Outfront Media, LLC v. Salt Lake City Corp.

This opinion is subject to revision before final
publication in the Pacific Reporter
2017 UT 74IN THE
SUPREME COURT OF THE STATE OF UTAH
OUTFRONT MEDIA, LLC,
Appellant,
v.
SALT LAKE CITY CORPORATION, CORNER PROPERTY, L.C.,
and UTAH OUTDOOR ADVERTISING, INC.,
Appellees.
No. 20160150
Filed October 23, 2017
On Direct Appeal
Third District, Salt Lake
The Honorable Todd M. Shaughnessy
No. 160900413
Attorneys:
Leslie Van Frank, Bradley M. Strassberg, Salt Lake City, for appellant
Samantha J. Slark, Katherine N. Lewis, Salt Lake City, for appellee
Salt Lake City Corporation
Jon H. Rogers, Salt Lake City, for appellees Corner Property, L.C.
and Utah Outdoor Advertising, Inc.
CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
ASSOCIATE CHIEF JUSTICE LEE, JUSTICE DURHAM, JUSTICE HIMONAS, and
JUSTICE PEARCE joined.
CHIEF JUSTICE DURRANT, opinion of the Court:
Introduction
¶ 1 In this case, we review Salt Lake City‘s decisions regarding
two billboard owners‘ requests to relocate their billboards. Outfront
Media, LLC, formerly CBS Outdoor, LLC, (CBS) came out the worse
OUTFRONT MEDIA v. SLC CORP.
Opinion of the Court
in the City‘s decision-making process. The City denied CBS‘s request
to relocate its billboard to an adjacent lot along Interstate 15 (I-15).
The same day, the City granted Corner Property, L.C.‘s request to
relocate its billboard to the lot CBS was vacating.
¶ 2 Dissatisfied with the City‘s decisions, CBS appealed to a
land use hearing officer, who upheld both decisions. CBS then
sought judicial review in district court under the Municipal Land
Use, Development, and Management Act, Utah Code section 10-9a-
801. The district court also upheld the City‘s decisions. CBS now
appeals to this court, contending that the City‘s denial of its
relocation request and grant of Corner Property‘s were arbitrary,
capricious, and illegal.
¶ 3 CBS‘s primary argument on appeal is that the City‘s
decision to deny CBS‘s requested relocation was ―illegal‖ because
the City invoked the power of eminent domain to effect a physical
taking of CBS‘s billboard without complying with the procedural
requirements that constrain the use of eminent domain. In particular,
CBS asserts that the City was required to comply with Utah Code
section 78B-6-504(2)(b), which provides that ―[p]roperty may not be
taken by a political subdivision of the state unless the governing
body of the political subdivision approves the taking.‖ For a city, the
―governing body‖ is the city‘s ―legislative body.‖ For Salt Lake City,
that legislative body is the city council. It is undisputed that the
City‘s mayor made the decision denying CBS‘s request to relocate its
billboard without the approval of the Salt Lake City Council.
¶ 4 At the heart of this case is the proper interpretation of Utah
Code section 10-9a-513 (Billboard Compensation Statute), which
provides that a municipality is ―considered to have initiated the
acquisition of a billboard structure by eminent domain‖ when it
denies billboard relocation requests that, like CBS‘s, meet certain
spacing requirements. In CBS‘s view, under this statute the denial of
its relocation request constituted a physical taking of its billboard,
which required compliance with the eminent domain procedures.
We disagree. The Billboard Compensation Statute does not provide
that a municipality has taken a billboard structure when it denies a
relocation request. Instead, under that section, a municipality is only
considered to have done so for purposes of compensation. We
therefore view the Billboard Compensation Statute as creating a
standalone compensation scheme that does not incorporate,
expressly or impliedly, the procedural requirements that
circumscribe the eminent domain power. Accordingly, the mayor of
Salt Lake City was not required to seek the approval of the Salt Lake
City Council before denying CBS‘s request to relocate its billboard.
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Cite as: 2017 UT 74Opinion of the Court
¶ 5 We also reject CBS‘s additional arguments that the Mayor‘s
decision violated the City‘s billboard ordinance and that the Mayor‘s
decision was arbitrary and capricious. We therefore affirm the
district court.
Background
¶ 6 CBS owned a billboard at 726 West South Temple, adjacent
to I-15. CBS leased the land at that location from Corner Property.
Corner Property also owned land and had a billboard at 280 West
500 South. In the fall of 2014, CBS‘s lease from Corner Property was
about to expire, so CBS sought a means for relocating its billboard.
CBS submitted a request—not the one currently before us—to the
City to relocate its billboard to an adjacent lot at 738 West South
Temple, and to increase its billboard‘s height. The City denied this
request, and this denial was affirmed upon district court review.1
CBS then voluntarily demolished its billboard to avoid trespassing
on Corner Property‘s land.
¶ 7 In its letter denying CBS‘s first request, the City told CBS it
could ―modify its application to either bank its billboard credits [for
the now demolished sign] . . . or request to relocate the sign under
Utah Code 10-9a-511(3)(c)(i).‖ The City reserved the right, however,
to condemn the sign under Utah Code section 10-9a-513(2). CBS
accepted this invitation to modify its relocation request ten months
later.2 Its modified relocation request conformed to the requirements
_____________________________________________________________
1 CBS made its initial relocation request under Utah Code section
72-7-510.5, which allows the owner of a sign to take certain actions if
a UDOT improvement obstructs the view of the sign. Under this
statute ―the owner of the sign may: (a) adjust the height of the sign;
or (b) relocate the sign to a point within 500 feet of its prior location,
if‖ certain other requirements are met. Because CBS‘s request sought
to both ―relocate the sign‖ and ―adjust the height of the sign,‖ the
City denied the request. CBS sought an administrative appeal, which
the City denied. It then sought district court review, and the district
court affirmed the City‘s conclusion that section 72-7-510.5 allows
only relocation or height increase, but not both. CBS did not appeal
from that decision.
