OAH Docket No. 11-3000-17324-2
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF TRANSPORTATION
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In the Matter of the Removal of the Franklin Outdoor Advertising Company Billboard Structure Located Near Trunk Highway 371 North of County Road 46 in Morrison County
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FINDINGS OF FACT, CONCLUSIONS, AND RECOMMENDATION |
This matter came on for hearing before Administrative Law Judge Barbara L. Neilson on October 2, 2006, at the Office of Administrative Hearings, 100 Washington Avenue South, Suite 1700, Minneapolis, Minnesota. The record closed on December 11, 2006, upon receipt of a complete copy of Exhibit 49.
David L. Phillips, Assistant Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN 55101-2134, appeared on behalf of the Department of Transportation. Richard T. Thomson, Attorney at Law, Lapp, Libra, Thomson, Stoebner & Pusch, Chartered, 120 South Sixth Street, Suite 2500, Minneapolis, MN 55402, appeared on behalf of Franklin Outdoor Advertising Company.
The issue presented in this case is whether or not the Minnesota Department of Transportation properly determined that Franklin Outdoor Advertising Company’s advertising device located northeast of Little Falls on the west side of Trunk Highway 371, north of County State Aid Highway 46, must be removed because that segment of T.H. 371 is a “fully controlled–access freeway” within the meaning of Minn. Stat. § 173.16, subd. 4(d), and the device therefore may not be located within 500 feet of the interchange.
Based upon all of the proceedings herein, the Administrative Law Judge makes the following:
1. Trunk Highway 371 runs in a primarily north-south direction between U.S. Highway 10 northeast of Little Falls and U.S. Highway 2 in Cass Lake.[1] T.H. 371 is designated by statute as one of the routes of the trunk highway system, and is included on Mn/DOT’s map of Minnesota’s primary highways.[2]
2. During the approximate time period of 2004-2005, the Minnesota Department of Transportation (“Mn/DOT” or “the Department”) relocated an eight-mile stretch of Trunk Highway 371 just northeast of Little Falls in Morrison County. The reconstructed portion of T.H. 371 runs from its junction with Trunk Highway 10 in the south to its junction with County State Aid Highway (“CSAH”) 48 in the north.[3] This segment of T.H. 371 was built to the standards of a controlled-access freeway.[4] As noted in the Final Environmental Impact Statement, the freeway design “incorporates a 70-mph design speed with flatter curves, a wider median, and gentler side slopes facilitating safer travel, fewer roadside obstacles and easier recovery from run-off-the-road incidents” and “[f]reeway style access onto and off of TH 371 via ramps improves safety by eliminating crossing traffic and left turning traffic and providing acceleration and deceleration areas for vehicles to get up to highway speed.”[5]
3. Mn/DOT has built portions of a number of sections of trunk highways in the state to meet freeway design standards. Apart from interstates, it is rare for an entire highway to be freeway-designed.[6] In the future, Mn/DOT also plans to have U.S. 10 from St. Cloud to Little Falls meet freeway standards.[7]
4. Franklin Outdoor Advertising Company (“Franklin” or “the Company”) built the advertising device at issue in this case (“the Sign”) in October 2005, near CSAH 46. CSAH 46 passes under T.H. 371 and exit and entrance ramps must be used to access T.H. 371 from CSAH 46. The Sign is located on the Brisk property, on the west side of the new segment of T.H. 371 north of CSAH 46 and west of the interchange ramp connecting CSAH 46 and new T.H. 371.[8]
5. The parties have stipulated that the Sign is located “outside of an incorporated city” and “within 500 feet of an interchange, intersection at grade, or safety rest area,” within the meaning of Minn. Stat. §173.16, subd. 4(d). They also agree that the reconstructed segment of T.H. 371 is not an “interstate highway” within the meaning of the statute.[9] Mn/DOT agrees that the only impediment to issuance of a permit for the Sign stems from its interpretation of the relevant statute and rules to prohibit location of the Sign within 500 feet of the interchange.[10]
6. It is undisputed that the Sign is located more than 300 feet from the closest interchange and intersection at grade. According to Franklin’s measurement, the Sign is located 960 feet from the center point of the two roadbeds where the exit ramp from 371 intersects CSAH 46 at grade.[11]
Background
7. Franklin entered into a lease with Edmund and Bertha Brisk in 1993 that permits Franklin to have three sign locations on certain property owned by the Brisks that abuts T.H. 371 northeast of Little Falls. Under the terms of the lease, Franklin may elect to either terminate the lease or relocate its signs on the Brisk property if the view of the structure from the highway is obscured, a change in highway traffic direction occurs, or traffic is diverted from the highway.[12]
8. The Commissioner of Transportation initiated condemnation proceedings in 2004 to obtain access control rights with respect to certain property involved in the T.H. 371 reconstruction project.[13] The property owned by the Brisks was not involved in those proceedings. A portion of the Brisks’ property within the T.H. 371 right-of-way was acquired by Mn/DOT by deed recorded on October 6, 2004, but the land acquired by Mn/DOT did not include the land to the west on which the Sign at issue in this proceeding is located.[14]
9. Due to the plans to relocate T.H. 371, Franklin elected under its lease with the Brisks to relocate the sign authorized by Permit No. 4782 to another spot further to the east on the Brisk property, along the pathway of the reconstructed T.H. 371. In Franklin’s experience, Mn/DOT often allows sign permits to be transferred to new locations when roads are moved. Franklin has seen that happen on at least twelve occasions in the past, including two signs located north of the Sign in question in this proceeding that had to be moved because T.H. 371 was going to be relocated.[15] In this instance, Franklin expected Permit No. 4782 would be transferred to the new location of the Sign at issue in this case or, in the alternative, that Mn/DOT would issue a new permit for that Sign.[16]
