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OAH 3-3001-20948-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF TRANSPORTATION
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In the Matter of the Application of Marie Riley for an Advertising Device Permit on Highway 169 at M.P. 71.6 in Nicollet County |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
This matter came on for hearing before Administrative Law Judge Kathleen D. Sheehy on February 2, 2010, at the Office of Administrative Hearings. The record closed on February 19, 2010, upon receipt of the last post-hearing submission.
David Phillips, Assistant Attorney General, appeared for the Department of Transportation. Michael K. Riley, Esq., Mackenzie & Gustafson Ltd., appeared for Marie Riley (Applicant).
Justin P. Weinberg, Gislason &
Hunter LLP, filed a Notice of Appearance on behalf of Cambria Co., but
1. Did the Department of Transportation properly deny the application for an advertising device permit under Minn. Stat. § 173.08, subd. 1 (2008)?[1]
2. Did the Department properly require the removal of the advertising sign located on Highway 169 at M.P. 71.6?
The Administrative Law Judge concludes that the Department of Transportation’s denial of the application should be affirmed, and the sign should be removed. The sign is not subject to any of the exceptions contained in the statutes.
Based on the evidence in the hearing record, the Administrative Law Judge makes the following:
1.
The Highway Beautification Act, 23 U.S.C. §
131(c), requires states receiving federal-aid highway funds to effectively
control the erection and maintenance of outdoor advertising signs, displays,
and devices within 660 feet of the nearest edge of the right-of-way of any interstate
highway or primary highway (which includes any highway on the National Highway
System). “Effective control” means, in
general, that no new advertising signs, displays, or devices are permitted
within areas adjacent to the
2.
State law similarly prohibits advertising
devices in areas adjacent to
3.
U.S. Highway 169 is part of the federal primary
highway system in
4.
The State of
5.
The Lee Boyum Trust owns property on the west
side of Highway 169 in
6.
During the 1980s, Donald Hentges owned the silo
property and acreage to the north. Hentges
developed some of the land north of the silo property into a platted subdivision
known as Riverview Hills North. He built
roads in the subdivision in compliance with Township specifications, and in
November 1980, the Township accepted the dedication of the roads within the
subdivision. It reached an agreement
with Hentges that he would maintain and plow the roads until ten houses were
constructed, at which time the Township would assume responsibility for
maintaining and plowing the roads. Valley
7. Hentges was a distributor of Coca Cola products. By the early 1980s, he had painted the silo to resemble a can of Coke, with the notation “Coke available here.”[11] At some point in the early 1990s, someone else purchased the silo property and repainted the silo to look like a can of 7UP. At the bottom of the 7UP sign was the notation “Available here and everywhere.” The property owner offered 7UP for sale on the property through a pre-mix dispensing machine. He did not sell any other products on the premises.[12]
8.
9.
In 1991, Michael Riley and Marie Riley purchased
a home on 14 acres of property at
10.
The silo property does not adjoin the property
owned by the Rileys. The two parcels are
separated by
11.
Michael Riley is an attorney who practices at
Mackenzie & Gustafson, Ltd., in St. Peter.
He is also the Nicollet County Attorney. Marie Riley operated a custom picture framing
shop in downtown St. Peter from 2002 to 2008, at which time she moved the shop into
the garage next to their home on
12.
Mr. Riley’s law firm has represented Cambria Co.,
a privately held, family-owned company located in
13.
In May or June 2009, Cambria re-painted the
silo, after obtaining permission from the Lee Boyum Trust, with the Cambria logo
and the word “
14.
On June 22, 2009, the Department of
Transportation issued a Notice of Violation to
15.
On July 14, 2009,
16.
On August 13, 2009,
17.
On August 18, 2009, Mr. Riley filed an
application for an advertising device permit with the Department of
Transportation, on behalf of Marie Riley.
The cover letter stated that Mrs. Riley intended to sell, “on a very
limited basis,
18. On August 24, 2009, the Department advised Mrs. Riley that the application for a permit was denied because advertising devices are not allowed on conservancy zoned land under Minn. Stat. ch. 173.[26] Mrs. Riley requested reconsideration of the denial.
19. On September 25, 2009, the Department further advised the Rileys that a permit would not be issued because off-premises signs were permitted only in areas zoned for business, industrial, or commercial activities. In addition, the Department advised them that the sign was not an on-premise sign because it does not advertise activities conducted on the property on which the sign is located. The Department directed the Rileys to remove the sign within 30 days.[27]
20. On October 14, 2009, Marie Riley requested a contested case hearing. She contended at that time that the silo was a historic landmark and a permitted use in advertising a home occupation.
21.