2 The City and Corner Property note that CBS tore down its
billboard before modifying its request to relocate to conform to the
requirements of Utah Code section 10-9a-511(3)(c)(i) (the Billboard
Relocation Statute). In Corner Property‘s view, this means that CBS
(Continued)
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Opinion of the Court
of Utah Code section 10-9a-511(3)(c)(i) (the Billboard Relocation
Statute). That statute provides that a municipality may, despite a
prohibition in its zoning ordinance, agree to a mutually acceptable
relocation of a billboard. But if the City denies a billboard owner‘s
request to relocate, and the request meets certain spacing
requirements, the City ―is considered to have initiated the
acquisition of [the] billboard structure by eminent domain.‖3 CBS‘s
requested relocation, from the 726 lot to the 738 lot, was within the
spacing requirements.
¶ 8 Shortly after CBS first applied to relocate its billboard,
Corner Property also requested to relocate a billboard under the
Billboard Relocation Statute. Corner Property asked the City to
permit it to relocate its billboard from 280 West 500 South to 726
West South Temple. This move failed to satisfy the spacing
requirements in the Billboard Compensation Statute, so the City
would have been free to deny it without paying just compensation.
The City could not grant both CBS‘s and Corner Property‘s requests
to relocate, because state law prohibits freeway-oriented billboards
from being located within 500 feet of each other,4 and the two South
Temple lots are within that spacing restriction. Both relocations were
also technically prohibited under the City‘s zoning ordinance
pertaining to billboards, Salt Lake City Code section 21A.46.160(N).
That ordinance prohibits the construction of new billboards in a
―gateway‖ area, which includes I-15 and the area of 500 South where
Corner Property‘s billboard was previously located.5
did not have a billboard to relocate, but instead was the owner of
only billboard credits. But this overlooks the fact that the City
invited CBS to ―modify‖ its application to relocate, including the
specific option of modifying the request to conform to the Billboard
Relocation Statute. The City has thus treated CBS‘s request to
relocate as if it was filed while the billboard was still in existence,
and the City has not argued that we should treat it any other way. In
any event, because we conclude below that the City validly denied
CBS‘s relocation request, we need not decide whether CBS was
technically entitled to file such a request after taking down its
billboard.
3 UTAH CODE § 10-9a-513(2)(a)(iv).
4 See id. § 72-7-505(3).
5 See SALT LAKE CITY CODE § 21A.46.160(B) (defining ―gateway‖).
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¶ 9 The City, acting through its then-mayor, Ralph Becker, and
without seeking the approval of the city council, denied CBS‘s
request to relocate its billboard and approved Corner Property‘s. The
City stated that its reason for denying CBS‘s request was that the
requested location fell within a gateway under the City‘s zoning
ordinances, and the ordinance prohibits construction of a billboard
in a gateway area. The City acknowledged that it had authority
under the Billboard Relocation Statute to waive this zoning
ordinance, but it informed CBS that it was unwilling to do so
because it ―has a longstanding policy in favor of retiring and
removing billboards as the opportunity to do so arises.‖
¶ 10 The City granted Corner Property‘s request to relocate on
the same day it denied CBS‘s. Though, like CBS‘s request, Corner
Property‘s requested relocation would have been in violation of the
―gateway‖ zoning ordinance, the City waived this ordinance for
Corner Property. Mayor Becker submitted a declaration stating that
he decided to deny CBS‘s request, and grant Corner Property‘s, in
order to achieve a net reduction in the number of billboards located
in ―gateway‖ areas by one. His decisions resulted in the permanent
removal of Corner Property‘s 500 South billboard.
¶ 11 CBS sought review of these decisions before the City‘s
appeal authority, a land use hearing officer.6 The hearing officer
_____________________________________________________________
6 ―[A]ny person adversely affected by the land use authority‘s
decision administering or interpreting a land use ordinance may,
within the time period provided by ordinance, appeal that decision
to the appeal authority by alleging that there is error in any order,
requirement, decision, or determination made by the land use
authority in the administration or interpretation of the land use
ordinance.‖ UTAH CODE § 10-9a-703(1).
Before the hearing officer, the parties disputed the scope of
review by the hearing officer and, in particular, whether the hearing
officer could decide issues of state law. The City argued that the
hearing officer had authority to determine only the correctness of
city decisions insofar as they turned on the interpretation of a city
ordinance. The City relied on Utah Code section 10-9a-707 (2016),
which provides that ―[t]he appeal authority shall determine the
correctness of a decision of the land use authority in its
interpretation and application of a land use ordinance‖ and that
―[o]nly those decisions in which a land use authority has applied a
land use ordinance to a particular application, person, or parcel may
(Continued)
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OUTFRONT MEDIA v. SLC CORP.
Opinion of the Court
ultimately upheld the City‘s decisions to deny CBS‘s request and
approve Corner Property‘s. CBS then sought judicial review in
district court.7 The district court rejected CBS‘s arguments and
concluded that the City‘s decisions were not arbitrary, capricious, or
illegal, and affirmed the decision. CBS now appeals, pressing the
same arguments it made below. We have jurisdiction under Utah
Code section 78A-3-102(3)(j).