10. By letter dated May 21, 2004, Franklin’s leasing manager, Steven Anderson, sent a letter to Richard Munsch of Mn/DOT enclosing two new permit applications, one for an additional sign on the Brisk property (No. 10252) and one for another location (No. 10253). Mr. Anderson indicated in his letter to Mr. Munsch that the locations “meet permit criteria” and Franklin intended to “place these signs off of the proposed new highway 371.” Mr. Anderson stated that the Mn/DOT map of the proposed realignment near the Brisk property showed the anticipated location of the signs. The permit application for Permit No. 10252 indicated that the “distance from center of highway to nearest corner of device” would be 300 feet, and the sketch of the location showed that the distance from CSAH 46 to the proposed sign would be 300 feet.[17]
11. Although the location described in Permit No. 10252 is “fairly close” to where the Sign at issue in this proceeding was located, Franklin does not contend that this permit related to the Sign involved here. In fact, the sign relating to Permit No. 10252 was never built by Franklin.[18]
12. By letter dated June 21, 2004, Mr. Munsch responded to Franklin’s applications for Permit Nos. 10252 and 10253. Mr. Munsch indicated that the permits Franklin was seeking were “in the area of the planned new construction of TH 371” and “the exact location of crossovers, entrances and the new alignment of TH 371 are not located in the field at this time.” Mr. Munsch advised Mr. Anderson to “find this location out before construction of the signs” and indicated that Mn/DOT “will not take part in any relocation of the two signs, if they are located in an area that does not meet the criteria for outdoor advertising.” Mr. Munch further indicated that, “[d]ue to the 120-day period from permit to constructed and installed, the two signs will be constructed far in advance of the new construction. Please make every effort to avoid any potential problems with your advance locate.”[19] Even though the letter did not explicitly state that the permit applications were granted, Steven Anderson, Franklin’s leasing manager, understood this letter to mean that the permits were being granted, and Mr. Munsch agreed that he approved the permits if the signs met all criteria at their location.[20] There was no mention in Mr. Munsch’s letter that the proposed signs would have to be located more than 500 feet from the interchange.
13. On or about June 13, 2005, Mn/DOT issued an automatically-generated yearly invoice to Franklin reflecting amounts owed with respect to various permits, including Permits No. 4782 and 10252. Franklin made the requested payment to Mn/DOT on approximately June 30, 2005.[21] Because Permit No. 10252 would have expired 120 days after it was issued and the sign was never built by Franklin, Franklin should not have been billed for that fee.[22]
14. Franklin obtained a permit to build the Sign from Morrison County and the Township of Belle Prairie, where the Sign is located.[23]
15. On or about September 1, 2005, RMG Outdoor, Inc., provided Franklin with a bid for two sign structures indicating that the price per structure would be $21,100. Franklin accepted that offer on or about September 1, 2005, and RMG sent an invoice for the structures to Franklin on or about September 30, 2005.[24]
16. On or about September 28, 2005, Franklin placed a rush order with Tiffin Metal Products Co. for materials to be delivered by October 13, 2005, for the sign face.[25]
17. By letter dated September 28, 2005, Mr. Anderson sent Mr. Munsch a permit application for an additional sign on the Brisk property (not the Sign at issue here). In the cover letter, Mr. Anderson noted that “this application will be a third permit on the Brisk property” and stated that Franklin “currently hold[s] two permits (#4782 and #10252) on the property.” He indicated that he anticipated “starting construction on these sites ASAP as the new highway 371 is now open. We hope to have our sign relocations and new sites completed by January 1, 2006.”[26]
18. Mr. Munsch first became aware that Franklin was planning to put up the Sign at issue in this proceeding on September 28, 2005, when he received Franklin’s letter of that date.[27]
19. Mr. Munsch took photographs of the proposed location of the Sign on October 10 or 11, 2005. At that time, construction had not yet commenced on any of the Franklin signs.[28]
20. Mr. Munsch spoke to Steve Anderson of Franklin on the telephone on October 10, 2005, and told him he could not relocate the two signs on the Brisk property because they were too close to the ramp.[29] By letter to Franklin dated October 10, 2005, Mr. Munsch confirmed that the signs under Permits 4782 and 10252 “will not be allowed to be relocated along T.H. 371 under the existing permits. The new alignment of T.H. 371 now has controlled access, and these signs would fall within the ramp areas of T.H. 371.” Mr. Munsch relied in the letter upon Minn. Stat. § 173.16, subdivision “4b” but actually quoted the language of subdivision 4(d) of that statute.[30]
21. Mr. Munsch’s letter was dated Monday, October 10, 2005, which was Columbus Day, a federal holiday. The letter was not postmarked until October 14, 2006, and was not received by Franklin until some time after that date.[31] However, Mr. Munsch also faxed the letter to Franklin on October 11, 2005, and had a conversation with Mr. Anderson of Franklin about the Sign on October 10, 2005, during which he informed Mr. Anderson of Mn/DOT’s objection to the signs.[32]
22. By email to Rep. Steve Sviggum dated October 11, 2006, Erik Rudeen, Mn/DOT’s Legislative Liaison, indicated that Mn/DOT would issue Franklin permits to move its signs to the new bypass but stated that, “since this is a controlled-access portion of highway the signs cannot be within 500 feet of an off-ramp.”[33]
23. After consulting with the owner of Franklin and Franklin’s attorney, Mr. Anderson decided to proceed with construction of the Sign based on Franklin’s view that the Sign did not violate the applicable statute. Construction of the Sign began on October 11, 2005, and was completed on October 14, 2005. Franklin has operated the Sign since that time.[34]
