01-843ORIGINAL
RESOLUTION
CITY OF SAINT PAUL, MINNESOTA
Presented By �
t
�S
Referred To
Comxnittee: Date
1 RESOLVED, that the sign contractor's license held by Delite Outdoor Advertising, Inc.
2 (License ID#: TR 1344) be suspended unril such time as the billboard at I-94 and Vandalia has
3 been removed and a permit fees for repairs to the billboard at 1651 Pierce Butler Route have
4 been paid.
6 FURTHER RESOLVED, that the findings of fact and conclusions of law contained in the
7 ALJ Report in this case dated June 6, 2001 are adopted as the written findings and conclusion of
8 the Council in this matter, except as amended below. The reasoning of the Memorandum of the
9 ALJ attached to the findings and conclusions is not adopted, nor is the recommendation of the
10 ALJ accepted.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
FURTHER RESOLVED, that the following amendments to the ALJ Report aze hereby
adopted:
1. Finding of Fact No. 5 is hereby amended to read as follows:
"5. On February 21, 1997, Midwest filed a revised perxnit
application seeking to construct a larger sign at the I-94 and
Vandalia locarion (hereinafter referred to as the "Vandalia sign"),
using non-conforming sign credits it had accumulated. Midwest
indicated on its application that the sign was to be 13'6" wide, 48'
long, and 37' above grade. (The words "above grade" were already
included on the preprinted application forxn.) Tl�erevised permit
application submitted by Midwest was approved by �� LIEP on
February 25, 1997. The permit contains Plan Review Remarks
which indicated that the permit was authorized upon information
that the sien would be 23' to the bottom of the sien and about 37'
totai heieht.
2. Finding of Fact No. 10 is hereby amended to read as follows:
32
33 "10. Midwest request that a survey be conducted showing the
34 relationship of the Midwest billboard and the right-of-way of I-94.
35 The property was surveyed or. March 17, 1997. The survey
36 . ,
37 . ,
3$ . . was
Council File # d�- ry 3
Green Sheet # � U � O �2
1 conducted to show the placement of the billboard with respect to
2 the railroad �roperiy and Citv ri t-of-wa iv n res�onse to a
3 question about the placement of the si�n, and was submitted prior
4 to the issue of the heieht of the si2n beine raised."
6 3
4. Finding of Fact No. 16 is hereby amended to zead as follows:
10 approved the variance applicarions of Midwest and Universal. The
11 Saint Anthony Pazk Community Council filed an appeai of the
12 Planning Coxnsnissions's determination, and the St. Paul City
13 Council ulrimately reversed the Commission and denied the
14 variance applications. In the Resolution reversin�the �rant of a
15 variance, the Citv Council twice referenced the fact that the
16 existin Midwest sian at I-94 and Vandalia was built in violation
17 of the permit and was 21 feet higher than permitted. This decision
18 was never appealed bv Midwest or Universal."
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
Finding of Fact No. 1 S is hereby amended to read as follows:
"15. On Aua st 8, 1997, the St. Paui Plauning Commission
"16. By letter dated April 16, 1999, the City issued a Notice of
Violation to Midwest reguding the Vandalia sign. The notice
stated that adverse acrion was recommended because the Vandalia
sign was not built in compliance with its permit and because
Midwest had not appealed the City Council denial of its variance
request or moved its sign. ^''-- - _.:,. _ _ r _ : _,. .. __ __... _ .ti _ r_,,.
_, . The notice of violation followed a Februarv
1999 letter from John Hardwick to Midwest Outdoor Advertisine
advisine them that the sign needed to be removed ."
Finding of Fact No. 20 is hereby amended to read as follows:
"20. Beginning in approximately August 1999, then-counsel fro
DeLite began to engage in discussions with the St. Paul City
Council regazding a number of issues, including the Vandalia sign.
DeLite was told that the�could te submit
a formal proposal to the City Council
�ese#ttiex-a€propOSin�a way of le alizine the Vandalia si�n isstte.
Counsel for DeLite also met with Wendy Lane, Zoning Manager
for �H= LIEP , and other City staff regarding the Vandalia sign.
City staff told DeLite counsel that
among other thines that would be necess to le�ize the sign
was a variance. There had also been chanees to the sign ordinance
includine the establishment of a snecial sien dishict and a
moratorium which would need to be addressed. £�ei�ker�ie£�
, . At no time
O\-1�13
1 was DeLite infonmed that thev could appeai the determination that
2 the sie� was built in violation of the heieht restrictions and in
3 violation of the permit. Ciry staff instead told counsel for DeLite
4 that a proposal to the City Council was the appropriate way to
5 resolve the issue."
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
6. Finding of Fact No. 22 is hereby amended to read as follows:
"22. On October 8, 1999, DeLite subxnitted a variance application
that, � a , included a request for a 25-foot
variance to the Vandalia si�n for a total heieht of 102 feet above
�rade. as well as one other variance, two new freeway siQns and
issuance of two new si�n vermits in exchan�e for takin� down
other billboards throughout the Citv. ^-' �`- -'-- -- ' -- =" - a -
. The City Council
declined to approve the �roposal."
7. Finding of Fact No. 26 is hereby amended to read as follows:
"26. At the hearina, DeLite offered testimony that 8on Mazch 25,
1987, the City issued a permit to Infinity [the oermit was actuallv
issued to Siencrafters Outdoor Displav, Tnc.l to build what DeLite
referred to as the Infmity sign. The permit approved the height of
the sign at 50 feet above average grade.
,
>
' . There was no evidence
presented at the hearine reQarding anv of the circumstances
surroundina the issuance of the permit, nor was there any evidence
that the LIEP office was aware of a complaint that the sign was
ezected in violation of the Code until the day of the hearina."
8. Finding of Fact No. 27 is hereby amended to read as follows:
"27. On March 9, 2000, �� LIEP sent a memorandum to sign
companies licensed by the City for advertsiing sign conshuction.
DeLite was one of the com�anies which received a coov of the
memorandum. The memorandum stated in its entirety:
45 Based on a recent court decision, a permit wiil now
46 be required for changing or replacing any
47 advertising sign panel within the City of Saint Paul.
48 It was determined that we were inconect wheu we
49 did not require a building permit for the
50 replacement of sign panels damaged during a
51 wwind storm. The only type of work allowed
O�
m
2
without a pemut is for changing the advertising
content placed on the panels of a billboazd.
O � —T `�
�
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
The City's March 9, 2000, notice did not mention §33.03 of the St.
Paul Legislative Code
,
_ ,
, . nor
did it refer to �66.201. It did clearlv state that the onlv t�pe of
work which would not need a�ermit as of March 9, 2000 was the
chan�ina of the advertisine sim content. Delite never called Ms.
Lane to ask for cIarification of the memorandum."
9. Conclusion of Law No. 9 is hereby amended to read as follows:
"9. At the time the Vandalia sign was approved and build, Section
66.214(g) of the St. Paul Legislative Code provided in its entirety:
"The height of advertising signs may be measured from grade or
surface of the roadway, whichever is higher." The ordinance did
not state that the applicable roadway was the roadway from which
the sign was intended to be read, but LIEP's contention that this
was the lon¢standin�interpretation of the Code provision was
unchalleneed at the hearing and was supported bv comments from
the Plannin� Commission at the time the section was amended and
in the Plannin�Commission Resolution (File #97-561 addressine
the ioint variance rec�uest of Midwest Outdoor Advertising and
Universal Outdoor Advertisine."
10. Conclusion of Law No. 10. is hereby amended to read as follows;
31 "10. Section 66214(g) of the St. Paul Legislative Code was
32 amended in June of 1997 to state that "[s]urface of the roadway
33 shall be the main bed of the roadway, from which the sign is
34 intended to be read, at the location of the sign" and that "[t]he
35 height shall not be measured from any entrance or exit ramps
36 associated with the roadway." These amendments �a�
37 codified the
38 existing Citv staff interpretation of the Code."
39
40 1 l. Conclusion of Law No. 12 is hereby amended to read as follows:
41
42 "12. DeLite (as MidwesYs successor in interest) did � violate St.
43 Paul Legislative Code §66.214(g) as it existed prior to the June
44 1997 amendment by measuring the height of the V andalia sign
45 from the surface of the exits ramp.
46
47 ,
48
49 . The City's testimonv that the
50 lonastandin� interpretation of that section of §66.214( l�re_quired
51 measurement from the surface of the roadwav from which the sign
1 was intended to be read was supported in the record."
2 0 � -t4�
3 12. Conclusion of Law No. 13 is hereby amended to read as follows:
4
5 "13. DeLite is r� collaterally estopped, by viriue ofMidwesYs
6 inaction, from contesting the City's '
7
8
9 fi3�� deteimination Yhat Midwest built the si� in
10 violation of the heiQht restricrions of the Code, and in violarion of
ll the pemut. which was approved based upon the information that
12 the sign would be a total of 37 feet in height above eround."
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
13. Conclusion of Law No. 14 is hereby deleted and a new Conclusion of Law No. 14 is
adopted to read as follows:
- -- `- - - -- - - -- --- - -- -
�- - - - - - - - - ---- - --
---- --- - - -- - - -- - �- -- - - - ---
�• -- -- - - - - - - --- �-
- - -- • •
"14. Because DeLite was advised that the billboard at I-94 and
Vandalia was illeaal and needed to be removed, and was not in a
position to apoeal that determinarion. its failure to remove the sign
is a violation of St. Paul Legislative Code & 66.407(dl, in that thev
have refused to co�lv with the orders of the zonin¢ administrator
and are maintaininQ a sien which is in violataon of the zoning
code."
14. Conclusion of Law No. 15 is hereby deleted and a new Conclusion of Law No. 15 is
adopted to read as follows:
`- - - -- - - -- -- •- - -
::- -- -- -- • - S. - -- - --
n��Gi :�ni aiii.e�:airina•���ia"va�i�Sn�mi. �iii�c��i.s
"15. St. Paul Legislative Code §33.03�a1 which exempts re�airs
under $300 from requirine a building permit is inapplicable to this
situation because St. Paul Leeislative Code �&66.201 and �66.405
are specific to siens and su�ersede the e� neral provisions of the
buildin¢ code. Therefore DeLite was rec�uired to applv for apermit
to reattach the sien face for the damaQe done to the Pierce Butler
si ."
15. Conclusion of Law No. 16 is hereby deleted and a new Conclusion of Law No. 16 is
adopted to read as follows:
-- --`- - -- -- --- - - - - -
-- - -- --- - -- ---- - -- •- -- - - ---
. . .
•,...A...y.� -- - - - - - - - - ---
.�.... . .
- ---- -- --- - -- - - ----- --- •- - - - -
.._"_
5 "16. DeLite failed to obtain a permit to repair the Pierce Butler
6 si� desroite the March 2000 memo advisin aQ 11 si� companies
7 that they must obtain�ermits for anv work done on signs exce�t
8 the replacement of advertising content. The reattachment of the
9 si�n face, damaged during the storm, did not involve the
10 replacement of advertisin� and did require a nennit. Furthermore,
11 it was done in disresazd of the ZoninQ Adininistrator's
12 memorandum that a pernut would be required."
13
14
15
16
17
18
19
20
21
22
O 1 -F4�
This Resolution is based on the record of the proceedings before the ALJ, including the
hearing on Apri124, 2Q01, the documents and e�ibits introduced therein, the fmdings of fact
and conclusions of law of the ALJ as referenced above and amended, the written submissions by
counsel for the parties and the argusnents and statements of the parties at the pubfic hearing on
July 25, 2001 and the deliberations of the Council in open session on August l, 2001.
A copy of this Resolution, as adopted, shall be sent by first class mail to the
Administrative Law Judge and to the Licensee's attorney, Gary Van Cleve.
Requested by Depaxtment of:
Adopted by Council: Date ` �}�Q (
1 \
Adoption Certified by Council Sec ary
By: /" a.�v/wiQ.2./ / / �"�t/�
Form Approved by City Att ne
By: �� TJ �«-.
Approved by yor for Submission to Council
By: c� By:
MayoY: Date
By'
, , A�r`� ,
` � `
OFFIC£ oF L=EP Date: GREEN SHEET
Virginia Palmer August 9, 2ooi �� �y3
266-8710 No . 103832
. 1 EPPRTMEN'P DIRECTOR 4 ITY CODNCIL -
. � '2 ZSY ATTORNEY . ITY CLERK
x�aw�
ust be on Council Agerida by: '�°^ ��ST DZRECLOR IN. & MGT. SVC. DIR.
�
u St 22 . 2001 COnsent 3 YOR (OR ASSISTIaN'P)
OTAL # OF SIGNATIIRE PAG&S 1 (CLIP ALL LOCATIONS FOR"SZGNATURE)"--
CTION REQUESTED:
esolution suspending the sign contractor's license held by Delite Outdoor
- dvertising, Inc. until such time as the billboard at I-94 and Vandalia has
een removed and permit fees for repairs to the billboard at 1651 Pierce Butler
oute have been paid.
COMMENDATIONS: APBROVS (A) OR RESECT (R) HRSONAL SHRVICS CONTRI+CPS MfJST ANSDISR THH POLLOA`ING:
PLANNING COFPfISSION CIVIL SERVICE COMIMISSION 1. Has the person/fism ever worked under a contract foz this departmentl
CSB COhA1ITPEE BUSINBSS REVIEW COUNCIL YES NO
STAFF _ Has this person/£irm ever been a City employee?_ _
DISTRICT COIIRT YES NO
3. ➢oes this person/firm possess a skill not normally-possessed by any
SIJPPORTS WHICH COUN�IL OB7ECTIVE? CLrrent City employee? --�
YES NO
lain all YSS aaswera on a aeparate sheet and attach.
INITIATING PROBLEM, ISSUE, OPPORTUNITY (Who, What, When, Where, Why):
VANTAGES SF APPROVED:
• �search Centet
ISADVANTAGES IF APPROVED:
A �G 0 � 2041
ISADVANTAGES IF NOT APPROVED: �
;
i �
�'`_ _ J -- -
TOTAL AMOUNT OF TRANSACTION S COST/REVENUE BUDGETED YES NO
FtTNDING SOURCE - ACTIVITY NC3MBER
FINANCIAL INFORMATION: (EXPLAIN)
OFFICE OF THE CITY ATTOR��TEY 6 ���Cy'�
Ctnymn M Robinson, Jr., Ciry Attorney
35
CITY OF SA1NT PAUL
Norm Colemm�, Mayor
July 3, 2001
Civi[ Division
400 Ciry Ha!!
I S West Keilogg Biv�S.
Sairtt Pnul, Minnuola 55102
3 NOTICE OF COUNCIL HEARING
Gary A. Van Cleve
Lazkin, Hoffman, Daly & Lindgren, Ltd.
1500 Wells Fargo Plaza
7900 Xe�es Avenue South
Bloomington, Minnesota 55431-1194
Te[ephone: 65! Z66-87l0
Facsimile: 65! Z98-5619
RE: . Sign Contractor's License held by Delite Outdoor Advertising, Inc., d/b/a Delite Outdoor
Advertising, Inc.
License ID #: TR1344
Deaz Mr. Van Cleve:
Please take notice that a hearing on the report of the Administrative Law Judge conceming the
above-mentioned license has been scheduled for 5:30 p.m., Wednesday, July 25, 2001, in the
City Council Chambers, Third Floor, Saint Paul City Hall and Ramsey County Courthouse.
You have the opportunity to file exceptions to the report with the City Clerk at any time during
normal business hours. You may atso present oral or written argument to the council at the
Hearing. No new evidence will be received or testimony taken at this hearing. The Council will
base its decision on the record of the proceedings before the Administrative Law Judge and on
the arguments made and exceptions filed, but may depart from the recommendations of such
Judge as permitted by law in the exercise of its judgement and discretion.
Sincerely,
r s-a ✓� � (� ""
� ��
Virginia D. Palmer
Assistant City Attorney
cc: Nancy Anderson, Assistant Council Secretary, 310 City Hal1
Christine Rozek, LIEP
Heather Worthington, Executive Director, St. Anthony Pazk Community Council, 890
Cromwell Ave., St. Paul, MN 55114
June 6, 2001
Y
STATE OF MINNESOTA
OFFICE OF ADMINISTRAITVE HEARINGS
100 Washington Square, Suite 1700
100 Washington Avenue South
Minneapolis, Minnesota 55401-2138
Fred Owusu, Cify Clerk
City of St. Paul
170 City Hall
15 West Kellogg Blvd.
St. Paul, MN 55102
��.���v��
.��N i; ' L1�Q�
�ITY A�TOE����
RE: In the Matter of the Sign Contractor's License Held by DeLite
OutdoorAdvertising, Inc.; OAH Docket No. 11-6020-14063-3
Dear Mr. Owusu:
� ���
Enclosed herewith and served upon you by mail is the Administrative Law
Judge's Findings of Fact, Conciusions of Law and Recommendation in the
above-entitled matter. The officiai record which is large will be sent to you under
separate cover. Afso, copies of the tape recordings of the hearing wiil be
duplicated and sent to you under separate cover. Thus, our file in this matter is
now being closed. - -
Sincerely,
BLN:aws
Enclosures
T�h-w� � �— . � 2c.�' �—
BARBARA L. NEILSON
Administrative Law Judge
Telephone: 612/341-7604
cc: Virginia D. Palmer, Assistant City Attorney
Gary A. Van Cleve, Attorney at Law
Providing Impartial Hearings for Government and Citizens
An Equal Opportunity Employer
Administrative Law Section & Administrative Services (672) 341-7600 oTTY No. (612) 341-7346 � Fa� No. (612) 349-2665
�1-��
11-6020-14063-3
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE CIIY OF ST. PAUL
In the Matter of the Sign Contractor's
License Heid by DeLite Outdoor
Advertising, Inc.
F(NDINGS OF FACT,
CONCLUSIONS AND
RECOMMENDATIONS
The above-captioned matter came on for hearing before Administrafive
Law Judge Barbara t. Neilson at 930 a.m. on April 24, 2001, in Room 40-B of
fhe St. Paui City Hail. Virginia A. Palmer, Assistant City Attorney, 15 West
Keilogg Boulevard, Suite 400, St. Paul, Minnesota 55102, appeared on behalf of
the City of St. Paul. Gary A. Van Cleve, Attorney at Law, Larkin, Hoffman, Daly
& Lindgren, Ltd., 7900 Xerxes Avenue South, Suite 1500, Bloomington,
Minnesota 55431-1194, appeared an behalf of DeLite Outdoor Advertising, Inc.
The record closed on May 4, 2001, when the parties' post-hearing reply briefs
were filed.
This Report is a recommendation, not a final decision. The St. Paul City
Council will make the final decision after a review of the record. The Cify Council
may adopt, reject, or modify the Findings of Fact, Conclusions, and
Recommendations contained herein. Pursuant to section 310.05 of the St. Paul
Legislative Code, the City Council's final decision shall not be made until #his
Report has been made available to the parties to the proceeding and fhe
Licensee has been provided an opportunity to present oral or wriften arguments
alleging error on the part of the Administrative Law Judge in the application of the
law or interpretation of the facts and an opportunity to present argument related
to any recommended adverse action. The City C{erk shou{d be contacted to
ascertain the procedure for filing such argument or appearing before t Counc
STATEMENT OFISSUES
There are two primary issues in this hearing. The first issue is whether
DeLite's biliboard located at I-94 and Vandalia violates height restrictions
imposed by St. Paul Legislative Code § 66.214(b) and (g) and whether DeLite's
failure to remove this biif6oard is a violation of St. Paul Legislative Code
§ 66.407. The second issue is whether DeLite's failure to obtain a permit before
repairing its billboard located at 1651 Pierce Butler Road constituted a violation
of Sf. Paul Legislative Code §§ 66.201, 66.404, and/or 66.405. If DeLite is found
fo have violated one or more ordinance provisions, it must further be determined
whether such violations warrant adverse action against DeLite's Billboard and
Sign license under St. Paul Legislative Code § 310.06(b)(6)(a).
Ol -�`�
Based upon all of the testimony, exhibifs and evidence in fhe record, the
Administrative Law Judge makes the foilowing:
FINDINGS OF FACT
1. DeLite holds an acfive Trade - Biliboard and Sign license in the City
of St. Paul under license number OOTR1344.'
r
2. ' In July of 1999, DeLite purchased all of the assets of Midwest
Outdoor Advertising, including the sign at I-94 and Vandalia involved in this
proceeding?
Vandalia Sign
3. On September 13, 1996, Midwest Outdoor Advertising, Inc.
(hereinafter referred to as "Midwest"), applied Yo the City for a permit to construct
a new 6' by 12' billboard on the north side of I-94 and Vandalia. The initiai
application stated that the sign to be built would be 6' wide, 12' long, and 15'
above grade. The permit application was approved by the St. Paul O�ce of
License, lnspections and Environmentai Protection (LEIP) on November 8,
1996. This sign was never built because Midwest decided it wanted a larger
sign.
4. In order to obtain a permit for a larger sign at I-94 and Vandalia,
Midwest decided to take down approximately twenty outdoor advertising signs at
other locations in the City and thereby earn additional "non-conforming sign
credits." Non-conforming sign credits are earned by sign companies in St. Paul
when they remove signs in the City that do not conform to current ordinances.
The City permits sign companies to "bank" credits that may then be used to build
new signs at other locations in the City that need not conform to spacing
requirements 5
5. On February 21, 1997, Midwest filed a revised permit application
seeking to construct a larger sign at the I-94 and Vandalia iocation (hereinafter
referred to as the "Vandalia sign"), using non-conforming sign credits it had
accumulated. Midwesf indicated on its application that this sign was to be 13'6"
wide, 48' fong, and 37' above grade. (The words "above grade" were already
included on fhe preprinted application form.) The revised permit application
submitted by Midwest was approved by LEIP on February 25, 1997.
� City Ex. 1.
2 City Exs. 9, 10; DeLite Exs. 13, 14; Testimony of Remes.
3 City Ex. 2; DeLite Ex 1.
` Testimony of Remes.
5 Testimony of Remes, Hardwick.
6 City Exs. 3, 4; DeLite Ex. 2; Testimony of Hardwick, Remes.
2
01 _PN.�
6. At the fime the permit was issued and the sign was built, St. Paul's
Legisiative Code directed fhat "(t]he height of advertising signs may be measured
from grade or surface of roadway, whichever is higher."' 7he maximum allowed
height for a sign was dependent upon the functional street c(assification. Signs
focated on intermediate and principal arterial roadways were limited to a
maximum height of 37.5 feet.
7. The City requires permit holders to contacf a building inspector
prior fo pouring the footing for the sign and also upon completion of construction.
LIEP believes that both of fhese inspections were completed with respect to the
Vandalia sign. `
8. Construction of the Vandalia sign was completed by approximately
March 17, 1997. The sign is a V-shaped sign, with west- and east-facing sign
faces. As compieted, and based upon the most recent survey of the site," the
total height of the Vandalia sign measured from the ground fevel at the base of
sign to the top of the sign is 58.8 feet, but the sign height measured from the
surtace of the nearby exit ramp is 36.3 feet.' Peter Remes, fhe President of
Midwest, believed that, as long as the sign was less than the maximum
ordinance height of 37.5 feet as measured from either "grade or surface of the
roadway, whichever is higher," the sign complied with the height requirement.
Mr. Remes understood the ordinance to allow Midwest to choose which roadway
from which to measure the height of a sign. Because the top of the billboard was
less than 37.5 feet above the elevation of the exit ramp, Mr. Remes believed the
sign was in compliance with City ordinance.
9. A competing sign company notified the City at some point that it
believed that the Vandalia sign was too high. LIEP thereafter requested that
Midwest either submit information demonstrating that the sign was not too high or
apply for a variance to the height requirement.'
10. Midwest requested that a survey be conducted showing the
relationship of the Niidwest billboard and the right-of-way of I-94. The property
was surveyed on March 17, 1997. The survey concfuded that the elevation of
fhe top of the billboard was 152.47, the elevation of the exit ramp opposite the
sign was 123.11, and the elevation of the top of the sign's footing was 100.00.
� Prior version of St. Paul Leg. Code § 66.214 (g).
a Prio� version of St. Paul Leg. Code § 66.214 (b).
9 Testimony of Hardwick.
10 Testimony of Remes.
" The most recent survey was conducted on February 4, 2000. See DeLite Ex. 20.
' DeLite Ex 20; cf. Remes testimony and City Ex. 5, both of which stated height from the base of
the sign was 58 feet, and City and DeLite Exs. 3, which suggest that the height from ihe base of
sign was 52.47 feet and the height from surface of the exit ramp was 29.36 feet.
" Testimony of Remes.
" Testimony of Hardwick.
t5 City Ex. 3 at 3; DeLite Ex. 3.
3
� � -r��
11. By letter dated Aprii 28, 1997, LIEP informed Midwest that,
according to a survey submitted by Universal Outdoor, the Vandalia sign was
actually constructed at a height of 58 feet from the base to the top of the sign.
LIEP stated that the sign thus was not consfructed in compliance with the permit
issued by the City and was in violation of the sign ordinance. The City's letter to
Midwest quoted the portion of the Cifij's sign ordinance stating that "(t]he height
of advertising signs s may be measured from grade or surtace of roadway,
whichever is higher" and stated that "[t]he surface of the roadway is the main
roadbed of I-94." The letter went on to state that, because the I-94 roadbed
appeared to be iower than the grade at the sign pole, the sign height could be no
more than 37 feet from the sign's grade. The letter indicated that Midwest "must
either reduce the overall height of fhe sign or obfain a height variance from the
Planning Commission." The letter nofed that, if a variance was granted to allow
the sign to remain at a fieight exceeding the 37 feet allowed by permit, a new
sign permit would have to be obfained for the correct height and the permit would
be reviewed by the City's structural engineer. The second-to-last paragraph of
the letter stated that "[a]ny decision we make regarding the sign ordinance is
subject to an appeai before the Planning Commission as specified in Section
66.408."�� The letter did not state any specific steps that Midwest shouid take to
file such an appeal or sef forth a time limit for the filing of an appeai.
12. Midwest orally communicated its disagreement to the City in regard
to the April 28, 1997, letter but took no other action in regard to the letter.
Midwest did not a�ply for a height variance or take any action fo reduce the
height of the sign.�
13. In June 1997, § 66.214(g) of the St. Paul Legislative Code v�as
amended to "address{] an issue raised by a case recently befiore the zoning
committee" and to "codify the zoning administrator's interpretation of fhis
section." The new language read as follows: "The height of advertising signs
may be measured from the grade of the sign or the surface of the roadway,
whichever is higher: SurFace of the roadway shall be the main bed of the
roadway, from which the sign is infended to be read, at the location of the sign.
The heighf shall not be measured from any entrance or exit ramps associated
with the roadway." The Pfannir�g Commission notes state this amendment
clarified a"lon�gstanding practice" that measurements are to be taken from the
main roadbed. °
14. On June 18, 1997, Midwest submitted an application for a zoning
variance that requested approval to move the Vandalia sign 50 feet west of its
current location and to rebuild the Vandalia sign at its new location to an overali
16 Prior version of St. Paul Leg. Code § 66214(g).
" City Ex. 5.
' Testimony of Remes, Hardwick.
t9 De�ite Ex 7; Testimony oF Hardwick.
2° City Ex. 7, p. 3.
4
d � -f�f �
height of 68 feet. The variance requesf was a result of an agreement between
Midwest and Universal Outdoor, Inc., a competitor of Midwest, whereby the
Vandalia sign would be relocated to allow Universal to build a sign nearby. Due
to the spacing ordinance, Universal would have been unable to build ifs sign
unless the Vandalia sign was relocated. Midwest and Universal submitted
simultaneous variance applications to effect the agreement 23
15. On August 8, 1997, the St. Paul Planning Commission approved
the. variance applications of Midwest and Universa1. The Saint Anthony Park
Community Councii filed an appeal of the Pianning Commission's determination,
and the St. Paul City Council ultimately reversed the Commission and denied the
variance applications2
16. By letter dated April 16, 1999, the City issued a Notice of Violation
to Midwest regarding the Vandalia sign. The notice stated that adverse action
was recommended because the Vandalia sign was not built in compliance with
its permit and because Midwest had not appealed the City Counci{'s denial of its
variance requesf or removed the sign 2 The notice of violation was the first
action the Cify had taken in regard to the Vandalia sign since its April 28, 1997
letter.
17. By letter dated Apri{ 30, 1999, counsel for Midwest responded to
the City's Notice of Violation by asserting that the Vandalia sign was constructed
in accordance with the permit and contending that the amendment to section
66.214(g) was inappiicable to the Vandalia sign. Counsei for Midwest requested
reconsideration of the decision to seek adverse action against MidwesYs license
and requested an evidentiary hearing before an Administrative Law Judge.
18. Upon fearning fhat DeLite had purchased the assets of Midwest in
July 1999, the City notified counsel by letter dated July 28, 1999, that it would
request that the administrative hearing fhat had been scheduled in regard to the
adverse action against Midwest be canceled 2
19. By letter dated July 30, 1999, the City notified DeL'+te that the
Vandalia sign was constructed in violation of the terms of the permit and thus
was an illegal structure that had to be removed with 30 days of the notice. By
letter dafed August 9, 1999, DeLite responded that the Vandalia sign was
m
21 City Ex 6.
Z ' St. Pauf Leg. Code § 66.214 (h), (d).
23 Remes testimony.
24 City Ex. 7, p. 8; DeLite Exs. 8, p. 6, and 9.
zs Id, at p. 9.
z6 City Ex 8.
27 Remes testimony; see aiso City Ex. 5.
Z$ Delite Ex. 11.
� City Ex. 9; DeLite Exs. 13-14.
3o City Ex. 10.
5
o► ��c�
properly constructed in accordance with the ordinances in effect at the time of
consfruction 3
20. Beginning in approximately August 1999, then-counsel for DeLite
began to engage in discussions with the St. Paul City Council regarding a
number of issues, including the Vandalia sign 3 The City Council encouraged
DeLite to submit a formal proposai to the City that wouid inciude a sesolution of
the Vandalia sign issue. Counsel for DeLite also met with Wendy Lane, Zoning
Manager for LEIP, and other City sfaff regarding the Vandalia sign. City staff told
DeLite counsel=.to submit a variance request. Neither the City Council nor City
staff informed DeLite that the Vandalia sign issue could not be resolved because
Midwest had not appealed the denial of fts variance application or raise any issue
as to whether DeLite could file an appeal based on the April 16, 1999, letter. City
staff instead fold counsei for DeLite that a proposal to the City Council was the
appropriate way to resolve the issue.
21. By letter dated September 2, 1999, DeLite informed LIEP that it had
been meeting with members of the City Council regarding a proposal to resolve
the height +ssues re{ating to the Vandalia sign and asked that the City defer
taking any action relating to the sign until the City Council had provided a
definitive response to the DeLite proposal.
22. On October 8, 1999, DeLite submitted a variance application that,
among other things, requested a 25-foot variance to the Vandalia sign for a total
height of 102 feet above grade. DeLiEe also submitted a proposal to the City
offering to take down numerous bi((board faces in exchange for approval of the
Vandalia variance and other variances and issuance of new sign permits.
23. By letter dated March 9, 2000, LEIP notified DeLite that the
Vandalia sign must be removed because it was constructed in violation of the
origina{ buifding permit. The letter noted that DeLite had been given additionai
time in order to apply t6 the City Councii to lift the exisfing adver#ising sign
moratorium, amend the new special sign district, and seek a height variance from
the Planning Commission, but that effort had been unsuccessful. Accordingly,
LIEP indicated that DeLite was ordered to remove the Vandalia sign within 30
days. By letter dated March 17, 2000, DeLite responded that it disagreed with
the City's contention that the sign was illegal and stated that it would not
dismantle the sign 4 Sy {etter dated April 10, 2000, LIEP reiterated its position
" DeLite Ex. 16.
32 Peter Coyle of Larkin, Hoffman, paly & Lindgren, Ltd.
3a Coyle testimany; City Ex. 14.
34 Coyle testimony.
as �
36 City Ex. 14.
37 Id.; DeLite Ex. 18.
' Testimony of Coyle.
39 City Ex. 11.
ao City Ex. 12.
0
QI �'�
that the sign
consider the
taking action
removed 4
was out of compliance and that the City Council had declined to
variance request. LEIP further,stated that the City would consider
against Detite's business ficense if the Vandalia sign was not
24. By IetEer dated March 14, 2000, Henry D. Nelson, RLS, of
McCombs Frank Roos Associates, Inc., informed DeLite that the distance from
top of the concrete base of the Vandalia sign to the top of the sign is 58.8 feet;
the distance from the top of the sign to fhe top of the bituminous at the center of
the exit ramp_ opposite the sign is 36.3 feet; and the distance from the top of the
sign to the top of the sidewalk on the bridge over the railroad track is 35.2 feet 4Z
25. DeLite also asked the survey�or to check the height of a sign owned
by Infinity (hereinafter "the Infinity sign') which is located immediately west of
the Vandalia sign 4 The survey showed the Infinity sign to be 80.2 feet from
base of sign grade to top of sign. The infinity sign's height from the adjacent I-94
exit ramp was assessed at 65.6 feet
. 26. On March 25, 1987, the Cify issued a permit to Infinity to buiid the
Infinity sign. The permit approved the height of the sign at 50 feet above average
grade 4 There is no City ordinance that permits height measurement based
upon average grade 4 There was no evidence presented at the hearing that the
City has notified Infinity that its sign does not conform with City height
restrictions, has directed infinity to remove the sign, or has proposed to take
adverse action against Infinity's license.
Pierce Butler Sign
27. On March 9, 2000, LEIP sent a memorandum to sign companies
licensed by the City for advertising sign construction. The memorandum stated
in its entirety:
Based on a recent court decision, a permit will now be required for
changing or replacing any advertising sign panei within the City of
Saint Paul. It was determined that we were incorrect when we did
not require a building permit for the replacement of sign panels
damaged during a wind storm. The only typ
without a permit is for changing the advertising
the paneis of a billboard.
" City Ex. 13.
4z DeLite Ex. 21.
a ' DeLite Ex 24.
°' Radermacher testimony.
a5 DeLite Ex. 25; Testimony of Radermacher.
°' DeLite Ex. 26.