Standard of Review
¶ 12 This is an appeal from a district court‘s review of an
administrative appeal challenging a municipal land use decision.8
be appealed to an appeal authority.‖ The hearing officer disagreed
and concluded that he had authority to review the City‘s decisions in
their entirety, including the aspects of state law that were implicated
by the City‘s decisions.
7 ―Any person adversely affected by a final decision made in the
exercise of or in violation of the provisions of this chapter may file a
petition for review of the decision with the district court within 30
days after the decision is final.‖ UTAH CODE § 10-9a-801(2)(a).
The district court determined that the hearing officer‘s authority
was limited to considering the application and interpretation of city
ordinances, not state statutes, and accordingly disregarded the
portions of the hearing officer‘s decision that dealt with state law. No
party has argued that we need to resolve the issue of the scope of the
hearing officer‘s authority, and so we express no opinion as to that
issue.
8 The parties dispute whether on appeal we review the decision
of the City or the hearing officer; neither argues that we review the
decision of the district court. The City argues that, because the
hearing officer in this case ―perform[ed] the same review as a district
court in a petition for judicial review or an appellate court on an
appeal from that decision,‖ the decision we review is the one made
by the City, that is, by Mayor Becker. CBS counters that, under Utah
Code section 10-9a-801, the courts review only a ―final decision,‖
which Utah Code section 10-9a-708 defines as the ―written decision‖
of the ―appeal authority.‖ We disagree with both parties‘
characterization of our review. Their apparent consensus that we do
not review the decision of the district court may be attributable to
language in our previous cases suggesting that, ―[w]hen a district
court reviews an order of a local land use authority and we exercise
appellate review of the district court‘s judgment, we act as if we
were reviewing the land use authority‘s decision directly.‖ Fox v.
(Continued)
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Cite as: 2017 UT 74Opinion of the Court
―When a district court reviews an order of a local land use authority
and we exercise appellate review of the district court‘s judgment, . . .
we afford no deference to the district court‘s decision.‖9 The
legislature has directed that ―[t]he courts shall . . . presume that a
decision, ordinance, or regulation made under the authority of this
chapter is valid; and [] determine only whether or not the decision,
ordinance, or regulation is arbitrary, capricious, or illegal.‖10 ―A
determination of illegality requires a determination that the decision,
ordinance, or regulation violates a law, statute, or ordinance in effect
at the time the decision was made or the ordinance or regulation
adopted.‖11 The proper interpretation of a set of statutes presents a
question of law, which we review for correctness. 12 We review the
interpretation of ordinances for correctness as well.13 A decision is
Park City, 2008 UT 85, ¶ 11, 200 P.3d 182. But as we have recently
noted, this language should not be understood to mean that the
district court‘s decision is a superfluity. See McElhaney v. City of
Moab, 2017 UT 65, ¶¶ 15–26, __ P.3d __. Our recent decision in
McElhaney clarified that the fact that we afford no deference to the
intermediate court does not obviate the need for parties to make and
preserve below the arguments they wish to press on appeal. Id.¶¶ 24–25. And the lack of deference likewise does not mean that we
are not in fact reviewing the decision of the district court. So, as we
said in McElhaney, when we exercise appellate review of a district
court‘s judgment in connection with judicial review under Utah
Code section 10-9a-801, ―we review the intermediate court‘s
decision.‖ Id. ¶ 26.
9 Fox, 2008 UT 85, ¶ 11.
10UTAH CODE § 10-9a-801(3)(a) (2016). We note that this provision
was recently amended, effective May 9, 2017. See H.B. 232, 62nd
Legislature, Gen. Sess. (2017). We apply the version of the statute
that was in effect at the time of the events relevant to this
proceeding.
11 UTAH CODE § 10-9a-801(3)(d) (2016). See Patterson v. Utah Cty.
Bd. of Adjustment, 893 P.2d 602, 604 (Utah Ct. App. 1995) (―[W]hether
or not the Board‘s decision is illegal depends on a proper
interpretation and application of the law.‖).
12 2 Ton Plumbing, L.L.C. v. Thorgaard, 2015 UT 29, ¶ 17, 345 P.3d
675.
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OUTFRONT MEDIA v. SLC CORP.
Opinion of the Court
arbitrary and capricious only if it is not supported by ―substantial
evidence,‖ which is ―that quantum and quality of relevant evidence
that is adequate to convince a reasonable mind to support a
conclusion.‖14
Analysis
¶ 13 CBS levels three challenges at the City‘s decision denying its
billboard relocation request.15 First, CBS contends that the decision
13 In the past, we ―afford[ed] some level of non-binding deference
to‖ a local agency‘s interpretation of its own ordinance. Carrier v. Salt
Lake Cty., 2004 UT 98, ¶ 28, 104 P.3d 1208. But this deference cannot
stand in view of subsequent developments in our precedent. Our
cases since Carrier have expressly rejected the notion of affording
Chevron-style deference to state agencies‘ interpretation of statutes,
see Hughes Gen. Contractors, Inc. v. Utah Labor Comm’n, 2014 UT 3,
¶ 25, 322 P.3d 712, or regulations, see Ellis-Hall Consultants v. Pub.
Serv. Comm’n, 2016 UT 34, ¶ 21, 379 P.3d 1270. Given that we do not
defer to state agencies on pure questions of law, there is even less
reason to defer to local agencies‘ interpretations of ordinances, given
that those local agencies ―do not possess the same degree of
professional and technical expertise as their state agency
counterparts.‖ Carrier, 2004 UT 98, ¶ 28. In keeping with our recent
decisions, we review the interpretation of ordinances for correctness.