24. Mn/DOT agreed that, if Franklin brought a contested case hearing challenging Mn/DOT’s right to have the sign removed, Mn/DOT would take no direct action until the issue was resolved.[35]
25. T.H. 371 is a four-lane divided highway from its intersection with U.S. Highway 10 near Little Falls to just south of Nisswa, and a two-lane undivided roadway north of that point.[36] There are numerous at-grade intersections, driveways, and business entrances located north of the reconstructed segment along the four-lane portion of T.H. 371[37] and the two-lane portion of T.H. 371.[38] Approximately three miles north of the Sign, there is an at-grade intersection at County Road 48.[39] Between the northern boundary of the reconstructed segment of T.H. 371 and its terminus in Cass Lake, there are more than 600 at-grade intersections with field roads, county roads, township roads, and driveways.[40]
26. The fencing in the reconstructed portion of T.H. 371 was completed during approximately the summer of 2006.[41] T.H. 371 is not currently fenced along its entire distance, although there is some fencing in the portion that is a four-lane divided highway.[42] T.H. 371 is not a fully controlled-access freeway north of County Road 48.[43]
27. T.H. 371 remains a trunk highway for its entire length, including the portion where the Sign is located, even though the eight-mile reconstructed segment was constructed to the standards of a fully controlled-access freeway.[44]
28. The plat showing the area on which the Sign is located shows that there is an opening in access control along CSAH 46, near the point where CSAH 46 crosses under T.H. 371 and proceeds in an east-west direction.[45] Otherwise, there is full access control shown in this area as well as in all of the other plats relating to the T.H. 371 reconstruction project.[46]
29. Approximately one mile south of the sign, a former entrance to T.H. 371 that is now unpaved has been used by Mn/DOT trucks to access an area owned by Mn/DOT to store equipment, lawn clippings and debris.[47] A picture taken by Franklin in October 2005 showed that the road was being used at that time,[48] and Mn/DOT employee Gary Dirlam noticed that it also was being used during the fall of 2006. The use of the dirt road was not authorized by Mn/DOT management personnel and, by the date of the hearing, Mn/DOT’s area maintenance engineer had ordered that its use be discontinued.[49] As part of normal highway maintenance activities, Mn/DOT vehicles are permitted to pull off the highway wherever they choose.[50]
30. All-Terrain Vehicles (ATVs) also have used the dirt road referenced in the previous Finding as well as a hilly area across T.H. 371 from that location. Both of these pathways intersect T.H. 371 at grade approximately one mile south of the Sign.[51] This reflects illegal ATV activity that is an issue for law enforcement.[52]
31. The Final Environmental Impact Statement (“EIS”) issued in December 2003 by Mn/DOT, the U.S. Department of Transportation, and the Federal Highway Administration with respect to the T.H. 371 reconstruction project noted that the Preferred Alternative was “proposed as a freeway level design from TH10 to County Road 48” and that there would be “[f]reeway style access onto and off of TH 371 via ramps,”[53] but did not explicitly refer to the project resulting in a “fully controlled-access freeway.” The Final EIS noted in part:
Use of the current grant-in-aid snowmobile trail within the right-of-way of the existing TH 371 will be impacted during construction and by the proposed alignment. It should be noted that south of 223rd Street all the way to Little Falls, the existing snowmobile/ATV trail will remain intact. The only portion of the trail that will be impacted by improvements to TH 371 is a 1.5-mile stretch north of 223rd Street (just south of County Road 48). Mn/DOT has worked with and will continue to coordinate with Mn/DNR Trails & Waterways (Crow Wing and Morrison counties) and the local snowmobile and ATV trail committees to perpetuate the existence of the grant-in-aid trail. A coordination meeting regarding this issue was held with representatives from Mn/DNR, Morrison County, and the City of Little Falls on February 3, 2003. At this meeting, it was agreed that where feasible and where trail proponents have requested accommodation, a new snowmobile/ATV trail will be accommodated within the new TH 371 project right-of-way.[54]
32. The statement in the Final EIS that there would be accommodation “where feasible” of a new snowmobile/ATV trail was not consistent with an intention to have the reconstructed segment of T.H. 371 meet freeway design standards.[55] However, there is no evidence that there are, in fact, any active, authorized snowmobile or ATV trails in the area of the T.H. 371 reconstruction project.[56]
33. Mn/DOT is not challenging another Franklin sign that is located to the south of the sign at issue that is also within 500 feet of a ramp because that sign falls within the city limits of Little Falls and thus is not subject to Minn. Stat. § 173.16, subd. 4(d). Although Mn/DOT encouraged Franklin to try to have Little Falls annex the area in which the Sign at issue is located, and some discussions have occurred with the City, no formal request has ever been made and annexation has not occurred.[57] Because the owners of the Brisk property are trying to sell it, they are concerned that annexation would increase taxes and discourage potential buyers. Franklin has not tried to purchase the Brisk property.[58]
34. There are some other situations in which advertising signs are located adjacent to interchange ramps outside city limits, but there is no evidence whether or not such signs were in place at the time the ramp structure was built and merely were allowed to remain as a non-conforming use.[59]
35. Mn/DOT has not offered Franklin any compensation in exchange for having to relocate its sign.[60]
Procedural Findings
36. By letter dated February 2, 2006, Mn/DOT requested that Franklin remove the sign and informed Franklin of its right to request a contested case hearing.[61]
