.” Rather, the ordinance
defines the conditions under which repairs may be performed on
a non-conforming structure that is damaged or partially
destroyed. Whether a billboard is damaged or partially destroyed
is subject to the word’s plain and ordinary meanings unless
otherwise defined in the local provisions. (C.Y. Development Co.
v. City of Redlands (1982) 137 Cal.App.3d 926, 929 [“The
construction of a municipal initiative or ordinance is governed by
15
the same rules as the construction of statutes. . . . As a general
rule, the court must interpret a statute by looking to the plain
meaning of the words of the statute.”].)
“Destroy” is commonly understood to mean “to render
ineffective or useless.” (Dictionary.com <http://dictionary.com>
[as of May 8, 2018] (citing Random House Dictionary (2018))
(entry for “destroy,” 4th definition).) Here, we conclude that the
plain and ordinary meaning of “destroyed” as used in LACC
section 22.56.1510 means damaged to the extent the billboard
entirely loses its functionality. When the ordinance is properly
defined, substantial evidence supports the trial court’s finding
that the billboard was destroyed. The billboard could no longer
function in any way as an advertising surface. In fact, the
billboard was unrecognizable as such after the windstorm, but
consisting only of some remaining telephone posts and lateral
boards. There was no message for the motoring public to see. The
evidence showed that after the windstorm, Lamar replaced the
entire advertising display mounted upon the posts. This
constituted substantial evidence that the billboard had been
completely “destroyed,” not just “damaged” or “partially
destroyed.” Thus, LACC section 22.56.1510 did not exempt the
billboard from the County’s permitting requirements.
///
///
16
DISPOSITION
The judgment is affirmed. Respondents are awarded their
costs on appeal.
RUBIN, J.
WE CONCUR:
BIGELOW, P. J.
GRIMES, J.
17