14 Bradley v. Payson City Corp., 2003 UT 16, ¶ 15, 70 P.3d 47(citation omitted).
15 In its briefs, CBS also challenges the City‘s decision to grant
Corner Property‘s request to relocate. CBS contends that the grant of
Corner Property‘s application was illegal for two reasons. First, CBS
argues that Corner Property‘s relocated billboard would be in
violation of city ordinances regarding the permissible height and
size of billboards. Second, CBS argues that the City‘s billboard
ordinance forbids the mayor from waiving a zoning ordinance for a
billboard owner who, like Corner Property, requests to move a
billboard that is outside the spacing requirements set forth in the
Billboard Compensation Statute. But counsel for CBS conceded at
oral argument that, were we to conclude that the City‘s decision to
deny CBS‘s request to relocate its billboard was not arbitrary,
capricious, or illegal, then CBS lacks standing to challenge the grant
of Corner Property‘s request. See Oral Argument at 1:53:16–1:55:45,
https://www.utcourts.gov/opinions/streams/sup. Because we
reach just that conclusion below, we accordingly do not consider
CBS‘s arguments challenging the grant of Corner Property‘s request.
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to deny its request was illegal because Mayor Becker did not obtain
the approval of the city council before making that decision. In CBS‘s
view, such a denial is an exercise of the eminent domain power. We
reject this argument and hold that the procedural requirements of
eminent domain mandated by Utah Code section 78B-6-504 do not
apply because, under the Billboard Compensation Statute, relocation
denials are merely ―considered‖ to be the acquisition of a billboard
structure by eminent domain for compensation purposes, but these
denials do not actually involve the formal exercise of the eminent
domain power and the concomitant procedures the legislature has
prescribed to restrain the exercise of that power.
¶ 14 Second, CBS contends that Salt Lake City‘s billboard
ordinance prohibited the City from denying CBS‘s request to
relocate. That ordinance provides that ―[e]xcept as otherwise
authorized herein, existing billboards may not by relocated except as
mandated by the requirements of Utah State law.‖16 In CBS‘s view,
this means that if a relocation denial would trigger just
compensation under the Billboard Compensation Statute, then the
relocation is ―mandated by . . . State law,‖ and the City must approve
the relocation request. We find no support for this interpretation of
the ordinance in its plain language, and in any event, even if that
were the proper interpretation, it would be preempted by state law.
¶ 15 Finally, CBS argues that Mayor Becker‘s decision to deny
CBS‘s request and approve Corner Property‘s was arbitrary and
capricious because, in CBS‘s view, a city‘s mayor cannot act
according to an unwritten policy to reduce the number of billboards
in the city. We disagree. There is substantial evidence in the record
that Mayor Becker‘s administration had a goal of reducing the
number of billboards in the city, and his decision to deny CBS‘s
request and approve Corner Property‘s resulted in the net reduction
of one billboard from a gateway area in the City, directly furthering
that goal.
I. The City‘s Decision to Deny CBS‘s Billboard Relocation Request
Was Not Illegal, Because the Eminent Domain Statutes Do Not
Apply to Such Denials
¶ 16 CBS argues that the City‘s decision to deny its request to
relocate its billboard was illegal because the decision was made by
the City‘s mayor without the approval of the City‘s legislative body,
_____________________________________________________________
16 SALT LAKE CITY CODE § 21A.46.160(CC).
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Opinion of the Court
the city council. In CBS‘s view, the provisions of Utah Code sections
78B-6-501 through 522 (the Eminent Domain Statutes), especially
section 78B-6-504‘s requirement of legislative approval of a taking,
apply to the decision to deny a relocation request that triggers the
requirement of just compensation under the Billboard Compensation
Statute.
¶ 17 We disagree. The Billboard Compensation Statute neither
expressly nor impliedly incorporates the Eminent Domain Statutes,
so the procedures specified there do not apply to the denial of
relocation requests submitted under the Billboard Relocation Statute.
Instead, the Billboard Compensation Statute functions as a stand-
alone scheme, mandating the payment of compensation upon the
occurrence of certain triggering events.
¶ 18 We begin with the text of the statutes. The Billboard
Relocation Statute provides:
Notwithstanding a prohibition in its zoning ordinance,
a municipality may permit a billboard owner to
relocate the billboard within the municipality's
boundaries to a location that is mutually acceptable to
the municipality and the billboard owner . . . . If the
municipality and billboard owner cannot agree to a
mutually acceptable location within 90 days after the
owner submits a written request to relocate the
billboard, the provisions of Subsection 10-9a-
513(2)(a)(iv) apply.17
The Billboard Compensation Statute provides, in pertinent
part:
A municipality is considered to have initiated the
acquisition of a billboard structure by eminent domain
if the municipality prevents a billboard owner from . . .
relocating a billboard into any commercial, industrial,
or manufacturing zone within the municipality‘s
boundaries, if [certain spacing requirements are met];
and . . . the billboard owner has submitted a written
request under Subsection 10-9a-511(3)(c); and . . . the
municipality and billboard owner are unable to agree,
_____________________________________________________________
17 UTAH CODE § 10-9a-511(3)(c).
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within the time provided in Subsection 10-9a-511(3)(c),
to a mutually acceptable location[.]18
¶ 19 In sum, the Billboard Relocation Statute permits a
municipality to agree to a billboard relocation request that would
otherwise be prohibited by the city‘s zoning ordinance. But if the city
does not agree to a relocation request, and that request meets certain
spacing requirements, the city is ―considered‖ under the Billboard
Compensation Statute to have ―initiated the acquisition of the
billboard structure by eminent domain.‖
¶ 20 The Eminent Domain Statutes, on the other hand, offer a
host of procedural protections for property owners. Particularly
relevant here, Utah Code section 78B-6-504(2)(b) provides that
―[p]roperty may not be taken by a political subdivision of the state
unless the governing body of the political subdivision approves the
taking.‖ The parties agree that the ―governing body‖ here is the Salt
Lake City Council and that the city council did not participate in the
decision to deny CBS‘s relocation request.
