Mississippi Department of Transportation v. B & G Outdoor

722 So. 2d 1273, 1998 Miss. App. LEXIS 814, 1998 WL 710674
CourtCourt of Appeals of Mississippi
DecidedOctober 13, 1998
DocketNo. 97-CA-00660 COA
StatusPublished
Cited by2 cases

This text of 722 So. 2d 1273 (Mississippi Department of Transportation v. B & G Outdoor) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mississippi Department of Transportation v. B & G Outdoor, 722 So. 2d 1273, 1998 Miss. App. LEXIS 814, 1998 WL 710674 (Mich. Ct. App. 1998).

Opinion

BRIDGES, C.J.,

for the Court:

¶ 1. This ease involves an appeal of the judgment of the Tunica County Special Court of Eminent Domain, in which the trial judge ruled in favor of B & G Outdoor (B & G). The trial court required the Mississippi Department of Transportation (MDOT) to pay the cost of a replacement billboard for B & G after the land upon which the billboard was situated was taken for a highway project. MDOT appeals that ruling raising the following issue:

I. THE COURT ERRED IN CONSTRUING THE MISSISSIPPI RELOCATION ASSISTANCE LAW TO REQUIRE THE MISSISSIPPI DEPARTMENT OF TRANSPORTATION TO PAY THE APPELLEE THE COST OF PURCHASING AND INSTALLING A NEW MONOPOLE SIGN.

¶ 2. Finding no error with the trial court’s decision, we affirm.

FACTS

¶ 3. B & G Outdoor, a Tennessee corporation licensed to do business in the state of Mississippi, owned a certain billboard on land ultimately acquired by the Mississippi Department of Transportation for highway construction. MDOT offered to pay the reasonable expenses for taking down and relocating the billboard to other property, approximately $12,400. The amount offered was not objected to by B & G as being reasonable for relocating that particular billboard; however, B & G claimed that it needed at least $22,000 because it could not use the old billboard at the new location due to zoning changes. In fact, Tunica County had passed a zoning ordinance requiring all new billboards to be built on monopoles. B & G’s billboard had two poles and did not meet the new regulations. The zoning board would not allow B & G’s billboard to be “grandfathered” in.

¶ 4. MDOT refused to pay for a new monopole billboard, claiming that it would unjustly enrich B & G. B & G appealed MDOT’s final administrative determination in the Tunica County Circuit Court which reversed the decision of the MDOT and required MDOT to pay for the replacement monopole billboard. MDOT appeals, claiming that the trial court erred in so ruling and erred in construing the Mississippi Relocation Assistance Law.

¶ 5. The trial court, in its opinion, stated that strictly construed, the Relocation Assistance Law probably did not provide for MDOT to purchase the new monopole billboard. However, the circuit court continued, stating that this was an issue of first impression in the state, and that the rules and regulations most likely did not anticipate changes in zoning that would so frustrate relocation as in the instant case.

¶ 6. B & G argues that the circuit court was correct in its reasoning and final decision, and that any other ruling would amount to a taking of their property without just compensation. MDOT, on the other hand, argues that the circuit court erred when it failed to strictly construe the established law, [1275]*1275and this Court should reverse the circuit court’s ruling and reinstate the ruling of the Mississippi Department of Transportation.

I. THE COURT ERRED IN CONSTRUING THE MISSISSIPPI RELOCATION ASSISTANCE LAW TO REQUIRE THE MISSISSIPPI DEPARTMENT OF TRANSPORTATION TO PAY THE APPELLEE THE COST OF PURCHASING AND INSTALLING A NEW MONOPOLE SIGN.

¶7. Section 43-39-7 of the Mississippi Code is part of the Mississippi Relocation Assistance Law and states in part:

(1) If a displacing agency acquires real property for public use, it shall make fair and reasonable relocation payments to displaced persons and businesses as required by this chapter for:
(a) Actual reasonable expenses in moving himself, his family, business, farm operation, or other personal property;
(b) Actual direct losses of tangible personal property as a result of moving or discontinuing a business or farm operation, but not to exceed an amount equal to the reasonable expenses that would have been required to relocate such property, as determined by the agency;
(e) Actual reasonable expenses in searching for a replacement business or farm; and
(d) Actual reasonable expenses necessary to reestablish a displaced farm, nonprofit organization or small business at its new site in accordance with criteria to be established by the displacing agency, but not to exceed Ten Thousand Dollars ($10,000.00).

Miss.Code Ann. § 43-39-7(l)(Rev.l993). Section 43-39-17 of the Mississippi Code grants authority to the lead agency to promulgate regulations to carry out the provisions of the Mississippi Relocation Assistance Law. Miss.Code Ann. § 43 — 39—17(l)(a) (Rev. 1993). In this instance, the lead agency is the Mississippi Department of Transportation. To carry out the Relocation Assistance Law, MDOT has promulgated Standard Operating Procedure ROW 12-08-00-OOOB. 1.(12), which states in part:

If an item of personal property which is used as part of a business or farm operation is not moved but is promptly replaced with a substitute item that performs a comparable function at the replacement site, the displaced person is entitled to payment of the lesser of:
(a) The cost of the substitute item, including installation costs at the replacement site, minus any proceeds from the sale or trade-in of the replaced item; or
(b) The estimated cost of moving and reinstalling the replaced item but with no allowance for storage....

¶ 8. In his opinion, the trial judge conceded that strictly construed, the statute and MDOT operating procedure probably only allowed compensation for the removal and reinstallation of B & G’s old dual pole billboard. However, the trial judge stated that the relocation assistance law probably did not foresee the type of situation with which we are now faced, where adequate relocation is frustrated by newly enacted zoning requirements. The circuit court looked behind the Relocation Assistance Law to its purpose, which is to “establish a uniform policy for the fair and equitable treatment of persons displaced by the acquisition of real proper-ty_” Miss.Code Ann. § 43-39-3 (Rev. 1993). According to the trial court, a strict construction of the law would controvert its very purpose. The trial court relied on a federal case interpreting the federal assistance law, Pou Pacheco v. Soler Aquino, 833 F.2d 392, 400 (1st Cir.1987), which held that “the overriding purpose of the relocation Act is to protect individuals displaced as a result of a federally assisted program and to insure that these persons will be fairly and equitably treated.” Our state relocation assistance law being based on the federal law, we find the reasoning in Pou Pacheco persuasive.

¶ 9. While there is no Mississippi case on point, Florida has dealt with a similar situation in Skiff’s Workingman’s Nursery v. Department of Transp., 557 So.2d 233, 235 (Fla.Dist.Ct.App.1990). Skiffs Nursery was required to relocate its business as the result of federally assisted highway construction. Id. at 233.

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Bluebook (online)
722 So. 2d 1273, 1998 Miss. App. LEXIS 814, 1998 WL 710674, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mississippi-department-of-transportation-v-b-g-outdoor-missctapp-1998.