47 Radermacher testimony.
°d City Ex. 15.
e of work allowed
content placed on
O l �'K�
The City's March 9, 2000, notice did not mention § 33.03 of the St. Paul
Legislative Code or clarify whether the notice altered the facf thaf § 33.03(a) did
not require a permit for repairs costing $300 or less 4 Moreover, no
amendments were made to City ordinances to render them consistent with fhe
March 9, 2000, memorandum 5
28. The City issued the March 9, 2000, nofice in response fo a court
case that held the City had misinterpreted St. Paul Legislative Code § 66.405
as not requiring a permit when the panels of a billboard are changed or replaced
as a result of storm damage 5a
29. At some point between March 9 and May 18, 2000, the Pierce
Butier sign sustained damage in a storm. The sign panel became partially
detached from the sign frame.
30. DeLite contracted with Liftec Sign and Crane Company to repair the
Pierce Butler sign. Liftec repaired the sign by rehanging the sign panel and
securing it to the post in its proper position. No sign boards were replaced.
Liftec submiited a bill for services totaling $185. The billboard's advertising
content was not changed durin� the repair 5 DeLite did not obtain a permit to
have Liftec make these repairs.
31. By letter dated May 18, 2000, the City notified DeLite that its repair
to the Pierce Butler sign necessitated a permit in accordance with the March 9,
20Q0, notice as DeLite had "replace[d] the sign face panel." The City included
the failure to obtain a permit for the Pierce Butler sign repair in the November 29,
2000, notice of violation to DeLite.
Procedural Findings
32. On November 29, 2000, the City sent DeLife a Notice of Violation in
regard to fhe Vandalia sign and the failure to obtain a permit in conjunction with
repairs to the Pierce Butler sign (discussed below). The Notice of Violation
requested that DeLite inform the City by December 8, 2000, whether it disputed
as !d.
so Testimony of Lane.
51 City Ex. 17 (Scenic Minnesota v. City of Saint Paul, No. C4-98-10951 (Second Judicial District,
Judge M. Michael Monahan, Oct. 20, 1999).
52 Section 66.405 provides in pertinent part: "Exemptions. The foliowing signs shall not require a
permit. These exemptions shall not be construed as relieving the owner of the sign from the
responsibility of its erection and maintenance, and its compliance with the provisions of this
chapter or any other law or ordinance reguiating the same. (1) The changing of the dispiay
surFace on a painted or printed sign only ..."
s ' Testimony of Lane.
54 City Exs. 18A, 18B, 18C.
ss Stipulation of parties; Radermacher testimony; City Exs. i9A, 19B.
sb Testimony of Lane.
57 City Ex. 16.
58 City Ex. 20.
0
o,-���
the facts as sef forth in the Nofice of Violation and wished to have an evidentiary
hearing before an Adminisfsative Law .ludge 59
33. By letter dafed December 7, 2000, DeLite notified the City that it
disagreed with the Cify's characterization of the facts relating to the iwo signs
and stated its belief that the Vandalia sign was constructed in conformity with
applicable City regulations in effect at fhe time and no permit was necessary wifh
respect to the Pierce Bufier sign.
34. By \ letter dated January 3, 2001, the City nofified DeLite thaf a
hearing would be he{d on danuary 30, 2001, to consider whether adverse action
should be taken against ifs sign contractors license based upon the alleged
height violation and improper failure to remove the Vandalia sign and the failure
to obtain a permit with respect to the repair of the Pierce Butler sign.
35. By Order of Administrafive Law Judge George A. Beck dated
January 25, 2001, the hearing in this matter was continued to March 8, 2001, in
order to aliow the Licensee to apply to Federal Court for an Order staying the
administrative proceeding. Because the Federal Court hearing on the
Licensee's motion for a restraining order and injunction staying the City's
enforcement proceedings did not occur until March 6, 2001, the parties agreed
that the hearing should be continued to April, 2001. By Order dated March 9,
2001, the Federal Court denied the motion for preliminary injunction. The
hearing proceeded on April 24, 2001.
Based upon the foregoing findings, the Administrative Law Judge makes
the foliowing:
CONCLUSIONS
1. The St. Paul City Council and the Administrative Law Judge have
jurisdiction in fhis matter pursuant to § 310.05 of the St. Paul Legislative Code.
and Minn. Stat. § 14.55.
2. Proper notice of the hearing was timely given. All relevant
substantive and proceduraf requirements of iaw or ruie have been fuifilled and,
therefore, the matter is properiy before the Administrative Law Judge.
s. The City bears the burden in this matter of proving by a
preponderance of the evidence that violations have occurred and adverse action
against the Licensee's business license is warranted.
59 City Ex. 20.
fi0 City Ex. 21.
6t City Ex. 22.
62 City Ex. 23.
63 City Ex. 24.
0
d 1-Py3
4. St. Paul Legisiative Code § 310.06(b)(6)(a) authorizes the City
Council to take adverse acfion against licensees if the licensee "has violated, or
performed any act which is a violation of, any of the provisions of these chapters
or of any statute, ordinance or regulation reasonably related fo the licensed
activity, regardless of whefher criminal charges have or have not been brought in
connection therewith:'
5. St. Paul Legislative Code § 33.03 (a) provides in pertinent part as
follows:
�
Permits--When required. (a) Building and genera! construction.
Permits for building or general construction are not required for
repairs for maintenance only or for minor alterations provided they
are not required under Section 106 of the 1997 Uniform Building
Code as adopted by the Minnesota State Building Code, this
chapter or other pertinent provisions of the Saint Paul Legislative
Code, and provided the cost of such repairs and minor alterations
does not exceed the present market value of three hundred dollars
($300.00).
6. St. Pau! Legislative Code § 66.201 provides that "[n]o person shali
place, erect or maintain a sign, nor shall a lessee or owner permit property under
his control to be used for such a sign, which does not conform to the fol{owing
requirements and without first obfaining the requisite permit for such sign."
Section 66.404 provides in pertinent part that app4ications for signs must be
submitted to the zoning administrator. Section 66.405 sets forth exemptions to
the permit requirement, including "[t]he changing of the display surface on_ a
painted or printed sign only .... [TJhis exemption shall apply only to poster
replacement and/or on-sife changes involving sign painfing elsewhere than
directly on a building."
7. St. Paui Legislative Code § 66.301 provides in pertinenf part: as
follows:
Intent. It is recognized that signs exist within the zoning districts
which were lawful before this chapter was enacted, which would be
prohibited, regulated or restricted under the terms of this chapter or
future amendments, It is fhe intent of this chapfsr fhat
nonconforming signs shaii not be enlarged upon, expanded or
- extended, nor be used as grounds for adding other signs or uses
prohibited elsewhere in the same district. it is further the intent of
this chapter to permit legal nonconforming signs existing on the
effective date of this chapter, or amendments thereto, to continue
as legal nonconforming signs. . . .
(Emphasis added.)
io
d 1 �y�
8. At the time the Vandalia sign was approved and built, Secfion
66.214(b) of the St. Paul Legislative Code provided, in pertinent part, fhat the
"height of advertising signs shali be regulated according to the functional
classification of the street along which the signs are placed ...." The maximum
height for al4 functiona{ street classifications specified in the ordinance was 37 '/z
feet.
9. At the time the Vandalia sign was approved and built, Section
66.214(g) of the Sf. Paul Legislafive Code provided in its entirety: "The height of
advertising sigrfs may be measured from grade or surface of the roadway,
whichever is higher." The ordinance did not state that the applicable roadway
was the roadway from which the sign was intended to be read.
10. Section 66.214(g) of the St. Paul Legislative Code was amended in
June of 1997 to state that "[s]urface of the roadway shall be the main bed of the
roadway, from which the sign is intended to be read, at the location of the sign"
and that "[t]he height shall not be measured from any entrance or exit ramps
associated with the roadway." These amendments may not properly be
retroactively applied to the Vandalia sign.
11. Section 66.407 of the St. Paul Legislative Code authorizes
inspections and reinspections of signs by the zoning administrator; indicates that
footing inspections may be required by the zoning administrator; provides thaf
signs containing electrical wiring shall be subject to the electrical code; and
provides that "[t]he zoning administrator may order the removal of any sign thaf is
not maintained in accordance with provisions of this chapter, provided he has
sent a letter specifying the grounds for remova{ to the permittee giving the latter
ten (10) days in which to appear before the zoning administrator to show cause
why the sign could not be removed."
12. DeLite (as MidwesYs successor in interest) did not violate St. Paul
Legislative Code § 66.214(g} as it existed prior to the Sune 1897 arnendment by
measuring the height of the Vandalia sign from the surface of the exit ramp. The
ordinance was ambiguous concerning the roadway from which the measurement
should be made, and the City did nat prove by a preponderance of the evidence
that it had a longstanding practice that sign height could not be measured from
an exit ramp.
13. DeLite is not collaterally esfopped, by virtue of Midwest's inaction,
from contesting the City's violation notices regarding the Vandalia sign or its
proposal to take adverse action against DeLite's license based in part upon
alieged ordinance violations relating to the Vandalia sign.
14. Because DeLite did not violate the terms of ifs permit or St. Paul
Legislative Code § 66.214(g), its failure to remove the Vandalia biliboard is not a
violation of St. Paul Legislative Code § 66.407. Further, no adverse action is
warranted under St. Paul Legislative Code § 310.06 (b)(6)(a).
11
a►-��
15. DeLite did not violate any provision of the St. Paul Legisiative Code
when it repaired the Pierce Buf(er sign without a permit, since the total cost of the
repairwas only $185.
16. Because DeLite's failure to obtain a permit prior to reattaching the
sign panels was consisfent with St. Paul Legislafive Code § 33.03 (a) and did not
violafe St. Paui Legislative Code §§ 66.201, 66.404 and 66.405 or any other
Code provision, no adverse action is warranfed against DeLite's license under St_
Paul Legisiative_Code § 310.06 (b)(6)(a).
Y
, �
17. These Conclusions are reached for the reasons discussed in the
attached Memorandum, which is hereby incorporated by reference in these
Conclusions.
Based upon the foregoing Findings and Concl�sions, and for the reasons
set forth in the attached Memorandum, the Administrative Law Judge makes the
following:
RECOMMENDATION
IT IS HEREBY RECOMMENDED: that the City Council not take adverse
action against the business license held by DeLite Outdoor Advertising, Inc., with
respect to the Vandalia andlor Pierce Butler signs.
Dated: June 6, 2001.
�1� L . �ci..Q 5-�-,., -
BARBARA L. NEILSON
Administrative Law Judge
NOTICE
The City Council is respectfully requested to send its final decision to the
Adminisfrative Law Judge by first class maii.
Reported: Tape Recorded (no transcript prepared).
MEMORANDUM
The City contends that adverse action should be taken against DeLite's
sign contractor's license on the grounds that (1) the Vandalia billboard was built
in violation of the permit and height restrictions conta+ned fn the St. Paul
Legislafive Code and DeLite has failed to remove the sign despife orders to do
so in violation of St. Paul Legisiative Code §66.407(d), and (2) DeLite's repair of
a sign face on the Pierce Bufler billboard without first obtaining a permit
tz
O � -a�y�
constituted a violation of sections 66.209, 66.404, and 66.405 of the St. Paul
Legislative Code and was aiso done after all licensed sign companies had been
advised that such permits were necessary. The City thus contends that adverse
action against DeLite's license is warranted under St. Paul Legislative Code
310.06(b)(6)(a). Specificalfy, the Gity urges fhat DeLite's license be suspended
until the Vandalia sign is removed and it applies for a permit regarding the Pierce
Butler sign.
Vandalia Sign
<
As a threshold mafter, the City contends that DeLite is foreclosed from
arguing that the Vandalia sign does not violate the permit and height restrictions
because its predecessor in interest, Midwest Outdoor Advertising, did not appeal
in a timely fashion the Cify's determination that the sign was built illegaily. In this
regard, the City asserts that its Apri4 28, 1997, fetter to Midwest stated that the
determination that the sign was build illegaily could be appealed to the Pianning
Commission pursuant to St. Paul Legislative Code § 66.408. That Code
provision specifies that any person affected by a decision of the zoning
administrator may appeal the decision to the planning commission within thirty
calendar days o4 the decision. Midwest did not appeal the determination that the
Vandalia sign was not in conformify with the permit and ordinance requirements
and also did not appeal the City Council's later denial of a variance to replace the
Vandalia sign with a different sign.
The Administrative �aw Judge is not persuaded by the City's argument.
First, the April 28, 1997, letter sent to Midwest by LIEP (City Ex. 5) did not clearly
and unequivocaliy announce that the City had made a determinafion regarding
the sign that was immediately subject to appeal. Instead, while noting that the
sign was foo tall, the lefter proceeded to notify Midwest of the variance procedure
and simply stated that "ja]ny decision we make regard'rng the sign ordinance is
subject to an appeal before the Planning Commission as specified in Section
66.408" (emphasis added). The letter did not inciude any further discussion of
the time limits for filing an appeal. Thus, it appears from a fair reading of the
letter that LIEP was simply informing Midwest that any decision the City
ultimafely made regarding the sign woufd be subject to appeai. Accordingiy, the
letter did not properly trigger the running of an appeal period for Midwesf.
Moreover, even if the Aprii 28, 1997, letter coufd be viewed as an
administrative ruling that was subject to appeal, the doctrine of collateral estoppel
does not properly apply here. It is well-established that a party is collateralfy
estopped from chailenging a prior administrative agency decision if: (1) the
issue to be preciuded is identical to the issue raised in a prior agency
adjudication; (2) the issue was necessary to the agency adjudication and
properly before the agency; (3) the agency determination was a final
adjudication subject to judicial review; (3) the estopped party was a party or in
privity with a party to the prior agency determination; and (4) the estopped party
13
d i ,�u�
was given a fuli and fair opportunity to be heard on fhe adjudicated issue.� The
most important factor influencing whether the agency decision is entit{ed to
collateral estoppel effect is whether the agency acted in a judiciai or quasi-judicial
capacity.
While the arguments raised by the Cify against Midwest with respect to
the Vandalia sign are identical to those presented in the current adverse
licensing action against DeLite, none of the other collateral estoppel elements
are met in this case. There was no prior agency "adjudication" or final judgment
on the merits; CfeLite was not a party in 1997 or in privity with Midwest at that
time; and DeLite has never previously been given a full and fair opportunity to be
heard on the issue. Under these circumstances, it wouid violate due process
principles if DeLite were precluded from challenging the underlying basis for fhe
City's current adverse licensing action. In addition, the fact that the City waited
two years before issuing a Notice of Violation to Midwest and also met with
DeLite and permitted DeLite to make proposals to the City to resolve the matter
before issuing a Notice of Violation to DeLite supports the view that the City did
not act as though either Midwest or DeLite were estopped from contesting the
City's notices or were otherwise foreciosed from mounting any chailenge to the
City's position that the sign violated the permit or ordinances. Thus, it was
appropriate to allow DeLite to present evidence in this proceeding that the
Vandalia sign did not, in actuality, violate the permit or City ordinances.
With respect to the Vandalia sign, it is necessary to consider which
ordinance to appfy—the ordinance in eifect at the time the permit to build the
Vandalia sign was issued and the sign was built, or the later amended ordinance
that the City asserts merely codified a fong-standing interpretation of the exist�rrg
ordinance by zoning staff. The ordinance in effect at the time that the Vandalia
sign was approved and built merely provided that "[t]he height of advertising
signs may be measured from grade or surface of the roadway, whichever is
higher." In the context of the present situation, where a sign is located near a
freeway and an exit ramp, this ordinance language is unclear concerning which
of these roadways is to serve as the point from which the height must be
measured. The amendment to the ordinance in June, 1997, expiicitiy stated that
"[s]urface of the roadway shall be the main bed of the roadway, from which the
sign is intended to be read, at the location of the sign" and that "[t]he height shall
not be measured from any entrance or exit ramps associated with the roadway."
However, it is evident under Section 66.301 of the St. Paui Legislative Code that
this amendment may not properly be retroactively applied to the Vandalia sign.
Section 66.301 declares that it is the intent of the zoning chapter "to permit legai
�` Graham v. Special Schoo/ District No. 1, 472 N.W.2d 114, 116 (Minn. 1991).
bs AFSCME Counci196 v. Arrowhead Regional Corrections Bd., 356 N.W.2d 295 (Minn. 1984).
14
Ol- �q1
nonconforming signs existing on the effective date of this chapter, or
amendments fhereto, to continue as fegaf nonconfosming signs. .,."
Because it is noY appropriate to apply the amendment, the issue becomes
whether the prlor version of the ordinance was interpreted in a long-standing and
consistent way to require measurement from the roadway from which the sign
was intended to be read rather than from an exit ramp. An agency's
interpretation of a statufe or ordinance is entitied to some deference when "(1)
the statutory language is technical in nafure, and (2) the agency's interpretation
is one of long-standing application." Mr. Hardwick merely testified that fhe
ordinance was amended to clarify the City's posifion and what it had been doing,
and further stated that this was not the first time fhe height ordinance had been
interpreted in this fashion and nothing done by the City here was inconsistent
with prior interpretations. This evidence does not, in the view of the
Administrative Law Judge, rise to the level of proof of a longstanding and
consistent past practice on the part of the City. The fact that the City inspectors
apparentiy approved the Vandalia sign on two occasions during its construction
undermines the City's assertion that it has consistently interpreted the ordinance
to require comparison with the roadway from which the sign is meant to be
viewed.
It is also significant that the City apparently has not consistently or
uniformly applied its interpretation of the height ordinance to other sign
contractors. For example, the Cify did not refute evidence offered by DeLite at
the hearing showing that the lnfinity outdoor sign located to the west of DeLite's
Vandalia sign is over 80 feet tali from base to top of the sign and over 65 feet tall
from the surface of the roadway of the I-94 entrance ramp to the top of the sigFl.-
There is no evidence that the City has requested that the infinity sign be removed
or that the City has taken any adverse action against Infinity's license even
though this sign reflects a more egregious vioiation of the Cify's height ordinance
than the Vandalia sign owned by DeLite. Thus, fhere was no persuasive
evidence presented at the hearing demonstrating that the City had a iong-
standing practice prior to the 1997 amendment of requiring that the "surface of
the roadway' from which the height must be measured be only the roadway from
which the sign is intended to be read or fhat the City required that entrance and
exit ramps be excluded from consideration.
, �(Emphasis added.) It is also consistent with general principles of statutory construction that a
law shoufd not be construed to 6e retroactive "unless ciear{y and manifestly so intended by the
legislature." Minn. Stat. § 645.21.
6 ' Hibbing Education Association v. Public Employment Relations Board, 369 N.W.2d 527, 529
(�Minn. 1985}.
a In addition, the permit issued for the Infinity sign approved construction of a sign "50 feet
above average grade" despite any reference to "average grade" in the ordinance.
69 The Administrative Law Judge is not persuaded that the exclusion of exit and entrance ramps
in another portion of the zoning ordinance (section 66214(b), relating to.spacing of signs) or the
mention in that ordinance that spacing of signs is determined in pa�t by the classification of the
street from which the sign is intended to be read is sufficient to justify the same interpretation of
the height ordinance. _
15
0 � -d'Y.�
Pursuanf to Frank's Nursery Sales, Inc. v. City of Roseville, where a
zoning osdinance is ambiguous, weight must be given "to the interpretation ihat,
while still within the confines of the term, is least restrictive upon the righfs of the
property owner to use his land as he wishes." Construing the ordinance in favor
of the property owner, consisfent with the Frank's Nursery case, the
Adminisfrative Law Judge concludes that the sign shouid be allowed under fhe
ordinance if the top of the sign is 37.5 feet or less firom the surface of the I-94 exit
ramp, and should be allowed under the permif if the fop of the sign is 37 feet or
less from the surface of the exit ramp. Because the most recent survey
established that the top of the sign is 36.3 feet above the surtace of the exit
ramp, the Administrative Law Judge concludes that the Vandalia sign conforms
to both the permit and the ordinance that was then in effecf.
Pierce Butler Sign
With respect to the Pierce Butier sign, the City emphasizes that it senf all
sign contractors a memorandum in March, 2000, informing them that, in
accordance with a recent court decision, permits would now be required for
"changing or replacing any advertising panel wifhin the City oF Saint Paul" and
that "[t]he only type of work ailowed withouf a permit is for changing the
advertising content placed on the panels of a billboard." The Cify further
contends that the provisions of the St. Paui Legislative Code relating to signs
require permits to be obtained for the type of work performed on the Pierce Butler �
sign, and thus argues that the btsilding perm+t axception for repairs of less than
$300 does not apply. The City asserts that section 66.201 provides that "[n]o
person shall .., maintain a sign ... without first obtaining the requisite permit"
and emphasizes that section 66.405, which specifies exemptions to the permit
requirement, only exempts the changing of the display surface on a painted or
printed sign. Because the repairs to fhe Pierce Butler sign did not invoive oniy a
change of dispiay surface, the City_ contends fhat a permit was, in fact, required.
The Administrative Law Judge is unable to conciude that St. Paul
Legislative Code §§ 66.201 and 66.405 cieariy require that a permit be obtained
before reattaching a sign panel. Section 66.201 merely provides that "[n]o
person shall place, erect or maintain a sign ... which does not conform to fhe
following requirements and without first obfaining the requisite permit for such
sign."�� There is no contention that DeLite did not obtain the appropriate initial
permit for the Pierce Butler sign. This provision does not address the need to
obtain a permit for maintenance or repair. Moreover, section 66.201(3) requires
that "[a]II signs which are unsafe and(or unsightiy shall be repaired or removed"
but is silent concerning the need to obtain any permit to make a repair, thereby
giving rise to an argumenf that DeLite had an obligation to repair the sign once it
became damaged. Finally, although section 66.405(1) arguably could be
70 295 N.W.2d 604, 608 (Minn. 1980).
" (Emphasis added).
iG.
a � -f'�3
construed to require that a permit be obtained for all work on signs that does not
involve fhe changing of the display surface or "poster replacement," if is far from
ciear on this point. As noted by Judge Monahan in the District Court decision
that led to the issuance of the March, 2000, memorandum by fhe City, it appears
that "the distincfion made by [section 66.405(1)j is between changing fhe
advertising content to be piaced on the panels of a biliboard and changing or
replacing the panels themselves. The first is permitted without a permit, The
second constitutes a renovation of the biliboard and requires a permit." Because
DeLite did not change or repiace the sign paneis but merely reattached the
existing undam�ged sign panel to the sign support structure, it is understandable
that DeLite would not believe it was necessary under Chapter 66 of the Code to
obtain a permit.
In addition, the March, 2000, memorandum did not clearly require DeLite
to obtain a permit for the type of work pertormed with respect to the Pierce 8utfer
sign. The March 9, 2000, memorandum initialiy stated that permits were
necessary for "changing or repiacing any advertising sign panel"—a situation that
was not involved with respect to the Pierce Butler sign. Aithough the
memorandum thereafter stated that the only type of work for which a permit
would not be required �,�ras for "changing advertising content placed on the paneis
of a biliboard," it did not make any reference to the exception for repairs costing
less than $300 made in section 33.03(a) of the St. Paul Legislative Code or state
that section 33.03(a) would be revised to be consistent with the memorandum.
Under tHese circumstances, it was not unreasonable or clearly inappropriate for
DeLite's to assume that its $185 repa+r to the Pierce Butler sign did not require a
building permit. Under these circumstances, the Administrative Law Judge
concludes that DeLite's failure to obtain a permit did not violate City ordinanees
and should not be relied upon as a basis for adverse action against DeLite's
business license.
Accordingly, the Administrative Law Judge recommends that no adverse
action be taken against DeLite's Billboard and Sign license.
�
t�
CITY OF SAINT PAUL
Norm Colemnn, M¢yor
July 16, 2001
Ms. Nancy Anderson
Saint Paul Council Research
310 City HalUCounty Courthouse
15 West Kellogg Boulevazd
Saint Paul, MN 55102
OFFICE OF THE CITY ATTORNEY
Clayton M Robinson, Jr., Ciry Attorney Q� �
J
C�vilDivision
400 Ciry Haf1 Telephaxe: 65! ?668710
ISWUtKetloggBlvd. Facsimite:65/298-5619
Saint Paul, Minnerot¢ .i.il02
RE: In the Matter of the Sign Contractor's License held by DeLite Outdoor Advertising, Inc.
Council Hearing - July 25, 2001
Dear Ms. Anderson:
Enclosed for filing, and for inclusion in the agenda materials furnished to the Council in
connection with the hearing on the above-referenced matter, are the Written Exceptions of the
Office of LIEP to the ALJ's Report. A copy has been served by mail upon the attorney for the
licensee.
Sincerely, ��
��� �e�
Virgmia D. Palmer
Assistant City Attorney.
cc: Wendy Lane, Zoning Administrator, Office of LIEP
Gary Van Cleve, Attorney for DeLite, Larkin, Hoffrnan, Daly & Lindgren, Ltd., 7900
Xe�es Avenue South, Suite 1500, Bloomington, NIlV 55431-1194.
a►�y�
OFFICE OF ADIvIII�]ISTRATIVE HEARINGS
FOR TT� COUNCIL OF
THE CITY OF SAINT PAUL
In Re the License held by Delite
Outdoor Advertising, Ina WRITTEN EXCEPTIONS
Council Hearing: 7uly 25, 2��1
I. Recommendation of the ALJ.
The ALJ has recommended that the City Council not take any adverse action against the
license held by Delite Outdoor Advertising, Inc. for the reasons set forth in her Report dated June
6, 2001.
II. LIEP Position.
The Office of License, Inspections and Environmental Protection (LIEP) believes the
findings and conclusions reached by the ALJ are in enar and are not supported by the testimony
and evidence at the hearing. Specifically, LIEP believes that Delite Outdoor Advertising has
maintained the sign at I-94 and Vandalia despite orders to remove it after it was erected in
violation of the height restrictions of the Saint Paul zoning code for advertising signs by its
predecessor, Midwest Outdoor Advertising, Inc., and that they repaired a sign at 1651 Pierce
Butler Road without first obtaining the necessary permit to do so.
LIEP urges the City Council to adopt the amended or new Findings of Fact and
Conclusions of Law which aze attached hereto, and to suspend the Sign Contractor's license held
by Delite until such time as the sign at I-94 and Vandalia has been removed.
6\�/'J
III. Argument.
Sien at I-94 and Vandalia.
LIEP contends that the sign at I-94 and Vandalia was built both in violation of the pernut
and in violation of the height restrictions contained in the St. Paul Legislarive Code. The
billboard at I-94 and Vandalia was constructed by Midwest Outdoor Advertising pursuant to a
permit dated 2/25/97. The application for the permit indicates that Nlidwest intended to build a
free-standing 13.6' x 48' billboard , with a total display surface of 648'. The height states it will
be 37'. The Plan Review Remarks indicate that the permit was authorized upon informarion
that the sign would be 23' to the bottom of the sign and about 37' total height. The si� was
authorized to be 37' above the ground, and was actually built at 58' above the ground. Therefore,
it was in violation of the permit authorizing it.
Additionally, however, the sign was built in violation of the height restrictions of the
Code. Saint Paui Legislative Code §66.214(g) as it read at the time the permit was issued stated
that the height could be "measured from grade or surface of the roadway, whichever is higher."
LIEP advised Midwest in April of 1997 that the sign at I-94 and Vandalia was in violation of
§66.214(g), stating that the "surface of the roadway is the main roadbed of I-94, which appears to
be at a lower elevarion than the grade at the sign pole."
Both Midwest and Delite claimed that the ordinance in question had been amended after
this matter and that the amendment was therefore inapplicable. The City acknowledges that the
changes to Saint Paul Legislative Code §66.214(g) which now specifically states that entrance
and exit ramps shall not be used for measurement of height of a sign, occurred as a direct result
of this matter. Nonetheless, it is also clear that the change in question was only meant to codify
the long-standing interpretation of the existing code provision by zoning staff.
l�1-f�'J
The zoning ordinance in question, §66.214(g), is only one part of the ordinance
regulating the size ofbillboards. It is a basic rule of statutory construction that statutes must be
read and construed as a whole, in order to give effect to all parts and harmonize the provisions.
Anderson v. Amco Insurance Co. , 541 N.W.2d 8(Minn. Ct. App. 1996). Furthermore, a"zoning
ordinance must always be considered in light of its underlying policy." Frank's Nursery Sales,
Inc. v. City ofRoseville, 295 N.W.2d 604 (Minn. 1980)(citations omitted).
Saint Paul Legislative Code §66.214(b) sets for the permitted area, spacing and height of
advertising signs, and categorizes signs according to the functional classificarion of the street
along which the signs are placed. The two references to "roadway" in §66.214 of the ordinance
aze in subdivision( fl, relating to the measurement of spacing, and subdivision (g), relaring to
height. Thus it is a logical intezpretation that the "roadway" which controls the height
requirements of signs is the same as the "roadway" referenced immediately before, which
controls the spacing of signs. Furthermore, the longstanding interpretation of this provision by
staff has been that it was meant to refer to the roadway from which the sign was intended to be
read. "An agency's interpretation of the statutes it administers is entitled to deference and
should be upheld, absent a finding that it is in conflict with the express purpose of the Act and
the intention of the legislature." Geo. A. Hormel & Co. v. Asper, 428 N.W.2d 47, 50 (Minn.
1998).
The underlying purpose of §66.214 is to limit advertising signs based upon the atea in
which they aze located, and to minimize the impact of signs by restricting their size, height and
concentrarion. The I-94 and Vandalia sign is located next to several roadways, as aze many signs
in the City. Logically, the height restriction which permits measurement from either grade or
roadway surface is to allow a sign which can be read from the intended roadway even if it is
o�-��r.�
raised, but which is also limited to the masunum height allowed by ordinance. If signs were
allowed to be measured from any neazby roadway, this limitation on height would be ineffective,
and subject to manipulation. Here, by interpreting this section consistently with the other
subdivisions of the same section, it is the logical interpretation that the si� can be no higher than
37 feet from the roadway from which it is intended to be read. As such it violated the height
restrictions of the Code from the time it was built.
LIEP contends that Delite is estopped from arguing that the billboazd at I-94 and
Vandalia is illegal because Midwest never appealed that determination. Despite the ALJ's belief
that the City had not made a final determination that the sign was illegal, LIEP notified
MidwesYs president, Peter Remes, by letter dated Apri128, 1997 that the sign was not built in
accardance with the permit or the code, and that he could appeal pursuant to Saint Paul
Legislative Code §66.408. Midwest elected not to appeal that determination but to pursue other
solutions. Thus, there was a full and fair opportunity to be heard, which Midwest chose not to
pursue, and there was a finai agency determination to the extent that the Office of LIEP had
made their determination and Midwest elected not to appeal. Delite has stepped into the shoes
of Midwest by purchasing the assets of the company, including the disputed billboard. They
should not be permitted to reopen the determination of whether this billboard was illegal and are
bound by their predecessor in interesYs decision not to appeal.
The AL7 also contends in her memorandum that the City has not consistently or
uniformly applied its interpretation of the height ordinance, citing evidence of a permit issued in
1987 to Signcrafter's Outdoor Display, Inc., refened to as the "Infinity" sign in her
memorandum. However, there was no evidence presented that the City was aware that any
violation existed, if one does, prior to the testimony at the hearing. Thus, her contention that the
v � -��
City ignored other violations is simply in error.
Pierce Butler Si�
The ALJ incorrecfly determined that there had been no violation of the ordinance
provisions when DeLite zeattached a sign face which had sustained damage during a storm,
without first obtaining a permit to make the repair. She relied upon Saint Paul Legisiative Code
§33.03, dealing with building codes. That section does not require permits if the cost of the
repair or alteration does not exceed $300.
Section 33_03 states, however, that "[p]ermits for building or general construction are not
required for repairs for maintenance only or for minor alterations provided they aze not required
under.....or other pertinent provisions of the Saint Paul Leeislative Code, and provided the cost of
such repairs and minar alterarions does not exceed the present market value of three hundred
dollazs." (Emphasis added). The problem with relying upon this section of The Code is that
another section of the Legislative Code does require permits, and therefore this exception does
not apply.
Section §66.201 provides that "[n]o person shall..maintain a sign...without first obtaining
the requisite perxnit." Section 66.405 contains the exemptions to the permit requirement, and
section (1) exempts only the changing of the display surface on a painted or printed sign.
Furthermore, Wendy Lane had sent a memo to every sign company doing business in Saint Paul,
including Delite, informing them that they would need to obtain permits for any work done on
signs except for the changing of advertising copy. It is clear from the photographs that the
repairs done to the sign at 1651 Pierce Butler Route did not involve only change of display
surface, and therefore a permit was required. Failure to obtain such a permit was a violation of
the provisions of the Code and is basis for adverse action against the sign contractor's license.
tl�_ly)
�Y����i�r_�:s�
For all of the foregoing reasons, the Office of LIEP urges the Council to adopt the
amended Findings of Fact and Conclusions which haue been submitted, and determine that in
failing to comply with orders to remove the sign at I-94 and Vandalia and to obtain a permit to
do repair work on the sign at Pierce Butler Route that Delite Outdoor Advertising has violated
code provisions related to its business license and adverse action is appropriate in this instance.
Dated this 16`� day of July, 2001.
����� ���
Virginia D. almer (Atty. Reg. 128995)
Assistant City Attomey
400 City HalUCounty Courthouse
15 W. Kellogg Boulevard
Saint Paul, Ml� 55102
(612)266-8710
Atttomey for the Office of LIEP __
�1-F�1�
PROPOSED AMENDEA FINDINGS OF FACT
5. On February 21, 1997, Midwest filed a revised permit applicarion seekin� to construct a
lazger sign at the I-94 and Vandalia location (hereinafter referred to as the "Vandalia si�"),
using non-conforming sign credits it had accumulated. Midwest indicated on its application that
the sign was to be 13'6" wide, 48' long, and 37' above gzade. (The words "above �ade" were
already included on the preprinted application form.) The revised permit application submitted
by Midwest was approved by �E� LIEP on February 25, 1997. The pemut contains Plan
Review Remarks which indicated that the pernut was authorized upon information that the si�n
would be 23' to the bottom of the si�n and about 37' total height.
10. Midwest request that a survey be conducted showing the relationship of the Midwest
billboazd and the right-of-way of I-94. The property was surveyed on March 17, 1997. The
survey . ,
. ,
�69�6- was conducted to show the placement of the billboard with res�ect to the railroad
prop and Citv rieht-of-wav in response to a question about the placement of the sian, and was
submitted prior to the issue of the height of the sien beinQ raised.