¶ 21 CBS argues that the Eminent Domain Statutes apply
because, in its view, the denial of its request to relocate a billboard
constitutes a physical taking of the billboard. It points to the
common textual link between the Billboard Compensation Statute
and the Eminent Domain Statutes: both use the phrase ―eminent
domain.‖ The Billboard Compensation Statute provides that the City
―is considered to have initiated the acquisition of a billboard
structure by eminent domain‖ in certain circumstances, and the
Eminent Domain Statutes set procedures to constrain the exercise of
the eminent domain power. According to CBS, because the Billboard
Compensation Statute tells the City the circumstances in which its
denial of a relocation request will constitute an ―acquisition by
eminent domain,‖ the City is formally exercising its power of
_____________________________________________________________
18 Id. § 10-9a-513(2)(a)(iv). The Billboard Compensation Statute
also mandates compensation in other circumstances, for example
where a municipality ―prevents a billboard owner from . . .
rebuilding, maintaining, repairing, or restoring a billboard structure
that is damaged by casualty, an act of God, or vandalism‖ or from
making certain structural modifications or upgrades. Id. §§ 10-9a-
513(2)(a)(i), (ii), (iii). Because this case features the denial of a request
to relocate, we accordingly focus our discussion on that aspect of the
Billboard Compensation Statute.
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Opinion of the Court
eminent domain and acquiring the billboard whenever it denies such
a relocation request. And formal use of that power, CBS argues,
necessitates compliance with the Eminent Domain Statutes.
¶ 22 CBS draws support for its position from Utah Department of
Transportation v. Carlson,19 claiming that case stands for the principle
that, although the permissible public uses for eminent domain are
scattered throughout the code, they are all subject to the general
requirements of the Eminent Domain Statutes. Additionally, CBS
argues that it makes good sense to require the legislative body‘s
approval before the City denies a relocation request, given that
condemnation is often expensive, and that the city council is the
body typically tasked with budgetary responsibilities.
¶ 23 The City20 contends that the Eminent Domain Statutes do
not apply to billboard relocation denials. Like CBS, the City begins
with the text of the Billboard Compensation Statute. The City points
out that neither the Billboard Relocation Statute nor the Billboard
Compensation Statute incorporates the Eminent Domain Statutes by
explicit textual reference. The City argues that the absence of a
specific incorporation was a purposeful omission, indicating the
legislature‘s intent that the Eminent Domain Statutes do not apply.
The City also rebuts CBS‘s concern about fiscal responsibility,
arguing that the city council, though tasked with general budget
creation, does not oversee every action with financial
consequences.21 We agree with the City on each point.
_____________________________________________________________
19 2014 UT 24, 332 P.3d 900.
20 Corner Property‘s arguments largely track the City‘s, so
reference to the City‘s arguments includes both the City and Corner
Property unless otherwise noted.
21 The City also argues that legislative history confirms that the
Billboard Compensation Statute does not incorporate the Eminent
Domain Statutes, citing a failed bill that would have required
compliance with the Eminent Domain Statutes in the context of the
Billboard Compensation Statute. Additionally, the City argues that
the absurd consequences canon supports its interpretation,
describing several absurd consequences that would follow from
adopting CBS‘s interpretation. Because we conclude that the statute
unambiguously compels the City‘s interpretation, we have no need
to employ these auxiliary tools of statutory construction here. See
Bagley v. Bagley, 2016 UT 48, ¶ 10, 387 P.3d 1000 (―When we can
ascertain the intent of the legislature from the statutory terms alone,
(Continued)
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¶ 24 Under the plain text of the Billboard Compensation Statute,
a municipality ―is considered to have initiated the acquisition of a
billboard structure by eminent domain‖ when it takes certain
actions.22 The statute does not say that a municipality must acquire a
billboard structure by eminent domain in those circumstances.23
Instead, we read the plain language to simply specify that, for
compensation purposes, a municipality will be considered to have
acquired it. ―Consider‖ in this context means ―[t]o regard in a certain
light or aspect; to look upon (as), think (to be), take for.‖24 In other
words, ―consider‖ in this context means ―will be treated for present
purposes as though it has, whether in fact it has or not.‖25 We
accordingly read the Billboard Compensation Statute to treat a
denial under the Billboard Relocation Statute as an acquisition for
compensation purposes only, even though the denial itself is not an
acquisition.
‗no other interpretive tools are needed,‘ and our task of statutory
construction is typically at an end.‖ (citation omitted)).
22 UTAH CODE § 10-9a-513(2)(a).
23 CBS‘s argument is driven in part by its flawed assumption that
the City has ―require[d] termination‖ of CBS‘s billboard. In fact, it
has done no such thing. It is true that Utah Code section 10-9a-512
states that a ―municipality may only require termination of a
billboard and associated property rights through . . . eminent
domain‖ or by voluntary transfer. Were the City indeed requiring
termination of CBS‘s billboard, a different analysis may very well
apply. But here, it is the termination of its lease from Corner
Property, and not an action of the City, that is requiring CBS to
terminate its billboard. The fact that the legislature has mandated
that the City pay compensation for some relocation denials does not
transform the City‘s action into one ―requir[ing] termination‖ of the
billboard.
24 Consider, OXFORD ENGLISH DICTIONARY ONLINE (June 2017),
http://www.oed.com/view/Entry/39593?redirectedFrom=consider
(last visited September 29, 2017).