On October 26, 2009, Cambria and Marie Riley
entered into an agreement authorizing Marie Riley to display and sell
22.
The silo sign now contains, in addition to the
Cambria logo and the word “
Sold Here by Appointment
1
(866)
23.
The above telephone number is answered by
Cambria customer service personnel at the
24.
Mrs. Riley has a
25. The Notice and Order for Hearing in this matter was issued on November 5, 2009.
26.
On December 22, 2009, the zoning permit for
Marie Riley’s framing business was amended to include sales of
Based on these Findings of Fact, the Administrative Law Judge makes the following:
1. The Department provided notice of the hearing and the matter is properly before the Commissioner of Transportation and the Office of Administrative Hearings under Minn. Stat. § 173.13, subd. 10.
2. The Department gave timely notice of the hearing to the parties.
3.
Pursuant to
4. The Minnesota Outdoor Advertising Control Act, Minnesota Statutes ch. 173, was adopted for the purpose of complying with 23 U.S.C. § 131.[35]
5. The Minnesota Outdoor Advertising Control Act provides that no advertising device shall be erected or maintained in any adjacent area unless a permit is first obtained from the Commissioner.[36]
6. An “advertising device” means any sign, display, or device visible to and primarily intended to advertise and inform or attract the attention of operators and occupants of motor vehicles.[37]
7.
The
8. Minn. Stat. § 173.08, subds. 1(3) and 1(8), provide, in relevant part, that no advertising device shall be erected or maintained in an adjacent area, after June 8, 1971, except for (1) advertising devices advertising activities conducted on the property on which they are located, and (2) advertising devices which are located in business areas.
9. An “on-premise sign” means an advertising device located on the premises or contiguous property of an individual, business, or organization when the sale or lease of the premises or the identification, products, or services of the individual, business, or organization are the subject of the advertising device.[38]
10. Federal regulations provide that a sign that consists solely of the name of the establishment or which identifies the establishment’s principal or accessory products or services offered on the property is an on-property sign; however, a sign that brings rental income to the property owner shall be considered the business of outdoor advertising and not an on-property sign.[39]
11.
The
12. A “business area” means any part of an adjacent area which is (a) zoned for business, industrial, or commercial activities under the authority of any law of this state or any political subdivision thereof; or (b) not so zoned, but which constitutes an unzoned commercial or industrial area.[40]
13. Both the silo property and Marie Riley’s picture framing business are located in an area zoned as a conservancy district. They are not located in a “business area” or an “unzoned commercial or industrial area” as defined in Minn. Stat. § 173.02, subd. 17.
14. Federal law provides that any sign not lawfully erected shall be removed by the owner of such sign. If an owner does not remove a sign, the State shall remove the sign, and the owner of the removed sign shall be liable to the State for the costs of such removal.[41] In addition, state law provides that advertising devices erected or maintained after June 8, 1971, which are not in compliance with Minn. Stat. chapter 173, may be removed by the commissioner upon 60 days prior written notice by certified mail to the owner thereof and to the owner of the real property on which such advertising device is located.[42]
15. The Department of Transportation properly denied the application for an outdoor advertising device permit for the Cambria sign and properly directed its removal for noncompliance under Minn. Stat. § 173.13, subd. 11.
Based upon these Conclusions, and for the reasons explained in the accompanying Memorandum, the Administrative Law Judge makes the following:
The Department’s denial of the
advertising device permit and order to remove the Cambria sign located on
Highway 169 at M.P. 71.6 in
Dated: February 25, 2010
s/Kathleen D. .Sheehy
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KATHLEEN D. SHEEHY Administrative Law Judge |
Reported: Digitally Recorded
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
these Findings of Fact, Conclusions, and Recommendations. A final decision shall not be made until this
Report has been made available to the parties for at least ten days and an
opportunity has been afforded to each party adversely affected to file
exceptions and present argument. The
agency shall notify the parties and the Administrative Law Judge of the date
when the hearing record closed. Pursuant
to
Under Minn. Stat. § 14.62, subd. 1, the agency is required
to serve its final decision upon each party and the Administrative Law Judge by
first class mail or as otherwise provided by law.