15. On August 8, 1997, the St. Paul Planning Commission approved the variance applications of
Midwest and Universal. The Saint Anthony Park Community Councii filed an appeal of the
Planning Commissions's determination, and the St. Paul City Council ultimately reversed the
Commassion and denied the variance applications. In the Resolution reversine the �rant of a
variance, the Citv Council twice referenced the fact that the existins Midwest sign at I-94 and
Vandalia was built in violation of the permit and was 21 feet hieher than �ermitted. This
decision was never appealed bv Midwest or Universal.
16. By letter dated April 16, 1999, the City issued a Notice of Violation to Midwest regazding
the Vandalia sign. The notice stated that adverse action was recommended because the Vandalia
sign was not built in compliance with its permit and because Midwest had not appealed the City
Council denial of its variance request or moved its sign. T' --'=-_ _r..: _,_.: __ __.__ .L _ �_ .
. The notice
of violation followed a Februarv 1999 letter from Jol�n Hardwick to Midwest Outdoor
Advertising advisingthem that the sien needed to be removed .
20. Beginning in approximately August 1999, then-counsel fro DeLite began to engage in
discussions with the St. Paul City Council regarding a number of issues, including the Vandalia
sign. DeLite was told that thev could te submit a formal proposal to the
City Council''-°� __.,...,a :_,.,,.a_ __,.__,...:,._ _rproposin a way of Ie2alizing the Vandalia si�n
iss�e. Counsel for DeLite also met with Wendy Lane, Zoning Manager for �� LIEP , and
other City staff regarding the Vandalia sign. City staff told DeLite counsel `- -��`—=` __.,,� �_ _.
� that among other thinQS that would be necessary to legalize the si2n was a variance.
There had also been chanQes to the sien ordinance includint the establishment of a s ecp ial si�n
district and a moratorium which would need to be addressed.
Q�_Fy�
. At no time was DeLite informed that thev could
appeal the determination that the sisn was built in violation of the hei�ht restrictions and in
violarion of the permit. City staff instead told counsel for DeLite that a proposal to the City
Council was the appropriate way to resolve the issue.
22. On October 8, 1999, DeLite submitted a variance applicarion that, ,
�egt�este� included a request for a 25-foot variance to the Vandalia sien for a total height of 102
feet above e� as well as one other variance, two new freewav siens and issuance of rivo new
sisn oermits in exchan�e for talfl� down other billboards throughout the City
. The
Citv Council declined to approve the proposal•
26. At the hearine, DeLite offered testimonv that Aon Mazch 25, 1987, the City issued a permit
to Infinity Lthe permit was actuallv issued to Signcrafters Outdoor Displav, Inc.] to build what
DeLite referred to as the Infinity sign. The permit approved the height of the sign at 50 feet
above average grade.
. -
,
, ' . There was no evidence
roresented at the hearin� reeardins any of the circumstances surroundine the issuance of the
permit, nor was there any evidence that the LIEP office was aware of a complaint that the sien
was erected in violation of the Code until the dav of the hearine.
27. On March 9, 2000, �EH� LIEP sent a memorandum to sign companies licensed by the City
for advertsiing sign construction. DeLite was one of the companies which received a cogv of the
memorandum. The memorandum stated in its entirety:
Based on a recent court decision, a permit will now be required for
changing or replacing any advertising sign panel within the City of
Saint Paul. It was deterxnined that we were incorrect when we did
not require a building permit for the replacement of sign panels
damaged during a wwind storxn. The only type of work allowed
without a permit is for changing the advertising content placed on
the panels of a billboard.
The City's March 9, 2000, notice did not mention §33.03 of the St. Paul Legislative Code s�
___�.L aL . T f....,.L � ���� __ _� _�.._ a_.W nor did it refer to 566.201. It did cleazl�state
that the only t�pe of work which would not need a permit as of March 9, 2000 was the chan��ng
of the advertising sien content. Delite never called Ms. Lane to ask for clarification of the
memorandum.
41-F`!�
PROPOSED AMENDED CONCLUSIONS
9. At the time the Vandalia sign was approved and build, Section 66.214(g) of the St. Paul
Legislarive Code provided in its entirety: "The height of advertising signs may be measured from
grade or surface of the roadway, whichever is higher." The ordinance did not state that the
applicable roadway was the roadway from wYrich the si� was intended to be read but LIEP's
contention that this was the longstanding interpretation of the Code provision was unchallenaed
at the hearine and was supported by comments from the Plannin¢ Commission at the time the
section was amended and in the Planning Commission Resolution (File #97-561 addressine the
joint variance request of Midwest Outdoor Advertisin� and Universal Outdoor Advertisin�
10. Section 66.214(g) of the St. Paul Legislative Code was amended in June of 1997 to state that
"[s]urface of the roadway shall be the main bed of the roadway, from which the sign is intended
to be read, at the location of the sign" and that "[t]he height shall not be measured from any
entrance or exit ramps associated with the roadway." These amendments �xy�eE�eper�g�e
cod'afied the existine Citv staff interpretation of the
Code.
12. DeLite (as MidwesYs successor in interest) did � violate St. Paul Legislative Code
§66.214(g) as it existed prior to the June 1997 amendment by measuring the height of the
Vandalia sign from the surface of the exits ramp.
>
. The Citv's testimony that the lonestanding interpretation of that
section of �66.214(,_0l required measurement from the surface of the roadway from which the si�n
was intended to be read was supported in the record. __
13. DeLite is �teE collaterally estopped, by virtue of MidwesYs inaction, from contesting the
City's '
determination
that Midwest built the sien in violation of the heiPht restrictions of the Code, and in violation of -
the �erxnit, which was approved based upon the information that the sien would be a total of 37
feet in heieht above eround.
..-- -- `- - - - - - - - -- -- - - - -- - '- - - - - --
- - - - - - ---- - -- ---- - --- - - -- - - • -- - •- -- - -
--- -- �• --- -- -- - -- •- -- - --- -- -- • -- - - - ---
.._._
14. Because DeLite was advised that the billboard at I-94 and Vandalia was ille�al and needed
with the orders of the zonine administrator and are maintauun a si which is in violation of the
aoning code.
o � -d���
-- - - - -- - - - - -- •- - - --- -- -- -- --
. . -
-- - -- --- - - -- - -- - :- - - --
15. St. Paul Le¢islative Code §33.03(al which exem�ts repairs under �300 from rec�uirin,�a
buildin¢�ermit is inapplicable to this situation because St. Paul Le2islarive Code §§66.201 and
&66.405 are specific to sisns and supersede the eg neral provisions of the buildina code.
Therefore DeLite was required to applv for a�ermit to reattach the sign face for the dama e¢ done
to the Pierce Butler sim.
- • -- -- `- - - - - - - - - - ----- --- ------ -- -- - - - - - --
_ ,
-- - - -- - •- -- - - - --- • - --- - - -- - - - '- -- - - ---
-- • - .., - - - • - -- - -- --- - - -- -- -- - -- -- -- - ---- -
- - . -
`- •- • •-
- - - - - - - - - - ..........i,�v�v
16. DeLite failed to obtain a permit to repair the Pierce Butler sien des��ite the Mazch 2000
memo advisin all si n� companies that thev must obtain pernuts for any work done on si ns
except the replacement of advertisin� content. The reattachxnent of the siQn face, damaQed
durinQ the storm, did not involve the repiacement of advertisin� and did require a uermit•
Furthermore, it was done in disregard of the Zonine Admininstrator's memorandum that a�ermit
would be reauired.
�, C � �
� O��as, aoa\
La�r, HoNr�Arr, Da1.Y & Ln�mG�rr,
L�v.
ATTORNEYS AT LAW
GaryA Van Cieve
1500 W ELLS FARGO PLAZA
7900 XERXES AVENUE SOUTH
BLOOMINGTON, MINNESOTA 5543'I-1194
TELEPHONE(952)8353800
FAX (952) 8963333
July 19, 2001
Ms. Nancy Anderson
Saint Paul Council Research
310 City Ha1UCounty Courthouse
15 West Kellogg Boulevard
Saint Paul, MN 55102
��,,.r, �- 35
��_���
Dir. Dial: (952) 896-3277
E-mail: gvanGeve@Ihdl.com
r1 ..4 ` :P
..-s, �.�
����
��, �9�11
a�L �� '�
Re: In the Matter of the Sign contractor's License held by DeLite Outdoor Advertising, Inc.
Council E3earing — July 25, 2001
Dear Ms. Anderson:
Enciosed for filing, and for inclusion in the agenda materials furnished to the Council in connection with
the hearing on the abovexeferenced matter, are Licensee's Objections to LIEP's Written Exceptions and
Request to Adopt the Report of the ALJ. A copy has been served by mail upon the attorney for the
licensee.
V ery ly yours,
� �-�✓��
Gary�Van Cleve, for
LARKIN, HOFFMAN, DALY & LINDGREN, Ltd.
cc: Virginia P. Palmer, Assistant City Attorney
Cenified Civil Tri¢I Specialist by Board Certif:ed Civi! Tria1 Advocate Cert:feed Real Properry Specialist by
Minnesot¢ Smte B¢r Associatiors National Board af Trial Advocacy Minnesata State BarAssociation
� t�2��h CentPt
or�rcE oF aD�mv�sT�T� �ax�rGS � � � Zqp1
FOR THE COUNCIL OF TI� D� ��
CITY OF ST. PAUL
-----------------------------------------------------
In Re the License held by DeLite OAH No. 11-6020-14063-3 =
Outdoor Advertising, Inc.
LICENSEE'S OBJECTIOI�S
TO LIEP'S WRITTEN EXCEPTIONS
AND REQIIEST TO ADOPT THE
REPORT OF THE ALJ
INTRODUCTION
Licensee DeLite Outdoor Advertising, Ina ("DeLite") objects to the Written Exceptions
of the Office of License, Inspections and Environmental Pzotection ("LIEP") to the Report of the
Administrative Law Judge ("ALJ") and requests the City Council to adopt the AL7's Report in
its entirety. In a detailed and well-reasoned decision covering 17 pages and containing 35
Findings of Fact, 17 Conclusions and a five-page Memorandum, the ALJ concluded that (a)
DeLite's outdoor advertising sign at I-94 and Vandalia ("Vandalia sign") did not violate the
City's ambiguous pre-1997 sign height ordinance because the top of the sign is only 363 feet
above the surface of the adjacent exit ramp; and (b) DeLite did not violate any provision of the
St. Paul Legislative Code when it made a minor repair of its sign after a storm at 1651 Pierce
Butler Road ("Pierce Butler sign") by re-hanging the existing sign panel and securing it back in
its proper position for a repair cost of $185. DeLite respectfuliy requests the City Council to
adopt the Findings of Fact, Conclusions and Recommendation of the ALJ in their entirety
because the ALJ's decision is supported by the evidence and applicable principles of law.
ARGUMENT
� � �-�c�
I. TAE ADNIINISTRATIVE LAW JUDGE'S REPORT IS WELL-REASONED AND
SUPPORTED BY SUBSTANTIAL EVIDENCE AND T`HE LAW.
The ALJ's Report resoundingly rejects all the arguments of LIEP in support of its reed-
thin clauns against DeLite. LTEP claims that DeLite's Vandalia sign violates the City's pre-1997
sign height ordinance, but the AL7 properly concluded that the ordinance was ambiguous and
allowed the height to be measured from the adjacent exit ramp. LIEP further claims that DeLite
needed to obtain a permit to make a$185 repair to its Pierce Butler sign, which repair consisted
of re-hanging the existing sign panel after it became detached following a storm. LIEP's Written
Exceptions to the ALJ's Report ignore the we11-documented Findings and soundly-reasoned
Conclusions which inexorably led to the recommendarion that no adverse action be taken against
DeLite's busaness license. The ALJ correctly concluded that "the City bears the burden in tkus
matter of proving by a preponderance of the evidence that violations have occurred and adverse
action against the Lacensee's business license is warranted." Report at 9, Conciusion No. 3. The
evidence showed that the City failed to cany its burden of proof on either issue.
A. The ALJ Conec� Concluded that the Vandalia Si� Did Not Violate the Cit�
Sign Height Ordinance as that Ordinance Existed Prior to Amendment in June
1997.
The ALJ recognized that before the City's sign height ordinance was amended in June
1997, it ambiguously stated that the "height of signs may be measured from grade or surface of
roadway, whichever is higher." Code, § 66.214(g). The obvious axnbiguity is which "surface of
roadway" serves as a benchmark when there is more than one roadway in the vicinity of the
sign? LIEP azgued that it had a"longstanding interpretation" of this ordinance that required the
height to be measured from the roadway from which the sign was intended to be read. The ALJ
2.
��-r`�
correctly observed that "The ordinance did not state that the applicable roadway was the roadway
from which the sign was intended to be read." Report at 11, Conciusion No. 9.
The evidence showed that L1EP propounded and the City adopted au amendment in 7une
1997 to the above-quoted Code provision in direct response to the disagreement over the
Vandalia sign height and the ambiguity concerning which "surface of roadway" could serve as a
benchmark for determining a sign's height. The AL7 concluded, however, that the 7une 1997
amendment to Section 66.214(g) "may not properly be retroactively applied to the Vandalia
sign." Report at 14. This conclusion is supported by the City's own Code Section 66.301, which
the t1LJ noted "declares that it is the intent of the zoning chapter `to pemut legal nonconforming
signs existing on the effective date of this chapter or amendments thereto, to continue as legal
nonconforming signs ...."' Id. at 14-15 (emphasis in Report). Since the sign height ordinance
amendment followed the construction of the Vandalia sign, the express intent of the Code was to
allow the sign as a legal nonconforming sign in spite of the amendment. This conclusion is
further supported (as the ALJ noted) by general principles of statutory construction, which __
dictate that a law should not be construed to be retroactive "unless clearly and manifestiy so
intended by the legislature." Report at 15, n. 66 (quoting Minn. Stat. § 645.21).
Accordingly, the ALJ conectly concluded that
' DeLite ... did not violate St. Paul Legislafive Code § 66.214(g) as
it existed prior to the June 1997 amendment by measuring the
height of the Vandalia sign from the surface of the exit ramp. The
ordinance was ambiguous conceming the roadway from which the
measurement should be made, and the City did not prove by a
preponderance of the evidence that it had a longstanding practice
that sign height could not be measured from an exit ramp.
1 Indeed, LIEP never argued for retroacrive application of the amendment; instead relying on its
azgument that the amendment was merely a"clarification" of a"longstanding interpretation."
This azgument was rejected by the AI,J, as argued below.
3.
D � -��
Report at 11, Conclusion No. 12. As noted in the above-quoted conclusion, the ALJ found
LTEP's evidence of "longstanding practice" sorely lacking. The ALJ weighed conclusory
statements by LIEP's 3ohn Hardwick (which the AI,7 obviously did not find credible against
the undisputed facts that (a) City inspectors inspected and approved the Vandalia si�t on at least
rivo occasions; and (b) the City "has not consistently or uniformly applied its interpretation of the
height ordinance to other sign contractors: ' Report at 15. Evidence showed that an outdoor sign
immediately west of the Vandalia sign (the Infinity sign) "is over 80 feet tall from base to top of
the sign and over 65 feet tall from the surface of the roadway of the I-94 entrance ramp to the top
of the sign." Id. There was no evidence that the City has ever taken any adverse action against
the Infiruty sign, "even though this si� reflects a more egregious violation of the City's height
ordinance than the Vandalia sign." Id.
Finally, the ALJ properly applied principles of law established by the Minnesota
Supreme Court in concluding that the ambiguous sign height ordinance had to be read in a
manner least restrictive upon the rights of the private property owner—DeLite. __
Pursuant to Frank's Nursery, Inc. v. City ofRosevilZe, where a
zoning ordinance is ambiguous, weight must be given "to the
interpretation that, while still within the confines of the term, is
least restrictive upon the rights of the property owner to use his
land as he wishes." Construing the ordinance in favor of the
property owner ... the Administrative Law Judge concludes that
the sign should be allowed under the ordinance if the top of the .
sigp is 37.5 feet or less from the surface of the I-94 exit ramp, and
should be allowed under the perxnit if the top of the sign is 37 feet
or less from the surface of the exit ramp. Because the most recent
survey established that the top of the sign is 36.3 feet above the
surface of the exit ramp, the Admiriistrative Law Judge concludes
that the Vandalia sign conforms to both the pexxnit and the
ordinance that was then in effect.
Z Determinations of the credibility of wimesses by the ALJ aze entitled to weight by the
reviewing agency. First NaYl bank v. Dept. of Commerce, 245 N.W.2d 861, 865 (Minn. 1983).
�
D � , ��
Report at 16. Accordingly, the evidence and law support the ALJ's conclusion that the Vandalia
si� is legal.
B. The ALJ Correctiv Concluded that the Re-HanQinQ of the Existin� Sim Panel on
the Pierce Butler Sian at a Cost of $185 Did Not Require a Permit.
The ALJ rejected LIEP's contention that DeLite was required to obtain a pemut before it
reattached (not changed or replaced) an existing sign panel on the Pierce Butler sign that had
become detached in a wind storm. LTEP did not dispute that the cost of the repair was $185.
Assuming that the type of permit LIEP contends was required was a building permit, Section
33.03(a) of the St. Paul Legislative Code, concerning the need for building pernuts, expressly
exempts repairs costing less than $300 from the permit requirement. Id. (providing that building
permits aze not required "for repairs for maintenance only or for minor alterations ..." and
"provided the cost of such repairs and minor alterations does not exceed the present market value
of three hundred dollars").
LIEP relied on Sections 66.201 and 66.405 of the St. Paul Legislative Code for its
contenrion, but the AL7 concluded that neither section requires a permit under these
circumstances. As to Section 66.201, the ALJ correctly stated,
Section 66.201 merely provides that "[n]o person shall place, erect
or maintain a sign ... which does not conform to the following
requirements and without first obtauung the requisite permit for
such sign: ' There is not contention that DeLite did not obtain the
appropriate initial permit for the Pierce Butler sign. This provision
does not address the need to obtain a permit for maintenance or
repair.
3 LIEP's Wendy Lane, when asked what type of pernrit was needed by DeLite to make this
minor repair, said "thaYs a good question" and admitted this was unclear. This showed that not
even LIEP understood what its supposed regulation was concerning the need for permits for sign
repairs.
�
oi-��
Report at 16 (emphasis in original). The ALJ fiuther noted that one subparagraph of Section
66.201 actually imposed a duty on DeLite to repair the sign and, in so imposing that duty, failed
to state that a pernut was required for such a repair:
Section 66.201{3) requires that "[a]li signs which aze unsafe and/or
unsightly shall be repaired or removed" but is silent concerning the
need to obtain any pemut to make a repair, thereby giving rise to
an azgument that DeLite had an obligation to repair the sign once it
became damaged.
Id.
As to Section 66.405(1), the ALJ correctly concluded that this ordinance is "far from
cleaz" on whether a permit would be needed to make this minor repair. LIEP relied on a March
2000 memorandum it issued to sign owners in the City which made vague reference to a"recent
court decis3on" (without enclosing it) concerning Section 66.405(1) and asserted that some
unspecified type of permit was required "for changing or replacing any advertising sign panel
...." City Ex. 15. The ALJ analyzed the referenced court decision and noted that the judge
interpreted Section 66.405(1) to distinguish between changing advertising on the sign panel and
changing oz replacing the sign panel itsel£ "The first is permitted without a permit [and] [t]he
second constitutes a renovation of the billboard and requires a pernut " Report at 17. The AL3
stated that based upon this distinction, DeLite was not required to obtain a permit for the repair
because "DeLite did not change or replace the sign panels but merely reattached the e�sting
undamaged sign panel to the sign support structure." Id 4 The ALJ concluded that neither
LIEP's March 2000 memorandum, nor the referenced court decision required that DeLite obtain
a pernut before making the $185 repair.
° Lane admitted in her testunony that the ordinances should be amended to state clearly under
what circumstances a pemut would be required far work on outdoor signs and what type of
permit would be required.
Q
D�-�Y�
The March 9, 2000 memorandum initially stated that permits were
necessary for "changing or replacing any advertising sign panel"—
a situation that was not involved with respect to the Pierce Butler
sign. Although the memorandum thereafter stated that the only
type of work for which a permit would not be required was for
"changing advertising content placed on the panels of a billboard,"
it did not make any reference to the exception for repairs costing
less than $300 made in section 33.03(a) of the St. Paul I,egislative
Code or state that secrion 33.03(a) would be revised to be
consistent with the memorandum.
Id. For these reasons, the ALJ concluded that "Under these circumstances, it was not
unreasonable or clearly inappropriate for DeLite to assume that its $185 repair ... did not require
a permit " Id.
II.
C+:1
A. LIEP Has Failed to Show that the ALJ's Reoort is in Error in Any Respect
Concernina the Lack of Anv Heieht Violation of the Vandalia Si�n.
LIEP's Exceptions continue to argue "longstanding interpretation" in the face of
substantial evidence of past conduct by the City that was clearly inconsistent with its claimed
interpretation and the AL7's rejection of the conclusory statements of Hardwick.
In its Exceptions, LLEP impernussibly looks to the spacing ordinance (Section 66.214( fl)
for assistance in interpreting the ambiguous sign height ordinance. The ALJ properly rejected
this assertion:
The Administrative Law Judge is not persuaded that the exclusion
of exit and entrance ramps in another portion of the zoning
ordinance (section 66.214(b), relating to spacing of signs) or the
mention in that ordinance that spacing of signs is determined in
part by the classificarion of the street from which the sign is
intended to be read is sufficient to justify the same interpretation of
the height ordinance.
Report at 15, n. 69 (emphasis added). Indeed, this merely shows that when the City wished to
define more specifically "surface of roadwa}�', it lrnew how to do it—and failed to do so with
7.
0 t -�''��
respect to the sign height ordinance. Certainly the City's 1997 amendment to the sign height
ordinance to exclude exit and entrance ramps shows that even the City recognized the ambiguity
in the original ordinance and affirmarively acted to cure it. A recent Minnesota Court of Appeals
decision in connecrion with the City of Rochester outdoor sign ordinances rejects the same
reasoning that LIEP azgues here. DeLite Outdoor AdvertisinQ, Inc. v. Citv of Rochester (slip
opinion provided to ALJ and included as part of record). The court of appeals rejected the City
of Rochester's arguxnent that an ordinance which on its face allowed DeLite to replace a sign had
to be read in connection with all other city ordinance provisions, one of which, the city azgued,
would have prohibited the replacement of the sign. The couzt noted that no legislative history
supported such a reading of Rochester's ordinances. Similarly, LIEP here offer no credible
evidence and no legislative lustory of its interpretation of the sign height ordinance or that it
should be read together with the spacing ordinance.
LIEP clauns that its interpretation of the sign height ordinance is entitled to deference.
This misstates the proper legal standazd. As the ALT corrected stated, an agency interpretatio�a is
entitled to deference onlv where the language is technical and the agency can show a
longstanding and consistent agency interpretation. Report at 15, n. 67 (citing Hibbin¢ Education
Assn. V. Public Employment Relations Boazd, 369 N.W.2d 527, 529 (Nlinn. 1985)). LIEP failed
on both counts. The ordinance language at issue concerning height ("surface of roadwa}�') is
certainly not technical. Furthermore, the ALJ properly concluded that LIEP failed to carry its
burden of proving that there was any longstanding agency intexpretation consistent with its
claims and in the face of undisputed evidence of (a} prior inspection approvals of the Vandalia
sign and (b) non-enforcement of an even more egregious "violation" of the claimed longstanding
interpretation (the Infiiuty sign).
�
��Yv�
LIEP ara es in its Exceptions with respect to the I�ifinity si� that "there was no evidence
presented that the City was aware that any violation existed ...." Exceprions at 4. This is an
incredible assertion given the Iufiniry sign's proximity 1000 feet immediately west of and
adjacent to the Vandalia sign. LIEP has only itself to blame for any lack of proof. As noted
above, the burden of proof is on LIEP to establish the violations. Accordingly, it cannot rely on
an absence of proof to support its claims.
LIEP's Exceptions re-raise an estoppel Doument that was soundly rejected by the ALJ
because only one of four essential elements for proving estoppel was present here. Report at 14.
LIEP claims that its Apri127, 19971etter was a Notice of Violation from which DeLite's
predecessor, Midwest Outdoor Advertising, Inc. ("Midwest"), never appealed. But the ALJ
properly found that the language of the letter was decidedly unclear whether it was an action or
decision that was itself appealable: "it appears from a fair reading of the letter that LIEP was
simply infomung Midwest that any decision the City ultimately made regarding the sign would
be subject to appeal." Report at 13 (emphasis in Report).
This conclusion was further supported by the undisputed fact that rivo yeus passed
between the Apri127, 19971etter and the City's issuance of a Notice of Violation as to the
Vandalia sign on Apri116, 1999 (Ex. 8). During this two-year period, the evidence showed that
Midwest worked with another sign company to attempt to resolve differences and reach a
compromise solution on sign issues in this azea of the City. Midwest's president testified that he
was "shocked and surprised" when the City ultimately issued a Notice of Violation in 1999,
given that Midwest had taken down 20 signs to build the Vandalia sign. After DeLite acquired
5 The AI,J's finding was appropriate given the letter's statement that, "Any decision we make
regarding the sign ordinance is subject to an appeal ...." City Ex. 5(emphasis added). The clear
�
d 1-P�l�
all MidwesYs signs, DeLite made a comprehensive proposal to the City conceming all signs it
owned in the City. After the City rejected DeLite's proposal, another Notice of Violation on the
Vandalia sign issued. Based on this lustory, the ALJ concluded that to bar DeLite from any
hearing on ttris issue would deprive it of its fundamental right to due process: "Under these
circumstances, it would violate due process principles if DeLite were precluded from challenging
the underlying basis for the City's current adverse licensing action." Report at 14. These
findings and conclusions should be affirmed and adopted by the Council.
B. LIEP Has Failed to Show that the ALJ's FindinQS or Conclusions Were WronQ
Conceming the Lack of Anv Violation Arisin� Out of the Minor Repair of the
Pierce Butler Sign.
As it did before the ALJ, in its Exceptions LIEP conspicuously omits key language from
Section 66.201, which LIEP claims required DeLite to obtain a perxnit for its minor repair. LIEP
paraphrases the ordinance to state, "[n]o person shall ... maintain a sign ... without first
obtaining the requisite permit " Exceptions at 5. This is not what the ordinance states. The
ordinance provides, as found by the ALJ, that "[n]o person shall place, erect or maintain a sign
... which does not conform to the following requirements and without first obtaining the
requisite permit for such sign." Report at 16 (emphasis in Report). LIEP steadfastly ignores the
key phrase "for such sign", which the ALJ conectly concluded only requires that an appropriate
initial permit must be obtained for a sign: "There is no contention that DeLite did not obtain the
appropriate uutial permit for the Pierce Butler sign. This provision does not address the need to
obtain a permit for maintenance or repair." Id. In addirion, the ALJ pointed out that .
subpazagraph (3) of SecYion 66.201 mandates that unsafe and/or unsightly signs must be repaired
or removed, "but is silent conceming the need to obtain any permit to make a repair ...." Id. As
implicarion is that the right to appeal would arise from any fuhxre decision made by LIEP
conceming the sign, not that a decision had been made from which appeal rights azose.
10.
o �..��
noted above, the City's own Code does not require a building pernut for maintenance or minor
alterations that cost Iess than $300. Code, § 33.03(a). AccardingIy, LTEP has failed to make any
credible argumenT That DeLite's $185 repair was subject to any permit requirement.
CONCLUSION
For all the above reasons, DeLite Outdoor Advertising, Inc. respectfully requests the St.
Paul City Council to adopt and affirm all aspects of the Adu�inistrative Law Judge's Report.
There aze simply no violations stated or proved by LIEP in this case and no action should be
taken against DeLite's business license.
Dated: ,/9'� 2���
::ODMA�PCDOCS\LIB ] \697 383\1
Gary an Cleve (156310)
L , HOFFMAN, DALY & LINDGREN, Ltd.
1500 We11s Fazgo Plaza
7900 Xe�es Avenue South
Bloomington, Minnesota 55431-1194
(612)835-3800
Attorneys for Licensee DeLite Outdoor Advertising, Inc.
11.
ORIGINAL
RESOLUTION
CITY OF SAINT PAUL, MINNESOTA
Presented By �
t
�S
Referred To
Comxnittee: Date
1 RESOLVED, that the sign contractor's license held by Delite Outdoor Advertising, Inc.
2 (License ID#: TR 1344) be suspended unril such time as the billboard at I-94 and Vandalia has
3 been removed and a permit fees for repairs to the billboard at 1651 Pierce Butler Route have
4 been paid.
6 FURTHER RESOLVED, that the findings of fact and conclusions of law contained in the
7 ALJ Report in this case dated June 6, 2001 are adopted as the written findings and conclusion of
8 the Council in this matter, except as amended below. The reasoning of the Memorandum of the
9 ALJ attached to the findings and conclusions is not adopted, nor is the recommendation of the
10 ALJ accepted.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
FURTHER RESOLVED, that the following amendments to the ALJ Report aze hereby
adopted:
1. Finding of Fact No. 5 is hereby amended to read as follows:
"5. On February 21, 1997, Midwest filed a revised perxnit
application seeking to construct a larger sign at the I-94 and
Vandalia locarion (hereinafter referred to as the "Vandalia sign"),
using non-conforming sign credits it had accumulated. Midwest
indicated on its application that the sign was to be 13'6" wide, 48'
long, and 37' above grade. (The words "above grade" were already
included on the preprinted application forxn.) Tl�erevised permit
application submitted by Midwest was approved by �� LIEP on
February 25, 1997. The permit contains Plan Review Remarks
which indicated that the permit was authorized upon information
that the sien would be 23' to the bottom of the sien and about 37'
totai heieht.
2. Finding of Fact No. 10 is hereby amended to read as follows:
32
33 "10. Midwest request that a survey be conducted showing the
34 relationship of the Midwest billboard and the right-of-way of I-94.
35 The property was surveyed or. March 17, 1997. The survey
36 . ,
37 . ,
3$ . . was
Council File # d�- ry 3
Green Sheet # � U � O �2
1 conducted to show the placement of the billboard with respect to
2 the railroad �roperiy and Citv ri t-of-wa iv n res�onse to a
3 question about the placement of the si�n, and was submitted prior
4 to the issue of the heieht of the si2n beine raised."
6 3
4. Finding of Fact No. 16 is hereby amended to zead as follows:
10 approved the variance applicarions of Midwest and Universal. The
11 Saint Anthony Pazk Community Council filed an appeai of the
12 Planning Coxnsnissions's determination, and the St. Paul City
13 Council ulrimately reversed the Commission and denied the
14 variance applications. In the Resolution reversin�the �rant of a
15 variance, the Citv Council twice referenced the fact that the
16 existin Midwest sian at I-94 and Vandalia was built in violation
17 of the permit and was 21 feet higher than permitted. This decision
18 was never appealed bv Midwest or Universal."
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
Finding of Fact No. 1 S is hereby amended to read as follows:
"15. On Aua st 8, 1997, the St. Paui Plauning Commission
"16. By letter dated April 16, 1999, the City issued a Notice of
Violation to Midwest reguding the Vandalia sign. The notice
stated that adverse acrion was recommended because the Vandalia
sign was not built in compliance with its permit and because
Midwest had not appealed the City Council denial of its variance
request or moved its sign. ^''-- - _.:,. _ _ r _ : _,. .. __ __... _ .ti _ r_,,.
_, . The notice of violation followed a Februarv
1999 letter from John Hardwick to Midwest Outdoor Advertisine
advisine them that the sign needed to be removed ."
Finding of Fact No. 20 is hereby amended to read as follows:
"20. Beginning in approximately August 1999, then-counsel fro
DeLite began to engage in discussions with the St. Paul City
Council regazding a number of issues, including the Vandalia sign.
DeLite was told that the�could te submit
a formal proposal to the City Council
�ese#ttiex-a€propOSin�a way of le alizine the Vandalia si�n isstte.
Counsel for DeLite also met with Wendy Lane, Zoning Manager
for �H= LIEP , and other City staff regarding the Vandalia sign.
City staff told DeLite counsel that
among other thines that would be necess to le�ize the sign
was a variance. There had also been chanees to the sign ordinance
includine the establishment of a snecial sien dishict and a
moratorium which would need to be addressed. £�ei�ker�ie£�
, . At no time
O\-1�13
1 was DeLite infonmed that thev could appeai the determination that
2 the sie� was built in violation of the heieht restrictions and in
3 violation of the permit. Ciry staff instead told counsel for DeLite
4 that a proposal to the City Council was the appropriate way to
5 resolve the issue."
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
6. Finding of Fact No. 22 is hereby amended to read as follows:
"22. On October 8, 1999, DeLite subxnitted a variance application
that, � a , included a request for a 25-foot
variance to the Vandalia si�n for a total heieht of 102 feet above
�rade. as well as one other variance, two new freeway siQns and
issuance of two new si�n vermits in exchan�e for takin� down
other billboards throughout the Citv. ^-' �`- -'-- -- ' -- =" - a -
. The City Council
declined to approve the �roposal."
7. Finding of Fact No. 26 is hereby amended to read as follows:
"26. At the hearina, DeLite offered testimony that 8on Mazch 25,
1987, the City issued a permit to Infinity [the oermit was actuallv
issued to Siencrafters Outdoor Displav, Tnc.l to build what DeLite
referred to as the Infmity sign. The permit approved the height of
the sign at 50 feet above average grade.
,
>
' . There was no evidence
presented at the hearine reQarding anv of the circumstances
surroundina the issuance of the permit, nor was there any evidence
that the LIEP office was aware of a complaint that the sign was
ezected in violation of the Code until the day of the hearina."
8. Finding of Fact No. 27 is hereby amended to read as follows:
"27. On March 9, 2000, �� LIEP sent a memorandum to sign
companies licensed by the City for advertsiing sign conshuction.
DeLite was one of the com�anies which received a coov of the
memorandum. The memorandum stated in its entirety:
45 Based on a recent court decision, a permit wiil now
46 be required for changing or replacing any
47 advertising sign panel within the City of Saint Paul.
48 It was determined that we were inconect wheu we
49 did not require a building permit for the
50 replacement of sign panels damaged during a
51 wwind storm. The only type of work allowed
O�
m
2
without a pemut is for changing the advertising
content placed on the panels of a billboazd.