25 The legislature frequently uses the word ―considered‖ in this
sense—to treat something in a certain way. See, e.g., UTAH CODE § 75-
2-104(1)(a) (―An individual born before a decedent‘s death who fails
to survive the decedent by 120 hours is considered to have
predeceased the decedent.‖ (emphasis added)).
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Opinion of the Court
¶ 25 This reading of the Billboard Compensation Statute is
confirmed by subsection 2(d) of that statute. That subsection
provides that ―[i]f a municipality is considered to have initiated the
acquisition of a billboard structure by eminent domain under
Subsection 2(a) . . . the municipality shall pay just compensation to
the billboard owner in an amount‖ specified in that subsection. 26 So
the Billboard Compensation Statute creates a stand-alone scheme
that functions without interface with the Eminent Domain Statutes:
subsection 2(a) describes certain triggering conditions and
subsection 2(d) describes what compensation must be paid when
those conditions occur.
¶ 26 Our reading of the statute is confirmed by two well-worn
canons of statutory construction: the canon of independent meaning
and the canon of meaningful variation. And our reading is not
contradicted by CBS‘s argument about the delegation of fiscal
responsibility in city government. We discuss each point in turn.
A. The Canon of Independent Meaning Confirms that the
Eminent Domain Statutes Do Not Apply
¶ 27 CBS‘s argument overlooks the legislature‘s use of the word
―considered,‖ essentially writing it out of the statute. In CBS‘s view,
by denying a relocation request that meets the spacing requirements,
the City acquires the billboard by eminent domain. In essence, CBS‘s
interpretation would rewrite the statute as follows: ―a municipality
is considered to have initiated the acquisition of has acquired a
billboard structure by eminent domain‖ when it denies a relocation
request that meets the spacing requirements. But to make this
change violates a core principle of statutory interpretation—our
distaste for superfluity. That is, we avoid reading statutes in a way
that renders portions inoperative. Instead, we seek to read them in a
way that gives effect to each word and phrase.27
¶ 28 CBS‘s reading fails to give any independent meaning to the
word ―considered.‖ On this basis alone, there seems to be good
reason to reject CBS‘s reading of the statute. But CBS‘s reading also
_____________________________________________________________
26 UTAH CODE § 10-9a-513(2)(d).
27 See, e.g., Turner v. Staker & Parson Cos., 2012 UT 30, ¶ 12, 284
P.3d 600 (―Wherever possible, we give effect to every word of a
statute, avoiding ‗[a]ny interpretation which renders parts or words
in a statute inoperative or superfluous.‘‖ (alteration in original)
(citation omitted)).
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runs afoul of another canon: the canon that different words used in
similar statutes are presumed to have different meanings.
B. The Canon of Meaningful Variation Confirms that the
Eminent Domain Statutes Do Not Apply
¶ 29 Our conclusion is supported by the fact that the Billboard
Compensation Statute lacks an express or implied textual cross-
reference to the Eminent Domain Statutes. CBS seeks to show that
the Eminent Domain Statutes apply by placing the Billboard
Compensation Statute alongside a group of statutes that bestow the
eminent domain power on municipalities. But this analogy is
inapposite—comparing the Billboard Compensation Statute to these
statutes reveals it to be an apple among oranges. The statutes to
which CBS attempts to analogize all feature a common trait that the
Billboard Compensation Statute lacks: each one grants the power of
eminent domain to a municipality or agency. These statutes provide
that an entity ―may acquire land . . . by eminent domain‖ 28 or ―may
exercise eminent domain.‖29 Typically, though not universally, these
statutes include a specific textual cross-reference incorporating the
provisions of the Eminent Domain Statutes.30
¶ 30 Standing in stark contrast is the Billboard Compensation
Statute, which provides that a municipality ―is considered to have
initiated the acquisition . . . by eminent domain‖ in certain
circumstances.31 No other statutory provision uses the word
―considered‖ in the context of eminent domain. We thus view the
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28 See, e.g., UTAH CODE § 69-3-2.
29 See, e.g., id. § 73-26-404; id. § 73-23-3(3).
30 See, e.g., id. § 17B-2a-820 (―The state, a county, or a municipality
may, by eminent domain under Title 78B, Chapter 6, Part 5, Eminent
Domain, acquire within its boundaries a private property interest,
including fee simple, easement, air right, right-of-way, or other
interest, necessary for the establishment or operation of a public
transit district.‖); id. § 73-26-404 (―In order to construct the reservoirs
and other facilities authorized under this chapter, the division may
exercise eminent domain as provided in Title 78B, Chapter 6, Part 5,
Eminent Domain.‖). But see, e.g., id. § 73-23-3(3) (―Division of Water
Resources . . . may acquire land or any other property right by any
lawful means, including eminent domain . . . .‖).
31 Id. § 10-9a-513(2)(a) (emphasis added).
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OUTFRONT MEDIA v. SLC CORP.
Opinion of the Court
Billboard Compensation Statute as something of a unique animal,
and we do not find it analogous to statutes granting the power of
eminent domain. While the Billboard Compensation Statute uses the
term ―eminent domain,‖ it neither explicitly cross-references the
Eminent Domain Statutes, nor implies such a reference through the
use of language similar to statutes that grant the power of eminent
domain. Instead, under the terms of the statute, the City is not
―acquiring‖ land or ―exercising‖ eminent domain, but it is merely
―considered to have initiated the acquisition of a billboard structure
by eminent domain.‖ That difference is significant.
¶ 31 The canon of meaningful variation suggests that ―[d]ifferent
words used in . . . a similar[] statute . . . are assigned different
meanings whenever possible.‖32 We accord the Billboard
Compensation Statute‘s different words ―considered to have
initiated‖ different meanings by construing this section to operate as
a standalone scheme, rather than incorporating the Eminent Domain
Statutes.