37. Franklin objected to the Department’s determination and filed a timely appeal in this matter.
38. Notice of Publication of the hearing date appeared in the Transportation Regulation Proceedings Notice and Hearing Bulletin on July 21, 2006.
39. On July 19, 2006, the Department issued a Notice and Order for Hearing setting the hearing for September 7, 2006. The hearing was later continued to October 2, 2006.
Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following:
1. The Department and the Administrative Law Judge have jurisdiction to consider this matter under Minn. Stat. §§ 14.50, 173.07, and 173.13.
2. The Department gave proper notice of the hearing and has complied with all applicable procedural requirements of statute and rule.
3. Pursuant to Minn. R. 1400.7300, subp. 5, Franklin Outdoor Advertising bears the burden of establishing by a preponderance of the evidence that it is entitled to the issuance of a permit for the Sign at issue.
4. The Federal Highway Beautification Act[62] requires states to provide for “effective control of the erection and maintenance along the Interstate System and the primary system of outdoor advertising signs, displays and devices which are within six hundred and sixty feet of the nearest edge of the right-of-way and visible from the main traveled way of the system.” The term “primary system” is defined in 23 U.S.C. § 131(t) to mean “the Federal-aid primary system in existence on June 1, 1991, and any highway which is not on such system but which is on the National Highway System.”
5. The Minnesota Outdoor Advertising Control Act[63] defines the term “interstate highway” to mean “any highway at any time officially designated as a part of the national system of interstate and defense highways by the commissioner of transportation and approved by the appropriate authority of the federal government.”[64] The Act further specifies that the term “primary highway” means “any highway, other than an interstate highway, at any time officially designated as part of the federal aid primary system by the commissioner of transportation and approved by the appropriate authority of the federal government, and which shall include state trunk highways designated as such by Minnesota Statutes.”[65]
6. An “advertising device” is defined to mean “any billboard, sign, notice, poster, display, or other device visible to and primarily intended to advertise and inform or to attract or which does attract the attention of the operators and occupants of motor vehicles . . . .”[66] The Sign erected by Franklin that is involved in this case falls within the definition of an “advertising device.”
7. The Commissioner of Transportation is authorized to adopt rules governing the issuance and renewal of permits for advertising devices adjacent to the interstate and primary system of highways, provided that such rules are not more restrictive than the provisions of Minn. Stat. §§ 173.13 to 173.231,[67] and to adopt rules governing the erection and maintenance of outdoor advertising devices as may be necessary to carry out the policy of the state as set forth in Chapter 173.[68]
8. Minnesota Statutes define “controlled-access highway” to mean “any highway, street or road, including streets within cities, over, from, or to which owners or occupants of abutting land or other persons have or are to have no right of access, or only a controlled right of the easement of access, light, air, or view.”[69] The term “freeway or expressway” is defined in state statute to mean “a divided controlled-access highway with four or more lanes.”[70] These definitions are made applicable to trunk highways by Minn. Stat. § 161.01. The rules promulgated by the Commissioner define “expressway” to mean “a divided arterial highway for through traffic with full or partial control of access and generally with grade separation at intersection”[71] and define “controlled freeway” to mean “an expressway with full control of access.”[72]
9. Mn/DOT and other road authorities in the state have been given authority by the Legislature to “plan for the designation, establishment, location, relocation, improvement, and maintenance of controlled-access highways for public use whenever the road authorities determine that traffic conditions, present or future, will justify such highways;”[73] “design any controlled-access highway [and] regulate, restrict, or prohibit access as to best serve the traffic for which the highway is intended;”[74] and “establish an existing street or highway as a controlled-access highway.”[75]
10. Minn. Stat. § 173.16, subd. 4(e), prohibits advertising devices on “primary highways” within 300 feet of an intersection:
On primary highways outside of incorporated cities, no advertising device may be located closer than 300 feet from the intersection of any primary highway at grade with another highway, or with a railroad; provided that advertising may be affixed to or located adjacent to a building at such intersection in such a manner as not to cause any greater obstruction of vision than that caused by the building itself.
11. Minn. Stat. § 173.16, subd. 4(d), prohibits advertising devices on “interstate highways or fully controlled-access freeways” within 500 feet of an interchange or intersection:
On interstate highways or fully controlled-access freeways outside of incorporated cities, no advertising device may be located adjacent to or within 500 feet of an interchange, intersection at grade, or safety rest area. Said 500 feet shall be measured along such highway from the beginning or ending of pavement widening at the exit from or entrance to the main traveled way.