O � —T `�
�
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
The City's March 9, 2000, notice did not mention §33.03 of the St.
Paul Legislative Code
,
_ ,
, . nor
did it refer to �66.201. It did clearlv state that the onlv t�pe of
work which would not need a�ermit as of March 9, 2000 was the
chan�ina of the advertisine sim content. Delite never called Ms.
Lane to ask for cIarification of the memorandum."
9. Conclusion of Law No. 9 is hereby amended to read as follows:
"9. At the time the Vandalia sign was approved and build, Section
66.214(g) of the St. Paul Legislative Code provided in its entirety:
"The height of advertising signs may be measured from grade or
surface of the roadway, whichever is higher." The ordinance did
not state that the applicable roadway was the roadway from which
the sign was intended to be read, but LIEP's contention that this
was the lon¢standin�interpretation of the Code provision was
unchalleneed at the hearing and was supported bv comments from
the Plannin� Commission at the time the section was amended and
in the Plannin�Commission Resolution (File #97-561 addressine
the ioint variance rec�uest of Midwest Outdoor Advertising and
Universal Outdoor Advertisine."
10. Conclusion of Law No. 10. is hereby amended to read as follows;
31 "10. Section 66214(g) of the St. Paul Legislative Code was
32 amended in June of 1997 to state that "[s]urface of the roadway
33 shall be the main bed of the roadway, from which the sign is
34 intended to be read, at the location of the sign" and that "[t]he
35 height shall not be measured from any entrance or exit ramps
36 associated with the roadway." These amendments �a�
37 codified the
38 existing Citv staff interpretation of the Code."
39
40 1 l. Conclusion of Law No. 12 is hereby amended to read as follows:
41
42 "12. DeLite (as MidwesYs successor in interest) did � violate St.
43 Paul Legislative Code §66.214(g) as it existed prior to the June
44 1997 amendment by measuring the height of the V andalia sign
45 from the surface of the exits ramp.
46
47 ,
48
49 . The City's testimonv that the
50 lonastandin� interpretation of that section of §66.214( l�re_quired
51 measurement from the surface of the roadwav from which the sign
1 was intended to be read was supported in the record."
2 0 � -t4�
3 12. Conclusion of Law No. 13 is hereby amended to read as follows:
4
5 "13. DeLite is r� collaterally estopped, by viriue ofMidwesYs
6 inaction, from contesting the City's '
7
8
9 fi3�� deteimination Yhat Midwest built the si� in
10 violation of the heiQht restricrions of the Code, and in violarion of
ll the pemut. which was approved based upon the information that
12 the sign would be a total of 37 feet in height above eround."
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
13. Conclusion of Law No. 14 is hereby deleted and a new Conclusion of Law No. 14 is
adopted to read as follows:
- -- `- - - -- - - -- --- - -- -
�- - - - - - - - - ---- - --
---- --- - - -- - - -- - �- -- - - - ---
�• -- -- - - - - - - --- �-
- - -- • •
"14. Because DeLite was advised that the billboard at I-94 and
Vandalia was illeaal and needed to be removed, and was not in a
position to apoeal that determinarion. its failure to remove the sign
is a violation of St. Paul Legislative Code & 66.407(dl, in that thev
have refused to co�lv with the orders of the zonin¢ administrator
and are maintaininQ a sien which is in violataon of the zoning
code."
14. Conclusion of Law No. 15 is hereby deleted and a new Conclusion of Law No. 15 is
adopted to read as follows:
`- - - -- - - -- -- •- - -
::- -- -- -- • - S. - -- - --
n��Gi :�ni aiii.e�:airina•���ia"va�i�Sn�mi. �iii�c��i.s
"15. St. Paul Legislative Code §33.03�a1 which exempts re�airs
under $300 from requirine a building permit is inapplicable to this
situation because St. Paul Leeislative Code �&66.201 and �66.405
are specific to siens and su�ersede the e� neral provisions of the
buildin¢ code. Therefore DeLite was rec�uired to applv for apermit
to reattach the sien face for the damaQe done to the Pierce Butler
si ."
15. Conclusion of Law No. 16 is hereby deleted and a new Conclusion of Law No. 16 is
adopted to read as follows:
-- --`- - -- -- --- - - - - -
-- - -- --- - -- ---- - -- •- -- - - ---
. . .
•,...A...y.� -- - - - - - - - - ---
.�.... . .
- ---- -- --- - -- - - ----- --- •- - - - -
.._"_
5 "16. DeLite failed to obtain a permit to repair the Pierce Butler
6 si� desroite the March 2000 memo advisin aQ 11 si� companies
7 that they must obtain�ermits for anv work done on signs exce�t
8 the replacement of advertising content. The reattachment of the
9 si�n face, damaged during the storm, did not involve the
10 replacement of advertisin� and did require a nennit. Furthermore,
11 it was done in disresazd of the ZoninQ Adininistrator's
12 memorandum that a pernut would be required."
13
14
15
16
17
18
19
20
21
22
O 1 -F4�
This Resolution is based on the record of the proceedings before the ALJ, including the
hearing on Apri124, 2Q01, the documents and e�ibits introduced therein, the fmdings of fact
and conclusions of law of the ALJ as referenced above and amended, the written submissions by
counsel for the parties and the argusnents and statements of the parties at the pubfic hearing on
July 25, 2001 and the deliberations of the Council in open session on August l, 2001.
A copy of this Resolution, as adopted, shall be sent by first class mail to the
Administrative Law Judge and to the Licensee's attorney, Gary Van Cleve.
Requested by Depaxtment of:
Adopted by Council: Date ` �}�Q (
1 \
Adoption Certified by Council Sec ary
By: /" a.�v/wiQ.2./ / / �"�t/�
Form Approved by City Att ne
By: �� TJ �«-.
Approved by yor for Submission to Council
By: c� By:
MayoY: Date
By'
, , A�r`� ,
` � `
OFFIC£ oF L=EP Date: GREEN SHEET
Virginia Palmer August 9, 2ooi �� �y3
266-8710 No . 103832
. 1 EPPRTMEN'P DIRECTOR 4 ITY CODNCIL -
. � '2 ZSY ATTORNEY . ITY CLERK
x�aw�
ust be on Council Agerida by: '�°^ ��ST DZRECLOR IN. & MGT. SVC. DIR.
�
u St 22 . 2001 COnsent 3 YOR (OR ASSISTIaN'P)
OTAL # OF SIGNATIIRE PAG&S 1 (CLIP ALL LOCATIONS FOR"SZGNATURE)"--
CTION REQUESTED:
esolution suspending the sign contractor's license held by Delite Outdoor
- dvertising, Inc. until such time as the billboard at I-94 and Vandalia has
een removed and permit fees for repairs to the billboard at 1651 Pierce Butler
oute have been paid.
COMMENDATIONS: APBROVS (A) OR RESECT (R) HRSONAL SHRVICS CONTRI+CPS MfJST ANSDISR THH POLLOA`ING:
PLANNING COFPfISSION CIVIL SERVICE COMIMISSION 1. Has the person/fism ever worked under a contract foz this departmentl
CSB COhA1ITPEE BUSINBSS REVIEW COUNCIL YES NO
STAFF _ Has this person/£irm ever been a City employee?_ _
DISTRICT COIIRT YES NO
3. ➢oes this person/firm possess a skill not normally-possessed by any
SIJPPORTS WHICH COUN�IL OB7ECTIVE? CLrrent City employee? --�
YES NO
lain all YSS aaswera on a aeparate sheet and attach.
INITIATING PROBLEM, ISSUE, OPPORTUNITY (Who, What, When, Where, Why):
VANTAGES SF APPROVED:
• �search Centet
ISADVANTAGES IF APPROVED:
A �G 0 � 2041
ISADVANTAGES IF NOT APPROVED: �
;
i �
�'`_ _ J -- -
TOTAL AMOUNT OF TRANSACTION S COST/REVENUE BUDGETED YES NO
FtTNDING SOURCE - ACTIVITY NC3MBER
FINANCIAL INFORMATION: (EXPLAIN)
OFFICE OF THE CITY ATTOR��TEY 6 ���Cy'�
Ctnymn M Robinson, Jr., Ciry Attorney
35
CITY OF SA1NT PAUL
Norm Colemm�, Mayor
July 3, 2001
Civi[ Division
400 Ciry Ha!!
I S West Keilogg Biv�S.
Sairtt Pnul, Minnuola 55102
3 NOTICE OF COUNCIL HEARING
Gary A. Van Cleve
Lazkin, Hoffman, Daly & Lindgren, Ltd.
1500 Wells Fargo Plaza
7900 Xe�es Avenue South
Bloomington, Minnesota 55431-1194
Te[ephone: 65! Z66-87l0
Facsimile: 65! Z98-5619
RE: . Sign Contractor's License held by Delite Outdoor Advertising, Inc., d/b/a Delite Outdoor
Advertising, Inc.
License ID #: TR1344
Deaz Mr. Van Cleve:
Please take notice that a hearing on the report of the Administrative Law Judge conceming the
above-mentioned license has been scheduled for 5:30 p.m., Wednesday, July 25, 2001, in the
City Council Chambers, Third Floor, Saint Paul City Hall and Ramsey County Courthouse.
You have the opportunity to file exceptions to the report with the City Clerk at any time during
normal business hours. You may atso present oral or written argument to the council at the
Hearing. No new evidence will be received or testimony taken at this hearing. The Council will
base its decision on the record of the proceedings before the Administrative Law Judge and on
the arguments made and exceptions filed, but may depart from the recommendations of such
Judge as permitted by law in the exercise of its judgement and discretion.
Sincerely,
r s-a ✓� � (� ""
� ��
Virginia D. Palmer
Assistant City Attorney
cc: Nancy Anderson, Assistant Council Secretary, 310 City Hal1
Christine Rozek, LIEP
Heather Worthington, Executive Director, St. Anthony Pazk Community Council, 890
Cromwell Ave., St. Paul, MN 55114
June 6, 2001
Y
STATE OF MINNESOTA
OFFICE OF ADMINISTRAITVE HEARINGS
100 Washington Square, Suite 1700
100 Washington Avenue South
Minneapolis, Minnesota 55401-2138
Fred Owusu, Cify Clerk
City of St. Paul
170 City Hall
15 West Kellogg Blvd.
St. Paul, MN 55102
��.���v��
.��N i; ' L1�Q�
�ITY A�TOE����
RE: In the Matter of the Sign Contractor's License Held by DeLite
OutdoorAdvertising, Inc.; OAH Docket No. 11-6020-14063-3
Dear Mr. Owusu:
� ���
Enclosed herewith and served upon you by mail is the Administrative Law
Judge's Findings of Fact, Conciusions of Law and Recommendation in the
above-entitled matter. The officiai record which is large will be sent to you under
separate cover. Afso, copies of the tape recordings of the hearing wiil be
duplicated and sent to you under separate cover. Thus, our file in this matter is
now being closed. - -
Sincerely,
BLN:aws
Enclosures
T�h-w� � �— . � 2c.�' �—
BARBARA L. NEILSON
Administrative Law Judge
Telephone: 612/341-7604
cc: Virginia D. Palmer, Assistant City Attorney
Gary A. Van Cleve, Attorney at Law
Providing Impartial Hearings for Government and Citizens
An Equal Opportunity Employer
Administrative Law Section & Administrative Services (672) 341-7600 oTTY No. (612) 341-7346 � Fa� No. (612) 349-2665
�1-��
11-6020-14063-3
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE CIIY OF ST. PAUL
In the Matter of the Sign Contractor's
License Heid by DeLite Outdoor
Advertising, Inc.
F(NDINGS OF FACT,
CONCLUSIONS AND
RECOMMENDATIONS
The above-captioned matter came on for hearing before Administrafive
Law Judge Barbara t. Neilson at 930 a.m. on April 24, 2001, in Room 40-B of
fhe St. Paui City Hail. Virginia A. Palmer, Assistant City Attorney, 15 West
Keilogg Boulevard, Suite 400, St. Paul, Minnesota 55102, appeared on behalf of
the City of St. Paul. Gary A. Van Cleve, Attorney at Law, Larkin, Hoffman, Daly
& Lindgren, Ltd., 7900 Xerxes Avenue South, Suite 1500, Bloomington,
Minnesota 55431-1194, appeared an behalf of DeLite Outdoor Advertising, Inc.
The record closed on May 4, 2001, when the parties' post-hearing reply briefs
were filed.
This Report is a recommendation, not a final decision. The St. Paul City
Council will make the final decision after a review of the record. The Cify Council
may adopt, reject, or modify the Findings of Fact, Conclusions, and
Recommendations contained herein. Pursuant to section 310.05 of the St. Paul
Legislative Code, the City Council's final decision shall not be made until #his
Report has been made available to the parties to the proceeding and fhe
Licensee has been provided an opportunity to present oral or wriften arguments
alleging error on the part of the Administrative Law Judge in the application of the
law or interpretation of the facts and an opportunity to present argument related
to any recommended adverse action. The City C{erk shou{d be contacted to
ascertain the procedure for filing such argument or appearing before t Counc
STATEMENT OFISSUES
There are two primary issues in this hearing. The first issue is whether
DeLite's biliboard located at I-94 and Vandalia violates height restrictions
imposed by St. Paul Legislative Code § 66.214(b) and (g) and whether DeLite's
failure to remove this biif6oard is a violation of St. Paul Legislative Code
§ 66.407. The second issue is whether DeLite's failure to obtain a permit before
repairing its billboard located at 1651 Pierce Butler Road constituted a violation
of Sf. Paul Legislative Code §§ 66.201, 66.404, and/or 66.405. If DeLite is found
fo have violated one or more ordinance provisions, it must further be determined
whether such violations warrant adverse action against DeLite's Billboard and
Sign license under St. Paul Legislative Code § 310.06(b)(6)(a).
Ol -�`�
Based upon all of the testimony, exhibifs and evidence in fhe record, the
Administrative Law Judge makes the foilowing:
FINDINGS OF FACT
1. DeLite holds an acfive Trade - Biliboard and Sign license in the City
of St. Paul under license number OOTR1344.'
r
2. ' In July of 1999, DeLite purchased all of the assets of Midwest
Outdoor Advertising, including the sign at I-94 and Vandalia involved in this
proceeding?
Vandalia Sign
3. On September 13, 1996, Midwest Outdoor Advertising, Inc.
(hereinafter referred to as "Midwest"), applied Yo the City for a permit to construct
a new 6' by 12' billboard on the north side of I-94 and Vandalia. The initiai
application stated that the sign to be built would be 6' wide, 12' long, and 15'
above grade. The permit application was approved by the St. Paul O�ce of
License, lnspections and Environmentai Protection (LEIP) on November 8,
1996. This sign was never built because Midwest decided it wanted a larger
sign.
4. In order to obtain a permit for a larger sign at I-94 and Vandalia,
Midwest decided to take down approximately twenty outdoor advertising signs at
other locations in the City and thereby earn additional "non-conforming sign
credits." Non-conforming sign credits are earned by sign companies in St. Paul
when they remove signs in the City that do not conform to current ordinances.
The City permits sign companies to "bank" credits that may then be used to build
new signs at other locations in the City that need not conform to spacing
requirements 5
5. On February 21, 1997, Midwest filed a revised permit application
seeking to construct a larger sign at the I-94 and Vandalia iocation (hereinafter
referred to as the "Vandalia sign"), using non-conforming sign credits it had
accumulated. Midwesf indicated on its application that this sign was to be 13'6"
wide, 48' fong, and 37' above grade. (The words "above grade" were already
included on fhe preprinted application form.) The revised permit application
submitted by Midwest was approved by LEIP on February 25, 1997.
� City Ex. 1.
2 City Exs. 9, 10; DeLite Exs. 13, 14; Testimony of Remes.
3 City Ex. 2; DeLite Ex 1.
` Testimony of Remes.
5 Testimony of Remes, Hardwick.
6 City Exs. 3, 4; DeLite Ex. 2; Testimony of Hardwick, Remes.
2
01 _PN.�
6. At the fime the permit was issued and the sign was built, St. Paul's
Legisiative Code directed fhat "(t]he height of advertising signs may be measured
from grade or surface of roadway, whichever is higher."' 7he maximum allowed
height for a sign was dependent upon the functional street c(assification. Signs
focated on intermediate and principal arterial roadways were limited to a
maximum height of 37.5 feet.
7. The City requires permit holders to contacf a building inspector
prior fo pouring the footing for the sign and also upon completion of construction.
LIEP believes that both of fhese inspections were completed with respect to the
Vandalia sign. `
8. Construction of the Vandalia sign was completed by approximately
March 17, 1997. The sign is a V-shaped sign, with west- and east-facing sign
faces. As compieted, and based upon the most recent survey of the site," the
total height of the Vandalia sign measured from the ground fevel at the base of
sign to the top of the sign is 58.8 feet, but the sign height measured from the
surtace of the nearby exit ramp is 36.3 feet.' Peter Remes, fhe President of
Midwest, believed that, as long as the sign was less than the maximum
ordinance height of 37.5 feet as measured from either "grade or surface of the
roadway, whichever is higher," the sign complied with the height requirement.
Mr. Remes understood the ordinance to allow Midwest to choose which roadway
from which to measure the height of a sign. Because the top of the billboard was
less than 37.5 feet above the elevation of the exit ramp, Mr. Remes believed the
sign was in compliance with City ordinance.
9. A competing sign company notified the City at some point that it
believed that the Vandalia sign was too high. LIEP thereafter requested that
Midwest either submit information demonstrating that the sign was not too high or
apply for a variance to the height requirement.'
10. Midwest requested that a survey be conducted showing the
relationship of the Niidwest billboard and the right-of-way of I-94. The property
was surveyed on March 17, 1997. The survey concfuded that the elevation of
fhe top of the billboard was 152.47, the elevation of the exit ramp opposite the
sign was 123.11, and the elevation of the top of the sign's footing was 100.00.
� Prior version of St. Paul Leg. Code § 66.214 (g).
a Prio� version of St. Paul Leg. Code § 66.214 (b).
9 Testimony of Hardwick.
10 Testimony of Remes.
" The most recent survey was conducted on February 4, 2000. See DeLite Ex. 20.
' DeLite Ex 20; cf. Remes testimony and City Ex. 5, both of which stated height from the base of
the sign was 58 feet, and City and DeLite Exs. 3, which suggest that the height from ihe base of
sign was 52.47 feet and the height from surface of the exit ramp was 29.36 feet.
" Testimony of Remes.
" Testimony of Hardwick.
t5 City Ex. 3 at 3; DeLite Ex. 3.
3
� � -r��
11. By letter dated Aprii 28, 1997, LIEP informed Midwest that,
according to a survey submitted by Universal Outdoor, the Vandalia sign was
actually constructed at a height of 58 feet from the base to the top of the sign.
LIEP stated that the sign thus was not consfructed in compliance with the permit
issued by the City and was in violation of the sign ordinance. The City's letter to
Midwest quoted the portion of the Cifij's sign ordinance stating that "(t]he height
of advertising signs s may be measured from grade or surtace of roadway,
whichever is higher" and stated that "[t]he surface of the roadway is the main
roadbed of I-94." The letter went on to state that, because the I-94 roadbed
appeared to be iower than the grade at the sign pole, the sign height could be no
more than 37 feet from the sign's grade. The letter indicated that Midwest "must
either reduce the overall height of fhe sign or obfain a height variance from the
Planning Commission." The letter nofed that, if a variance was granted to allow
the sign to remain at a fieight exceeding the 37 feet allowed by permit, a new
sign permit would have to be obfained for the correct height and the permit would
be reviewed by the City's structural engineer. The second-to-last paragraph of
the letter stated that "[a]ny decision we make regarding the sign ordinance is
subject to an appeai before the Planning Commission as specified in Section
66.408."�� The letter did not state any specific steps that Midwest shouid take to
file such an appeal or sef forth a time limit for the filing of an appeai.
12. Midwest orally communicated its disagreement to the City in regard
to the April 28, 1997, letter but took no other action in regard to the letter.
Midwest did not a�ply for a height variance or take any action fo reduce the
height of the sign.�
13. In June 1997, § 66.214(g) of the St. Paul Legislative Code v�as
amended to "address{] an issue raised by a case recently befiore the zoning
committee" and to "codify the zoning administrator's interpretation of fhis
section." The new language read as follows: "The height of advertising signs
may be measured from the grade of the sign or the surface of the roadway,
whichever is higher: SurFace of the roadway shall be the main bed of the
roadway, from which the sign is infended to be read, at the location of the sign.
The heighf shall not be measured from any entrance or exit ramps associated
with the roadway." The Pfannir�g Commission notes state this amendment
clarified a"lon�gstanding practice" that measurements are to be taken from the
main roadbed. °
14. On June 18, 1997, Midwest submitted an application for a zoning
variance that requested approval to move the Vandalia sign 50 feet west of its
current location and to rebuild the Vandalia sign at its new location to an overali
16 Prior version of St. Paul Leg. Code § 66214(g).
" City Ex. 5.
' Testimony of Remes, Hardwick.
t9 De�ite Ex 7; Testimony oF Hardwick.
2° City Ex. 7, p. 3.
4
d � -f�f �
height of 68 feet. The variance requesf was a result of an agreement between
Midwest and Universal Outdoor, Inc., a competitor of Midwest, whereby the
Vandalia sign would be relocated to allow Universal to build a sign nearby. Due
to the spacing ordinance, Universal would have been unable to build ifs sign
unless the Vandalia sign was relocated. Midwest and Universal submitted
simultaneous variance applications to effect the agreement 23
15. On August 8, 1997, the St. Paul Planning Commission approved
the. variance applications of Midwest and Universa1. The Saint Anthony Park
Community Councii filed an appeal of the Pianning Commission's determination,
and the St. Paul City Council ultimately reversed the Commission and denied the
variance applications2
16. By letter dated April 16, 1999, the City issued a Notice of Violation
to Midwest regarding the Vandalia sign. The notice stated that adverse action
was recommended because the Vandalia sign was not built in compliance with
its permit and because Midwest had not appealed the City Counci{'s denial of its
variance requesf or removed the sign 2 The notice of violation was the first
action the Cify had taken in regard to the Vandalia sign since its April 28, 1997
letter.
17. By letter dated Apri{ 30, 1999, counsel for Midwest responded to
the City's Notice of Violation by asserting that the Vandalia sign was constructed
in accordance with the permit and contending that the amendment to section
66.214(g) was inappiicable to the Vandalia sign. Counsei for Midwest requested
reconsideration of the decision to seek adverse action against MidwesYs license
and requested an evidentiary hearing before an Administrative Law Judge.
18. Upon fearning fhat DeLite had purchased the assets of Midwest in
July 1999, the City notified counsel by letter dated July 28, 1999, that it would
request that the administrative hearing fhat had been scheduled in regard to the
adverse action against Midwest be canceled 2
19. By letter dated July 30, 1999, the City notified DeL'+te that the
Vandalia sign was constructed in violation of the terms of the permit and thus
was an illegal structure that had to be removed with 30 days of the notice. By
letter dafed August 9, 1999, DeLite responded that the Vandalia sign was
m
21 City Ex 6.
Z ' St. Pauf Leg. Code § 66.214 (h), (d).
23 Remes testimony.
24 City Ex. 7, p. 8; DeLite Exs. 8, p. 6, and 9.
zs Id, at p. 9.
z6 City Ex 8.
27 Remes testimony; see aiso City Ex. 5.
Z$ Delite Ex. 11.
� City Ex. 9; DeLite Exs. 13-14.
3o City Ex. 10.
5
o► ��c�
properly constructed in accordance with the ordinances in effect at the time of
consfruction 3
20. Beginning in approximately August 1999, then-counsel for DeLite
began to engage in discussions with the St. Paul City Council regarding a
number of issues, including the Vandalia sign 3 The City Council encouraged
DeLite to submit a formal proposai to the City that wouid inciude a sesolution of
the Vandalia sign issue. Counsel for DeLite also met with Wendy Lane, Zoning
Manager for LEIP, and other City sfaff regarding the Vandalia sign. City staff told
DeLite counsel=.to submit a variance request. Neither the City Council nor City
staff informed DeLite that the Vandalia sign issue could not be resolved because
Midwest had not appealed the denial of fts variance application or raise any issue
as to whether DeLite could file an appeal based on the April 16, 1999, letter. City
staff instead fold counsei for DeLite that a proposal to the City Council was the
appropriate way to resolve the issue.
21. By letter dated September 2, 1999, DeLite informed LIEP that it had
been meeting with members of the City Council regarding a proposal to resolve
the height +ssues re{ating to the Vandalia sign and asked that the City defer
taking any action relating to the sign until the City Council had provided a
definitive response to the DeLite proposal.
22. On October 8, 1999, DeLite submitted a variance application that,
among other things, requested a 25-foot variance to the Vandalia sign for a total
height of 102 feet above grade. DeLiEe also submitted a proposal to the City
offering to take down numerous bi((board faces in exchange for approval of the
Vandalia variance and other variances and issuance of new sign permits.
23. By letter dated March 9, 2000, LEIP notified DeLite that the
Vandalia sign must be removed because it was constructed in violation of the
origina{ buifding permit. The letter noted that DeLite had been given additionai
time in order to apply t6 the City Councii to lift the exisfing adver#ising sign
moratorium, amend the new special sign district, and seek a height variance from
the Planning Commission, but that effort had been unsuccessful. Accordingly,
LIEP indicated that DeLite was ordered to remove the Vandalia sign within 30
days. By letter dated March 17, 2000, DeLite responded that it disagreed with
the City's contention that the sign was illegal and stated that it would not
dismantle the sign 4 Sy {etter dated April 10, 2000, LIEP reiterated its position
" DeLite Ex. 16.
32 Peter Coyle of Larkin, Hoffman, paly & Lindgren, Ltd.
3a Coyle testimany; City Ex. 14.
34 Coyle testimony.
as �
36 City Ex. 14.
37 Id.; DeLite Ex. 18.
' Testimony of Coyle.
39 City Ex. 11.
ao City Ex. 12.
0
QI �'�
that the sign
consider the
taking action
removed 4
was out of compliance and that the City Council had declined to
variance request. LEIP further,stated that the City would consider
against Detite's business ficense if the Vandalia sign was not
24. By IetEer dated March 14, 2000, Henry D. Nelson, RLS, of
McCombs Frank Roos Associates, Inc., informed DeLite that the distance from
top of the concrete base of the Vandalia sign to the top of the sign is 58.8 feet;
the distance from the top of the sign to fhe top of the bituminous at the center of
the exit ramp_ opposite the sign is 36.3 feet; and the distance from the top of the
sign to the top of the sidewalk on the bridge over the railroad track is 35.2 feet 4Z
25. DeLite also asked the survey�or to check the height of a sign owned
by Infinity (hereinafter "the Infinity sign') which is located immediately west of
the Vandalia sign 4 The survey showed the Infinity sign to be 80.2 feet from
base of sign grade to top of sign. The infinity sign's height from the adjacent I-94
exit ramp was assessed at 65.6 feet
. 26. On March 25, 1987, the Cify issued a permit to Infinity to buiid the
Infinity sign. The permit approved the height of the sign at 50 feet above average
grade 4 There is no City ordinance that permits height measurement based
upon average grade 4 There was no evidence presented at the hearing that the
City has notified Infinity that its sign does not conform with City height
restrictions, has directed infinity to remove the sign, or has proposed to take
adverse action against Infinity's license.
Pierce Butler Sign
27. On March 9, 2000, LEIP sent a memorandum to sign companies
licensed by the City for advertising sign construction. The memorandum stated
in its entirety:
Based on a recent court decision, a permit will now be required for
changing or replacing any advertising sign panei within the City of
Saint Paul. It was determined that we were incorrect when we did
not require a building permit for the replacement of sign panels
damaged during a wind storm. The only typ
without a permit is for changing the advertising
the paneis of a billboard.
" City Ex. 13.
4z DeLite Ex. 21.
a ' DeLite Ex 24.
°' Radermacher testimony.
a5 DeLite Ex. 25; Testimony of Radermacher.
°' DeLite Ex. 26.
47 Radermacher testimony.
°d City Ex. 15.
e of work allowed
content placed on
O l �'K�
The City's March 9, 2000, notice did not mention § 33.03 of the St. Paul
Legislative Code or clarify whether the notice altered the facf thaf § 33.03(a) did
not require a permit for repairs costing $300 or less 4 Moreover, no
amendments were made to City ordinances to render them consistent with fhe
March 9, 2000, memorandum 5
28. The City issued the March 9, 2000, nofice in response fo a court
case that held the City had misinterpreted St. Paul Legislative Code § 66.405
as not requiring a permit when the panels of a billboard are changed or replaced
as a result of storm damage 5a
29. At some point between March 9 and May 18, 2000, the Pierce
Butier sign sustained damage in a storm. The sign panel became partially
detached from the sign frame.
30. DeLite contracted with Liftec Sign and Crane Company to repair the
Pierce Butler sign. Liftec repaired the sign by rehanging the sign panel and
securing it to the post in its proper position. No sign boards were replaced.
Liftec submiited a bill for services totaling $185. The billboard's advertising
content was not changed durin� the repair 5 DeLite did not obtain a permit to
have Liftec make these repairs.
31. By letter dated May 18, 2000, the City notified DeLite that its repair
to the Pierce Butler sign necessitated a permit in accordance with the March 9,
20Q0, notice as DeLite had "replace[d] the sign face panel." The City included
the failure to obtain a permit for the Pierce Butler sign repair in the November 29,
2000, notice of violation to DeLite.
Procedural Findings
32. On November 29, 2000, the City sent DeLife a Notice of Violation in
regard to fhe Vandalia sign and the failure to obtain a permit in conjunction with
repairs to the Pierce Butler sign (discussed below). The Notice of Violation
requested that DeLite inform the City by December 8, 2000, whether it disputed
as !d.
so Testimony of Lane.
51 City Ex. 17 (Scenic Minnesota v. City of Saint Paul, No. C4-98-10951 (Second Judicial District,
Judge M. Michael Monahan, Oct. 20, 1999).
52 Section 66.405 provides in pertinent part: "Exemptions. The foliowing signs shall not require a
permit. These exemptions shall not be construed as relieving the owner of the sign from the
responsibility of its erection and maintenance, and its compliance with the provisions of this
chapter or any other law or ordinance reguiating the same. (1) The changing of the dispiay
surFace on a painted or printed sign only ..."
s ' Testimony of Lane.
54 City Exs. 18A, 18B, 18C.
ss Stipulation of parties; Radermacher testimony; City Exs. i9A, 19B.
sb Testimony of Lane.
57 City Ex. 16.
58 City Ex. 20.
0
o,-���
the facts as sef forth in the Nofice of Violation and wished to have an evidentiary
hearing before an Adminisfsative Law .ludge 59
33. By letter dafed December 7, 2000, DeLite notified the City that it
disagreed with the Cify's characterization of the facts relating to the iwo signs
and stated its belief that the Vandalia sign was constructed in conformity with
applicable City regulations in effect at fhe time and no permit was necessary wifh
respect to the Pierce Bufier sign.
34. By \ letter dated January 3, 2001, the City nofified DeLite thaf a
hearing would be he{d on danuary 30, 2001, to consider whether adverse action
should be taken against ifs sign contractors license based upon the alleged
height violation and improper failure to remove the Vandalia sign and the failure
to obtain a permit with respect to the repair of the Pierce Butler sign.
35. By Order of Administrafive Law Judge George A. Beck dated
January 25, 2001, the hearing in this matter was continued to March 8, 2001, in
order to aliow the Licensee to apply to Federal Court for an Order staying the
administrative proceeding. Because the Federal Court hearing on the
Licensee's motion for a restraining order and injunction staying the City's
enforcement proceedings did not occur until March 6, 2001, the parties agreed
that the hearing should be continued to April, 2001. By Order dated March 9,
2001, the Federal Court denied the motion for preliminary injunction. The
hearing proceeded on April 24, 2001.
Based upon the foregoing findings, the Administrative Law Judge makes
the foliowing:
CONCLUSIONS
1. The St. Paul City Council and the Administrative Law Judge have
jurisdiction in fhis matter pursuant to § 310.05 of the St. Paul Legislative Code.
and Minn. Stat. § 14.55.
2. Proper notice of the hearing was timely given. All relevant
substantive and proceduraf requirements of iaw or ruie have been fuifilled and,
therefore, the matter is properiy before the Administrative Law Judge.
s. The City bears the burden in this matter of proving by a
preponderance of the evidence that violations have occurred and adverse action
against the Licensee's business license is warranted.
59 City Ex. 20.
fi0 City Ex. 21.
6t City Ex. 22.
62 City Ex. 23.
63 City Ex. 24.
0
d 1-Py3
4. St. Paul Legisiative Code § 310.06(b)(6)(a) authorizes the City
Council to take adverse acfion against licensees if the licensee "has violated, or
performed any act which is a violation of, any of the provisions of these chapters
or of any statute, ordinance or regulation reasonably related fo the licensed
activity, regardless of whefher criminal charges have or have not been brought in
connection therewith:'
5. St. Paul Legislative Code § 33.03 (a) provides in pertinent part as
follows:
�
Permits--When required. (a) Building and genera! construction.
Permits for building or general construction are not required for
repairs for maintenance only or for minor alterations provided they
are not required under Section 106 of the 1997 Uniform Building
Code as adopted by the Minnesota State Building Code, this
chapter or other pertinent provisions of the Saint Paul Legislative
Code, and provided the cost of such repairs and minor alterations
does not exceed the present market value of three hundred dollars
($300.00).
6. St. Pau! Legislative Code § 66.201 provides that "[n]o person shali
place, erect or maintain a sign, nor shall a lessee or owner permit property under
his control to be used for such a sign, which does not conform to the fol{owing
requirements and without first obfaining the requisite permit for such sign."
Section 66.404 provides in pertinent part that app4ications for signs must be
submitted to the zoning administrator. Section 66.405 sets forth exemptions to
the permit requirement, including "[t]he changing of the display surface on_ a
painted or printed sign only .... [TJhis exemption shall apply only to poster
replacement and/or on-sife changes involving sign painfing elsewhere than
directly on a building."
