The Arkansas Supreme Court ruled the state Highway and Transportation Department (AHTD) correctly interpreted its regulations as prohibiting erection of a billboard on unzoned commercial land adjacent to properties used for residences.
In February 2005, Seiz applied for a permit to build a billboard on State Highway 70 in Saline County. AHTD rejected the application on the grounds the proposed site was not located in a zoned or unzoned commercial or industrial area, and the proposed site was located in a predominately residential area where billboards are prohibited. On appeal, the trial court affirmed the ruling.
The Arkansas Code provides that billboards may be erected in areas zoned industrial or commercial, or within unzoned commercial or industrial areas actually used for commercial or industrial purposes, the supreme court noted. The AHTD regulations define unzoned commercial, business or industrial areas as land regularly used for such activity and land within 600 feet thereof. The unzoned land does not include, inter alia, “land predominantly used for residential purposes.” Land predominantly used for residential purposes is defined as tracts of land within an unzoned commercial, business or industrial area occupied by buildings regularly and principally used as a residence.
In applying the regulations, AHTD first determines whether the area is an unzoned area with commercial activity on it, and then determines the character of the surrounding area within 600 feet. Within that area there cannot be more residential properties than commercial, or the land will be considered predominantly used for residential purposes, barring a billboard on the site. Seiz argued that was incorrect, and that the exclusion should serve to reduce the overall size of the unzoned commercial area but not to eliminate the area entirely as a site suitable for a billboard.
Seiz contended the agency’s “rule of thumb” causes the residential exclusion to operate differently than the other exclusions in the same paragraph of the regulations, because the application of those other exclusions does not change the nature of the entire unzoned area. Rather, it argued, the other exclusions simply exclude certain land from the overall area. Thus, Seiz continued, the land predominantly used for residential purposes should be taken out of the overall area but other land within the unzoned area could still be properly considered for a billboard.
The court said it could see two possible interpretations of the exclusion. First, if there is any land within the proposed area that is predominantly used for residential purposes, the area is ineligible for a billboard; or if the overall land within the area is predominantly used for residential purposes the area is ineligible. AHTD has chosen to use the second, more lenient interpretation, as evidenced by its “rule of thumb” analysis.
The court said it could not agree with Seiz’s alternative interpretation of the regulations. Its interpretation would ignore the meaning of the regulation governing unzoned land taken as a whole and would be contrary to the intent of the Highway Beautification Act, to preserve pastoral scenery and eliminate inharmonious advertising. Given the purposes of the state law and the Beautification Act, it was reasonable to conclude the laws intended to prohibit billboards in areas where a predominately residential use exists, even if there is also a commercial use in the area, the court concluded.
Seiz Co. v. Arkansas State Highway and Transportation Department, 2009 Ark. 361, 2009 WL 1740251 (6/18/2009).
The opinion can be accessed at: http://courts.arkansas.gov/court_opinions/sc/2009a/20090618/published/09-46.pdf
Special thanks to James Lawlor, Esq. of the Land Use Legal Report for this abstract. For information on subscribing to the LULR, please contact Jim at landlaw@verizon.net.
