Pigg v. State Department of Highways

746 P.2d 961, 1987 Colo. LEXIS 657, 1987 WL 1887
CourtSupreme Court of Colorado
DecidedNovember 30, 1987
Docket86SA4
StatusPublished
Cited by5 cases

This text of 746 P.2d 961 (Pigg v. State Department of Highways) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pigg v. State Department of Highways, 746 P.2d 961, 1987 Colo. LEXIS 657, 1987 WL 1887 (Colo. 1987).

Opinion

ROVIRA, Justice.

The Colorado Outdoor Advertising Act (Act), § 43-1-401 to -420, 17 C.R.S. (1984), and regulations promulgated thereunder by the appellant Colorado State Department of Highways (Department), 2 C.C.R. 601-3 (1983), restrict the content, size, lighting, and spacing of signs that may be erected and maintained along highways in Colorado. The issue in this case is whether the Act applies to noncommercial advertising devices, and if so whether it is constitutional.

I.

Appellee George W. Pigg operates a ranching business near Pueblo, Colorado. Interstate Highway 25 divides Pigg’s property into four parts: one large parcel abuts the east side of the highway, and three smaller parcels abut the west. Pigg purchased the property in 1956, and from then until 1974 he maintained a number of commercial advertising signs along both sides of the highway.

In 1974, the Department condemned 21 of Pigg’s signs pursuant to the Act, § 43-1-414(1), 17 C.R.S. (1984), and later paid him $17,900 for the taking; that figure was determined to be just compensation in an eminent domain proceeding. See § 43-1-414(2), 17 C.R.S. (1984). Pigg appealed the award as inadequate. In a separate proceeding, the Department obtained permission to remove five more signs Pigg erected after the eminent domain proceeding. Pigg appealed that decision, also, but was unsuccessful on both appeals. See State Department of Highways v. Pigg, 656 P.2d 46 (Colo.App.1982) (affirming $17,-900 compensation award); State Department of Highways v. Pigg, 653 P.2d 67 (Colo.App.1982) (affirming summary judgment in favor of Department on its complaint to remove signs).

Before those two cases were resolved on appeal, Pigg erected over 50 signs bearing noncommercial messages, most of which were related to his dissatisfaction with the condemnation award and his dealings with *963 the Department. 1 In response, the Department sent Pigg a Notice of Violation (Notice) of the Act on July 27, 1982, directing him to remove all but three of the signs. Of the 54 “advertising devices” enumerated in the Notice as standing in violation of the Act and regulations, 35 bore noncommercial messages, one bore an arguably commercial message, and 18 were in some state of disrepair or were bare structures holding no signs at all.

Pigg challenged the Notice pursuant to the State Administrative Procedure Act. After a hearing at which Pigg was represented by counsel, the hearing officer concluded that the Notice was correct and ordered Pigg to remove the advertising devices.

Pigg then appealed to the Colorado Highway Commission (Commission), which affirmed and adopted the hearing officer’s decision in its final decision and order. Pigg then filed a complaint in the district court seeking judicial review of a final agency decision. He claimed that the Act regulates only commercial speech, and that the Department’s regulations are void because the Act does not authorize the regulation of structures bearing noncommercial messages. Further, he argued, if the Act and regulations were interpreted to apply to his noncommercial signs, they would be in violation of the first and fourteenth amendments to the United States Constitution and article II, section 10 of the Colorado Constitution.

The district court ruled that the Act was intended to govern only commercial advertising devices, and therefore the Department had no statutory authority to place restrictions on noncommercial advertising devices such as Pigg’s. The court reversed the Commission’s final decision and order. The Department, the Commission, and the chief engineer of the Department appeal that decision. We reverse the judgment of the district court.

II.

A.

Colorado began regulating roadside advertising in the early part of this century, but for the most part the restrictions on advertising were minimal. See 1963 C.R.S. 120-5-1 to -13 The Act, which effectively bans outdoor advertising in rural and residential areas, was enacted in 1966 primarily to enable the state to receive its full share of federal aid highway funds in light of the Federal Highway Beautification Act of 1965, 23 U.S.C.A. § 131 (1966 & Supp.1987) (Beautification Act).

The Beautification Act was enacted to combat the overuse of billboards and other outdoor advertising devices along the nation’s highways “in order to protect the public investment in such highways, to promote the safety and recreational value of public travel, and to preserve natural beauty.” Id. § 131(a). The Beautification Act does not itself regulate outdoor advertising. Instead, it penalizes a state that fails to provide “effective control” of outdoor advertising by mandating forfeiture of 10 percent of its federal aid highway funds until such time as the state provides for effective control. Id. § 131(b). The statute specifies that:

*964 Effective control means that such signs, displays, or devices ... shall, pursuant to this section, be limited to (1) directional and official signs and notices, ... (2) signs, displays, and devices advertising the sale or lease of property upon which they are located, (3) signs, displays, and devices ... advertising activities conducted on the property on which they are located....

23 U.S.C.A. § 131(c) (1987 Supp.).

The Secretary of Transportation has promulgated regulations pursuant to the Beautification Act further defining “effective control” in terms of restrictions on the content, size, lighting, and spacing of signs permitted under section 131. 23 C.F.R. § 750.101 et seq. (1987). Those regulations include certain limitations with respect to the on-premise signs referred to in section 131(c)(2) and (3), but at the same time require states to determine the circumstances in which certain signs are exempt from section 131(c):

On-property or on-premise advertising (d) Signs are exempt from control under 23 U.S.C. 131 if they solely ... advertise activities conducted on the property on which they are located.... State laws or regulations shall contain criteria for determining exemptions. These criteria may include:
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(2) A purpose test for determining whether a sign has as its sole purpose the identification of the activity located on the property....
(3) The criteria must be sufficiently specific to curb attempts to improperly qualify outdoor advertising as “on-property” signs, such as signs on narrow strips of land contiguous to the advertised activity when the purpose is clearly to circumvent 23 U.S.C. 131

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Bluebook (online)
746 P.2d 961, 1987 Colo. LEXIS 657, 1987 WL 1887, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pigg-v-state-department-of-highways-colo-1987.