7. St. Paui Legislative Code § 66.301 provides in pertinenf part: as
follows:
Intent. It is recognized that signs exist within the zoning districts
which were lawful before this chapter was enacted, which would be
prohibited, regulated or restricted under the terms of this chapter or
future amendments, It is fhe intent of this chapfsr fhat
nonconforming signs shaii not be enlarged upon, expanded or
- extended, nor be used as grounds for adding other signs or uses
prohibited elsewhere in the same district. it is further the intent of
this chapter to permit legal nonconforming signs existing on the
effective date of this chapter, or amendments thereto, to continue
as legal nonconforming signs. . . .
(Emphasis added.)
io
d 1 �y�
8. At the time the Vandalia sign was approved and built, Secfion
66.214(b) of the St. Paul Legislative Code provided, in pertinent part, fhat the
"height of advertising signs shali be regulated according to the functional
classification of the street along which the signs are placed ...." The maximum
height for al4 functiona{ street classifications specified in the ordinance was 37 '/z
feet.
9. At the time the Vandalia sign was approved and built, Section
66.214(g) of the Sf. Paul Legislafive Code provided in its entirety: "The height of
advertising sigrfs may be measured from grade or surface of the roadway,
whichever is higher." The ordinance did not state that the applicable roadway
was the roadway from which the sign was intended to be read.
10. Section 66.214(g) of the St. Paul Legislative Code was amended in
June of 1997 to state that "[s]urface of the roadway shall be the main bed of the
roadway, from which the sign is intended to be read, at the location of the sign"
and that "[t]he height shall not be measured from any entrance or exit ramps
associated with the roadway." These amendments may not properly be
retroactively applied to the Vandalia sign.
11. Section 66.407 of the St. Paul Legislative Code authorizes
inspections and reinspections of signs by the zoning administrator; indicates that
footing inspections may be required by the zoning administrator; provides thaf
signs containing electrical wiring shall be subject to the electrical code; and
provides that "[t]he zoning administrator may order the removal of any sign thaf is
not maintained in accordance with provisions of this chapter, provided he has
sent a letter specifying the grounds for remova{ to the permittee giving the latter
ten (10) days in which to appear before the zoning administrator to show cause
why the sign could not be removed."
12. DeLite (as MidwesYs successor in interest) did not violate St. Paul
Legislative Code § 66.214(g} as it existed prior to the Sune 1897 arnendment by
measuring the height of the Vandalia sign from the surface of the exit ramp. The
ordinance was ambiguous concerning the roadway from which the measurement
should be made, and the City did nat prove by a preponderance of the evidence
that it had a longstanding practice that sign height could not be measured from
an exit ramp.
13. DeLite is not collaterally esfopped, by virtue of Midwest's inaction,
from contesting the City's violation notices regarding the Vandalia sign or its
proposal to take adverse action against DeLite's license based in part upon
alieged ordinance violations relating to the Vandalia sign.
14. Because DeLite did not violate the terms of ifs permit or St. Paul
Legislative Code § 66.214(g), its failure to remove the Vandalia biliboard is not a
violation of St. Paul Legislative Code § 66.407. Further, no adverse action is
warranted under St. Paul Legislative Code § 310.06 (b)(6)(a).
11
a►-��
15. DeLite did not violate any provision of the St. Paul Legisiative Code
when it repaired the Pierce Buf(er sign without a permit, since the total cost of the
repairwas only $185.
16. Because DeLite's failure to obtain a permit prior to reattaching the
sign panels was consisfent with St. Paul Legislafive Code § 33.03 (a) and did not
violafe St. Paui Legislative Code §§ 66.201, 66.404 and 66.405 or any other
Code provision, no adverse action is warranfed against DeLite's license under St_
Paul Legisiative_Code § 310.06 (b)(6)(a).
Y
, �
17. These Conclusions are reached for the reasons discussed in the
attached Memorandum, which is hereby incorporated by reference in these
Conclusions.
Based upon the foregoing Findings and Concl�sions, and for the reasons
set forth in the attached Memorandum, the Administrative Law Judge makes the
following:
RECOMMENDATION
IT IS HEREBY RECOMMENDED: that the City Council not take adverse
action against the business license held by DeLite Outdoor Advertising, Inc., with
respect to the Vandalia andlor Pierce Butler signs.
Dated: June 6, 2001.
�1� L . �ci..Q 5-�-,., -
BARBARA L. NEILSON
Administrative Law Judge
NOTICE
The City Council is respectfully requested to send its final decision to the
Adminisfrative Law Judge by first class maii.
Reported: Tape Recorded (no transcript prepared).
MEMORANDUM
The City contends that adverse action should be taken against DeLite's
sign contractor's license on the grounds that (1) the Vandalia billboard was built
in violation of the permit and height restrictions conta+ned fn the St. Paul
Legislafive Code and DeLite has failed to remove the sign despife orders to do
so in violation of St. Paul Legisiative Code §66.407(d), and (2) DeLite's repair of
a sign face on the Pierce Bufler billboard without first obtaining a permit
tz
O � -a�y�
constituted a violation of sections 66.209, 66.404, and 66.405 of the St. Paul
Legislative Code and was aiso done after all licensed sign companies had been
advised that such permits were necessary. The City thus contends that adverse
action against DeLite's license is warranted under St. Paul Legislative Code
310.06(b)(6)(a). Specificalfy, the Gity urges fhat DeLite's license be suspended
until the Vandalia sign is removed and it applies for a permit regarding the Pierce
Butler sign.
Vandalia Sign
<
As a threshold mafter, the City contends that DeLite is foreclosed from
arguing that the Vandalia sign does not violate the permit and height restrictions
because its predecessor in interest, Midwest Outdoor Advertising, did not appeal
in a timely fashion the Cify's determination that the sign was built illegaily. In this
regard, the City asserts that its Apri4 28, 1997, fetter to Midwest stated that the
determination that the sign was build illegaily could be appealed to the Pianning
Commission pursuant to St. Paul Legislative Code § 66.408. That Code
provision specifies that any person affected by a decision of the zoning
administrator may appeal the decision to the planning commission within thirty
calendar days o4 the decision. Midwest did not appeal the determination that the
Vandalia sign was not in conformify with the permit and ordinance requirements
and also did not appeal the City Council's later denial of a variance to replace the
Vandalia sign with a different sign.
The Administrative �aw Judge is not persuaded by the City's argument.
First, the April 28, 1997, letter sent to Midwest by LIEP (City Ex. 5) did not clearly
and unequivocaliy announce that the City had made a determinafion regarding
the sign that was immediately subject to appeal. Instead, while noting that the
sign was foo tall, the lefter proceeded to notify Midwest of the variance procedure
and simply stated that "ja]ny decision we make regard'rng the sign ordinance is
subject to an appeal before the Planning Commission as specified in Section
66.408" (emphasis added). The letter did not inciude any further discussion of
the time limits for filing an appeal. Thus, it appears from a fair reading of the
letter that LIEP was simply informing Midwest that any decision the City
ultimafely made regarding the sign woufd be subject to appeai. Accordingiy, the
letter did not properly trigger the running of an appeal period for Midwesf.
Moreover, even if the Aprii 28, 1997, letter coufd be viewed as an
administrative ruling that was subject to appeal, the doctrine of collateral estoppel
does not properly apply here. It is well-established that a party is collateralfy
estopped from chailenging a prior administrative agency decision if: (1) the
issue to be preciuded is identical to the issue raised in a prior agency
adjudication; (2) the issue was necessary to the agency adjudication and
properly before the agency; (3) the agency determination was a final
adjudication subject to judicial review; (3) the estopped party was a party or in
privity with a party to the prior agency determination; and (4) the estopped party
13
d i ,�u�
was given a fuli and fair opportunity to be heard on fhe adjudicated issue.� The
most important factor influencing whether the agency decision is entit{ed to
collateral estoppel effect is whether the agency acted in a judiciai or quasi-judicial
capacity.
While the arguments raised by the Cify against Midwest with respect to
the Vandalia sign are identical to those presented in the current adverse
licensing action against DeLite, none of the other collateral estoppel elements
are met in this case. There was no prior agency "adjudication" or final judgment
on the merits; CfeLite was not a party in 1997 or in privity with Midwest at that
time; and DeLite has never previously been given a full and fair opportunity to be
heard on the issue. Under these circumstances, it wouid violate due process
principles if DeLite were precluded from challenging the underlying basis for fhe
City's current adverse licensing action. In addition, the fact that the City waited
two years before issuing a Notice of Violation to Midwest and also met with
DeLite and permitted DeLite to make proposals to the City to resolve the matter
before issuing a Notice of Violation to DeLite supports the view that the City did
not act as though either Midwest or DeLite were estopped from contesting the
City's notices or were otherwise foreciosed from mounting any chailenge to the
City's position that the sign violated the permit or ordinances. Thus, it was
appropriate to allow DeLite to present evidence in this proceeding that the
Vandalia sign did not, in actuality, violate the permit or City ordinances.
With respect to the Vandalia sign, it is necessary to consider which
ordinance to appfy—the ordinance in eifect at the time the permit to build the
Vandalia sign was issued and the sign was built, or the later amended ordinance
that the City asserts merely codified a fong-standing interpretation of the exist�rrg
ordinance by zoning staff. The ordinance in effect at the time that the Vandalia
sign was approved and built merely provided that "[t]he height of advertising
signs may be measured from grade or surface of the roadway, whichever is
higher." In the context of the present situation, where a sign is located near a
freeway and an exit ramp, this ordinance language is unclear concerning which
of these roadways is to serve as the point from which the height must be
measured. The amendment to the ordinance in June, 1997, expiicitiy stated that
"[s]urface of the roadway shall be the main bed of the roadway, from which the
sign is intended to be read, at the location of the sign" and that "[t]he height shall
not be measured from any entrance or exit ramps associated with the roadway."
However, it is evident under Section 66.301 of the St. Paui Legislative Code that
this amendment may not properly be retroactively applied to the Vandalia sign.
Section 66.301 declares that it is the intent of the zoning chapter "to permit legai
�` Graham v. Special Schoo/ District No. 1, 472 N.W.2d 114, 116 (Minn. 1991).
bs AFSCME Counci196 v. Arrowhead Regional Corrections Bd., 356 N.W.2d 295 (Minn. 1984).
14
Ol- �q1
nonconforming signs existing on the effective date of this chapter, or
amendments fhereto, to continue as fegaf nonconfosming signs. .,."
Because it is noY appropriate to apply the amendment, the issue becomes
whether the prlor version of the ordinance was interpreted in a long-standing and
consistent way to require measurement from the roadway from which the sign
was intended to be read rather than from an exit ramp. An agency's
interpretation of a statufe or ordinance is entitied to some deference when "(1)
the statutory language is technical in nafure, and (2) the agency's interpretation
is one of long-standing application." Mr. Hardwick merely testified that fhe
ordinance was amended to clarify the City's posifion and what it had been doing,
and further stated that this was not the first time fhe height ordinance had been
interpreted in this fashion and nothing done by the City here was inconsistent
with prior interpretations. This evidence does not, in the view of the
Administrative Law Judge, rise to the level of proof of a longstanding and
consistent past practice on the part of the City. The fact that the City inspectors
apparentiy approved the Vandalia sign on two occasions during its construction
undermines the City's assertion that it has consistently interpreted the ordinance
to require comparison with the roadway from which the sign is meant to be
viewed.
It is also significant that the City apparently has not consistently or
uniformly applied its interpretation of the height ordinance to other sign
contractors. For example, the Cify did not refute evidence offered by DeLite at
the hearing showing that the lnfinity outdoor sign located to the west of DeLite's
Vandalia sign is over 80 feet tali from base to top of the sign and over 65 feet tall
from the surface of the roadway of the I-94 entrance ramp to the top of the sigFl.-
There is no evidence that the City has requested that the infinity sign be removed
or that the City has taken any adverse action against Infinity's license even
though this sign reflects a more egregious vioiation of the Cify's height ordinance
than the Vandalia sign owned by DeLite. Thus, fhere was no persuasive
evidence presented at the hearing demonstrating that the City had a iong-
standing practice prior to the 1997 amendment of requiring that the "surface of
the roadway' from which the height must be measured be only the roadway from
which the sign is intended to be read or fhat the City required that entrance and
exit ramps be excluded from consideration.
, �(Emphasis added.) It is also consistent with general principles of statutory construction that a
law shoufd not be construed to 6e retroactive "unless ciear{y and manifestly so intended by the
legislature." Minn. Stat. § 645.21.
6 ' Hibbing Education Association v. Public Employment Relations Board, 369 N.W.2d 527, 529
(�Minn. 1985}.
a In addition, the permit issued for the Infinity sign approved construction of a sign "50 feet
above average grade" despite any reference to "average grade" in the ordinance.
69 The Administrative Law Judge is not persuaded that the exclusion of exit and entrance ramps
in another portion of the zoning ordinance (section 66214(b), relating to.spacing of signs) or the
mention in that ordinance that spacing of signs is determined in pa�t by the classification of the
street from which the sign is intended to be read is sufficient to justify the same interpretation of
the height ordinance. _
15
0 � -d'Y.�
Pursuanf to Frank's Nursery Sales, Inc. v. City of Roseville, where a
zoning osdinance is ambiguous, weight must be given "to the interpretation ihat,
while still within the confines of the term, is least restrictive upon the righfs of the
property owner to use his land as he wishes." Construing the ordinance in favor
of the property owner, consisfent with the Frank's Nursery case, the
Adminisfrative Law Judge concludes that the sign shouid be allowed under fhe
ordinance if the top of the sign is 37.5 feet or less firom the surface of the I-94 exit
ramp, and should be allowed under the permif if the fop of the sign is 37 feet or
less from the surface of the exit ramp. Because the most recent survey
established that the top of the sign is 36.3 feet above the surtace of the exit
ramp, the Administrative Law Judge concludes that the Vandalia sign conforms
to both the permit and the ordinance that was then in effecf.
Pierce Butler Sign
With respect to the Pierce Butier sign, the City emphasizes that it senf all
sign contractors a memorandum in March, 2000, informing them that, in
accordance with a recent court decision, permits would now be required for
"changing or replacing any advertising panel wifhin the City oF Saint Paul" and
that "[t]he only type of work ailowed withouf a permit is for changing the
advertising content placed on the panels of a billboard." The Cify further
contends that the provisions of the St. Paui Legislative Code relating to signs
require permits to be obtained for the type of work performed on the Pierce Butler �
sign, and thus argues that the btsilding perm+t axception for repairs of less than
$300 does not apply. The City asserts that section 66.201 provides that "[n]o
person shall .., maintain a sign ... without first obtaining the requisite permit"
and emphasizes that section 66.405, which specifies exemptions to the permit
requirement, only exempts the changing of the display surface on a painted or
printed sign. Because the repairs to fhe Pierce Butler sign did not invoive oniy a
change of dispiay surface, the City_ contends fhat a permit was, in fact, required.
The Administrative Law Judge is unable to conciude that St. Paul
Legislative Code §§ 66.201 and 66.405 cieariy require that a permit be obtained
before reattaching a sign panel. Section 66.201 merely provides that "[n]o
person shall place, erect or maintain a sign ... which does not conform to fhe
following requirements and without first obfaining the requisite permit for such
sign."�� There is no contention that DeLite did not obtain the appropriate initial
permit for the Pierce Butler sign. This provision does not address the need to
obtain a permit for maintenance or repair. Moreover, section 66.201(3) requires
that "[a]II signs which are unsafe and(or unsightiy shall be repaired or removed"
but is silent concerning the need to obtain any permit to make a repair, thereby
giving rise to an argumenf that DeLite had an obligation to repair the sign once it
became damaged. Finally, although section 66.405(1) arguably could be
70 295 N.W.2d 604, 608 (Minn. 1980).
" (Emphasis added).
iG.
a � -f'�3
construed to require that a permit be obtained for all work on signs that does not
involve fhe changing of the display surface or "poster replacement," if is far from
ciear on this point. As noted by Judge Monahan in the District Court decision
that led to the issuance of the March, 2000, memorandum by fhe City, it appears
that "the distincfion made by [section 66.405(1)j is between changing fhe
advertising content to be piaced on the panels of a biliboard and changing or
replacing the panels themselves. The first is permitted without a permit, The
second constitutes a renovation of the biliboard and requires a permit." Because
DeLite did not change or repiace the sign paneis but merely reattached the
existing undam�ged sign panel to the sign support structure, it is understandable
that DeLite would not believe it was necessary under Chapter 66 of the Code to
obtain a permit.
In addition, the March, 2000, memorandum did not clearly require DeLite
to obtain a permit for the type of work pertormed with respect to the Pierce 8utfer
sign. The March 9, 2000, memorandum initialiy stated that permits were
necessary for "changing or repiacing any advertising sign panel"—a situation that
was not involved with respect to the Pierce Butler sign. Aithough the
memorandum thereafter stated that the only type of work for which a permit
would not be required �,�ras for "changing advertising content placed on the paneis
of a biliboard," it did not make any reference to the exception for repairs costing
less than $300 made in section 33.03(a) of the St. Paul Legislative Code or state
that section 33.03(a) would be revised to be consistent with the memorandum.
Under tHese circumstances, it was not unreasonable or clearly inappropriate for
DeLite's to assume that its $185 repa+r to the Pierce Butler sign did not require a
building permit. Under these circumstances, the Administrative Law Judge
concludes that DeLite's failure to obtain a permit did not violate City ordinanees
and should not be relied upon as a basis for adverse action against DeLite's
business license.
Accordingly, the Administrative Law Judge recommends that no adverse
action be taken against DeLite's Billboard and Sign license.
�
t�
CITY OF SAINT PAUL
Norm Colemnn, M¢yor
July 16, 2001
Ms. Nancy Anderson
Saint Paul Council Research
310 City HalUCounty Courthouse
15 West Kellogg Boulevazd
Saint Paul, MN 55102
OFFICE OF THE CITY ATTORNEY
Clayton M Robinson, Jr., Ciry Attorney Q� �
J
C�vilDivision
400 Ciry Haf1 Telephaxe: 65! ?668710
ISWUtKetloggBlvd. Facsimite:65/298-5619
Saint Paul, Minnerot¢ .i.il02
RE: In the Matter of the Sign Contractor's License held by DeLite Outdoor Advertising, Inc.
Council Hearing - July 25, 2001
Dear Ms. Anderson:
Enclosed for filing, and for inclusion in the agenda materials furnished to the Council in
connection with the hearing on the above-referenced matter, are the Written Exceptions of the
Office of LIEP to the ALJ's Report. A copy has been served by mail upon the attorney for the
licensee.
Sincerely, ��
��� �e�
Virgmia D. Palmer
Assistant City Attorney.
cc: Wendy Lane, Zoning Administrator, Office of LIEP
Gary Van Cleve, Attorney for DeLite, Larkin, Hoffrnan, Daly & Lindgren, Ltd., 7900
Xe�es Avenue South, Suite 1500, Bloomington, NIlV 55431-1194.
a►�y�
OFFICE OF ADIvIII�]ISTRATIVE HEARINGS
FOR TT� COUNCIL OF
THE CITY OF SAINT PAUL
In Re the License held by Delite
Outdoor Advertising, Ina WRITTEN EXCEPTIONS
Council Hearing: 7uly 25, 2��1
I. Recommendation of the ALJ.
The ALJ has recommended that the City Council not take any adverse action against the
license held by Delite Outdoor Advertising, Inc. for the reasons set forth in her Report dated June
6, 2001.
II. LIEP Position.
The Office of License, Inspections and Environmental Protection (LIEP) believes the
findings and conclusions reached by the ALJ are in enar and are not supported by the testimony
and evidence at the hearing. Specifically, LIEP believes that Delite Outdoor Advertising has
maintained the sign at I-94 and Vandalia despite orders to remove it after it was erected in
violation of the height restrictions of the Saint Paul zoning code for advertising signs by its
predecessor, Midwest Outdoor Advertising, Inc., and that they repaired a sign at 1651 Pierce
Butler Road without first obtaining the necessary permit to do so.
LIEP urges the City Council to adopt the amended or new Findings of Fact and
Conclusions of Law which aze attached hereto, and to suspend the Sign Contractor's license held
by Delite until such time as the sign at I-94 and Vandalia has been removed.
6\�/'J
III. Argument.
Sien at I-94 and Vandalia.
LIEP contends that the sign at I-94 and Vandalia was built both in violation of the pernut
and in violation of the height restrictions contained in the St. Paul Legislarive Code. The
billboard at I-94 and Vandalia was constructed by Midwest Outdoor Advertising pursuant to a
permit dated 2/25/97. The application for the permit indicates that Nlidwest intended to build a
free-standing 13.6' x 48' billboard , with a total display surface of 648'. The height states it will
be 37'. The Plan Review Remarks indicate that the permit was authorized upon informarion
that the sign would be 23' to the bottom of the sign and about 37' total height. The si� was
authorized to be 37' above the ground, and was actually built at 58' above the ground. Therefore,
it was in violation of the permit authorizing it.
Additionally, however, the sign was built in violation of the height restrictions of the
Code. Saint Paui Legislative Code §66.214(g) as it read at the time the permit was issued stated
that the height could be "measured from grade or surface of the roadway, whichever is higher."
LIEP advised Midwest in April of 1997 that the sign at I-94 and Vandalia was in violation of
§66.214(g), stating that the "surface of the roadway is the main roadbed of I-94, which appears to
be at a lower elevarion than the grade at the sign pole."
Both Midwest and Delite claimed that the ordinance in question had been amended after
this matter and that the amendment was therefore inapplicable. The City acknowledges that the
changes to Saint Paul Legislative Code §66.214(g) which now specifically states that entrance
and exit ramps shall not be used for measurement of height of a sign, occurred as a direct result
of this matter. Nonetheless, it is also clear that the change in question was only meant to codify
the long-standing interpretation of the existing code provision by zoning staff.
l�1-f�'J
The zoning ordinance in question, §66.214(g), is only one part of the ordinance
regulating the size ofbillboards. It is a basic rule of statutory construction that statutes must be
read and construed as a whole, in order to give effect to all parts and harmonize the provisions.
Anderson v. Amco Insurance Co. , 541 N.W.2d 8(Minn. Ct. App. 1996). Furthermore, a"zoning
ordinance must always be considered in light of its underlying policy." Frank's Nursery Sales,
Inc. v. City ofRoseville, 295 N.W.2d 604 (Minn. 1980)(citations omitted).
Saint Paul Legislative Code §66.214(b) sets for the permitted area, spacing and height of
advertising signs, and categorizes signs according to the functional classificarion of the street
along which the signs are placed. The two references to "roadway" in §66.214 of the ordinance
aze in subdivision( fl, relating to the measurement of spacing, and subdivision (g), relaring to
height. Thus it is a logical intezpretation that the "roadway" which controls the height
requirements of signs is the same as the "roadway" referenced immediately before, which
controls the spacing of signs. Furthermore, the longstanding interpretation of this provision by
staff has been that it was meant to refer to the roadway from which the sign was intended to be
read. "An agency's interpretation of the statutes it administers is entitled to deference and
should be upheld, absent a finding that it is in conflict with the express purpose of the Act and
the intention of the legislature." Geo. A. Hormel & Co. v. Asper, 428 N.W.2d 47, 50 (Minn.
1998).
The underlying purpose of §66.214 is to limit advertising signs based upon the atea in
which they aze located, and to minimize the impact of signs by restricting their size, height and
concentrarion. The I-94 and Vandalia sign is located next to several roadways, as aze many signs
in the City. Logically, the height restriction which permits measurement from either grade or
roadway surface is to allow a sign which can be read from the intended roadway even if it is
o�-��r.�
raised, but which is also limited to the masunum height allowed by ordinance. If signs were
allowed to be measured from any neazby roadway, this limitation on height would be ineffective,
and subject to manipulation. Here, by interpreting this section consistently with the other
subdivisions of the same section, it is the logical interpretation that the si� can be no higher than
37 feet from the roadway from which it is intended to be read. As such it violated the height
restrictions of the Code from the time it was built.
LIEP contends that Delite is estopped from arguing that the billboazd at I-94 and
Vandalia is illegal because Midwest never appealed that determination. Despite the ALJ's belief
that the City had not made a final determination that the sign was illegal, LIEP notified
MidwesYs president, Peter Remes, by letter dated Apri128, 1997 that the sign was not built in
accardance with the permit or the code, and that he could appeal pursuant to Saint Paul
Legislative Code §66.408. Midwest elected not to appeal that determination but to pursue other
solutions. Thus, there was a full and fair opportunity to be heard, which Midwest chose not to
pursue, and there was a finai agency determination to the extent that the Office of LIEP had
made their determination and Midwest elected not to appeal. Delite has stepped into the shoes
of Midwest by purchasing the assets of the company, including the disputed billboard. They
should not be permitted to reopen the determination of whether this billboard was illegal and are
bound by their predecessor in interesYs decision not to appeal.
The AL7 also contends in her memorandum that the City has not consistently or
uniformly applied its interpretation of the height ordinance, citing evidence of a permit issued in
1987 to Signcrafter's Outdoor Display, Inc., refened to as the "Infinity" sign in her
memorandum. However, there was no evidence presented that the City was aware that any
violation existed, if one does, prior to the testimony at the hearing. Thus, her contention that the
v � -��
City ignored other violations is simply in error.
Pierce Butler Si�
The ALJ incorrecfly determined that there had been no violation of the ordinance
provisions when DeLite zeattached a sign face which had sustained damage during a storm,
without first obtaining a permit to make the repair. She relied upon Saint Paul Legisiative Code
§33.03, dealing with building codes. That section does not require permits if the cost of the
repair or alteration does not exceed $300.
Section 33_03 states, however, that "[p]ermits for building or general construction are not
required for repairs for maintenance only or for minor alterations provided they aze not required
under.....or other pertinent provisions of the Saint Paul Leeislative Code, and provided the cost of
such repairs and minar alterarions does not exceed the present market value of three hundred
dollazs." (Emphasis added). The problem with relying upon this section of The Code is that
another section of the Legislative Code does require permits, and therefore this exception does
not apply.
Section §66.201 provides that "[n]o person shall..maintain a sign...without first obtaining
the requisite perxnit." Section 66.405 contains the exemptions to the permit requirement, and
section (1) exempts only the changing of the display surface on a painted or printed sign.
Furthermore, Wendy Lane had sent a memo to every sign company doing business in Saint Paul,
including Delite, informing them that they would need to obtain permits for any work done on
signs except for the changing of advertising copy. It is clear from the photographs that the
repairs done to the sign at 1651 Pierce Butler Route did not involve only change of display
surface, and therefore a permit was required. Failure to obtain such a permit was a violation of
the provisions of the Code and is basis for adverse action against the sign contractor's license.
tl�_ly)
�Y����i�r_�:s�
For all of the foregoing reasons, the Office of LIEP urges the Council to adopt the
amended Findings of Fact and Conclusions which haue been submitted, and determine that in
failing to comply with orders to remove the sign at I-94 and Vandalia and to obtain a permit to
do repair work on the sign at Pierce Butler Route that Delite Outdoor Advertising has violated
code provisions related to its business license and adverse action is appropriate in this instance.
Dated this 16`� day of July, 2001.
����� ���
Virginia D. almer (Atty. Reg. 128995)
Assistant City Attomey
400 City HalUCounty Courthouse
15 W. Kellogg Boulevard
Saint Paul, Ml� 55102
(612)266-8710
Atttomey for the Office of LIEP __
�1-F�1�
PROPOSED AMENDEA FINDINGS OF FACT
5. On February 21, 1997, Midwest filed a revised permit applicarion seekin� to construct a
lazger sign at the I-94 and Vandalia location (hereinafter referred to as the "Vandalia si�"),
using non-conforming sign credits it had accumulated. Midwest indicated on its application that
the sign was to be 13'6" wide, 48' long, and 37' above gzade. (The words "above �ade" were
already included on the preprinted application form.) The revised permit application submitted
by Midwest was approved by �E� LIEP on February 25, 1997. The pemut contains Plan
Review Remarks which indicated that the pernut was authorized upon information that the si�n
would be 23' to the bottom of the si�n and about 37' total height.
10. Midwest request that a survey be conducted showing the relationship of the Midwest
billboazd and the right-of-way of I-94. The property was surveyed on March 17, 1997. The
survey . ,
. ,
�69�6- was conducted to show the placement of the billboard with res�ect to the railroad
prop and Citv rieht-of-wav in response to a question about the placement of the sian, and was
submitted prior to the issue of the height of the sien beinQ raised.
15. On August 8, 1997, the St. Paul Planning Commission approved the variance applications of
Midwest and Universal. The Saint Anthony Park Community Councii filed an appeal of the
Planning Commissions's determination, and the St. Paul City Council ultimately reversed the
Commassion and denied the variance applications. In the Resolution reversine the �rant of a
variance, the Citv Council twice referenced the fact that the existins Midwest sign at I-94 and
Vandalia was built in violation of the permit and was 21 feet hieher than �ermitted. This
decision was never appealed bv Midwest or Universal.
16. By letter dated April 16, 1999, the City issued a Notice of Violation to Midwest regazding
the Vandalia sign. The notice stated that adverse action was recommended because the Vandalia
sign was not built in compliance with its permit and because Midwest had not appealed the City
Council denial of its variance request or moved its sign. T' --'=-_ _r..: _,_.: __ __.__ .L _ �_ .
. The notice
of violation followed a Februarv 1999 letter from Jol�n Hardwick to Midwest Outdoor
Advertising advisingthem that the sien needed to be removed .
20. Beginning in approximately August 1999, then-counsel fro DeLite began to engage in
discussions with the St. Paul City Council regarding a number of issues, including the Vandalia
sign. DeLite was told that thev could te submit a formal proposal to the
City Council''-°� __.,...,a :_,.,,.a_ __,.__,...:,._ _rproposin a way of Ie2alizing the Vandalia si�n
iss�e. Counsel for DeLite also met with Wendy Lane, Zoning Manager for �� LIEP , and
other City staff regarding the Vandalia sign. City staff told DeLite counsel `- -��`—=` __.,,� �_ _.
� that among other thinQS that would be necessary to legalize the si2n was a variance.
There had also been chanQes to the sien ordinance includint the establishment of a s ecp ial si�n
district and a moratorium which would need to be addressed.
Q�_Fy�
. At no time was DeLite informed that thev could
appeal the determination that the sisn was built in violation of the hei�ht restrictions and in
violarion of the permit. City staff instead told counsel for DeLite that a proposal to the City
Council was the appropriate way to resolve the issue.
22. On October 8, 1999, DeLite submitted a variance applicarion that, ,
�egt�este� included a request for a 25-foot variance to the Vandalia sien for a total height of 102
feet above e� as well as one other variance, two new freewav siens and issuance of rivo new
sisn oermits in exchan�e for talfl� down other billboards throughout the City
. The
Citv Council declined to approve the proposal•
26. At the hearine, DeLite offered testimonv that Aon Mazch 25, 1987, the City issued a permit
to Infinity Lthe permit was actuallv issued to Signcrafters Outdoor Displav, Inc.] to build what
DeLite referred to as the Infinity sign. The permit approved the height of the sign at 50 feet
above average grade.
. -
,
, ' . There was no evidence
roresented at the hearin� reeardins any of the circumstances surroundine the issuance of the
permit, nor was there any evidence that the LIEP office was aware of a complaint that the sien
was erected in violation of the Code until the dav of the hearine.
27. On March 9, 2000, �EH� LIEP sent a memorandum to sign companies licensed by the City
for advertsiing sign construction. DeLite was one of the companies which received a cogv of the
memorandum. The memorandum stated in its entirety:
Based on a recent court decision, a permit will now be required for
changing or replacing any advertising sign panel within the City of
Saint Paul. It was deterxnined that we were incorrect when we did
not require a building permit for the replacement of sign panels
damaged during a wwind storxn. The only type of work allowed
without a permit is for changing the advertising content placed on
the panels of a billboard.
The City's March 9, 2000, notice did not mention §33.03 of the St. Paul Legislative Code s�
___�.L aL . T f....,.L � ���� __ _� _�.._ a_.W nor did it refer to 566.201. It did cleazl�state
that the only t�pe of work which would not need a permit as of March 9, 2000 was the chan��ng
of the advertising sien content. Delite never called Ms. Lane to ask for clarification of the
memorandum.
41-F`!�
PROPOSED AMENDED CONCLUSIONS
9. At the time the Vandalia sign was approved and build, Section 66.214(g) of the St. Paul
Legislarive Code provided in its entirety: "The height of advertising signs may be measured from
grade or surface of the roadway, whichever is higher." The ordinance did not state that the
applicable roadway was the roadway from wYrich the si� was intended to be read but LIEP's
contention that this was the longstanding interpretation of the Code provision was unchallenaed
at the hearine and was supported by comments from the Plannin¢ Commission at the time the
section was amended and in the Planning Commission Resolution (File #97-561 addressine the
joint variance request of Midwest Outdoor Advertisin� and Universal Outdoor Advertisin�
10. Section 66.214(g) of the St. Paul Legislative Code was amended in June of 1997 to state that
"[s]urface of the roadway shall be the main bed of the roadway, from which the sign is intended
to be read, at the location of the sign" and that "[t]he height shall not be measured from any
entrance or exit ramps associated with the roadway." These amendments �xy�eE�eper�g�e
cod'afied the existine Citv staff interpretation of the
Code.
12. DeLite (as MidwesYs successor in interest) did � violate St. Paul Legislative Code
§66.214(g) as it existed prior to the June 1997 amendment by measuring the height of the
Vandalia sign from the surface of the exits ramp.
>
. The Citv's testimony that the lonestanding interpretation of that
section of �66.214(,_0l required measurement from the surface of the roadway from which the si�n
was intended to be read was supported in the record. __
13. DeLite is �teE collaterally estopped, by virtue of MidwesYs inaction, from contesting the
City's '
determination
that Midwest built the sien in violation of the heiPht restrictions of the Code, and in violation of -
the �erxnit, which was approved based upon the information that the sien would be a total of 37
feet in heieht above eround.
..-- -- `- - - - - - - - -- -- - - - -- - '- - - - - --
- - - - - - ---- - -- ---- - --- - - -- - - • -- - •- -- - -
--- -- �• --- -- -- - -- •- -- - --- -- -- • -- - - - ---
.._._
14. Because DeLite was advised that the billboard at I-94 and Vandalia was ille�al and needed
with the orders of the zonine administrator and are maintauun a si which is in violation of the
aoning code.
o � -d���
-- - - - -- - - - - -- •- - - --- -- -- -- --
. . -
-- - -- --- - - -- - -- - :- - - --
15. St. Paul Le¢islative Code §33.03(al which exem�ts repairs under �300 from rec�uirin,�a
buildin¢�ermit is inapplicable to this situation because St. Paul Le2islarive Code §§66.201 and
&66.405 are specific to sisns and supersede the eg neral provisions of the buildina code.