12. The rules adopted by the Commissioner governing the erection and maintenance of outdoor advertising devices state in pertinent part:
Subp. 2. Intersections. For the purposes of Minnesota Statutes, section 173.16, subdivision 4, clause (4), outside of incorporated cities, villages, or boroughs where an intersection includes ramps or legs, the intersection shall be construed as the entire area circumscribed by a line connecting all points where the outmost ramps or legs leave or enter the main traveled roadway and where they intersect with another highway or road. Advertising devices will not be permitted within 500 feet of the point where the outmost ramps or legs leave or enter the main traveled roadway or for 500 feet on the other highway or road from the point of its intersection with the ramps or legs, nor in the area between said points. This is defined as the area adjacent to the ramp and legs. Devices may however be affixed on or located to [sic] a building at such an intersection but in such a manner so as to cause no greater visual obstruction than the building itself.
Subp. 3. Prohibited area at intersection. For the purpose of Minnesota Statutes, section 173.16, subdivision 4, clause (5), on primary highways or fully controlled access freeways outside of incorporated cities, villages, or boroughs where there are no ramps or legs, the prohibited area at an intersection shall be construed as the entire area of 300 feet outwardly as measured along the roadway from the center point of two intersection roadbeds. Advertising will not be permitted within this 300-foot area.[76]
13. Mn/DOT properly decided that the Sign is impermissible because it is located within 500 feet of an interchange on a fully controlled-access freeway outside of an incorporated city under Minn. Stat. § 173.16, subd. 4(d), and Franklin is not entitled to issuance of a permit for the Sign.
14. These Conclusions are reached for the reasons set forth in the attached Memorandum, which is hereby incorporated by reference in these Conclusions.
Based upon the foregoing Conclusions, and for the reasons set forth in the accompanying Memorandum, the Administrative Law Judge makes the following:
IT IS RESPECTFULLY RECOMMENDED that the Commissioner AFFIRM the Department’s determination that Franklin’s billboard structure located near Trunk Highway 371 north of County Road 46 in Morrison County is not permissible and must be removed.
Dated: January 12, 2007
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s/Barbara L. Neilson |
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BARBARA L. NEILSON |
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Administrative Law Judge |
Reported: Tape-recorded (4 tapes).
This Report is a recommendation, not a final decision. The Commissioner of Transportation will make the final decision after a review of the record. The Commissioner may adopt, reject or modify the Findings of Fact, Conclusions, and Recommendations. Under Minn. Stat. § 14.61, the final decision of the Commissioner shall not be made until this Report has been made available to the parties to the proceeding for at least ten days. An opportunity must be afforded to each party adversely affected by this Report to file exceptions and present argument to the Commissioner. Parties should contact the Commissioner of Transportation, 395 John Ireland Blvd., Mail Stop 100, St. Paul, MN 55155, to ascertain the procedure for filing exceptions or presenting argument.
If the Commissioner fails to issue a final decision within 90 days of the close of the record, this report will constitute the final agency decision under Minn. Stat. § 14.62, subd. 2a. The record closes upon the filing of exceptions to the report and the presentation of argument to the Commissioner, or upon the expiration of the deadline for doing so. The Commissioner must notify the parties and the Administrative Law Judge of the date on which the record closes.
Under Minn. Stat. § 14.62, subd. 1, the Commissioner is required to serve the final decision upon each party and the Administrative Law Judge by first class mail or as otherwise provided by law.
Outdoor advertising signs along certain state and federal highways is subject to the Federal Highway Beautification Act, the Minnesota Outdoor Advertising Control Act, and rules promulgated under those Acts. The Minnesota Outdoor Advertising Control Act states:
It is hereby found and declared that in the interest of and to promote the general welfare of the people and to conserve the natural beauty of areas adjacent to certain highways, it is necessary to reasonably and effectively regulate and control the erection or maintenance of advertising devices on land adjacent to such highways. It is further declared that inasmuch as outdoor advertising is an integral part of the business and marketing function, an established segment of the national economy, and a legitimate commercial use of property adjacent to roads and highways, it should be allowed to operate where other business and commercial activities are conducted, and the regulation of outdoor advertising should occur by the application of reasonable regulatory standards consistent with customary use of outdoor advertising and zoning principles in this state . . . .[77]
As a threshold matter, there is no convincing evidence that Franklin had a valid permit from Mn/DOT for construction of the Sign at issue.[78] While Mn/DOT noted that the Sign was located near the sign proposed by Franklin under Permit No. 10252, the parties agree that the sign proposed under Permit No. 10252 was never built. Further, since permits issued for the erection of a new advertising device are null and void if the erection is not completed within 120 calendar days after the permit has been issued,[79] Permit No. 10252, which was issued in June of 2004, was not valid at the time of construction of the Sign in October of 2005. The mere fact that Franklin was automatically billed by Mn/DOT for renewal of this permit in June 2005 does not change this conclusion. Moreover, it does not appear that Permit No. 4782, which was originally issued in 1978, authorized construction of the Sign at issue. Although Mn/DOT has permitted signs to be moved when the location of a highway changes, the Sign involved in this case was a newly-constructed sign and the record does not reflect whether Franklin’s old sign under Permit No. 4782 continues to exist. In any event, there is no evidence that Franklin notified Mn/DOT of its request to transfer Permit No. 4782 to a new location on the Brisk property until September 28, 2005, and no evidence that Franklin provided Mn/DOT with a detailed description of the location of the Sign at that time. Although Mn/DOT determined the location of the Sign on October 10, 2005, and promptly notified Franklin of its objections to that location, Franklin elected to proceed with construction.
