These three cases have been previously reviewed by this Court on separate appeals.1 The trial court proceedings resulted in summary judgments favorable to the three sign companies. The trial court held that the Alabama Highway Department (now known as the Alabama Department of Transportation ("ALDOT")) was equitably estopped from claiming that signs erected between March 1983 and November 1988 in reliance on permits issued by the City of Montgomery were illegal under the the provisions of Ala. Code 1975, § 23-1-270 et seq. — the Alabama Highway Beautification Act — Outdoor Advertising ("AHBA").
On appeal from these three initial actions, this Court held:
"[ALDOT] cannot be estopped from raising the illegality of the signs or from claiming that they were illegally erected under the State Act. However, the issue whether the signs were, in fact, erected and maintained in violation of the law, i.e., whether the term 'business' in the State Act ('commercial, business or industrial activities') is broad enough to encompass an agricultural area, is for the trial court to determine."
State Highway Department v. Headrick Outdoor Advertising, Inc.,
594 So.2d 1202,
1205 (Ala. 1992) (emphasis in original).
Further, this Court reversed the judgments for the sign companies and remanded the causes for:
"[1] a determination of whether the signs at issue were illegally erected in a statutorily prohibited area and therefore must be removed; and, [2] if so, a determination of whether [the sign company] is entitled to just compensation for the removal of the signs; and, [3] if so, a determination of the amount that would justly compensate [the sign company for] their removal."
Id.
On remand, the trial court reversed its earlier rulings and determined that the signs had been illegally erected contrary to the prohibitions specified in the AHBA.
We quote the relevant language of the trial court's judgment order on remand, from which these three appeals are taken:
"The Circuit Court entered a summary judgment in favor of each of the defendants, Lamar Advertising of Montgomery, Inc. ('Lamar'), Headrick Outdoor Advertising, Inc. ('Headrick'), and Dyess Outdoor Advertising, Inc. ('Dyess'), on the ground that the plaintiff, Alabama Department of Transportation ('ALDOT') was estopped from contending that the signs at issue are illegal. ALDOT appealed from those judgments. The Supreme Court of Alabama reversed and remanded each of these cases to the circuit court for a determination whether the billboards were illegally erected and maintained and must be removed, and, if so, whether ALDOT is required to pay just compensation to the defendants.
"The court having heard ALDOT's motions for summary judgment, . . . and having heard cross-motions for summary judgment filed by Lamar, Headrick, and Dyess, the court finds that the following material facts are undisputed:
"A. DEFENDANT LAMAR'S SIGNS
"Each of the nine signs at issue owned by Lamar was erected and is maintained by Lamar in an adjacent area abutting an interstate highway. Only one of the signs owned by Lamar is in a business area.
"Notwithstanding the requirements of the Alabama Highway Beautification Act — Outdoor Advertising (Ala. Code 1975, §§ 23-1-271 through -288) ('AHBA'), and Article IX of the City of Montgomery's Ordinance No. 31-73, the City of Montgomery issued building permits to Lamar for the erection of the six outdoor advertising signs identified in Counts I, II, III,
VII, VIII, and IX [of the complaint] on land zoned 'agriculture.'
"The City of Montgomery's Board of Adjustment approved a variance for the erection of the billboard identified in Count IV on property zoned 'residential.' Subsequently, Lamar erected a billboard on the residential property.
"Lamar erected the sign identified in Count VI of the complaint on land zoned 'planned unit development' ('PUD'). Ordinance No. 31-73 construes a PUD to be a 'Residence Zone.' Commercial and industrial uses are prohibited by § 2 of Article VII of the Ordinance unless they are 'specifically permitted by the Planning Commission when granting final approval of PUD.' The record does not show that the City of Montgomery Planning Commission specifically permitted commercial or industrial uses when it granted final approval of the PUD district.
"The sign identified in Count XI of the complaint was erected on land zoned 'M-1' for light industry. However, it is within 300 feet of another sign structure. Article IX, § 3(c)(3)(a), of Ordinance No. 31-73 provides that '[o]n all interstate highways and freeways and/or primary highways there must be at least 300 feet between sign structures on the same side of the highway.' The application for the building permit states that the sign is 310 feet from the nearest sign.
B. [There was no paragraph B in the trial court's order.]
"C. DEFENDANT HEADRICK'S SIGNS
"The City of Montgomery issued building permits to Lockridge Sales and Marketing Company, Inc. ('Lockridge'), for the erection of two billboards on land zoned 'agriculture.' Lockridge erected the two signs, which Headrick purchased from Lockridge.
"D. DEFENDANT DYESS'S SIGNS
"The City of Montgomery issued building permits to Dyess for the erection of two outdoor advertising signs on land zoned 'agriculture' in an adjacent area abutting Interstate 65. Dyess erected the two signs in 1988.
"CONCLUSIONS OF LAW
"1. With some exceptions not applicable to these cases, § (1)(c)(4) of Article IX of Ordinance No. 31-73 prohibits the erection and maintenance of billboards in areas adjacent to interstate and primary highways after the effective date of the Ordinance except for those to be erected in areas zoned commercial, industrial, or business. The uses permitted in Agricultural Areas are not commensurate with uses permitted in zoned Business Areas, Industrial Districts, Office Districts, or Institutional Districts.2 [(Emphasis in original.]
