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The Lamar Company, LLC v. The Mississippi Transportation Commission

United States District Court, S.D. Mississippi, Southern Division

November 14, 2019

THE LAMAR COMPANY, LLC PLAINTIFF
v.
THE MISSISSIPPI TRANSPORTATION COMMISSION DEFENDANT

          MEMORANDUM OPINION AND ORDER GRANTING IN PART THE MISSISSIPPI TRANSPORTATION COMMISSION'S MOTION FOR SUMMARY JUDGMENT AND DENYING LAMAR COMPANY, LLC'S AMENDED MOTION FOR PARTIAL SUMMARY JUDGMENT

          LOUIS GUIROLA, JR. UNITED STATES DISTRICT JUDGE.

         BEFORE THE COURT are the [24] Amended Motion for Partial Summary Judgment filed by the Lamar Company, LLC, and the [26] Motion for Summary Judgment filed by the Mississippi Transportation Commission (“MTC”). The parties have fully briefed the Motions. After reviewing the submissions of the parties, the record in this matter, and the applicable law, the Court finds that Lamar's Motion should be denied, and MTC's Motion should be granted as to Lamar's request for a declaratory judgment concerning the meaning of Miss. Code Ann. § 49-23-9(2)(b) but denied as to Lamar's takings claim.

         BACKGROUND

         Lamar is an outdoor advertising company that builds and maintains outdoor advertising signs in Mississippi. MTC, by and through the Mississippi Department of Transportation (“MDOT”), regulates the dimensions of outdoor advertising signs. Lamar owns a vertical sign that is designated as Structure 5821 located in Gulfport, Mississippi.

         In May 2015, Lamar notified MDOT that it wanted to change the shape of Structure 5821. MDOT refused to approve the reconfiguration of the sign because it considers it a non-conforming structure due to its proposed height, in excess of forty feet. In summary, the parties dispute the meaning of Miss. Code Ann. § 49-23-9(2)(b), which provides in part:

The height of any sign structure shall not exceed forty (40) feet. The height of sign structures erected on or after April 15, 2008, shall not exceed forty (40) feet above the level of the road grade unless the grade of the land adjacent to the road is higher than the level of the road grade, then the height of the sign structure may exceed forty (40) feet above the level of the road grade but shall not exceed forty (40) feet above the grade of the site where the sign is placed.

         The parties also dispute the meaning of the rule that MDOT adopted to implement that requirements of the statute.

         Lamar filed this lawsuit seeking a declaratory judgment that “any sign structure erected prior to April 15, 2008 may exceed 40 feet in height above the road grade and such structures are conforming structures” as well as a declaratory judgment that “MDOT's determination that Structure 5821 is ‘non-conforming' because of its existing height is contrary to law, illegal and a misapplication of Section 449-23-9(2) and Rule 1000.1.c and that Lamar's plan to reconfigure Structure 5821 is entitled to be approved as submitted.” (Compl. 5, ECF No. 1-1.) Lamar also argues that MTC's interpretation of the statute and rule have resulted in a taking of Lamar's property.

         DISCUSSION

         A motion for summary judgment may be filed by any party asserting that there is no genuine issue of material fact and that the movant is entitled to prevail as a matter of law on any claim. Fed.R.Civ.P. 56. The movant bears the initial burden of identifying those portions of the pleadings and discovery on file, together with any affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant carries its burden, the burden shifts to the non-movant to show that summary judgment should not be granted. Id. at 324-25. The non-movant may not rest upon mere allegations or denials in its pleadings but must set forth specific facts showing the existence of a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986).

         Lamar and MTC dispute whether the following statutory language is ambiguous:

The height of any sign structure shall not exceed forty (40) feet. The height of sign structures erected on or after April 15, 2008, shall not exceed forty (40) feet above the level of the road grade unless the grade of the land adjacent to the road is higher than the level of the road grade, then the height of the sign structure may exceed forty (40) feet above the level of the road grade but shall not exceed forty (40) feet above the grade of the site where the sign is placed.

Miss. Code Ann. § 49-23-9(2)(b). MDOT Rule 1000.1.b-c contains nearly identical language. See Miss. Admin. Code 37-1-13:09002. Lamar argues that the statute and rule are ambiguous, and that this Court should hold that only signs erected on or after April 15, 2008 are bound by the height limitation of forty feet. As proof of legislative intent, Lamar has submitted an affidavit signed by City of Gulfport, Mississippi Mayor Billy Hewes in which he testifies that he served as a member of the Mississippi State Senate's Highways and Transportation Committee during the 2008 Legislative Session. (Lamar's Mot. Ex. I, at 1, ECF No. 24-9). Mayor Hewes sponsored Senate Bill 2955, and the intent of the bill was to allow signs erected on or before April 15, 2008 to exceed forty feet in height, “but to restrict going forward all signs erected after April 15, 2008” to forty feet in height. (Id. at 2). He explains that “[t]he sentence of 49-23-9(2)(b) which reads ‘The height of any sign structure shall not exceed forty (40) feet.' should have been deleted from 49-23-9(2)(b); however, it was not.” (Id.) Mayor Hewes further states that “[t]he second sentence expresses the true intent of Senate Bill 2955 as passed by the Legislature.” (Id. at 3). MDOT counters: “Plainly, the first sentence referenced [in the statute] prohibits any signs exceeding forty (40) feet in height. The next sentence clarifies how the forty (40) feet in height is to be measured after April 15, 2008.” (MTC's Resp., at 1, ECF No. 31).

         “When applying state law, ‘we interpret the state statute the way we believe the state Supreme Court would, based on prior precedent, legislation, and relevant commentary.'” Vielma v. Eureka Co., 218 F.3d 458, 462 (5th Cir. 2000) (quoting F.D.I.C. v. Shaid, 142 F.3d 260, 261 (5th Cir. 1998)). “If a state's highest court has not spoken on the issue, we look to the intermediate ...


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