Addition of third support post did not cause billboard to lose nonconforming use status

by Rachel Greifenkamp

Lamar Central Outdoor, LLC v. State of Wisconsin Department of Transportation

(Wisconsin Court of Appeals, February 6, 2014)

Lamar Central Outdoor Advertising owns a sign located along Interstate highway 39/90/94 in the Town of Dekorra. On March 18, 1972 WIS. STAT. §84.30 became effective. This statute generally prohibits construction of signs along state or interstate highways subject to specified exceptions; however, because the sign in question was in existence before the statute was enacted it was granted nonconforming status. Section 84.30(5)(bm) also provides that if a lawful nonconforming sign is enlarged, replaced, relocated, or if additional signs are erected, the sign loses its lawful nonconforming status and is subject to removal. In November, 2010 the Wisconsin Department of Transportation (DOT) ordered Lamar to take down the sign because modifications had been made to the support structure. The DOT said that a third wooden support beam had been added to the sign along with several other modifications. The DOT argued that this modification constituted a substantial change to the structure, causing the sign to lose its legal nonconforming status.

The Division of Hearings and Appeals (DHA) heard the case and determined that the addition of the third wooden post constituted a substantial change but the other modifications did not. The DHA concluded that the sign had therefore lost its legal nonconforming status. A circuit court later reversed the decision made by the DHA because the addition of the third wooden post did not constitute a substantial change.  The DOT appealed the ruling and the Wisconsin Court of Appeals affirmed the circuit court ruling in favor of Lamar. The Court of Appeals decided that the support post constituted maintenance and repair because it did not enlarge or expand the sign, nor change the look or appearance of it, and did not exceed fifty percent of the replacement value of the sign.  “From all that we can glean from the record [the third post was] added to stabilize the sign structure, a maintenance and repair function.”  As a result, the sign did not lose its nonconforming status.

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