During the hearing, the Mn/DOT witnesses agreed that the only impediment to issuing a permit to Franklin for the Sign is its view that Minnesota statutes and rules require that the Sign be located 500 feet from the interchange. Under Minn. Stat. § 173.16, subd. 4(d) and (e), the usual set-back requirement with respect to billboards on “primary highways outside of incorporated cities” is 300 feet “from the intersection of any primary highway at grade with another highway, or with a railroad,” while the requirement on interstates or “fully controlled-access freeways outside of incorporated cities” is 500 feet from “an interchange, intersection at grade, or safety rest area.”
The parties have stipulated that the reconstructed portion of T.H. 371 involved here is not an interstate but was built to the standards of a controlled-access freeway. Mn/DOT asserts that this segment of T.H. 371 is a “fully” controlled-access freeway within the meaning of Minn. Stat. § 173.16, subd. 4(d) and it therefore has the authority to require that signs in this location meet the 500-feet set-back. Franklin disputes that there is “fully” controlled-access with respect to this segment of T.H. 371. It further contends that, even if Mn/DOT rebuilt a segment of T.H. 371 to the standards of a fully controlled-access freeway, T.H. 371 remains, in its entirety, a trunk highway that falls within the class of highways known as primary highways, and the 300-foot set-back specified in Minn. Stat. § 173.16, subd. 4(e) applies. Franklin argues that, since violation of Minn. Stat. § 173.16, subd. 4(d) is punishable as a crime,[80] the statute must be strictly construed in favor of Franklin.[81] Franklin also raises due process arguments concerning the Department’s interpretation of the statute, arguing that Mn/DOT never gave clear warning to the public that it was designating the part of T.H. 371 at issue here as a “fully controlled-access freeway.”
Under Mn/DOT’s rules, the term “controlled freeway” is defined to mean “an expressway with full control of access.”[82] The statement in the December 2003 Final Environmental Impact Statement relating to the reconstruction project that there would be accommodation “where feasible” of a new snowmobile/ATV trail within the new T.H. 371 project right-of-way was not consistent with an intention to have the reconstructed segment of T.H. 371 meet freeway design standards.[83] However, the Final EIS a planning document and not the final design document. In addition, there is no evidence that there are, in fact, any active, authorized snowmobile or ATV trails in the area of the T.H. 371 reconstruction project. CSAH 46, which is located just south of the Sign, is only accessible from the reconstructed segment of T.H. 371 by using ramps. The only opening in the access control markings shown on Right of Way Plat No. 49-46, which encompasses the area in which the Sign is located, occurs along CSAH 46 near the point where CSAH 46 crosses under T.H. 371, in order to permit CSAH 46 to proceed in an east-west direction.[84] Otherwise, there is full access control shown in this area as well as in all of the other plats relating to the T.H. 371 reconstruction project.[85] There is only grade-separated access to the section of T.H. 371 involved in this case, and the design of this section of T.H. 371 meets the standards of a fully controlled-access freeway. Under the circumstances, the plans for the reconstructed segment of T.H. 371 are consistent with a finding that the segment was designed to have full access control.[86]
Franklin points out that, in actual practice, there has not been full control of access in an area one mile south of the Sign, since Mn/DOT vehicles and ATVs have used a dirt road intersecting T.H. 371. However, Mn/DOT demonstrated at the hearing that the temporary use of this area by Mn/DOT maintenance workers had not been authorized by Mn/DOT managers and such use has been ordered to end. Unauthorized ATV use presents an issue for law enforcement and does not undermine Mn/DOT’s design of the area as having full access control.
As noted above, Franklin has also argued that, even if the reconstructed segment of T.H. 371 was built to the standard of a fully controlled-access freeway, the statute cannot logically be applied to require a 500-foot setback for the Sign. Franklin argues in this regard that, despite the reconstruction, T.H. 371 remains, in its entirety, a trunk highway that falls within the class of highways known as primary highways, and the 300-foot set-back specified in Minn. Stat. § 173.16, subd. 4(e), must be applied to primary highways. Mn/DOT urges in response that the statutes and rules unambiguously permit the reconstructed portion of T.H. 371 to be treated as a fully controlled-access freeway.
After careful consideration of the parties’ competing arguments, the Administrative Law Judge concludes that Mn/DOT properly interpreted the governing statute and rules in finding that the location of the Sign is not permissible. Minn. Stat. § 160.08 affords Mn/DOT and other road authorities broad discretion to create limited access highways where they find that present or future traffic conditions will justify such highways. It is clear under the statutory scheme that Mn/DOT is authorized to build non-interstate controlled-access highways in specific portions of trunk highways where traffic conditions warrant, and is not required to rebuild the entire length of the highway to freeway standards. As discussed above, the stretch of T.H. 371 under consideration here meets the definition in the rules of a controlled freeway in all respects.