"2. Apparently, to comply with Ala. Code 1975, § 23-1-273,3 Article VII of
Ordinance No. 31-73 allows the erection of billboards in areas zoned for agriculture only if the billboards 'do not violate interstate highway, federal-aid primary highway, and state highway setback provisions.' All of defendants' billboards, except for the one owned by defendant Lamar that is on land zoned 'M-1,' violate that provision since § 23-1-273 has a setback provision that forbids all billboards in adjacent areas along interstate highways unless the adjacent area is a business area. All of the signs at issue that are located in adjacent areas zoned for agricultural use are situated within 660 feet of the nearest edge of an interstate highway; therefore, they have been illegally erected and maintained."
"3. Section 3(c)(3)(a) of Ordinance No. 31-73 provides that 'on all interstate highways . . . there must be at least 300 feet between all sign structures on the same side of the highway.' The billboard owned by Lamar and located in the industrial area zoned 'M-1' for light industry violated the City's Ordinance because it is less than 300 feet from another sign. Furthermore, that sign violates Ala.
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These three cases have been previously reviewed by this Court on separate appeals.1 The trial court proceedings resulted in summary judgments favorable to the three sign companies. The trial court held that the Alabama Highway Department (now known as the Alabama Department of Transportation ("ALDOT")) was equitably estopped from claiming that signs erected between March 1983 and November 1988 in reliance on permits issued by the City of Montgomery were illegal under the the provisions of Ala. Code 1975, § 23-1-270 et seq. — the Alabama Highway Beautification Act — Outdoor Advertising ("AHBA").
On appeal from these three initial actions, this Court held:
"[ALDOT] cannot be estopped from raising the illegality of the signs or from claiming that they were illegally erected under the State Act. However, the issue whether the signs were, in fact, erected and maintained in violation of the law, i.e., whether the term 'business' in the State Act ('commercial, business or industrial activities') is broad enough to encompass an agricultural area, is for the trial court to determine."
State Highway Department v. Headrick Outdoor Advertising, Inc.,
594 So.2d 1202,
1205 (Ala. 1992) (emphasis in original).
Further, this Court reversed the judgments for the sign companies and remanded the causes for:
"[1] a determination of whether the signs at issue were illegally erected in a statutorily prohibited area and therefore must be removed; and, [2] if so, a determination of whether [the sign company] is entitled to just compensation for the removal of the signs; and, [3] if so, a determination of the amount that would justly compensate [the sign company for] their removal."
Id.
On remand, the trial court reversed its earlier rulings and determined that the signs had been illegally erected contrary to the prohibitions specified in the AHBA.
We quote the relevant language of the trial court's judgment order on remand, from which these three appeals are taken:
"The Circuit Court entered a summary judgment in favor of each of the defendants, Lamar Advertising of Montgomery, Inc. ('Lamar'), Headrick Outdoor Advertising, Inc. ('Headrick'), and Dyess Outdoor Advertising, Inc. ('Dyess'), on the ground that the plaintiff, Alabama Department of Transportation ('ALDOT') was estopped from contending that the signs at issue are illegal. ALDOT appealed from those judgments. The Supreme Court of Alabama reversed and remanded each of these cases to the circuit court for a determination whether the billboards were illegally erected and maintained and must be removed, and, if so, whether ALDOT is required to pay just compensation to the defendants.
"The court having heard ALDOT's motions for summary judgment, . . . and having heard cross-motions for summary judgment filed by Lamar, Headrick, and Dyess, the court finds that the following material facts are undisputed:
"A. DEFENDANT LAMAR'S SIGNS
"Each of the nine signs at issue owned by Lamar was erected and is maintained by Lamar in an adjacent area abutting an interstate highway. Only one of the signs owned by Lamar is in a business area.
"Notwithstanding the requirements of the Alabama Highway Beautification Act — Outdoor Advertising (Ala. Code 1975, §§ 23-1-271 through -288) ('AHBA'), and Article IX of the City of Montgomery's Ordinance No. 31-73, the City of Montgomery issued building permits to Lamar for the erection of the six outdoor advertising signs identified in Counts I, II, III,
VII, VIII, and IX [of the complaint] on land zoned 'agriculture.'
"The City of Montgomery's Board of Adjustment approved a variance for the erection of the billboard identified in Count IV on property zoned 'residential.' Subsequently, Lamar erected a billboard on the residential property.
"Lamar erected the sign identified in Count VI of the complaint on land zoned 'planned unit development' ('PUD'). Ordinance No. 31-73 construes a PUD to be a 'Residence Zone.' Commercial and industrial uses are prohibited by § 2 of Article VII of the Ordinance unless they are 'specifically permitted by the Planning Commission when granting final approval of PUD.' The record does not show that the City of Montgomery Planning Commission specifically permitted commercial or industrial uses when it granted final approval of the PUD district.