¶ 32 For this reason, CBS‘s reliance on Utah Department of
Transportation v. Carlson is misplaced. In that case, we described a
number of statutes that grant the power of eminent domain. CBS
correctly points out that we recognized in Carlson that the legislature
has ―authoriz[ed]‖ the use of ―eminent domain across a wide range
of statutory provisions.‖33 And there is a solid basis for CBS‘s
position that, though these grants of the eminent domain power are
scattered throughout the code, each is constrained by the Eminent
Domain Statutes. But none of those statutes provides that a
municipality ―is considered to have initiated the acquisition of a
billboard structure by eminent domain‖34 if it denies a relocation
request under certain conditions. So, again, the use of the word
―considered‖ makes a great deal of difference, and distinguishes the
Billboard Compensation Statute from statutes that actually grant the
power of eminent domain. We now turn to CBS‘s argument
regarding the fiscal impact of denying a billboard relocation request.
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32 SUTHERLAND STATUTES & STATUTORY CONSTRUCTION 2A
Sutherland Statutory Construction § 46:6 (7th ed. 2016); see also City
Ctr. Exec. Plaza, LLC v. Jantzen, 344 P.3d 339, 344 (Ariz. Ct. App.
2015).
33 2014 UT 24, ¶ 21.
34 UTAH CODE § 10-9a-513(2)(a) (emphasis added).
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C. The Fiscal Impact of a Relocation Denial Does Not Make It an
Exercise of the Eminent Domain Power
¶ 33 Finally, we address CBS‘s argument regarding the fiscal
impact of a relocation denial. CBS argues that it would be anomalous
to interpret the Billboard Compensation Statute to permit the City‘s
mayor to unilaterally exercise the power of eminent domain. CBS
argues that it is the City Council that is charged with ―drafting
ordinances,‖35 ―controlling finances and property,‖36 and
―purchasing property.‖37
¶ 34 The City points out that the division of labor in a mayor-
council form of city government assigns to the mayor a host of
functions, and though the city council sets the general budget and
appropriations, many of the mayor‘s actions expend fiscal resources
without specific council approval. Though CBS is right that
condemnation can be an expensive decision, that fact alone does not
override the legislature‘s decision to merely ―consider‖ relocation
denials to be an acquisition by eminent domain. Where the language
employed by the legislature contains no intent to incorporate the
Eminent Domain Statutes, it is not our role to expand the otherwise
limited text of the Billboard Compensation Statute and infer such an
incorporation out of concern that good policy requires it.38
¶ 35 In sum, the Eminent Domain Statutes do not apply to
actions that may trigger the Billboard Compensation Statute. We
interpret the Billboard Compensation Statute to mean that, by
denying billboard relocation requests that meet the spacing
requirements, the City is considered to have initiated the acquisition
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35 Citing UTAH CODE § 10-3b-203.
36 Citing id. §§ 10-6-101, 10-8-1.
37 Citing id. §§ 10-3b-203(1), 10-8-1.
38 See, e.g., Univ. of Utah v. Shurtleff, 2006 UT 51, ¶ 53, 144 P.3d
1109 (―No matter how persuasive we may find such arguments, we
are constrained by our judicial role. Our role is one of interpreting,
not drafting.‖); see also Hughes Gen. Contractors, Inc. v. Utah Labor
Comm’n, 2014 UT 3, ¶ 29, 322 P.3d 712 (―[T]he interpretive function
for us is not to divine and implement the statutory purpose, broadly
defined. It is to construe its language. Where, as here, that language
dictates an answer to the question presented, we are not at liberty to
adopt a different one . . . .‖).
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Opinion of the Court
of a billboard structure by eminent domain, solely for purposes of
just compensation as dictated in that section. Because ―considered‖
in this context means ―to look upon (as),‖ we conclude that
relocation denials that meet the spacing requirements are only to be
looked upon as acquisitions by eminent domain, though in fact they
are not.
II. The City‘s Decision to Deny CBS‘s Request Did Not Violate the
City‘s Billboard Ordinance
¶ 36 CBS next challenges the denial of its relocation request as
violating Salt Lake City‘s Billboard Ordinance. That ordinance
provides, in relevant part:
State Mandated Relocation of Billboards: Except as
otherwise authorized herein, existing billboards may
not be relocated except as mandated by the
requirements of Utah state law.39
¶ 37 In CBS‘s view, a relocation is ―mandated‖ by state law—and
therefore the City must approve a relocation request—when a denial
would trigger a right to just compensation under the Billboard
Compensation Statute. We reject CBS‘s reading. It misreads the plain
language of the ordinance. Nothing in the ordinance mandates that
certain relocation requests be granted. The ordinance, on its face,
speaks only to the conditions under which relocation will not be
allowed. And in any event, the Billboard Compensation Statute does
not mandate relocation of any billboard; it simply specifies
circumstances where just compensation must be paid if relocation is
denied. The statute gives the municipality the option of permitting
the relocation, or denying it and paying just compensation. It
nowhere mandates that relocation be permitted to occur. So CBS‘s
reading of the ordinance is misguided. But even if the ordinance had
the meaning that CBS assigns it, it would be preempted by state law.
¶ 38 If CBS‘s interpretation were correct—that the ordinance
means that the City must grant relocation requests where denying
them would require just compensation—then the ordinance would
be preempted by the Billboard Relocation Statute. The City correctly
points out that ―[i]t is well established that, where a city ordinance is
in conflict with a state statute, the ordinance is invalid at its
inception. ‗In determining whether an ordinance is in ―conflict‖ with
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39 SALT LAKE CITY CODE § 21A.46.160(CC).