Therefore DeLite was required to applv for a�ermit to reattach the sign face for the dama e¢ done
to the Pierce Butler sim.
- • -- -- `- - - - - - - - - - ----- --- ------ -- -- - - - - - --
_ ,
-- - - -- - •- -- - - - --- • - --- - - -- - - - '- -- - - ---
-- • - .., - - - • - -- - -- --- - - -- -- -- - -- -- -- - ---- -
- - . -
`- •- • •-
- - - - - - - - - - ..........i,�v�v
16. DeLite failed to obtain a permit to repair the Pierce Butler sien des��ite the Mazch 2000
memo advisin all si n� companies that thev must obtain pernuts for any work done on si ns
except the replacement of advertisin� content. The reattachxnent of the siQn face, damaQed
durinQ the storm, did not involve the repiacement of advertisin� and did require a uermit•
Furthermore, it was done in disregard of the Zonine Admininstrator's memorandum that a�ermit
would be reauired.
�, C � �
� O��as, aoa\
La�r, HoNr�Arr, Da1.Y & Ln�mG�rr,
L�v.
ATTORNEYS AT LAW
GaryA Van Cieve
1500 W ELLS FARGO PLAZA
7900 XERXES AVENUE SOUTH
BLOOMINGTON, MINNESOTA 5543'I-1194
TELEPHONE(952)8353800
FAX (952) 8963333
July 19, 2001
Ms. Nancy Anderson
Saint Paul Council Research
310 City Ha1UCounty Courthouse
15 West Kellogg Boulevard
Saint Paul, MN 55102
��,,.r, �- 35
��_���
Dir. Dial: (952) 896-3277
E-mail: gvanGeve@Ihdl.com
r1 ..4 ` :P
..-s, �.�
����
��, �9�11
a�L �� '�
Re: In the Matter of the Sign contractor's License held by DeLite Outdoor Advertising, Inc.
Council E3earing — July 25, 2001
Dear Ms. Anderson:
Enciosed for filing, and for inclusion in the agenda materials furnished to the Council in connection with
the hearing on the abovexeferenced matter, are Licensee's Objections to LIEP's Written Exceptions and
Request to Adopt the Report of the ALJ. A copy has been served by mail upon the attorney for the
licensee.
V ery ly yours,
� �-�✓��
Gary�Van Cleve, for
LARKIN, HOFFMAN, DALY & LINDGREN, Ltd.
cc: Virginia P. Palmer, Assistant City Attorney
Cenified Civil Tri¢I Specialist by Board Certif:ed Civi! Tria1 Advocate Cert:feed Real Properry Specialist by
Minnesot¢ Smte B¢r Associatiors National Board af Trial Advocacy Minnesata State BarAssociation
� t�2��h CentPt
or�rcE oF aD�mv�sT�T� �ax�rGS � � � Zqp1
FOR THE COUNCIL OF TI� D� ��
CITY OF ST. PAUL
-----------------------------------------------------
In Re the License held by DeLite OAH No. 11-6020-14063-3 =
Outdoor Advertising, Inc.
LICENSEE'S OBJECTIOI�S
TO LIEP'S WRITTEN EXCEPTIONS
AND REQIIEST TO ADOPT THE
REPORT OF THE ALJ
INTRODUCTION
Licensee DeLite Outdoor Advertising, Ina ("DeLite") objects to the Written Exceptions
of the Office of License, Inspections and Environmental Pzotection ("LIEP") to the Report of the
Administrative Law Judge ("ALJ") and requests the City Council to adopt the AL7's Report in
its entirety. In a detailed and well-reasoned decision covering 17 pages and containing 35
Findings of Fact, 17 Conclusions and a five-page Memorandum, the ALJ concluded that (a)
DeLite's outdoor advertising sign at I-94 and Vandalia ("Vandalia sign") did not violate the
City's ambiguous pre-1997 sign height ordinance because the top of the sign is only 363 feet
above the surface of the adjacent exit ramp; and (b) DeLite did not violate any provision of the
St. Paul Legislative Code when it made a minor repair of its sign after a storm at 1651 Pierce
Butler Road ("Pierce Butler sign") by re-hanging the existing sign panel and securing it back in
its proper position for a repair cost of $185. DeLite respectfuliy requests the City Council to
adopt the Findings of Fact, Conclusions and Recommendation of the ALJ in their entirety
because the ALJ's decision is supported by the evidence and applicable principles of law.
ARGUMENT
� � �-�c�
I. TAE ADNIINISTRATIVE LAW JUDGE'S REPORT IS WELL-REASONED AND
SUPPORTED BY SUBSTANTIAL EVIDENCE AND T`HE LAW.
The ALJ's Report resoundingly rejects all the arguments of LIEP in support of its reed-
thin clauns against DeLite. LTEP claims that DeLite's Vandalia sign violates the City's pre-1997
sign height ordinance, but the AL7 properly concluded that the ordinance was ambiguous and
allowed the height to be measured from the adjacent exit ramp. LIEP further claims that DeLite
needed to obtain a permit to make a$185 repair to its Pierce Butler sign, which repair consisted
of re-hanging the existing sign panel after it became detached following a storm. LIEP's Written
Exceptions to the ALJ's Report ignore the we11-documented Findings and soundly-reasoned
Conclusions which inexorably led to the recommendarion that no adverse action be taken against
DeLite's busaness license. The ALJ correctly concluded that "the City bears the burden in tkus
matter of proving by a preponderance of the evidence that violations have occurred and adverse
action against the Lacensee's business license is warranted." Report at 9, Conciusion No. 3. The
evidence showed that the City failed to cany its burden of proof on either issue.
A. The ALJ Conec� Concluded that the Vandalia Si� Did Not Violate the Cit�
Sign Height Ordinance as that Ordinance Existed Prior to Amendment in June
1997.
The ALJ recognized that before the City's sign height ordinance was amended in June
1997, it ambiguously stated that the "height of signs may be measured from grade or surface of
roadway, whichever is higher." Code, § 66.214(g). The obvious axnbiguity is which "surface of
roadway" serves as a benchmark when there is more than one roadway in the vicinity of the
sign? LIEP azgued that it had a"longstanding interpretation" of this ordinance that required the
height to be measured from the roadway from which the sign was intended to be read. The ALJ
2.
��-r`�
correctly observed that "The ordinance did not state that the applicable roadway was the roadway
from which the sign was intended to be read." Report at 11, Conciusion No. 9.
The evidence showed that L1EP propounded and the City adopted au amendment in 7une
1997 to the above-quoted Code provision in direct response to the disagreement over the
Vandalia sign height and the ambiguity concerning which "surface of roadway" could serve as a
benchmark for determining a sign's height. The AL7 concluded, however, that the 7une 1997
amendment to Section 66.214(g) "may not properly be retroactively applied to the Vandalia
sign." Report at 14. This conclusion is supported by the City's own Code Section 66.301, which
the t1LJ noted "declares that it is the intent of the zoning chapter `to pemut legal nonconforming
signs existing on the effective date of this chapter or amendments thereto, to continue as legal
nonconforming signs ...."' Id. at 14-15 (emphasis in Report). Since the sign height ordinance
amendment followed the construction of the Vandalia sign, the express intent of the Code was to
allow the sign as a legal nonconforming sign in spite of the amendment. This conclusion is
further supported (as the ALJ noted) by general principles of statutory construction, which __
dictate that a law should not be construed to be retroactive "unless clearly and manifestiy so
intended by the legislature." Report at 15, n. 66 (quoting Minn. Stat. § 645.21).
Accordingly, the ALJ conectly concluded that
' DeLite ... did not violate St. Paul Legislafive Code § 66.214(g) as
it existed prior to the June 1997 amendment by measuring the
height of the Vandalia sign from the surface of the exit ramp. The
ordinance was ambiguous conceming the roadway from which the
measurement should be made, and the City did not prove by a
preponderance of the evidence that it had a longstanding practice
that sign height could not be measured from an exit ramp.
1 Indeed, LIEP never argued for retroacrive application of the amendment; instead relying on its
azgument that the amendment was merely a"clarification" of a"longstanding interpretation."
This azgument was rejected by the AI,J, as argued below.
3.
D � -��
Report at 11, Conclusion No. 12. As noted in the above-quoted conclusion, the ALJ found
LTEP's evidence of "longstanding practice" sorely lacking. The ALJ weighed conclusory
statements by LIEP's 3ohn Hardwick (which the AI,7 obviously did not find credible against
the undisputed facts that (a) City inspectors inspected and approved the Vandalia si�t on at least
rivo occasions; and (b) the City "has not consistently or uniformly applied its interpretation of the
height ordinance to other sign contractors: ' Report at 15. Evidence showed that an outdoor sign
immediately west of the Vandalia sign (the Infinity sign) "is over 80 feet tall from base to top of
the sign and over 65 feet tall from the surface of the roadway of the I-94 entrance ramp to the top
of the sign." Id. There was no evidence that the City has ever taken any adverse action against
the Infiruty sign, "even though this si� reflects a more egregious violation of the City's height
ordinance than the Vandalia sign." Id.
Finally, the ALJ properly applied principles of law established by the Minnesota
Supreme Court in concluding that the ambiguous sign height ordinance had to be read in a
manner least restrictive upon the rights of the private property owner—DeLite. __
Pursuant to Frank's Nursery, Inc. v. City ofRosevilZe, where a
zoning ordinance is ambiguous, weight must be given "to the
interpretation that, while still within the confines of the term, is
least restrictive upon the rights of the property owner to use his
land as he wishes." Construing the ordinance in favor of the
property owner ... the Administrative Law Judge concludes that
the sign should be allowed under the ordinance if the top of the .
sigp is 37.5 feet or less from the surface of the I-94 exit ramp, and
should be allowed under the perxnit if the top of the sign is 37 feet
or less from the surface of the exit ramp. Because the most recent
survey established that the top of the sign is 36.3 feet above the
surface of the exit ramp, the Admiriistrative Law Judge concludes
that the Vandalia sign conforms to both the pexxnit and the
ordinance that was then in effect.
Z Determinations of the credibility of wimesses by the ALJ aze entitled to weight by the
reviewing agency. First NaYl bank v. Dept. of Commerce, 245 N.W.2d 861, 865 (Minn. 1983).
�
D � , ��
Report at 16. Accordingly, the evidence and law support the ALJ's conclusion that the Vandalia
si� is legal.
B. The ALJ Correctiv Concluded that the Re-HanQinQ of the Existin� Sim Panel on
the Pierce Butler Sian at a Cost of $185 Did Not Require a Permit.
The ALJ rejected LIEP's contention that DeLite was required to obtain a pemut before it
reattached (not changed or replaced) an existing sign panel on the Pierce Butler sign that had
become detached in a wind storm. LTEP did not dispute that the cost of the repair was $185.
Assuming that the type of permit LIEP contends was required was a building permit, Section
33.03(a) of the St. Paul Legislative Code, concerning the need for building pernuts, expressly
exempts repairs costing less than $300 from the permit requirement. Id. (providing that building
permits aze not required "for repairs for maintenance only or for minor alterations ..." and
"provided the cost of such repairs and minor alterations does not exceed the present market value
of three hundred dollars").
LIEP relied on Sections 66.201 and 66.405 of the St. Paul Legislative Code for its
contenrion, but the AL7 concluded that neither section requires a permit under these
circumstances. As to Section 66.201, the ALJ correctly stated,
Section 66.201 merely provides that "[n]o person shall place, erect
or maintain a sign ... which does not conform to the following
requirements and without first obtauung the requisite permit for
such sign: ' There is not contention that DeLite did not obtain the
appropriate initial permit for the Pierce Butler sign. This provision
does not address the need to obtain a permit for maintenance or
repair.
3 LIEP's Wendy Lane, when asked what type of pernrit was needed by DeLite to make this
minor repair, said "thaYs a good question" and admitted this was unclear. This showed that not
even LIEP understood what its supposed regulation was concerning the need for permits for sign
repairs.
�
oi-��
Report at 16 (emphasis in original). The ALJ fiuther noted that one subparagraph of Section
66.201 actually imposed a duty on DeLite to repair the sign and, in so imposing that duty, failed
to state that a pernut was required for such a repair:
Section 66.201{3) requires that "[a]li signs which aze unsafe and/or
unsightly shall be repaired or removed" but is silent concerning the
need to obtain any pemut to make a repair, thereby giving rise to
an azgument that DeLite had an obligation to repair the sign once it
became damaged.
Id.
As to Section 66.405(1), the ALJ correctly concluded that this ordinance is "far from
cleaz" on whether a permit would be needed to make this minor repair. LIEP relied on a March
2000 memorandum it issued to sign owners in the City which made vague reference to a"recent
court decis3on" (without enclosing it) concerning Section 66.405(1) and asserted that some
unspecified type of permit was required "for changing or replacing any advertising sign panel
...." City Ex. 15. The ALJ analyzed the referenced court decision and noted that the judge
interpreted Section 66.405(1) to distinguish between changing advertising on the sign panel and
changing oz replacing the sign panel itsel£ "The first is permitted without a permit [and] [t]he
second constitutes a renovation of the billboard and requires a pernut " Report at 17. The AL3
stated that based upon this distinction, DeLite was not required to obtain a permit for the repair
because "DeLite did not change or replace the sign panels but merely reattached the e�sting
undamaged sign panel to the sign support structure." Id 4 The ALJ concluded that neither
LIEP's March 2000 memorandum, nor the referenced court decision required that DeLite obtain
a pernut before making the $185 repair.
° Lane admitted in her testunony that the ordinances should be amended to state clearly under
what circumstances a pemut would be required far work on outdoor signs and what type of
permit would be required.
Q
D�-�Y�
The March 9, 2000 memorandum initially stated that permits were
necessary for "changing or replacing any advertising sign panel"—
a situation that was not involved with respect to the Pierce Butler
sign. Although the memorandum thereafter stated that the only
type of work for which a permit would not be required was for
"changing advertising content placed on the panels of a billboard,"
it did not make any reference to the exception for repairs costing
less than $300 made in section 33.03(a) of the St. Paul I,egislative
Code or state that secrion 33.03(a) would be revised to be
consistent with the memorandum.
Id. For these reasons, the ALJ concluded that "Under these circumstances, it was not
unreasonable or clearly inappropriate for DeLite to assume that its $185 repair ... did not require
a permit " Id.
II.
C+:1
A. LIEP Has Failed to Show that the ALJ's Reoort is in Error in Any Respect
Concernina the Lack of Anv Heieht Violation of the Vandalia Si�n.
LIEP's Exceptions continue to argue "longstanding interpretation" in the face of
substantial evidence of past conduct by the City that was clearly inconsistent with its claimed
interpretation and the AL7's rejection of the conclusory statements of Hardwick.
In its Exceptions, LLEP impernussibly looks to the spacing ordinance (Section 66.214( fl)
for assistance in interpreting the ambiguous sign height ordinance. The ALJ properly rejected
this assertion:
The Administrative Law Judge is not persuaded that the exclusion
of exit and entrance ramps in another portion of the zoning
ordinance (section 66.214(b), relating to spacing of signs) or the
mention in that ordinance that spacing of signs is determined in
part by the classificarion of the street from which the sign is
intended to be read is sufficient to justify the same interpretation of
the height ordinance.
Report at 15, n. 69 (emphasis added). Indeed, this merely shows that when the City wished to
define more specifically "surface of roadwa}�', it lrnew how to do it—and failed to do so with
7.
0 t -�''��
respect to the sign height ordinance. Certainly the City's 1997 amendment to the sign height
ordinance to exclude exit and entrance ramps shows that even the City recognized the ambiguity
in the original ordinance and affirmarively acted to cure it. A recent Minnesota Court of Appeals
decision in connecrion with the City of Rochester outdoor sign ordinances rejects the same
reasoning that LIEP azgues here. DeLite Outdoor AdvertisinQ, Inc. v. Citv of Rochester (slip
opinion provided to ALJ and included as part of record). The court of appeals rejected the City
of Rochester's arguxnent that an ordinance which on its face allowed DeLite to replace a sign had
to be read in connection with all other city ordinance provisions, one of which, the city azgued,
would have prohibited the replacement of the sign. The couzt noted that no legislative history
supported such a reading of Rochester's ordinances. Similarly, LIEP here offer no credible
evidence and no legislative lustory of its interpretation of the sign height ordinance or that it
should be read together with the spacing ordinance.
LIEP clauns that its interpretation of the sign height ordinance is entitled to deference.
This misstates the proper legal standazd. As the ALT corrected stated, an agency interpretatio�a is
entitled to deference onlv where the language is technical and the agency can show a
longstanding and consistent agency interpretation. Report at 15, n. 67 (citing Hibbin¢ Education
Assn. V. Public Employment Relations Boazd, 369 N.W.2d 527, 529 (Nlinn. 1985)). LIEP failed
on both counts. The ordinance language at issue concerning height ("surface of roadwa}�') is
certainly not technical. Furthermore, the ALJ properly concluded that LIEP failed to carry its
burden of proving that there was any longstanding agency intexpretation consistent with its
claims and in the face of undisputed evidence of (a} prior inspection approvals of the Vandalia
sign and (b) non-enforcement of an even more egregious "violation" of the claimed longstanding
interpretation (the Infiiuty sign).
�
��Yv�
LIEP ara es in its Exceptions with respect to the I�ifinity si� that "there was no evidence
presented that the City was aware that any violation existed ...." Exceprions at 4. This is an
incredible assertion given the Iufiniry sign's proximity 1000 feet immediately west of and
adjacent to the Vandalia sign. LIEP has only itself to blame for any lack of proof. As noted
above, the burden of proof is on LIEP to establish the violations. Accordingly, it cannot rely on
an absence of proof to support its claims.
LIEP's Exceptions re-raise an estoppel Doument that was soundly rejected by the ALJ
because only one of four essential elements for proving estoppel was present here. Report at 14.
LIEP claims that its Apri127, 19971etter was a Notice of Violation from which DeLite's
predecessor, Midwest Outdoor Advertising, Inc. ("Midwest"), never appealed. But the ALJ
properly found that the language of the letter was decidedly unclear whether it was an action or
decision that was itself appealable: "it appears from a fair reading of the letter that LIEP was
simply infomung Midwest that any decision the City ultimately made regarding the sign would
be subject to appeal." Report at 13 (emphasis in Report).
This conclusion was further supported by the undisputed fact that rivo yeus passed
between the Apri127, 19971etter and the City's issuance of a Notice of Violation as to the
Vandalia sign on Apri116, 1999 (Ex. 8). During this two-year period, the evidence showed that
Midwest worked with another sign company to attempt to resolve differences and reach a
compromise solution on sign issues in this azea of the City. Midwest's president testified that he
was "shocked and surprised" when the City ultimately issued a Notice of Violation in 1999,
given that Midwest had taken down 20 signs to build the Vandalia sign. After DeLite acquired
5 The AI,J's finding was appropriate given the letter's statement that, "Any decision we make
regarding the sign ordinance is subject to an appeal ...." City Ex. 5(emphasis added). The clear
�
d 1-P�l�
all MidwesYs signs, DeLite made a comprehensive proposal to the City conceming all signs it
owned in the City. After the City rejected DeLite's proposal, another Notice of Violation on the
Vandalia sign issued. Based on this lustory, the ALJ concluded that to bar DeLite from any
hearing on ttris issue would deprive it of its fundamental right to due process: "Under these
circumstances, it would violate due process principles if DeLite were precluded from challenging
the underlying basis for the City's current adverse licensing action." Report at 14. These
findings and conclusions should be affirmed and adopted by the Council.
B. LIEP Has Failed to Show that the ALJ's FindinQS or Conclusions Were WronQ
Conceming the Lack of Anv Violation Arisin� Out of the Minor Repair of the
Pierce Butler Sign.
As it did before the ALJ, in its Exceptions LIEP conspicuously omits key language from
Section 66.201, which LIEP claims required DeLite to obtain a perxnit for its minor repair. LIEP
paraphrases the ordinance to state, "[n]o person shall ... maintain a sign ... without first
obtaining the requisite permit " Exceptions at 5. This is not what the ordinance states. The
ordinance provides, as found by the ALJ, that "[n]o person shall place, erect or maintain a sign
... which does not conform to the following requirements and without first obtaining the
requisite permit for such sign." Report at 16 (emphasis in Report). LIEP steadfastly ignores the
key phrase "for such sign", which the ALJ conectly concluded only requires that an appropriate
initial permit must be obtained for a sign: "There is no contention that DeLite did not obtain the
appropriate uutial permit for the Pierce Butler sign. This provision does not address the need to
obtain a permit for maintenance or repair." Id. In addirion, the ALJ pointed out that .
subpazagraph (3) of SecYion 66.201 mandates that unsafe and/or unsightly signs must be repaired
or removed, "but is silent conceming the need to obtain any permit to make a repair ...." Id. As
implicarion is that the right to appeal would arise from any fuhxre decision made by LIEP
conceming the sign, not that a decision had been made from which appeal rights azose.
10.
o �..��
noted above, the City's own Code does not require a building pernut for maintenance or minor
alterations that cost Iess than $300. Code, § 33.03(a). AccardingIy, LTEP has failed to make any
credible argumenT That DeLite's $185 repair was subject to any permit requirement.
CONCLUSION
For all the above reasons, DeLite Outdoor Advertising, Inc. respectfully requests the St.
Paul City Council to adopt and affirm all aspects of the Adu�inistrative Law Judge's Report.
There aze simply no violations stated or proved by LIEP in this case and no action should be
taken against DeLite's business license.
Dated: ,/9'� 2���
::ODMA�PCDOCS\LIB ] \697 383\1
Gary an Cleve (156310)
L , HOFFMAN, DALY & LINDGREN, Ltd.
1500 We11s Fazgo Plaza
7900 Xe�es Avenue South
Bloomington, Minnesota 55431-1194
(612)835-3800
Attorneys for Licensee DeLite Outdoor Advertising, Inc.
11.
ORIGINAL
RESOLUTION
CITY OF SAINT PAUL, MINNESOTA
Presented By �
t
�S
Referred To
Comxnittee: Date
1 RESOLVED, that the sign contractor's license held by Delite Outdoor Advertising, Inc.
2 (License ID#: TR 1344) be suspended unril such time as the billboard at I-94 and Vandalia has
3 been removed and a permit fees for repairs to the billboard at 1651 Pierce Butler Route have
4 been paid.
6 FURTHER RESOLVED, that the findings of fact and conclusions of law contained in the
7 ALJ Report in this case dated June 6, 2001 are adopted as the written findings and conclusion of
8 the Council in this matter, except as amended below. The reasoning of the Memorandum of the
9 ALJ attached to the findings and conclusions is not adopted, nor is the recommendation of the
10 ALJ accepted.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
FURTHER RESOLVED, that the following amendments to the ALJ Report aze hereby
adopted:
1. Finding of Fact No. 5 is hereby amended to read as follows:
"5. On February 21, 1997, Midwest filed a revised perxnit
application seeking to construct a larger sign at the I-94 and
Vandalia locarion (hereinafter referred to as the "Vandalia sign"),
using non-conforming sign credits it had accumulated. Midwest
indicated on its application that the sign was to be 13'6" wide, 48'
long, and 37' above grade. (The words "above grade" were already
included on the preprinted application forxn.) Tl�erevised permit
application submitted by Midwest was approved by �� LIEP on
February 25, 1997. The permit contains Plan Review Remarks
which indicated that the permit was authorized upon information
that the sien would be 23' to the bottom of the sien and about 37'
totai heieht.
2. Finding of Fact No. 10 is hereby amended to read as follows:
32
33 "10. Midwest request that a survey be conducted showing the
34 relationship of the Midwest billboard and the right-of-way of I-94.
35 The property was surveyed or. March 17, 1997. The survey
36 . ,
37 . ,
3$ . . was
Council File # d�- ry 3
Green Sheet # � U � O �2
1 conducted to show the placement of the billboard with respect to
2 the railroad �roperiy and Citv ri t-of-wa iv n res�onse to a
3 question about the placement of the si�n, and was submitted prior
4 to the issue of the heieht of the si2n beine raised."
6 3
4. Finding of Fact No. 16 is hereby amended to zead as follows:
10 approved the variance applicarions of Midwest and Universal. The
11 Saint Anthony Pazk Community Council filed an appeai of the
12 Planning Coxnsnissions's determination, and the St. Paul City
13 Council ulrimately reversed the Commission and denied the
14 variance applications. In the Resolution reversin�the �rant of a
15 variance, the Citv Council twice referenced the fact that the
16 existin Midwest sian at I-94 and Vandalia was built in violation
17 of the permit and was 21 feet higher than permitted. This decision
18 was never appealed bv Midwest or Universal."
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
Finding of Fact No. 1 S is hereby amended to read as follows:
"15. On Aua st 8, 1997, the St. Paui Plauning Commission
"16. By letter dated April 16, 1999, the City issued a Notice of
Violation to Midwest reguding the Vandalia sign. The notice
stated that adverse acrion was recommended because the Vandalia
sign was not built in compliance with its permit and because
Midwest had not appealed the City Council denial of its variance
request or moved its sign. ^''-- - _.:,. _ _ r _ : _,. .. __ __... _ .ti _ r_,,.
_, . The notice of violation followed a Februarv
1999 letter from John Hardwick to Midwest Outdoor Advertisine
advisine them that the sign needed to be removed ."
Finding of Fact No. 20 is hereby amended to read as follows:
"20. Beginning in approximately August 1999, then-counsel fro
DeLite began to engage in discussions with the St. Paul City
Council regazding a number of issues, including the Vandalia sign.
DeLite was told that the�could te submit
a formal proposal to the City Council
�ese#ttiex-a€propOSin�a way of le alizine the Vandalia si�n isstte.
Counsel for DeLite also met with Wendy Lane, Zoning Manager
for �H= LIEP , and other City staff regarding the Vandalia sign.
City staff told DeLite counsel that
among other thines that would be necess to le�ize the sign
was a variance. There had also been chanees to the sign ordinance
includine the establishment of a snecial sien dishict and a
moratorium which would need to be addressed. £�ei�ker�ie£�
, . At no time
O\-1�13
1 was DeLite infonmed that thev could appeai the determination that
2 the sie� was built in violation of the heieht restrictions and in
3 violation of the permit. Ciry staff instead told counsel for DeLite
4 that a proposal to the City Council was the appropriate way to
5 resolve the issue."
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
6. Finding of Fact No. 22 is hereby amended to read as follows:
"22. On October 8, 1999, DeLite subxnitted a variance application
that, � a , included a request for a 25-foot
variance to the Vandalia si�n for a total heieht of 102 feet above
�rade. as well as one other variance, two new freeway siQns and
issuance of two new si�n vermits in exchan�e for takin� down
other billboards throughout the Citv. ^-' �`- -'-- -- ' -- =" - a -
. The City Council
declined to approve the �roposal."
7. Finding of Fact No. 26 is hereby amended to read as follows:
"26. At the hearina, DeLite offered testimony that 8on Mazch 25,
1987, the City issued a permit to Infinity [the oermit was actuallv
issued to Siencrafters Outdoor Displav, Tnc.l to build what DeLite
referred to as the Infmity sign. The permit approved the height of
the sign at 50 feet above average grade.
,
>
' . There was no evidence
presented at the hearine reQarding anv of the circumstances
surroundina the issuance of the permit, nor was there any evidence
that the LIEP office was aware of a complaint that the sign was
ezected in violation of the Code until the day of the hearina."
8. Finding of Fact No. 27 is hereby amended to read as follows:
"27. On March 9, 2000, �� LIEP sent a memorandum to sign
companies licensed by the City for advertsiing sign conshuction.
DeLite was one of the com�anies which received a coov of the
memorandum. The memorandum stated in its entirety:
45 Based on a recent court decision, a permit wiil now
46 be required for changing or replacing any
47 advertising sign panel within the City of Saint Paul.
48 It was determined that we were inconect wheu we
49 did not require a building permit for the
50 replacement of sign panels damaged during a
51 wwind storm. The only type of work allowed
O�
m
2
without a pemut is for changing the advertising
content placed on the panels of a billboazd.
O � —T `�
�
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
The City's March 9, 2000, notice did not mention §33.03 of the St.
Paul Legislative Code
,
_ ,
, . nor
did it refer to �66.201. It did clearlv state that the onlv t�pe of
work which would not need a�ermit as of March 9, 2000 was the
chan�ina of the advertisine sim content. Delite never called Ms.
Lane to ask for cIarification of the memorandum."
9. Conclusion of Law No. 9 is hereby amended to read as follows:
"9. At the time the Vandalia sign was approved and build, Section
66.214(g) of the St. Paul Legislative Code provided in its entirety:
"The height of advertising signs may be measured from grade or
surface of the roadway, whichever is higher." The ordinance did
not state that the applicable roadway was the roadway from which
the sign was intended to be read, but LIEP's contention that this
was the lon¢standin�interpretation of the Code provision was
unchalleneed at the hearing and was supported bv comments from
the Plannin� Commission at the time the section was amended and
in the Plannin�Commission Resolution (File #97-561 addressine
the ioint variance rec�uest of Midwest Outdoor Advertising and
Universal Outdoor Advertisine."
10. Conclusion of Law No. 10. is hereby amended to read as follows;
31 "10. Section 66214(g) of the St. Paul Legislative Code was
32 amended in June of 1997 to state that "[s]urface of the roadway
33 shall be the main bed of the roadway, from which the sign is
34 intended to be read, at the location of the sign" and that "[t]he
35 height shall not be measured from any entrance or exit ramps
36 associated with the roadway." These amendments �a�
37 codified the
38 existing Citv staff interpretation of the Code."
39
40 1 l. Conclusion of Law No. 12 is hereby amended to read as follows:
41
42 "12. DeLite (as MidwesYs successor in interest) did � violate St.
43 Paul Legislative Code §66.214(g) as it existed prior to the June
44 1997 amendment by measuring the height of the V andalia sign
45 from the surface of the exits ramp.
46
47 ,
48
49 . The City's testimonv that the
50 lonastandin� interpretation of that section of §66.214( l�re_quired
51 measurement from the surface of the roadwav from which the sign
1 was intended to be read was supported in the record."
2 0 � -t4�
3 12. Conclusion of Law No. 13 is hereby amended to read as follows:
4
5 "13. DeLite is r� collaterally estopped, by viriue ofMidwesYs
6 inaction, from contesting the City's '
7
8
9 fi3�� deteimination Yhat Midwest built the si� in
10 violation of the heiQht restricrions of the Code, and in violarion of
ll the pemut. which was approved based upon the information that
12 the sign would be a total of 37 feet in height above eround."
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
13. Conclusion of Law No. 14 is hereby deleted and a new Conclusion of Law No. 14 is
adopted to read as follows:
- -- `- - - -- - - -- --- - -- -
�- - - - - - - - - ---- - --
---- --- - - -- - - -- - �- -- - - - ---
�• -- -- - - - - - - --- �-
- - -- • •
"14. Because DeLite was advised that the billboard at I-94 and
Vandalia was illeaal and needed to be removed, and was not in a
position to apoeal that determinarion. its failure to remove the sign
is a violation of St. Paul Legislative Code & 66.407(dl, in that thev
have refused to co�lv with the orders of the zonin¢ administrator
and are maintaininQ a sien which is in violataon of the zoning
code."
14. Conclusion of Law No. 15 is hereby deleted and a new Conclusion of Law No. 15 is
adopted to read as follows:
`- - - -- - - -- -- •- - -
::- -- -- -- • - S. - -- - --
n��Gi :�ni aiii.e�:airina•���ia"va�i�Sn�mi. �iii�c��i.s
"15. St. Paul Legislative Code §33.03�a1 which exempts re�airs
under $300 from requirine a building permit is inapplicable to this
situation because St. Paul Leeislative Code �&66.201 and �66.405
are specific to siens and su�ersede the e� neral provisions of the
buildin¢ code. Therefore DeLite was rec�uired to applv for apermit
to reattach the sien face for the damaQe done to the Pierce Butler
si ."
15. Conclusion of Law No. 16 is hereby deleted and a new Conclusion of Law No. 16 is
adopted to read as follows:
-- --`- - -- -- --- - - - - -
-- - -- --- - -- ---- - -- •- -- - - ---
. . .
•,...A...y.� -- - - - - - - - - ---
.�.... . .
- ---- -- --- - -- - - ----- --- •- - - - -
.._"_
5 "16. DeLite failed to obtain a permit to repair the Pierce Butler
6 si� desroite the March 2000 memo advisin aQ 11 si� companies
7 that they must obtain�ermits for anv work done on signs exce�t
8 the replacement of advertising content. The reattachment of the
9 si�n face, damaged during the storm, did not involve the
10 replacement of advertisin� and did require a nennit. Furthermore,
11 it was done in disresazd of the ZoninQ Adininistrator's
12 memorandum that a pernut would be required."
13
14
15
16
17
18
19
20
21
22
O 1 -F4�
This Resolution is based on the record of the proceedings before the ALJ, including the
hearing on Apri124, 2Q01, the documents and e�ibits introduced therein, the fmdings of fact
and conclusions of law of the ALJ as referenced above and amended, the written submissions by
counsel for the parties and the argusnents and statements of the parties at the pubfic hearing on
July 25, 2001 and the deliberations of the Council in open session on August l, 2001.
A copy of this Resolution, as adopted, shall be sent by first class mail to the
Administrative Law Judge and to the Licensee's attorney, Gary Van Cleve.
Requested by Depaxtment of:
Adopted by Council: Date ` �}�Q (
1 \
Adoption Certified by Council Sec ary
By: /" a.�v/wiQ.2./ / / �"�t/�
Form Approved by City Att ne
By: �� TJ �«-.
Approved by yor for Submission to Council
By: c� By:
MayoY: Date
By'
, , A�r`� ,
` � `
OFFIC£ oF L=EP Date: GREEN SHEET
Virginia Palmer August 9, 2ooi �� �y3
266-8710 No . 103832
. 1 EPPRTMEN'P DIRECTOR 4 ITY CODNCIL -
. � '2 ZSY ATTORNEY . ITY CLERK
x�aw�
ust be on Council Agerida by: '�°^ ��ST DZRECLOR IN. & MGT. SVC. DIR.