"The sign identified in Count XI of the complaint was erected on land zoned 'M-1' for light industry. However, it is within 300 feet of another sign structure. Article IX, § 3(c)(3)(a), of Ordinance No. 31-73 provides that '[o]n all interstate highways and freeways and/or primary highways there must be at least 300 feet between sign structures on the same side of the highway.' The application for the building permit states that the sign is 310 feet from the nearest sign.
B. [There was no paragraph B in the trial court's order.]
"C. DEFENDANT HEADRICK'S SIGNS
"The City of Montgomery issued building permits to Lockridge Sales and Marketing Company, Inc. ('Lockridge'), for the erection of two billboards on land zoned 'agriculture.' Lockridge erected the two signs, which Headrick purchased from Lockridge.
"D. DEFENDANT DYESS'S SIGNS
"The City of Montgomery issued building permits to Dyess for the erection of two outdoor advertising signs on land zoned 'agriculture' in an adjacent area abutting Interstate 65. Dyess erected the two signs in 1988.
"CONCLUSIONS OF LAW
"1. With some exceptions not applicable to these cases, § (1)(c)(4) of Article IX of Ordinance No. 31-73 prohibits the erection and maintenance of billboards in areas adjacent to interstate and primary highways after the effective date of the Ordinance except for those to be erected in areas zoned commercial, industrial, or business. The uses permitted in Agricultural Areas are not commensurate with uses permitted in zoned Business Areas, Industrial Districts, Office Districts, or Institutional Districts.2 [(Emphasis in original.]
"2. Apparently, to comply with Ala. Code 1975, § 23-1-273,3 Article VII of
Ordinance No. 31-73 allows the erection of billboards in areas zoned for agriculture only if the billboards 'do not violate interstate highway, federal-aid primary highway, and state highway setback provisions.' All of defendants' billboards, except for the one owned by defendant Lamar that is on land zoned 'M-1,' violate that provision since § 23-1-273 has a setback provision that forbids all billboards in adjacent areas along interstate highways unless the adjacent area is a business area. All of the signs at issue that are located in adjacent areas zoned for agricultural use are situated within 660 feet of the nearest edge of an interstate highway; therefore, they have been illegally erected and maintained."
"3. Section 3(c)(3)(a) of Ordinance No. 31-73 provides that 'on all interstate highways . . . there must be at least 300 feet between all sign structures on the same side of the highway.' The billboard owned by Lamar and located in the industrial area zoned 'M-1' for light industry violated the City's Ordinance because it is less than 300 feet from another sign. Furthermore, that sign violates Ala. Code 1975, § 23-1-274(3)(c)(1), which provides, in part, that '[o]n interstate highways . . . there must be at least 500 feet between sign structures on the same side of the highway.'
"4. Article I of Ordinance No. 31-73 classifies a PUD as a 'Residence Zone.' Billboards in residence zones are forbidden by § 23-1-273 and by Ordinance No. 31-73; therefore, the sign owned by Lamar that is in a PUD is illegal.
"5. As a matter of sovereignty, the City of Montgomery can not permit that which is forbidden by state law. All of the billboards at issue in these consolidated cases are prohibited by and were erected in violation of AHBA.
"6. Since the defendants' billboards were unlawfully erected after February 10, 1972, they are not conforming billboards. Ala. Code 1975, § 23-1-279(a). Therefore, ALDOT is not required to pay just compensation pursuant to § 23-1-280.
". . . .
"THEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED THAT:
"1. Defendant Lamar's billboards in Counts I, II, III, IV, VI, VII, VIII, IX, and XI of the complaint, as amended, in CV-89-1810, were illegally erected;
"2. Defendant Headrick's billboards in Counts I and II of the complaint, as amended, in CV-89-2127, were illegally erected;
"3. Defendant Dyess's billboards in Counts I and II of the complaint, as amended, in CV-89-2128, were illegally erected;
"4. Because defendants' billboards were illegally erected after February 10, 1972, they are nonconforming billboards, and ALDOT is not required to pay just compensation to defendants;
"5. Defendants shall remove each of the illegal billboards within 30 days after the date of this order; and
"6. The motions for summary judgment filed by defendants Lamar, Headrick, and Dyess are denied."
Arguing that "agriculture" is a "business," the defendant sign companies contend that the term "business area," as defined by the AHBA, is broad enough to cover "agriculture." The trial court rejected this contention, holding that "[t]he uses permitted in Agricultural Areas are not commensurate with uses permitted in zoned Business Areas, Industrial Districts, Office Districts, or Institutional Districts." Surely, no citation of authority is required to support this conclusory proposition.
Finding no error in the judgment appealed from, we adopt that portion of the judgment quoted hereinabove as part of the opinion of this Court.
This opinion was prepared by retired Justice RICHARD L. JONES, sitting as a Justice
of this Court pursuant to § 12-18-10(e), Ala. Code 1975.
AFFIRMED.
HOOPER, C.J., and SHORES, COOK, and BUTTS, JJ., concur.
MADDOX and HOUSTON, JJ., concur specially.