Minn. Stat. § 173.16, subd. 4(d), applies the 500-foot set-back requirement to both “interstate highways” and “fully controlled-access freeways.” If the term “fully controlled-access freeway” could not be applied to “primary highways” that have been built in whole or in part to controlled-access freeway standards, the Legislature would only have referred to interstate highways in that section. It did not do so. In defining the terms “controlled-access highway” and “freeway” in Minn. Stat. § 160.02, subds. 12 and 19, the Legislature did not limit either term to highways in the interstate system. Rather, these terms apply to any highway, street, or road (including city streets) that are built to a standard that meets the statutory definitions. It follows that these terms include those roads defined in Minn. Stat. § 173.02, subd. 22, as a “primary highway.” Moreover, the definitions of “expressway” and “controlled freeway” contained in Minn. R. 8810.0200 undermine Franklin’s argument that portions of a trunk highway that are built to freeway standards cannot be considered a “fully controlled-access freeway.” It is also significant that the 300-foot set-back contained in Minn. Stat. § 173.16, subd. 4(e), applies only to “the intersection of any primary highway at grade with another highway, or with a railroad,” and does not refer to interchanges on grade-separated highways such as those involved in the reconstructed segment of T.H. 371. Those types of interchanges are addressed in Minn. Stat. § 173.16, subd. 4(d). Similarly, Minn. R. 8810.1100, subpart 2, explains how an intersection that includes ramps or legs will be measured for purposes of the 500-foot set-back in Minn. Stat. § 173.16, subd. 4(d), while Minn. R. 8810.1100, subpart 2, explains how an intersection that does not include ramps or legs will be measured for purposes of the 300-foot set-back in Minn. Stat. § 173.16, subd. 4(e).
When these statutes and the Mn/DOT rules are read as a whole, it is clear that a segment of a “primary highway” can be a “fully controlled-access freeway.” Such an interpretation is consistent with the canons of statutory construction set forth in Minn. Stat. Chapter 645, which also apply to regulations adopted by administrative agencies.[87] The statute is not ambiguous, nor does this interpretation lead to an absurd result. Franklin’s assertion that it would be absurd to allow a trunk highway to simultaneously be treated as a “primary highway” and a “fully controlled-access freeway” because it would lead to conflicting set-back requirements misstates Mn/DOT’s position here, which is simply that the reconstructed portion of T.H. 371 where the Sign is located should be treated as a “fully controlled-access freeway” because it was designed to meet that standard.
Ideally, Mn/DOT should have notified Franklin in response to its May 2004 request for Permit Nos. 10252 and 10253 that a 500-foot set-back would be required. However, Mr. Munsch’s letter of June 21, 2004, did put Franklin on notice that the appropriateness of the location of its signs could not be determined until the location of the interchanges was finalized, and Mr. Munsch provided clear notice prior to construction of the Sign that it was too close to the ramp. Under these circumstances, Mn/DOT properly decided that the Sign is impermissible because it is located within 500 feet of an interchange on a fully controlled-access freeway outside of an incorporated city under Minn. Stat. § 173.16, subd. 4(d), and Franklin is not entitled to issuance of a permit for the Sign.
B. L. N.
[1] Ex. 4; Testimony of Steven Anderson.
[2] Testimony of Ken Larson, S. Anderson; Ex. 48. See also Minn. Stat. § 161.114, subd. 1 (T.H. 371 north of Little Falls is the part of the trunk highway route between Little Falls and Brainerd designated by the Legislature as Route No. 27).
[3] Testimony of Ken Larson, S. Anderson; Ex. 14. The plats involved in the reconstruction are Plats 49-42 through 49-49. Testimony of K. Larson; Exs. 15, 38-44.
[4] Stipulation of Parties.
[5] Ex. 14 at 3-2.
[6] Testimony of G. Dirlam; Ex. 48.
[7] Testimony of G. Dirlam.
[8] Exs. 1-2; Testimony of S. Anderson, K. Larson. The red “>” on Ex. 2 north of CSAH 46 and west of T.H. 371 shows the location of the Sign at issue here. The other red “>” that appears on Ex. 2 south of CSAH 46 and west of T.H. 371 shows another Franklin sign which is within the city limits of Little Falls. Testimony of S. Anderson. The Sign is pictured in Exs. 29-30, 32-34, and 36 from various angles (Exs. 29, 30, 34, and 36 were taken from the south side of the sign, and Exs. 32 and 33 were taken from the north).
[9] Stipulation of the Parties; Testimony of S. Anderson, K. Larson.
[10] Stipulation of Counsel for Mn/DOT; Ex. 3.
[11] Testimony of S. Anderson.
[12] Testimony of S. Anderson; Exs. 15 (parcel 12 on Plat 49-46 is owned by the Brisks), 17, and 31 at ¶¶ 6, 11.
[13] Testimony of K. Larson; Ex. 45 at 5.
[14] Testimony of K. Larson, Stipulation of Counsel; Ex. 46.
[15] Testimony of S. Anderson; Exs. 17, 18, 21.
[16] Testimony of S. Anderson.
[17] Ex. 19; Testimony of S. Anderson.
[18] Testimony of S. Anderson, R. Munsch.
[19] Ex. 20.
[20] Testimony of S. Anderson.
[21] Testimony of R. Munsch, S. Anderson; Exs. 22, 24.
[22] Testimony of R. Munsch.
[23] Testimony of S. Anderson; Ex. 3.
[24] Exs. 23, 26; Testimony of S. Anderson.
[25] Ex. 25; Testimony of S. Anderson.
[26] Ex. 49.
[27] Testimony of R. Munsch.