�
u St 22 . 2001 COnsent 3 YOR (OR ASSISTIaN'P)
OTAL # OF SIGNATIIRE PAG&S 1 (CLIP ALL LOCATIONS FOR"SZGNATURE)"--
CTION REQUESTED:
esolution suspending the sign contractor's license held by Delite Outdoor
- dvertising, Inc. until such time as the billboard at I-94 and Vandalia has
een removed and permit fees for repairs to the billboard at 1651 Pierce Butler
oute have been paid.
COMMENDATIONS: APBROVS (A) OR RESECT (R) HRSONAL SHRVICS CONTRI+CPS MfJST ANSDISR THH POLLOA`ING:
PLANNING COFPfISSION CIVIL SERVICE COMIMISSION 1. Has the person/fism ever worked under a contract foz this departmentl
CSB COhA1ITPEE BUSINBSS REVIEW COUNCIL YES NO
STAFF _ Has this person/£irm ever been a City employee?_ _
DISTRICT COIIRT YES NO
3. ➢oes this person/firm possess a skill not normally-possessed by any
SIJPPORTS WHICH COUN�IL OB7ECTIVE? CLrrent City employee? --�
YES NO
lain all YSS aaswera on a aeparate sheet and attach.
INITIATING PROBLEM, ISSUE, OPPORTUNITY (Who, What, When, Where, Why):
VANTAGES SF APPROVED:
• �search Centet
ISADVANTAGES IF APPROVED:
A �G 0 � 2041
ISADVANTAGES IF NOT APPROVED: �
;
i �
�'`_ _ J -- -
TOTAL AMOUNT OF TRANSACTION S COST/REVENUE BUDGETED YES NO
FtTNDING SOURCE - ACTIVITY NC3MBER
FINANCIAL INFORMATION: (EXPLAIN)
OFFICE OF THE CITY ATTOR��TEY 6 ���Cy'�
Ctnymn M Robinson, Jr., Ciry Attorney
35
CITY OF SA1NT PAUL
Norm Colemm�, Mayor
July 3, 2001
Civi[ Division
400 Ciry Ha!!
I S West Keilogg Biv�S.
Sairtt Pnul, Minnuola 55102
3 NOTICE OF COUNCIL HEARING
Gary A. Van Cleve
Lazkin, Hoffman, Daly & Lindgren, Ltd.
1500 Wells Fargo Plaza
7900 Xe�es Avenue South
Bloomington, Minnesota 55431-1194
Te[ephone: 65! Z66-87l0
Facsimile: 65! Z98-5619
RE: . Sign Contractor's License held by Delite Outdoor Advertising, Inc., d/b/a Delite Outdoor
Advertising, Inc.
License ID #: TR1344
Deaz Mr. Van Cleve:
Please take notice that a hearing on the report of the Administrative Law Judge conceming the
above-mentioned license has been scheduled for 5:30 p.m., Wednesday, July 25, 2001, in the
City Council Chambers, Third Floor, Saint Paul City Hall and Ramsey County Courthouse.
You have the opportunity to file exceptions to the report with the City Clerk at any time during
normal business hours. You may atso present oral or written argument to the council at the
Hearing. No new evidence will be received or testimony taken at this hearing. The Council will
base its decision on the record of the proceedings before the Administrative Law Judge and on
the arguments made and exceptions filed, but may depart from the recommendations of such
Judge as permitted by law in the exercise of its judgement and discretion.
Sincerely,
r s-a ✓� � (� ""
� ��
Virginia D. Palmer
Assistant City Attorney
cc: Nancy Anderson, Assistant Council Secretary, 310 City Hal1
Christine Rozek, LIEP
Heather Worthington, Executive Director, St. Anthony Pazk Community Council, 890
Cromwell Ave., St. Paul, MN 55114
June 6, 2001
Y
STATE OF MINNESOTA
OFFICE OF ADMINISTRAITVE HEARINGS
100 Washington Square, Suite 1700
100 Washington Avenue South
Minneapolis, Minnesota 55401-2138
Fred Owusu, Cify Clerk
City of St. Paul
170 City Hall
15 West Kellogg Blvd.
St. Paul, MN 55102
��.���v��
.��N i; ' L1�Q�
�ITY A�TOE����
RE: In the Matter of the Sign Contractor's License Held by DeLite
OutdoorAdvertising, Inc.; OAH Docket No. 11-6020-14063-3
Dear Mr. Owusu:
� ���
Enclosed herewith and served upon you by mail is the Administrative Law
Judge's Findings of Fact, Conciusions of Law and Recommendation in the
above-entitled matter. The officiai record which is large will be sent to you under
separate cover. Afso, copies of the tape recordings of the hearing wiil be
duplicated and sent to you under separate cover. Thus, our file in this matter is
now being closed. - -
Sincerely,
BLN:aws
Enclosures
T�h-w� � �— . � 2c.�' �—
BARBARA L. NEILSON
Administrative Law Judge
Telephone: 612/341-7604
cc: Virginia D. Palmer, Assistant City Attorney
Gary A. Van Cleve, Attorney at Law
Providing Impartial Hearings for Government and Citizens
An Equal Opportunity Employer
Administrative Law Section & Administrative Services (672) 341-7600 oTTY No. (612) 341-7346 � Fa� No. (612) 349-2665
�1-��
11-6020-14063-3
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE CIIY OF ST. PAUL
In the Matter of the Sign Contractor's
License Heid by DeLite Outdoor
Advertising, Inc.
F(NDINGS OF FACT,
CONCLUSIONS AND
RECOMMENDATIONS
The above-captioned matter came on for hearing before Administrafive
Law Judge Barbara t. Neilson at 930 a.m. on April 24, 2001, in Room 40-B of
fhe St. Paui City Hail. Virginia A. Palmer, Assistant City Attorney, 15 West
Keilogg Boulevard, Suite 400, St. Paul, Minnesota 55102, appeared on behalf of
the City of St. Paul. Gary A. Van Cleve, Attorney at Law, Larkin, Hoffman, Daly
& Lindgren, Ltd., 7900 Xerxes Avenue South, Suite 1500, Bloomington,
Minnesota 55431-1194, appeared an behalf of DeLite Outdoor Advertising, Inc.
The record closed on May 4, 2001, when the parties' post-hearing reply briefs
were filed.
This Report is a recommendation, not a final decision. The St. Paul City
Council will make the final decision after a review of the record. The Cify Council
may adopt, reject, or modify the Findings of Fact, Conclusions, and
Recommendations contained herein. Pursuant to section 310.05 of the St. Paul
Legislative Code, the City Council's final decision shall not be made until #his
Report has been made available to the parties to the proceeding and fhe
Licensee has been provided an opportunity to present oral or wriften arguments
alleging error on the part of the Administrative Law Judge in the application of the
law or interpretation of the facts and an opportunity to present argument related
to any recommended adverse action. The City C{erk shou{d be contacted to
ascertain the procedure for filing such argument or appearing before t Counc
STATEMENT OFISSUES
There are two primary issues in this hearing. The first issue is whether
DeLite's biliboard located at I-94 and Vandalia violates height restrictions
imposed by St. Paul Legislative Code § 66.214(b) and (g) and whether DeLite's
failure to remove this biif6oard is a violation of St. Paul Legislative Code
§ 66.407. The second issue is whether DeLite's failure to obtain a permit before
repairing its billboard located at 1651 Pierce Butler Road constituted a violation
of Sf. Paul Legislative Code §§ 66.201, 66.404, and/or 66.405. If DeLite is found
fo have violated one or more ordinance provisions, it must further be determined
whether such violations warrant adverse action against DeLite's Billboard and
Sign license under St. Paul Legislative Code § 310.06(b)(6)(a).
Ol -�`�
Based upon all of the testimony, exhibifs and evidence in fhe record, the
Administrative Law Judge makes the foilowing:
FINDINGS OF FACT
1. DeLite holds an acfive Trade - Biliboard and Sign license in the City
of St. Paul under license number OOTR1344.'
r
2. ' In July of 1999, DeLite purchased all of the assets of Midwest
Outdoor Advertising, including the sign at I-94 and Vandalia involved in this
proceeding?
Vandalia Sign
3. On September 13, 1996, Midwest Outdoor Advertising, Inc.
(hereinafter referred to as "Midwest"), applied Yo the City for a permit to construct
a new 6' by 12' billboard on the north side of I-94 and Vandalia. The initiai
application stated that the sign to be built would be 6' wide, 12' long, and 15'
above grade. The permit application was approved by the St. Paul O�ce of
License, lnspections and Environmentai Protection (LEIP) on November 8,
1996. This sign was never built because Midwest decided it wanted a larger
sign.
4. In order to obtain a permit for a larger sign at I-94 and Vandalia,
Midwest decided to take down approximately twenty outdoor advertising signs at
other locations in the City and thereby earn additional "non-conforming sign
credits." Non-conforming sign credits are earned by sign companies in St. Paul
when they remove signs in the City that do not conform to current ordinances.
The City permits sign companies to "bank" credits that may then be used to build
new signs at other locations in the City that need not conform to spacing
requirements 5
5. On February 21, 1997, Midwest filed a revised permit application
seeking to construct a larger sign at the I-94 and Vandalia iocation (hereinafter
referred to as the "Vandalia sign"), using non-conforming sign credits it had
accumulated. Midwesf indicated on its application that this sign was to be 13'6"
wide, 48' fong, and 37' above grade. (The words "above grade" were already
included on fhe preprinted application form.) The revised permit application
submitted by Midwest was approved by LEIP on February 25, 1997.
� City Ex. 1.
2 City Exs. 9, 10; DeLite Exs. 13, 14; Testimony of Remes.
3 City Ex. 2; DeLite Ex 1.
` Testimony of Remes.
5 Testimony of Remes, Hardwick.
6 City Exs. 3, 4; DeLite Ex. 2; Testimony of Hardwick, Remes.
2
01 _PN.�
6. At the fime the permit was issued and the sign was built, St. Paul's
Legisiative Code directed fhat "(t]he height of advertising signs may be measured
from grade or surface of roadway, whichever is higher."' 7he maximum allowed
height for a sign was dependent upon the functional street c(assification. Signs
focated on intermediate and principal arterial roadways were limited to a
maximum height of 37.5 feet.
7. The City requires permit holders to contacf a building inspector
prior fo pouring the footing for the sign and also upon completion of construction.
LIEP believes that both of fhese inspections were completed with respect to the
Vandalia sign. `
8. Construction of the Vandalia sign was completed by approximately
March 17, 1997. The sign is a V-shaped sign, with west- and east-facing sign
faces. As compieted, and based upon the most recent survey of the site," the
total height of the Vandalia sign measured from the ground fevel at the base of
sign to the top of the sign is 58.8 feet, but the sign height measured from the
surtace of the nearby exit ramp is 36.3 feet.' Peter Remes, fhe President of
Midwest, believed that, as long as the sign was less than the maximum
ordinance height of 37.5 feet as measured from either "grade or surface of the
roadway, whichever is higher," the sign complied with the height requirement.
Mr. Remes understood the ordinance to allow Midwest to choose which roadway
from which to measure the height of a sign. Because the top of the billboard was
less than 37.5 feet above the elevation of the exit ramp, Mr. Remes believed the
sign was in compliance with City ordinance.
9. A competing sign company notified the City at some point that it
believed that the Vandalia sign was too high. LIEP thereafter requested that
Midwest either submit information demonstrating that the sign was not too high or
apply for a variance to the height requirement.'
10. Midwest requested that a survey be conducted showing the
relationship of the Niidwest billboard and the right-of-way of I-94. The property
was surveyed on March 17, 1997. The survey concfuded that the elevation of
fhe top of the billboard was 152.47, the elevation of the exit ramp opposite the
sign was 123.11, and the elevation of the top of the sign's footing was 100.00.
� Prior version of St. Paul Leg. Code § 66.214 (g).
a Prio� version of St. Paul Leg. Code § 66.214 (b).
9 Testimony of Hardwick.
10 Testimony of Remes.
" The most recent survey was conducted on February 4, 2000. See DeLite Ex. 20.
' DeLite Ex 20; cf. Remes testimony and City Ex. 5, both of which stated height from the base of
the sign was 58 feet, and City and DeLite Exs. 3, which suggest that the height from ihe base of
sign was 52.47 feet and the height from surface of the exit ramp was 29.36 feet.
" Testimony of Remes.
" Testimony of Hardwick.
t5 City Ex. 3 at 3; DeLite Ex. 3.
3
� � -r��
11. By letter dated Aprii 28, 1997, LIEP informed Midwest that,
according to a survey submitted by Universal Outdoor, the Vandalia sign was
actually constructed at a height of 58 feet from the base to the top of the sign.
LIEP stated that the sign thus was not consfructed in compliance with the permit
issued by the City and was in violation of the sign ordinance. The City's letter to
Midwest quoted the portion of the Cifij's sign ordinance stating that "(t]he height
of advertising signs s may be measured from grade or surtace of roadway,
whichever is higher" and stated that "[t]he surface of the roadway is the main
roadbed of I-94." The letter went on to state that, because the I-94 roadbed
appeared to be iower than the grade at the sign pole, the sign height could be no
more than 37 feet from the sign's grade. The letter indicated that Midwest "must
either reduce the overall height of fhe sign or obfain a height variance from the
Planning Commission." The letter nofed that, if a variance was granted to allow
the sign to remain at a fieight exceeding the 37 feet allowed by permit, a new
sign permit would have to be obfained for the correct height and the permit would
be reviewed by the City's structural engineer. The second-to-last paragraph of
the letter stated that "[a]ny decision we make regarding the sign ordinance is
subject to an appeai before the Planning Commission as specified in Section
66.408."�� The letter did not state any specific steps that Midwest shouid take to
file such an appeal or sef forth a time limit for the filing of an appeai.
12. Midwest orally communicated its disagreement to the City in regard
to the April 28, 1997, letter but took no other action in regard to the letter.
Midwest did not a�ply for a height variance or take any action fo reduce the
height of the sign.�
13. In June 1997, § 66.214(g) of the St. Paul Legislative Code v�as
amended to "address{] an issue raised by a case recently befiore the zoning
committee" and to "codify the zoning administrator's interpretation of fhis
section." The new language read as follows: "The height of advertising signs
may be measured from the grade of the sign or the surface of the roadway,
whichever is higher: SurFace of the roadway shall be the main bed of the
roadway, from which the sign is infended to be read, at the location of the sign.
The heighf shall not be measured from any entrance or exit ramps associated
with the roadway." The Pfannir�g Commission notes state this amendment
clarified a"lon�gstanding practice" that measurements are to be taken from the
main roadbed. °
14. On June 18, 1997, Midwest submitted an application for a zoning
variance that requested approval to move the Vandalia sign 50 feet west of its
current location and to rebuild the Vandalia sign at its new location to an overali
16 Prior version of St. Paul Leg. Code § 66214(g).
" City Ex. 5.
' Testimony of Remes, Hardwick.
t9 De�ite Ex 7; Testimony oF Hardwick.
2° City Ex. 7, p. 3.
4
d � -f�f �
height of 68 feet. The variance requesf was a result of an agreement between
Midwest and Universal Outdoor, Inc., a competitor of Midwest, whereby the
Vandalia sign would be relocated to allow Universal to build a sign nearby. Due
to the spacing ordinance, Universal would have been unable to build ifs sign
unless the Vandalia sign was relocated. Midwest and Universal submitted
simultaneous variance applications to effect the agreement 23
15. On August 8, 1997, the St. Paul Planning Commission approved
the. variance applications of Midwest and Universa1. The Saint Anthony Park
Community Councii filed an appeal of the Pianning Commission's determination,
and the St. Paul City Council ultimately reversed the Commission and denied the
variance applications2
16. By letter dated April 16, 1999, the City issued a Notice of Violation
to Midwest regarding the Vandalia sign. The notice stated that adverse action
was recommended because the Vandalia sign was not built in compliance with
its permit and because Midwest had not appealed the City Counci{'s denial of its
variance requesf or removed the sign 2 The notice of violation was the first
action the Cify had taken in regard to the Vandalia sign since its April 28, 1997
letter.
17. By letter dated Apri{ 30, 1999, counsel for Midwest responded to
the City's Notice of Violation by asserting that the Vandalia sign was constructed
in accordance with the permit and contending that the amendment to section
66.214(g) was inappiicable to the Vandalia sign. Counsei for Midwest requested
reconsideration of the decision to seek adverse action against MidwesYs license
and requested an evidentiary hearing before an Administrative Law Judge.
18. Upon fearning fhat DeLite had purchased the assets of Midwest in
July 1999, the City notified counsel by letter dated July 28, 1999, that it would
request that the administrative hearing fhat had been scheduled in regard to the
adverse action against Midwest be canceled 2
19. By letter dated July 30, 1999, the City notified DeL'+te that the
Vandalia sign was constructed in violation of the terms of the permit and thus
was an illegal structure that had to be removed with 30 days of the notice. By
letter dafed August 9, 1999, DeLite responded that the Vandalia sign was
m
21 City Ex 6.
Z ' St. Pauf Leg. Code § 66.214 (h), (d).
23 Remes testimony.
24 City Ex. 7, p. 8; DeLite Exs. 8, p. 6, and 9.
zs Id, at p. 9.
z6 City Ex 8.
27 Remes testimony; see aiso City Ex. 5.
Z$ Delite Ex. 11.
� City Ex. 9; DeLite Exs. 13-14.
3o City Ex. 10.
5
o► ��c�
properly constructed in accordance with the ordinances in effect at the time of
consfruction 3
20. Beginning in approximately August 1999, then-counsel for DeLite
began to engage in discussions with the St. Paul City Council regarding a
number of issues, including the Vandalia sign 3 The City Council encouraged
DeLite to submit a formal proposai to the City that wouid inciude a sesolution of
the Vandalia sign issue. Counsel for DeLite also met with Wendy Lane, Zoning
Manager for LEIP, and other City sfaff regarding the Vandalia sign. City staff told
DeLite counsel=.to submit a variance request. Neither the City Council nor City
staff informed DeLite that the Vandalia sign issue could not be resolved because
Midwest had not appealed the denial of fts variance application or raise any issue
as to whether DeLite could file an appeal based on the April 16, 1999, letter. City
staff instead fold counsei for DeLite that a proposal to the City Council was the
appropriate way to resolve the issue.
21. By letter dated September 2, 1999, DeLite informed LIEP that it had
been meeting with members of the City Council regarding a proposal to resolve
the height +ssues re{ating to the Vandalia sign and asked that the City defer
taking any action relating to the sign until the City Council had provided a
definitive response to the DeLite proposal.
22. On October 8, 1999, DeLite submitted a variance application that,
among other things, requested a 25-foot variance to the Vandalia sign for a total
height of 102 feet above grade. DeLiEe also submitted a proposal to the City
offering to take down numerous bi((board faces in exchange for approval of the
Vandalia variance and other variances and issuance of new sign permits.
23. By letter dated March 9, 2000, LEIP notified DeLite that the
Vandalia sign must be removed because it was constructed in violation of the
origina{ buifding permit. The letter noted that DeLite had been given additionai
time in order to apply t6 the City Councii to lift the exisfing adver#ising sign
moratorium, amend the new special sign district, and seek a height variance from
the Planning Commission, but that effort had been unsuccessful. Accordingly,
LIEP indicated that DeLite was ordered to remove the Vandalia sign within 30
days. By letter dated March 17, 2000, DeLite responded that it disagreed with
the City's contention that the sign was illegal and stated that it would not
dismantle the sign 4 Sy {etter dated April 10, 2000, LIEP reiterated its position
" DeLite Ex. 16.
32 Peter Coyle of Larkin, Hoffman, paly & Lindgren, Ltd.
3a Coyle testimany; City Ex. 14.
34 Coyle testimony.
as �
36 City Ex. 14.
37 Id.; DeLite Ex. 18.
' Testimony of Coyle.
39 City Ex. 11.
ao City Ex. 12.
0
QI �'�
that the sign
consider the
taking action
removed 4
was out of compliance and that the City Council had declined to
variance request. LEIP further,stated that the City would consider
against Detite's business ficense if the Vandalia sign was not
24. By IetEer dated March 14, 2000, Henry D. Nelson, RLS, of
McCombs Frank Roos Associates, Inc., informed DeLite that the distance from
top of the concrete base of the Vandalia sign to the top of the sign is 58.8 feet;
the distance from the top of the sign to fhe top of the bituminous at the center of
the exit ramp_ opposite the sign is 36.3 feet; and the distance from the top of the
sign to the top of the sidewalk on the bridge over the railroad track is 35.2 feet 4Z
25. DeLite also asked the survey�or to check the height of a sign owned
by Infinity (hereinafter "the Infinity sign') which is located immediately west of
the Vandalia sign 4 The survey showed the Infinity sign to be 80.2 feet from
base of sign grade to top of sign. The infinity sign's height from the adjacent I-94
exit ramp was assessed at 65.6 feet
. 26. On March 25, 1987, the Cify issued a permit to Infinity to buiid the
Infinity sign. The permit approved the height of the sign at 50 feet above average
grade 4 There is no City ordinance that permits height measurement based
upon average grade 4 There was no evidence presented at the hearing that the
City has notified Infinity that its sign does not conform with City height
restrictions, has directed infinity to remove the sign, or has proposed to take
adverse action against Infinity's license.
Pierce Butler Sign
27. On March 9, 2000, LEIP sent a memorandum to sign companies
licensed by the City for advertising sign construction. The memorandum stated
in its entirety:
Based on a recent court decision, a permit will now be required for
changing or replacing any advertising sign panei within the City of
Saint Paul. It was determined that we were incorrect when we did
not require a building permit for the replacement of sign panels
damaged during a wind storm. The only typ
without a permit is for changing the advertising
the paneis of a billboard.
" City Ex. 13.
4z DeLite Ex. 21.
a ' DeLite Ex 24.
°' Radermacher testimony.
a5 DeLite Ex. 25; Testimony of Radermacher.
°' DeLite Ex. 26.
47 Radermacher testimony.
°d City Ex. 15.
e of work allowed
content placed on
O l �'K�
The City's March 9, 2000, notice did not mention § 33.03 of the St. Paul
Legislative Code or clarify whether the notice altered the facf thaf § 33.03(a) did
not require a permit for repairs costing $300 or less 4 Moreover, no
amendments were made to City ordinances to render them consistent with fhe
March 9, 2000, memorandum 5
28. The City issued the March 9, 2000, nofice in response fo a court
case that held the City had misinterpreted St. Paul Legislative Code § 66.405
as not requiring a permit when the panels of a billboard are changed or replaced
as a result of storm damage 5a
29. At some point between March 9 and May 18, 2000, the Pierce
Butier sign sustained damage in a storm. The sign panel became partially
detached from the sign frame.
30. DeLite contracted with Liftec Sign and Crane Company to repair the
Pierce Butler sign. Liftec repaired the sign by rehanging the sign panel and
securing it to the post in its proper position. No sign boards were replaced.
Liftec submiited a bill for services totaling $185. The billboard's advertising
content was not changed durin� the repair 5 DeLite did not obtain a permit to
have Liftec make these repairs.
31. By letter dated May 18, 2000, the City notified DeLite that its repair
to the Pierce Butler sign necessitated a permit in accordance with the March 9,
20Q0, notice as DeLite had "replace[d] the sign face panel." The City included
the failure to obtain a permit for the Pierce Butler sign repair in the November 29,
2000, notice of violation to DeLite.
Procedural Findings
32. On November 29, 2000, the City sent DeLife a Notice of Violation in
regard to fhe Vandalia sign and the failure to obtain a permit in conjunction with
repairs to the Pierce Butler sign (discussed below). The Notice of Violation
requested that DeLite inform the City by December 8, 2000, whether it disputed
as !d.
so Testimony of Lane.
51 City Ex. 17 (Scenic Minnesota v. City of Saint Paul, No. C4-98-10951 (Second Judicial District,
Judge M. Michael Monahan, Oct. 20, 1999).
52 Section 66.405 provides in pertinent part: "Exemptions. The foliowing signs shall not require a
permit. These exemptions shall not be construed as relieving the owner of the sign from the
responsibility of its erection and maintenance, and its compliance with the provisions of this
chapter or any other law or ordinance reguiating the same. (1) The changing of the dispiay
surFace on a painted or printed sign only ..."
s ' Testimony of Lane.
54 City Exs. 18A, 18B, 18C.
ss Stipulation of parties; Radermacher testimony; City Exs. i9A, 19B.
sb Testimony of Lane.
57 City Ex. 16.
58 City Ex. 20.
0
o,-���
the facts as sef forth in the Nofice of Violation and wished to have an evidentiary
hearing before an Adminisfsative Law .ludge 59
33. By letter dafed December 7, 2000, DeLite notified the City that it
disagreed with the Cify's characterization of the facts relating to the iwo signs
and stated its belief that the Vandalia sign was constructed in conformity with
applicable City regulations in effect at fhe time and no permit was necessary wifh
respect to the Pierce Bufier sign.
34. By \ letter dated January 3, 2001, the City nofified DeLite thaf a
hearing would be he{d on danuary 30, 2001, to consider whether adverse action
should be taken against ifs sign contractors license based upon the alleged
height violation and improper failure to remove the Vandalia sign and the failure
to obtain a permit with respect to the repair of the Pierce Butler sign.
35. By Order of Administrafive Law Judge George A. Beck dated
January 25, 2001, the hearing in this matter was continued to March 8, 2001, in
order to aliow the Licensee to apply to Federal Court for an Order staying the
administrative proceeding. Because the Federal Court hearing on the
Licensee's motion for a restraining order and injunction staying the City's
enforcement proceedings did not occur until March 6, 2001, the parties agreed
that the hearing should be continued to April, 2001. By Order dated March 9,
2001, the Federal Court denied the motion for preliminary injunction. The
hearing proceeded on April 24, 2001.
Based upon the foregoing findings, the Administrative Law Judge makes
the foliowing:
CONCLUSIONS
1. The St. Paul City Council and the Administrative Law Judge have
jurisdiction in fhis matter pursuant to § 310.05 of the St. Paul Legislative Code.
and Minn. Stat. § 14.55.
2. Proper notice of the hearing was timely given. All relevant
substantive and proceduraf requirements of iaw or ruie have been fuifilled and,
therefore, the matter is properiy before the Administrative Law Judge.
s. The City bears the burden in this matter of proving by a
preponderance of the evidence that violations have occurred and adverse action
against the Licensee's business license is warranted.
59 City Ex. 20.
fi0 City Ex. 21.
6t City Ex. 22.
62 City Ex. 23.
63 City Ex. 24.
0
d 1-Py3
4. St. Paul Legisiative Code § 310.06(b)(6)(a) authorizes the City
Council to take adverse acfion against licensees if the licensee "has violated, or
performed any act which is a violation of, any of the provisions of these chapters
or of any statute, ordinance or regulation reasonably related fo the licensed
activity, regardless of whefher criminal charges have or have not been brought in
connection therewith:'
5. St. Paul Legislative Code § 33.03 (a) provides in pertinent part as
follows:
�
Permits--When required. (a) Building and genera! construction.
Permits for building or general construction are not required for
repairs for maintenance only or for minor alterations provided they
are not required under Section 106 of the 1997 Uniform Building
Code as adopted by the Minnesota State Building Code, this
chapter or other pertinent provisions of the Saint Paul Legislative
Code, and provided the cost of such repairs and minor alterations
does not exceed the present market value of three hundred dollars
($300.00).
6. St. Pau! Legislative Code § 66.201 provides that "[n]o person shali
place, erect or maintain a sign, nor shall a lessee or owner permit property under
his control to be used for such a sign, which does not conform to the fol{owing
requirements and without first obfaining the requisite permit for such sign."
Section 66.404 provides in pertinent part that app4ications for signs must be
submitted to the zoning administrator. Section 66.405 sets forth exemptions to
the permit requirement, including "[t]he changing of the display surface on_ a
painted or printed sign only .... [TJhis exemption shall apply only to poster
replacement and/or on-sife changes involving sign painfing elsewhere than
directly on a building."
7. St. Paui Legislative Code § 66.301 provides in pertinenf part: as
follows:
Intent. It is recognized that signs exist within the zoning districts
which were lawful before this chapter was enacted, which would be
prohibited, regulated or restricted under the terms of this chapter or
future amendments, It is fhe intent of this chapfsr fhat
nonconforming signs shaii not be enlarged upon, expanded or
- extended, nor be used as grounds for adding other signs or uses
prohibited elsewhere in the same district. it is further the intent of
this chapter to permit legal nonconforming signs existing on the
effective date of this chapter, or amendments thereto, to continue
as legal nonconforming signs. . . .
(Emphasis added.)
io
d 1 �y�
8. At the time the Vandalia sign was approved and built, Secfion
66.214(b) of the St. Paul Legislative Code provided, in pertinent part, fhat the
"height of advertising signs shali be regulated according to the functional
classification of the street along which the signs are placed ...." The maximum
height for al4 functiona{ street classifications specified in the ordinance was 37 '/z
feet.
9. At the time the Vandalia sign was approved and built, Section
66.214(g) of the Sf. Paul Legislafive Code provided in its entirety: "The height of
advertising sigrfs may be measured from grade or surface of the roadway,
whichever is higher." The ordinance did not state that the applicable roadway
was the roadway from which the sign was intended to be read.
10. Section 66.214(g) of the St. Paul Legislative Code was amended in
June of 1997 to state that "[s]urface of the roadway shall be the main bed of the
roadway, from which the sign is intended to be read, at the location of the sign"
and that "[t]he height shall not be measured from any entrance or exit ramps
associated with the roadway." These amendments may not properly be
retroactively applied to the Vandalia sign.
11. Section 66.407 of the St. Paul Legislative Code authorizes
inspections and reinspections of signs by the zoning administrator; indicates that
footing inspections may be required by the zoning administrator; provides thaf
signs containing electrical wiring shall be subject to the electrical code; and
provides that "[t]he zoning administrator may order the removal of any sign thaf is
not maintained in accordance with provisions of this chapter, provided he has
sent a letter specifying the grounds for remova{ to the permittee giving the latter
ten (10) days in which to appear before the zoning administrator to show cause
why the sign could not be removed."
12. DeLite (as MidwesYs successor in interest) did not violate St. Paul
Legislative Code § 66.214(g} as it existed prior to the Sune 1897 arnendment by
measuring the height of the Vandalia sign from the surface of the exit ramp. The
ordinance was ambiguous concerning the roadway from which the measurement
should be made, and the City did nat prove by a preponderance of the evidence
that it had a longstanding practice that sign height could not be measured from
an exit ramp.
13. DeLite is not collaterally esfopped, by virtue of Midwest's inaction,
from contesting the City's violation notices regarding the Vandalia sign or its
proposal to take adverse action against DeLite's license based in part upon
alieged ordinance violations relating to the Vandalia sign.
14. Because DeLite did not violate the terms of ifs permit or St. Paul
Legislative Code § 66.214(g), its failure to remove the Vandalia biliboard is not a
violation of St. Paul Legislative Code § 66.407. Further, no adverse action is
warranted under St. Paul Legislative Code § 310.06 (b)(6)(a).
11
a►-��
15. DeLite did not violate any provision of the St. Paul Legisiative Code
when it repaired the Pierce Buf(er sign without a permit, since the total cost of the
repairwas only $185.
16. Because DeLite's failure to obtain a permit prior to reattaching the
sign panels was consisfent with St. Paul Legislafive Code § 33.03 (a) and did not
violafe St. Paui Legislative Code §§ 66.201, 66.404 and 66.405 or any other
Code provision, no adverse action is warranfed against DeLite's license under St_
Paul Legisiative_Code § 310.06 (b)(6)(a).
Y
, �
17. These Conclusions are reached for the reasons discussed in the
attached Memorandum, which is hereby incorporated by reference in these
Conclusions.
Based upon the foregoing Findings and Concl�sions, and for the reasons
set forth in the attached Memorandum, the Administrative Law Judge makes the
following:
RECOMMENDATION
IT IS HEREBY RECOMMENDED: that the City Council not take adverse
action against the business license held by DeLite Outdoor Advertising, Inc., with
respect to the Vandalia andlor Pierce Butler signs.
Dated: June 6, 2001.
�1� L . �ci..Q 5-�-,., -
BARBARA L. NEILSON
Administrative Law Judge
NOTICE
The City Council is respectfully requested to send its final decision to the
Adminisfrative Law Judge by first class maii.
Reported: Tape Recorded (no transcript prepared).
MEMORANDUM
The City contends that adverse action should be taken against DeLite's
sign contractor's license on the grounds that (1) the Vandalia billboard was built
in violation of the permit and height restrictions conta+ned fn the St. Paul
Legislafive Code and DeLite has failed to remove the sign despife orders to do
so in violation of St. Paul Legisiative Code §66.407(d), and (2) DeLite's repair of
a sign face on the Pierce Bufler billboard without first obtaining a permit
tz
O � -a�y�
constituted a violation of sections 66.209, 66.404, and 66.405 of the St. Paul
Legislative Code and was aiso done after all licensed sign companies had been
advised that such permits were necessary. The City thus contends that adverse
action against DeLite's license is warranted under St. Paul Legislative Code
310.06(b)(6)(a). Specificalfy, the Gity urges fhat DeLite's license be suspended
until the Vandalia sign is removed and it applies for a permit regarding the Pierce
Butler sign.
Vandalia Sign
<
As a threshold mafter, the City contends that DeLite is foreclosed from
arguing that the Vandalia sign does not violate the permit and height restrictions
because its predecessor in interest, Midwest Outdoor Advertising, did not appeal
in a timely fashion the Cify's determination that the sign was built illegaily. In this
regard, the City asserts that its Apri4 28, 1997, fetter to Midwest stated that the
determination that the sign was build illegaily could be appealed to the Pianning
Commission pursuant to St. Paul Legislative Code § 66.408. That Code
provision specifies that any person affected by a decision of the zoning
administrator may appeal the decision to the planning commission within thirty
calendar days o4 the decision. Midwest did not appeal the determination that the
Vandalia sign was not in conformify with the permit and ordinance requirements
and also did not appeal the City Council's later denial of a variance to replace the
Vandalia sign with a different sign.
The Administrative �aw Judge is not persuaded by the City's argument.