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general laws, the test is whether the ordinance permits or licenses
that which the statute forbids and prohibits, and vice versa.‘‖40
¶ 39 Here, the Billboard Relocation Statute gives the City
discretion to grant or deny requests for billboard relocation.41 No
ordinance can effectively prohibit the City from exercising that
discretion. CBS reads the ordinance to forbid the City from denying
some relocation requests—those that fall within the spacing
requirements that trigger the just compensation requirement under
the Billboard Compensation Statute. But the Billboard Relocation
Statute expressly permits the City to deny such requests, so long as it
pays just compensation. This argument therefore fails.
III. The City‘s Decision to Deny CBS‘s Request and Grant Corner
Property‘s Was Not Arbitrary and Capricious, Because It Furthered
the City‘s Goal of Reducing the Number of Billboards in
―Gateway‖ Areas
¶ 40 CBS argues that the City‘s stated purpose for denying its
application—that it was doing so in accordance with its
longstanding policy in favor of retiring and removing billboards—
was arbitrary and capricious. A decision is arbitrary and capricious
when it is not supported by ―substantial evidence.‖42 Substantial
evidence is that ―quantum and quality of relevant evidence that is
adequate to convince a reasonable mind to support a conclusion.‖43
CBS argues that the City‘s decisions were arbitrary and capricious
because 1) no policy of billboard reduction exists in written form; 2)
even if there were a policy, the executive branch cannot make
―policy,‖ only the legislative body can; and 3) even if unwritten
policies of the executive are acceptable, the executive cannot have a
policy that conflicts with an ordinance. We reject the first two
arguments, and, even if we agreed with the premise of the third—
_____________________________________________________________
40 Hansen v. Eyre, 2005 UT 29, ¶ 15, 116 P.3d 290 (citations
omitted).
41 ―Notwithstanding a prohibition in its zoning ordinance, a
municipality may permit a billboard owner to relocate the billboard
within the municipality‘s boundaries to a location that is mutually
acceptable to the municipality and the billboard owner.‖ UTAH CODE
§ 10-9a-511 (3)(c)(i) (emphasis added).
42 UTAH CODE § 10-9a-801(3)(c).
43 Bradley v. Payson City Corp., 2003 UT 16, ¶ 15, 70 P.3d 47(citation omitted).
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Opinion of the Court
that an executive‘s policy cannot conflict with an ordinance—we see
no such conflict here.
¶ 41 First, we agree with the City that there is substantial
evidence that Mayor Becker had a policy of reducing billboards. The
City points to, and CBS does not refute, several pieces of evidence to
this effect. For example, Mayor Becker submitted a declaration
referring to his ―longstanding policy to reduce the total number of
billboards within the City.‖ Mayor Becker publicly announced this
policy several times, including in his 2013 State of the City address.
The City also entered into numerous agreements under Mayor
Becker‘s direction to limit the ability of property owners to place
billboards on their property. We agree with the City that this
constitutes substantial evidence that the Becker administration had a
policy of reducing the number of billboards in the City.
¶ 42 The next question is whether such a policy needs to be in
writing to be valid. We conclude that it does not. We see no reason
why a city executive is not entitled to have informal policies, i.e.,
objectives, goals, or standards that he or she applies in carrying out
the executive function. Informal executive policies represent an effort
to administer consistently, and we agree with the City that an
executive branch of city government can make decisions in
accordance with informal goals and objectives.
¶ 43 In the end, we are left with CBS‘s argument that the Becker
administration‘s policy of reducing billboards is inconsistent with
the City‘s Billboard Ordinance. The Billboard Ordinance provides:
This section is intended to limit the maximum number
of billboards in Salt Lake City to no greater than the
current number. This chapter further provides
reasonable processes and methods for the replacement
or relocation of existing nonconforming billboards to
areas of the city where they will have less negative
impact on the goals and policies of the city which
promote the enhancement of the city‘s gateways,
views, vistas and related urban design elements of the
city‘s master plans.44
¶ 44 The question here is whether a policy of actively reducing the
number of billboards is in conflict with a policy to ―limit‖ the
number of billboards to ―no greater than the current number.‖ We
conclude that there is no conflict in these policies. If the mayor had a
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44 SALT LAKE CITY CODE § 21A.46.160(A).
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policy of increasing the number of billboards in the city, then this
policy would conflict with the ordinance. But a policy of reducing
the total number of billboards is consistent with the goal of
―limit[ing]‖ the number of billboards to no greater than the current
number.
¶ 45 Mayor Becker‘s decision in this case had exactly that effect.
By denying CBS‘s relocation request and granting Corner Property‘s,
he achieved the net reduction of one billboard, and it was a billboard
located in a ―gateway‖ area—an area that the City has prioritized as
important for protecting the aesthetics of the City. Accordingly, the
mayor‘s decision to deny CBS‘s relocation request and grant Corner
Property‘s was not arbitrary and capricious.
Conclusion
¶ 46 We affirm the conclusion that the City‘s decision to deny
CBS‘s request to relocate its billboard was not arbitrary, capricious,
or illegal. The Eminent Domain Statutes do not apply in the context
of the Billboard Compensation Statute, so the City was not required
to seek city council approval before denying CBS‘s request. The
City‘s Billboard Ordinance does not forbid the City from denying a
billboard relocation request that fits within the spacing requirements
of the Billboard Compensation Statute. And Mayor Becker‘s decision
was not arbitrary and capricious because it furthered his established
goal of achieving a net reduction in the number of billboards in
gateway areas.
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