Stevens Point billboard battle ends in advertiser’s favor, Supreme Court rules

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The Wisconsin Supreme Court sided with an advertising company in a billboard battle in Stevens Point. The justices decided Lamar Central Outdoor was unfairly asked to remove a billboard alongside Interstate 39.

The two-sided billboard was put up in 1991 by a different advertising company, and Lamar bought it eight years later. During that time, the roadway changed from a highway to an interstate, and the billboard’s status changed from “legal” to “legal, nonconforming” because its location didn’t fit the specifications required by law.

In 2012, the company applied for a permit from the Wisconsin Department of Transportation to remove vegetation blocking part of the billboard. While reviewing the permit application, the DOT discovered the billboard had been enlarged at one point, but later changed back to its original size. The DOT doesn’t allow the enlargement of legal, nonconforming billboards, so the agency denied the permit. Shortly after, the DOT sent Lamar an order to remove the billboard, saying it didn’t comply with state law.

Lamar requested a hearing before the Division of Hearings and Appeals. The company learned that the DOT had decided that because the billboard was nonconforming, there was no way it could be made legal, in what was referred to as a no-cure policy. The DHA concluded Lamar had to remove the entire billboard. The company then filed a petition for judicial review of the DHA’s decision, and a circuit court affirmed.

In an opinion released Thursday, the state Supreme Court reversed the appellate court’s decision. The justices reviewed the DHA’s decision and assessed whether it was necessary for the department to promulgate a rule before carrying out the no-cure policy.

In the unanimous majority opinion filed Thursday, Justice Dan Kelly wrote that nothing in the statutes cited by the DOT showed the department had adopted the no-cure policy before telling Lamar it had to remove the billboard. Kelly said the department unambiguously precludes Lamar from providing a remedy.

“The Department erroneously interpreted Wis. Stat. § 227.10(1) as allowing it to implement its no-cure interpretation without first promulgating it as a rule,” Justice Dan Kelly wrote. “And because the no-cure interpretation was the Department’s operative justification for denying the Application and issuing the Order, those administrative actions are erroneous and must be vacated.”

The case now goes back to the circuit court for entry of judgement setting aside the order and to the DOT for further proceedings on the permit application. Follow @WLJReporter