The Applicant advances two reasons why she believes the permit should be granted. First, she maintains that the silo is not an advertising device because its primary purpose is not for advertising. As noted above, an “advertising device” means any sign, display, or device visible to and primarily intended to advertise and inform or attract the attention of operators and occupants of motor vehicles.[43]
The Applicant contends that the silo’s primary purpose is as a building used for animal husbandry and other storage. In support of this argument, the Applicant cites State v. Malcolm, Inc., C7-00-1084 (Minn. App. 2001) (unpublished). In that case, a business owner placed a sign advertising its business (an adult bookstore) on a trailer parked on its own property, in a location less than 500 feet from a highway. The property was in a business area, and pursuant to Minn. Stat. § 173.16, subd. 4, advertising devices in business areas must not be placed within 500 feet of a highway. The Department sought injunctive relief in district court, which granted summary judgment to the Department and ordered a permanent injunction against the placement of any advertising device in the area. On appeal, the business owner argued that there was a factual dispute as to the primary purpose of the trailer; it argued that the trailer was used to store tools, equipment, and construction materials used to operate its business and that it was parked at that location simply because the location was easily accessible to the highway. It contended the signage placed on the trailer was no different than the unregulated advertising regularly placed on vehicles, trailers, and buses. The court of appeals reversed, agreeing that there was a factual dispute as to whether the primary purpose of the trailer was to function as an advertisement.
This case provides no persuasive
support for the Applicant. First, the
issue in Malcolm was whether the trailer
was parked at that location primarily for the purpose of advertising the
business or whether it was legitimately used to transport equipment used for
the business and was parked at that location merely for the convenience of the
business owner. It does not stand for
the proposition that a sign advertising an unrelated business may be erected on
a permanent structure, such as a silo, if the structure serves some other primary
purpose.[44] Second, there is no dispute here that the
signage was placed on the silo for the purpose of promoting
The Applicant’s second argument is
that the sign is an on-premise sign that advertises products sold at her
framing shop. This argument is based on
the contention that the Riley property and the Boyum property are contiguous
and adjoining based on “general principles of real estate law which extends
ownership of property to the middle of the road, in cases where fee title to
the road is not in a public entity.” The
Applicant has not cited any law in support of this proposition, and as a factual
matter, it conflicts with the record evidence regarding both the public
dedication of
More importantly, however, it is
immaterial whether the Riley property is contiguous to or adjoining the Boyum
property. An on-premise sign is one that
advertises activities conducted on the property on which it is located.[46] The rule, consistently with the statute, defines
an “on-premise sign” as an advertising device “located on the premises or contiguous
property of an individual, business, or organization” when the products or
services of the individual, business, or organization are the subject of the
advertising device.[47] The intent of the rule is clearly to allow a
business owner to post an advertising sign on the business premises, or on contiguous
property owned by that same entity. In
this case, the advertising sign is on property owned by the Boyum Trust; the
business is or would be conducted on property owned by the Rileys. Even if the properties were not separated by
The Applicant also maintains that
Because a permit could not be issued
to approve the Cambria sign, the Administrative Law Judge recommends that the
Commissioner direct the Applicant to remove the sign by painting out the
K.D.S.
[1] All references to Minnesota Statutes are to the 2008 edition; all references to Minnesota Rules are to the 2007 edition.
[2] 23 U.S.C. § 231(d).
[3] 23 U.S.C. § 231(c)(3).
[4] 23 U.S.C. § 231(c)(4).
[5]
[6] Ex. 24.
[7] Testimony of Scott Robinson.
[8] Ex. 18 at page 2; Ex. 22.
[9] Ex. 21.
[10] Ex. 4; Ex. 19.
[11] Testimony of Michael Riley.
[12] Test. of M. Riley.
[13] Ex. 3.
[14] Test. of S. Robinson; Testimony of Bradley Bruegger.
[15] Ex. 5.
[16] Ex. 19.
[17] Ex. 6.
[18] Ex. 10, Ex. 18.
[19] Test. of M. Riley.
[20] Ex. 17 (photo).
[21] Ex. 15 (letter dated July 14, 2009, from Peter Martin to Lee Boyum).
[22] Ex. 17.
[23] Ex. 15 (letter dated July 14, 2009, from Peter Martin to Lee Boyum).
[24] Ex. 15.
[25] Ex. 18.
[26] Ex. 23.
[27] Ex. 2.
[28] Ex. 8.
[29] Ex. 1; Ex. 20.
[30] Ex. 14.
[31] Ex. 13.
[32] Ex. 9.
[33] Test. of M. Riley.
[34] Ex. 7.
[35]
[36]
[37]
[38]
[39] 23 C.F.R. § 750.709(a) & (b).
[40]
[41] 23 U.S.C. § 131(r)(1) & (2).
[42]
[43]
[44] Even if it did stand for this proposition, there is no evidence in the record as to whether the current owner of the silo uses it for agricultural purposes.
[45] See Ex. 4 (township resolution accepting
dedication of roads as public roads); Ex. 19 (identifying property lines on
either side of
[46] Minn. Stat. § 173.08, subds. 1(3) and 1(8).
[47]