[28] Id.
[29] Ex. 50; Testimony of R. Munsch, S. Anderson.
[30] Ex. 27.
[31] Ex. 28; Testimony of S. Anderson.
[32] Testimony of R. Munsch; Ex. 50.
[33] Ex. 3.
[34] Testimony of S. Anderson.
[35] Testimony of S. Anderson, R. Munsch.
[36] Id.
[37] Testimony of S. Anderson; see, e.g., Exs. 7 (Fort Ripley area 15-20 miles north of the Sign at issue here), 8 (Crow Wing County line approximately 20 miles north of the Sign), 9 (just north of County Road 48, about 4 miles north of the Sign), 10 (intersection with township road approximately 5-8 miles north of Sign), 12 (near Fort Ripley, at the intersection of Cemetery Road and T.H. 371), 38 (farm tractor pulling off T.H. 371 onto farm fields taken north of CSAH 48, about 15 miles north of the Sign).
[38] Testimony of S. Anderson; see, e.g., Exs. 5 (downtown Walker, which is approximately 120 miles north of the sign at issue), 6 (south of Walker). ,.
[39] Testimony of S. Anderson.
[40] Id.; Ex. 13.
[41] Testimony of K. Larson.
[42] Testimony of S. Anderson.
[43] Testimony of K. Larson.
[44] Testimony of K. Larson, G. Dirlam.
[45] Ex. 15; Testimony of S. Anderson, K. Larson.
[46] Exs. 15, 38-44; Testimony of S. Anderson, K. Larson.
[47] Testimony of S. Anderson, K. Larson, G. Dirlam; Exs. 11, 51.
[48] Ex. 51.
[49] Testimony of K. Larson, G. Dirlam.
[50] Testimony of K. Larson.
[51] Testimony of S. Anderson; Exs. 11, 51.
[52] Testimony of K. Larson.
[53] Ex. 14 at 3-2.
[54] Ex. 14 at p. 2-7.
[55] Testimony of K. Larson, Gary Dirlam. Minn. Stat. § 84.87 permits operation of snowmobiles on either side of a trunk highway right-of-way under certain conditions but prohibits operation of snowmobiles at any time within the right-of-way of any interstate highway or freeway.
[56] Testimony of K. Larson, G. Dirlam; Ex. 47.
[57] Testimony of S. Anderson; Exs. 2, 36 (sign within Little Falls city limits is on the left); Ex. 37.
[58] Testimony of S. Anderson.
[59] Id.
[60] Testimony of K. Larson, S. Anderson.
[61] See Letter of Feb. 2, 2006, attached to Notice of and Order for Hearing.
[62].23 U.S.C. § 131(b).
[63] Minn. Stat. Chapter 173.
[64] Minn. Stat. § 173.02, subd. 20.
[65] Minn. Stat. § 173.02, subd. 22.
[66] Minn. Stat. § 173.02, subd. 16.
[67] Minn. Stat. § 173.13, subd. 2.
[68] Minn. Stat. § 173.185.
[69] Minn. Stat. § 160.02, subd. 12.
[70] Minn. Stat. § 160.02, subd. 19.
[71] Minn. R. 8810.0200, subp. 4.
[72] Minn. R. 8810.0200, subp. 3.
[73] Minn. Stat. § 160.08, subd. 1.
[74] Minn. Stat. § 160.08, subd. 3.
[75] Minn. Stat. § 160.08, subd. 5.
[76] Minn. R. 8810.1100, subps. 2 (relating to Minn. Stat. § 173.16, subd. 4(d)) and 3 (relating to Minn. Stat. § 173.16, subd. 4(e)).
[77] Minn. Stat. § 173.01.
[78] The rules adopted by Mn/DOT under the Act specify that “[a]ny advertising device for which no permit application or permit renewal has been submitted shall be removed pursuant to law.” Minn. R. 8810.1300, subp. 7.
[79] Minn. R. 8810.1300, subp. 5.
[80] See Minn. Stat. § 173.21 (conviction of violation of Minn. Stat. §§ 173.13 to 173.231 or any rules adopted thereunder constitutes a misdemeanor).
[81] State v. Simmons, 158 N.W.2d 209, 212 (Minn. 1968) (“a regulation made the basis for criminal prosecution must be strictly construed in favor of the accused”); State v. Haas, 159 N.W.2d 197, 200 (Minn. 1968) (where a penal statute is involved, a court must “resolve all reasonable doubts concerning legislative intent in favor of the defendant as required by the rule of strict construction applicable to penal statutes”).
[82] Minn. R. 8810.0200, subp. 3. In contrast, the term “expressway” is defined to mean “a divided arterial highway for through traffic with full or partial control of access.” Id., subp. 4.
[83] A snowmobile trail in the right of way would be illegal under Minn. Stat. § 84.87.
[84] Ex. 15; Testimony of S. Anderson, K. Larson.
[85] Exs. 15, 38-44; Testimony of S. Anderson, K. Larson.
[86] As Franklin points out, similar “access control” markings occur along plats relating to portions of T.H. 371 that are not fully-controlled access (see Ex. 16, relating to the portion of T.H. 371 near Hackensack). However, it is evident that those segments are not “fully” controlled access because at-grade intersections exist, in contrast to the plats involved in the reconstructed segment where the Sign is located.
[87] Minn. Stat. § 645.011.