First, the April 28, 1997, letter sent to Midwest by LIEP (City Ex. 5) did not clearly
and unequivocaliy announce that the City had made a determinafion regarding
the sign that was immediately subject to appeal. Instead, while noting that the
sign was foo tall, the lefter proceeded to notify Midwest of the variance procedure
and simply stated that "ja]ny decision we make regard'rng the sign ordinance is
subject to an appeal before the Planning Commission as specified in Section
66.408" (emphasis added). The letter did not inciude any further discussion of
the time limits for filing an appeal. Thus, it appears from a fair reading of the
letter that LIEP was simply informing Midwest that any decision the City
ultimafely made regarding the sign woufd be subject to appeai. Accordingiy, the
letter did not properly trigger the running of an appeal period for Midwesf.
Moreover, even if the Aprii 28, 1997, letter coufd be viewed as an
administrative ruling that was subject to appeal, the doctrine of collateral estoppel
does not properly apply here. It is well-established that a party is collateralfy
estopped from chailenging a prior administrative agency decision if: (1) the
issue to be preciuded is identical to the issue raised in a prior agency
adjudication; (2) the issue was necessary to the agency adjudication and
properly before the agency; (3) the agency determination was a final
adjudication subject to judicial review; (3) the estopped party was a party or in
privity with a party to the prior agency determination; and (4) the estopped party
13
d i ,�u�
was given a fuli and fair opportunity to be heard on fhe adjudicated issue.� The
most important factor influencing whether the agency decision is entit{ed to
collateral estoppel effect is whether the agency acted in a judiciai or quasi-judicial
capacity.
While the arguments raised by the Cify against Midwest with respect to
the Vandalia sign are identical to those presented in the current adverse
licensing action against DeLite, none of the other collateral estoppel elements
are met in this case. There was no prior agency "adjudication" or final judgment
on the merits; CfeLite was not a party in 1997 or in privity with Midwest at that
time; and DeLite has never previously been given a full and fair opportunity to be
heard on the issue. Under these circumstances, it wouid violate due process
principles if DeLite were precluded from challenging the underlying basis for fhe
City's current adverse licensing action. In addition, the fact that the City waited
two years before issuing a Notice of Violation to Midwest and also met with
DeLite and permitted DeLite to make proposals to the City to resolve the matter
before issuing a Notice of Violation to DeLite supports the view that the City did
not act as though either Midwest or DeLite were estopped from contesting the
City's notices or were otherwise foreciosed from mounting any chailenge to the
City's position that the sign violated the permit or ordinances. Thus, it was
appropriate to allow DeLite to present evidence in this proceeding that the
Vandalia sign did not, in actuality, violate the permit or City ordinances.
With respect to the Vandalia sign, it is necessary to consider which
ordinance to appfy—the ordinance in eifect at the time the permit to build the
Vandalia sign was issued and the sign was built, or the later amended ordinance
that the City asserts merely codified a fong-standing interpretation of the exist�rrg
ordinance by zoning staff. The ordinance in effect at the time that the Vandalia
sign was approved and built merely provided that "[t]he height of advertising
signs may be measured from grade or surface of the roadway, whichever is
higher." In the context of the present situation, where a sign is located near a
freeway and an exit ramp, this ordinance language is unclear concerning which
of these roadways is to serve as the point from which the height must be
measured. The amendment to the ordinance in June, 1997, expiicitiy stated that
"[s]urface of the roadway shall be the main bed of the roadway, from which the
sign is intended to be read, at the location of the sign" and that "[t]he height shall
not be measured from any entrance or exit ramps associated with the roadway."
However, it is evident under Section 66.301 of the St. Paui Legislative Code that
this amendment may not properly be retroactively applied to the Vandalia sign.
Section 66.301 declares that it is the intent of the zoning chapter "to permit legai
�` Graham v. Special Schoo/ District No. 1, 472 N.W.2d 114, 116 (Minn. 1991).
bs AFSCME Counci196 v. Arrowhead Regional Corrections Bd., 356 N.W.2d 295 (Minn. 1984).
14
Ol- �q1
nonconforming signs existing on the effective date of this chapter, or
amendments fhereto, to continue as fegaf nonconfosming signs. .,."
Because it is noY appropriate to apply the amendment, the issue becomes
whether the prlor version of the ordinance was interpreted in a long-standing and
consistent way to require measurement from the roadway from which the sign
was intended to be read rather than from an exit ramp. An agency's
interpretation of a statufe or ordinance is entitied to some deference when "(1)
the statutory language is technical in nafure, and (2) the agency's interpretation
is one of long-standing application." Mr. Hardwick merely testified that fhe
ordinance was amended to clarify the City's posifion and what it had been doing,
and further stated that this was not the first time fhe height ordinance had been
interpreted in this fashion and nothing done by the City here was inconsistent
with prior interpretations. This evidence does not, in the view of the
Administrative Law Judge, rise to the level of proof of a longstanding and
consistent past practice on the part of the City. The fact that the City inspectors
apparentiy approved the Vandalia sign on two occasions during its construction
undermines the City's assertion that it has consistently interpreted the ordinance
to require comparison with the roadway from which the sign is meant to be
viewed.
It is also significant that the City apparently has not consistently or
uniformly applied its interpretation of the height ordinance to other sign
contractors. For example, the Cify did not refute evidence offered by DeLite at
the hearing showing that the lnfinity outdoor sign located to the west of DeLite's
Vandalia sign is over 80 feet tali from base to top of the sign and over 65 feet tall
from the surface of the roadway of the I-94 entrance ramp to the top of the sigFl.-
There is no evidence that the City has requested that the infinity sign be removed
or that the City has taken any adverse action against Infinity's license even
though this sign reflects a more egregious vioiation of the Cify's height ordinance
than the Vandalia sign owned by DeLite. Thus, fhere was no persuasive
evidence presented at the hearing demonstrating that the City had a iong-
standing practice prior to the 1997 amendment of requiring that the "surface of
the roadway' from which the height must be measured be only the roadway from
which the sign is intended to be read or fhat the City required that entrance and
exit ramps be excluded from consideration.
, �(Emphasis added.) It is also consistent with general principles of statutory construction that a
law shoufd not be construed to 6e retroactive "unless ciear{y and manifestly so intended by the
legislature." Minn. Stat. § 645.21.
6 ' Hibbing Education Association v. Public Employment Relations Board, 369 N.W.2d 527, 529
(�Minn. 1985}.
a In addition, the permit issued for the Infinity sign approved construction of a sign "50 feet
above average grade" despite any reference to "average grade" in the ordinance.
69 The Administrative Law Judge is not persuaded that the exclusion of exit and entrance ramps
in another portion of the zoning ordinance (section 66214(b), relating to.spacing of signs) or the
mention in that ordinance that spacing of signs is determined in pa�t by the classification of the
street from which the sign is intended to be read is sufficient to justify the same interpretation of
the height ordinance. _
15
0 � -d'Y.�
Pursuanf to Frank's Nursery Sales, Inc. v. City of Roseville, where a
zoning osdinance is ambiguous, weight must be given "to the interpretation ihat,
while still within the confines of the term, is least restrictive upon the righfs of the
property owner to use his land as he wishes." Construing the ordinance in favor
of the property owner, consisfent with the Frank's Nursery case, the
Adminisfrative Law Judge concludes that the sign shouid be allowed under fhe
ordinance if the top of the sign is 37.5 feet or less firom the surface of the I-94 exit
ramp, and should be allowed under the permif if the fop of the sign is 37 feet or
less from the surface of the exit ramp. Because the most recent survey
established that the top of the sign is 36.3 feet above the surtace of the exit
ramp, the Administrative Law Judge concludes that the Vandalia sign conforms
to both the permit and the ordinance that was then in effecf.
Pierce Butler Sign
With respect to the Pierce Butier sign, the City emphasizes that it senf all
sign contractors a memorandum in March, 2000, informing them that, in
accordance with a recent court decision, permits would now be required for
"changing or replacing any advertising panel wifhin the City oF Saint Paul" and
that "[t]he only type of work ailowed withouf a permit is for changing the
advertising content placed on the panels of a billboard." The Cify further
contends that the provisions of the St. Paui Legislative Code relating to signs
require permits to be obtained for the type of work performed on the Pierce Butler �
sign, and thus argues that the btsilding perm+t axception for repairs of less than
$300 does not apply. The City asserts that section 66.201 provides that "[n]o
person shall .., maintain a sign ... without first obtaining the requisite permit"
and emphasizes that section 66.405, which specifies exemptions to the permit
requirement, only exempts the changing of the display surface on a painted or
printed sign. Because the repairs to fhe Pierce Butler sign did not invoive oniy a
change of dispiay surface, the City_ contends fhat a permit was, in fact, required.
The Administrative Law Judge is unable to conciude that St. Paul
Legislative Code §§ 66.201 and 66.405 cieariy require that a permit be obtained
before reattaching a sign panel. Section 66.201 merely provides that "[n]o
person shall place, erect or maintain a sign ... which does not conform to fhe
following requirements and without first obfaining the requisite permit for such
sign."�� There is no contention that DeLite did not obtain the appropriate initial
permit for the Pierce Butler sign. This provision does not address the need to
obtain a permit for maintenance or repair. Moreover, section 66.201(3) requires
that "[a]II signs which are unsafe and(or unsightiy shall be repaired or removed"
but is silent concerning the need to obtain any permit to make a repair, thereby
giving rise to an argumenf that DeLite had an obligation to repair the sign once it
became damaged. Finally, although section 66.405(1) arguably could be
70 295 N.W.2d 604, 608 (Minn. 1980).
" (Emphasis added).
iG.
a � -f'�3
construed to require that a permit be obtained for all work on signs that does not
involve fhe changing of the display surface or "poster replacement," if is far from
ciear on this point. As noted by Judge Monahan in the District Court decision
that led to the issuance of the March, 2000, memorandum by fhe City, it appears
that "the distincfion made by [section 66.405(1)j is between changing fhe
advertising content to be piaced on the panels of a biliboard and changing or
replacing the panels themselves. The first is permitted without a permit, The
second constitutes a renovation of the biliboard and requires a permit." Because
DeLite did not change or repiace the sign paneis but merely reattached the
existing undam�ged sign panel to the sign support structure, it is understandable
that DeLite would not believe it was necessary under Chapter 66 of the Code to
obtain a permit.
In addition, the March, 2000, memorandum did not clearly require DeLite
to obtain a permit for the type of work pertormed with respect to the Pierce 8utfer
sign. The March 9, 2000, memorandum initialiy stated that permits were
necessary for "changing or repiacing any advertising sign panel"—a situation that
was not involved with respect to the Pierce Butler sign. Aithough the
memorandum thereafter stated that the only type of work for which a permit
would not be required �,�ras for "changing advertising content placed on the paneis
of a biliboard," it did not make any reference to the exception for repairs costing
less than $300 made in section 33.03(a) of the St. Paul Legislative Code or state
that section 33.03(a) would be revised to be consistent with the memorandum.
Under tHese circumstances, it was not unreasonable or clearly inappropriate for
DeLite's to assume that its $185 repa+r to the Pierce Butler sign did not require a
building permit. Under these circumstances, the Administrative Law Judge
concludes that DeLite's failure to obtain a permit did not violate City ordinanees
and should not be relied upon as a basis for adverse action against DeLite's
business license.
Accordingly, the Administrative Law Judge recommends that no adverse
action be taken against DeLite's Billboard and Sign license.
�
t�
CITY OF SAINT PAUL
Norm Colemnn, M¢yor
July 16, 2001
Ms. Nancy Anderson
Saint Paul Council Research
310 City HalUCounty Courthouse
15 West Kellogg Boulevazd
Saint Paul, MN 55102
OFFICE OF THE CITY ATTORNEY
Clayton M Robinson, Jr., Ciry Attorney Q� �
J
C�vilDivision
400 Ciry Haf1 Telephaxe: 65! ?668710
ISWUtKetloggBlvd. Facsimite:65/298-5619
Saint Paul, Minnerot¢ .i.il02
RE: In the Matter of the Sign Contractor's License held by DeLite Outdoor Advertising, Inc.
Council Hearing - July 25, 2001
Dear Ms. Anderson:
Enclosed for filing, and for inclusion in the agenda materials furnished to the Council in
connection with the hearing on the above-referenced matter, are the Written Exceptions of the
Office of LIEP to the ALJ's Report. A copy has been served by mail upon the attorney for the
licensee.
Sincerely, ��
��� �e�
Virgmia D. Palmer
Assistant City Attorney.
cc: Wendy Lane, Zoning Administrator, Office of LIEP
Gary Van Cleve, Attorney for DeLite, Larkin, Hoffrnan, Daly & Lindgren, Ltd., 7900
Xe�es Avenue South, Suite 1500, Bloomington, NIlV 55431-1194.
a►�y�
OFFICE OF ADIvIII�]ISTRATIVE HEARINGS
FOR TT� COUNCIL OF
THE CITY OF SAINT PAUL
In Re the License held by Delite
Outdoor Advertising, Ina WRITTEN EXCEPTIONS
Council Hearing: 7uly 25, 2��1
I. Recommendation of the ALJ.
The ALJ has recommended that the City Council not take any adverse action against the
license held by Delite Outdoor Advertising, Inc. for the reasons set forth in her Report dated June
6, 2001.
II. LIEP Position.
The Office of License, Inspections and Environmental Protection (LIEP) believes the
findings and conclusions reached by the ALJ are in enar and are not supported by the testimony
and evidence at the hearing. Specifically, LIEP believes that Delite Outdoor Advertising has
maintained the sign at I-94 and Vandalia despite orders to remove it after it was erected in
violation of the height restrictions of the Saint Paul zoning code for advertising signs by its
predecessor, Midwest Outdoor Advertising, Inc., and that they repaired a sign at 1651 Pierce
Butler Road without first obtaining the necessary permit to do so.
LIEP urges the City Council to adopt the amended or new Findings of Fact and
Conclusions of Law which aze attached hereto, and to suspend the Sign Contractor's license held
by Delite until such time as the sign at I-94 and Vandalia has been removed.
6\�/'J
III. Argument.
Sien at I-94 and Vandalia.
LIEP contends that the sign at I-94 and Vandalia was built both in violation of the pernut
and in violation of the height restrictions contained in the St. Paul Legislarive Code. The
billboard at I-94 and Vandalia was constructed by Midwest Outdoor Advertising pursuant to a
permit dated 2/25/97. The application for the permit indicates that Nlidwest intended to build a
free-standing 13.6' x 48' billboard , with a total display surface of 648'. The height states it will
be 37'. The Plan Review Remarks indicate that the permit was authorized upon informarion
that the sign would be 23' to the bottom of the sign and about 37' total height. The si� was
authorized to be 37' above the ground, and was actually built at 58' above the ground. Therefore,
it was in violation of the permit authorizing it.
Additionally, however, the sign was built in violation of the height restrictions of the
Code. Saint Paui Legislative Code §66.214(g) as it read at the time the permit was issued stated
that the height could be "measured from grade or surface of the roadway, whichever is higher."
LIEP advised Midwest in April of 1997 that the sign at I-94 and Vandalia was in violation of
§66.214(g), stating that the "surface of the roadway is the main roadbed of I-94, which appears to
be at a lower elevarion than the grade at the sign pole."
Both Midwest and Delite claimed that the ordinance in question had been amended after
this matter and that the amendment was therefore inapplicable. The City acknowledges that the
changes to Saint Paul Legislative Code §66.214(g) which now specifically states that entrance
and exit ramps shall not be used for measurement of height of a sign, occurred as a direct result
of this matter. Nonetheless, it is also clear that the change in question was only meant to codify
the long-standing interpretation of the existing code provision by zoning staff.
l�1-f�'J
The zoning ordinance in question, §66.214(g), is only one part of the ordinance
regulating the size ofbillboards. It is a basic rule of statutory construction that statutes must be
read and construed as a whole, in order to give effect to all parts and harmonize the provisions.
Anderson v. Amco Insurance Co. , 541 N.W.2d 8(Minn. Ct. App. 1996). Furthermore, a"zoning
ordinance must always be considered in light of its underlying policy." Frank's Nursery Sales,
Inc. v. City ofRoseville, 295 N.W.2d 604 (Minn. 1980)(citations omitted).
Saint Paul Legislative Code §66.214(b) sets for the permitted area, spacing and height of
advertising signs, and categorizes signs according to the functional classificarion of the street
along which the signs are placed. The two references to "roadway" in §66.214 of the ordinance
aze in subdivision( fl, relating to the measurement of spacing, and subdivision (g), relaring to
height. Thus it is a logical intezpretation that the "roadway" which controls the height
requirements of signs is the same as the "roadway" referenced immediately before, which
controls the spacing of signs. Furthermore, the longstanding interpretation of this provision by
staff has been that it was meant to refer to the roadway from which the sign was intended to be
read. "An agency's interpretation of the statutes it administers is entitled to deference and
should be upheld, absent a finding that it is in conflict with the express purpose of the Act and
the intention of the legislature." Geo. A. Hormel & Co. v. Asper, 428 N.W.2d 47, 50 (Minn.
1998).
The underlying purpose of §66.214 is to limit advertising signs based upon the atea in
which they aze located, and to minimize the impact of signs by restricting their size, height and
concentrarion. The I-94 and Vandalia sign is located next to several roadways, as aze many signs
in the City. Logically, the height restriction which permits measurement from either grade or
roadway surface is to allow a sign which can be read from the intended roadway even if it is
o�-��r.�
raised, but which is also limited to the masunum height allowed by ordinance. If signs were
allowed to be measured from any neazby roadway, this limitation on height would be ineffective,
and subject to manipulation. Here, by interpreting this section consistently with the other
subdivisions of the same section, it is the logical interpretation that the si� can be no higher than
37 feet from the roadway from which it is intended to be read. As such it violated the height
restrictions of the Code from the time it was built.
LIEP contends that Delite is estopped from arguing that the billboazd at I-94 and
Vandalia is illegal because Midwest never appealed that determination. Despite the ALJ's belief
that the City had not made a final determination that the sign was illegal, LIEP notified
MidwesYs president, Peter Remes, by letter dated Apri128, 1997 that the sign was not built in
accardance with the permit or the code, and that he could appeal pursuant to Saint Paul
Legislative Code §66.408. Midwest elected not to appeal that determination but to pursue other
solutions. Thus, there was a full and fair opportunity to be heard, which Midwest chose not to
pursue, and there was a finai agency determination to the extent that the Office of LIEP had
made their determination and Midwest elected not to appeal. Delite has stepped into the shoes
of Midwest by purchasing the assets of the company, including the disputed billboard. They
should not be permitted to reopen the determination of whether this billboard was illegal and are
bound by their predecessor in interesYs decision not to appeal.
The AL7 also contends in her memorandum that the City has not consistently or
uniformly applied its interpretation of the height ordinance, citing evidence of a permit issued in
1987 to Signcrafter's Outdoor Display, Inc., refened to as the "Infinity" sign in her
memorandum. However, there was no evidence presented that the City was aware that any
violation existed, if one does, prior to the testimony at the hearing. Thus, her contention that the
v � -��
City ignored other violations is simply in error.
Pierce Butler Si�
The ALJ incorrecfly determined that there had been no violation of the ordinance
provisions when DeLite zeattached a sign face which had sustained damage during a storm,
without first obtaining a permit to make the repair. She relied upon Saint Paul Legisiative Code
§33.03, dealing with building codes. That section does not require permits if the cost of the
repair or alteration does not exceed $300.
Section 33_03 states, however, that "[p]ermits for building or general construction are not
required for repairs for maintenance only or for minor alterations provided they aze not required
under.....or other pertinent provisions of the Saint Paul Leeislative Code, and provided the cost of
such repairs and minar alterarions does not exceed the present market value of three hundred
dollazs." (Emphasis added). The problem with relying upon this section of The Code is that
another section of the Legislative Code does require permits, and therefore this exception does
not apply.
Section §66.201 provides that "[n]o person shall..maintain a sign...without first obtaining
the requisite perxnit." Section 66.405 contains the exemptions to the permit requirement, and
section (1) exempts only the changing of the display surface on a painted or printed sign.
Furthermore, Wendy Lane had sent a memo to every sign company doing business in Saint Paul,
including Delite, informing them that they would need to obtain permits for any work done on
signs except for the changing of advertising copy. It is clear from the photographs that the
repairs done to the sign at 1651 Pierce Butler Route did not involve only change of display
surface, and therefore a permit was required. Failure to obtain such a permit was a violation of
the provisions of the Code and is basis for adverse action against the sign contractor's license.
tl�_ly)
�Y����i�r_�:s�
For all of the foregoing reasons, the Office of LIEP urges the Council to adopt the
amended Findings of Fact and Conclusions which haue been submitted, and determine that in
failing to comply with orders to remove the sign at I-94 and Vandalia and to obtain a permit to
do repair work on the sign at Pierce Butler Route that Delite Outdoor Advertising has violated
code provisions related to its business license and adverse action is appropriate in this instance.
Dated this 16`� day of July, 2001.
����� ���
Virginia D. almer (Atty. Reg. 128995)
Assistant City Attomey
400 City HalUCounty Courthouse
15 W. Kellogg Boulevard
Saint Paul, Ml� 55102
(612)266-8710
Atttomey for the Office of LIEP __
�1-F�1�
PROPOSED AMENDEA FINDINGS OF FACT
5. On February 21, 1997, Midwest filed a revised permit applicarion seekin� to construct a
lazger sign at the I-94 and Vandalia location (hereinafter referred to as the "Vandalia si�"),
using non-conforming sign credits it had accumulated. Midwest indicated on its application that
the sign was to be 13'6" wide, 48' long, and 37' above gzade. (The words "above �ade" were
already included on the preprinted application form.) The revised permit application submitted
by Midwest was approved by �E� LIEP on February 25, 1997. The pemut contains Plan
Review Remarks which indicated that the pernut was authorized upon information that the si�n
would be 23' to the bottom of the si�n and about 37' total height.
10. Midwest request that a survey be conducted showing the relationship of the Midwest
billboazd and the right-of-way of I-94. The property was surveyed on March 17, 1997. The
survey . ,
. ,
�69�6- was conducted to show the placement of the billboard with res�ect to the railroad
prop and Citv rieht-of-wav in response to a question about the placement of the sian, and was
submitted prior to the issue of the height of the sien beinQ raised.
15. On August 8, 1997, the St. Paul Planning Commission approved the variance applications of
Midwest and Universal. The Saint Anthony Park Community Councii filed an appeal of the
Planning Commissions's determination, and the St. Paul City Council ultimately reversed the
Commassion and denied the variance applications. In the Resolution reversine the �rant of a
variance, the Citv Council twice referenced the fact that the existins Midwest sign at I-94 and
Vandalia was built in violation of the permit and was 21 feet hieher than �ermitted. This
decision was never appealed bv Midwest or Universal.
16. By letter dated April 16, 1999, the City issued a Notice of Violation to Midwest regazding
the Vandalia sign. The notice stated that adverse action was recommended because the Vandalia
sign was not built in compliance with its permit and because Midwest had not appealed the City
Council denial of its variance request or moved its sign. T' --'=-_ _r..: _,_.: __ __.__ .L _ �_ .
. The notice
of violation followed a Februarv 1999 letter from Jol�n Hardwick to Midwest Outdoor
Advertising advisingthem that the sien needed to be removed .
20. Beginning in approximately August 1999, then-counsel fro DeLite began to engage in
discussions with the St. Paul City Council regarding a number of issues, including the Vandalia
sign. DeLite was told that thev could te submit a formal proposal to the
City Council''-°� __.,...,a :_,.,,.a_ __,.__,...:,._ _rproposin a way of Ie2alizing the Vandalia si�n
iss�e. Counsel for DeLite also met with Wendy Lane, Zoning Manager for �� LIEP , and
other City staff regarding the Vandalia sign. City staff told DeLite counsel `- -��`—=` __.,,� �_ _.
� that among other thinQS that would be necessary to legalize the si2n was a variance.
There had also been chanQes to the sien ordinance includint the establishment of a s ecp ial si�n
district and a moratorium which would need to be addressed.
Q�_Fy�
. At no time was DeLite informed that thev could
appeal the determination that the sisn was built in violation of the hei�ht restrictions and in
violarion of the permit. City staff instead told counsel for DeLite that a proposal to the City
Council was the appropriate way to resolve the issue.
22. On October 8, 1999, DeLite submitted a variance applicarion that, ,
�egt�este� included a request for a 25-foot variance to the Vandalia sien for a total height of 102
feet above e� as well as one other variance, two new freewav siens and issuance of rivo new
sisn oermits in exchan�e for talfl� down other billboards throughout the City
. The
Citv Council declined to approve the proposal•
26. At the hearine, DeLite offered testimonv that Aon Mazch 25, 1987, the City issued a permit
to Infinity Lthe permit was actuallv issued to Signcrafters Outdoor Displav, Inc.] to build what
DeLite referred to as the Infinity sign. The permit approved the height of the sign at 50 feet
above average grade.
. -
,
, ' . There was no evidence
roresented at the hearin� reeardins any of the circumstances surroundine the issuance of the
permit, nor was there any evidence that the LIEP office was aware of a complaint that the sien
was erected in violation of the Code until the dav of the hearine.
27. On March 9, 2000, �EH� LIEP sent a memorandum to sign companies licensed by the City
for advertsiing sign construction. DeLite was one of the companies which received a cogv of the
memorandum. The memorandum stated in its entirety:
Based on a recent court decision, a permit will now be required for
changing or replacing any advertising sign panel within the City of
Saint Paul. It was deterxnined that we were incorrect when we did
not require a building permit for the replacement of sign panels
damaged during a wwind storxn. The only type of work allowed
without a permit is for changing the advertising content placed on
the panels of a billboard.
The City's March 9, 2000, notice did not mention §33.03 of the St. Paul Legislative Code s�
___�.L aL . T f....,.L � ���� __ _� _�.._ a_.W nor did it refer to 566.201. It did cleazl�state
that the only t�pe of work which would not need a permit as of March 9, 2000 was the chan��ng
of the advertising sien content. Delite never called Ms. Lane to ask for clarification of the
memorandum.
41-F`!�
PROPOSED AMENDED CONCLUSIONS
9. At the time the Vandalia sign was approved and build, Section 66.214(g) of the St. Paul
Legislarive Code provided in its entirety: "The height of advertising signs may be measured from
grade or surface of the roadway, whichever is higher." The ordinance did not state that the
applicable roadway was the roadway from wYrich the si� was intended to be read but LIEP's
contention that this was the longstanding interpretation of the Code provision was unchallenaed
at the hearine and was supported by comments from the Plannin¢ Commission at the time the
section was amended and in the Planning Commission Resolution (File #97-561 addressine the
joint variance request of Midwest Outdoor Advertisin� and Universal Outdoor Advertisin�
10. Section 66.214(g) of the St. Paul Legislative Code was amended in June of 1997 to state that
"[s]urface of the roadway shall be the main bed of the roadway, from which the sign is intended
to be read, at the location of the sign" and that "[t]he height shall not be measured from any
entrance or exit ramps associated with the roadway." These amendments �xy�eE�eper�g�e
cod'afied the existine Citv staff interpretation of the
Code.
12. DeLite (as MidwesYs successor in interest) did � violate St. Paul Legislative Code
§66.214(g) as it existed prior to the June 1997 amendment by measuring the height of the
Vandalia sign from the surface of the exits ramp.
>
. The Citv's testimony that the lonestanding interpretation of that
section of �66.214(,_0l required measurement from the surface of the roadway from which the si�n
was intended to be read was supported in the record. __
13. DeLite is �teE collaterally estopped, by virtue of MidwesYs inaction, from contesting the
City's '
determination
that Midwest built the sien in violation of the heiPht restrictions of the Code, and in violation of -
the �erxnit, which was approved based upon the information that the sien would be a total of 37
feet in heieht above eround.
..-- -- `- - - - - - - - -- -- - - - -- - '- - - - - --
- - - - - - ---- - -- ---- - --- - - -- - - • -- - •- -- - -
--- -- �• --- -- -- - -- •- -- - --- -- -- • -- - - - ---
.._._
14. Because DeLite was advised that the billboard at I-94 and Vandalia was ille�al and needed
with the orders of the zonine administrator and are maintauun a si which is in violation of the
aoning code.
o � -d���
-- - - - -- - - - - -- •- - - --- -- -- -- --
. . -
-- - -- --- - - -- - -- - :- - - --
15. St. Paul Le¢islative Code §33.03(al which exem�ts repairs under �300 from rec�uirin,�a
buildin¢�ermit is inapplicable to this situation because St. Paul Le2islarive Code §§66.201 and
&66.405 are specific to sisns and supersede the eg neral provisions of the buildina code.
Therefore DeLite was required to applv for a�ermit to reattach the sign face for the dama e¢ done
to the Pierce Butler sim.
- • -- -- `- - - - - - - - - - ----- --- ------ -- -- - - - - - --
_ ,
-- - - -- - •- -- - - - --- • - --- - - -- - - - '- -- - - ---
-- • - .., - - - • - -- - -- --- - - -- -- -- - -- -- -- - ---- -
- - . -
`- •- • •-
- - - - - - - - - - ..........i,�v�v
16. DeLite failed to obtain a permit to repair the Pierce Butler sien des��ite the Mazch 2000
memo advisin all si n� companies that thev must obtain pernuts for any work done on si ns
except the replacement of advertisin� content. The reattachxnent of the siQn face, damaQed
durinQ the storm, did not involve the repiacement of advertisin� and did require a uermit•
Furthermore, it was done in disregard of the Zonine Admininstrator's memorandum that a�ermit
would be reauired.
�, C � �
� O��as, aoa\
La�r, HoNr�Arr, Da1.Y & Ln�mG�rr,
L�v.
ATTORNEYS AT LAW
GaryA Van Cieve
1500 W ELLS FARGO PLAZA
7900 XERXES AVENUE SOUTH
BLOOMINGTON, MINNESOTA 5543'I-1194
TELEPHONE(952)8353800
FAX (952) 8963333
July 19, 2001
Ms. Nancy Anderson
Saint Paul Council Research
310 City Ha1UCounty Courthouse
15 West Kellogg Boulevard
Saint Paul, MN 55102
��,,.r, �- 35
��_���
Dir. Dial: (952) 896-3277
E-mail: gvanGeve@Ihdl.com
r1 ..4 ` :P
..-s, �.�
����
��, �9�11
a�L �� '�
Re: In the Matter of the Sign contractor's License held by DeLite Outdoor Advertising, Inc.
Council E3earing — July 25, 2001
Dear Ms. Anderson:
Enciosed for filing, and for inclusion in the agenda materials furnished to the Council in connection with
the hearing on the abovexeferenced matter, are Licensee's Objections to LIEP's Written Exceptions and
Request to Adopt the Report of the ALJ. A copy has been served by mail upon the attorney for the
licensee.
V ery ly yours,
� �-�✓��
Gary�Van Cleve, for
LARKIN, HOFFMAN, DALY & LINDGREN, Ltd.
cc: Virginia P. Palmer, Assistant City Attorney
Cenified Civil Tri¢I Specialist by Board Certif:ed Civi! Tria1 Advocate Cert:feed Real Properry Specialist by
Minnesot¢ Smte B¢r Associatiors National Board af Trial Advocacy Minnesata State BarAssociation
� t�2��h CentPt
or�rcE oF aD�mv�sT�T� �ax�rGS � � � Zqp1
FOR THE COUNCIL OF TI� D� ��
CITY OF ST. PAUL
-----------------------------------------------------
In Re the License held by DeLite OAH No. 11-6020-14063-3 =
Outdoor Advertising, Inc.
LICENSEE'S OBJECTIOI�S
TO LIEP'S WRITTEN EXCEPTIONS
AND REQIIEST TO ADOPT THE
REPORT OF THE ALJ
INTRODUCTION
Licensee DeLite Outdoor Advertising, Ina ("DeLite") objects to the Written Exceptions
of the Office of License, Inspections and Environmental Pzotection ("LIEP") to the Report of the
Administrative Law Judge ("ALJ") and requests the City Council to adopt the AL7's Report in
its entirety. In a detailed and well-reasoned decision covering 17 pages and containing 35
Findings of Fact, 17 Conclusions and a five-page Memorandum, the ALJ concluded that (a)
DeLite's outdoor advertising sign at I-94 and Vandalia ("Vandalia sign") did not violate the
City's ambiguous pre-1997 sign height ordinance because the top of the sign is only 363 feet
above the surface of the adjacent exit ramp; and (b) DeLite did not violate any provision of the
St. Paul Legislative Code when it made a minor repair of its sign after a storm at 1651 Pierce
Butler Road ("Pierce Butler sign") by re-hanging the existing sign panel and securing it back in
its proper position for a repair cost of $185. DeLite respectfuliy requests the City Council to
adopt the Findings of Fact, Conclusions and Recommendation of the ALJ in their entirety
because the ALJ's decision is supported by the evidence and applicable principles of law.
ARGUMENT
� � �-�c�
I. TAE ADNIINISTRATIVE LAW JUDGE'S REPORT IS WELL-REASONED AND
SUPPORTED BY SUBSTANTIAL EVIDENCE AND T`HE LAW.
The ALJ's Report resoundingly rejects all the arguments of LIEP in support of its reed-
thin clauns against DeLite. LTEP claims that DeLite's Vandalia sign violates the City's pre-1997
sign height ordinance, but the AL7 properly concluded that the ordinance was ambiguous and
allowed the height to be measured from the adjacent exit ramp. LIEP further claims that DeLite
needed to obtain a permit to make a$185 repair to its Pierce Butler sign, which repair consisted
of re-hanging the existing sign panel after it became detached following a storm. LIEP's Written
Exceptions to the ALJ's Report ignore the we11-documented Findings and soundly-reasoned
Conclusions which inexorably led to the recommendarion that no adverse action be taken against
DeLite's busaness license. The ALJ correctly concluded that "the City bears the burden in tkus
matter of proving by a preponderance of the evidence that violations have occurred and adverse
action against the Lacensee's business license is warranted." Report at 9, Conciusion No. 3. The
evidence showed that the City failed to cany its burden of proof on either issue.
A. The ALJ Conec� Concluded that the Vandalia Si� Did Not Violate the Cit�
Sign Height Ordinance as that Ordinance Existed Prior to Amendment in June
1997.
The ALJ recognized that before the City's sign height ordinance was amended in June
1997, it ambiguously stated that the "height of signs may be measured from grade or surface of
roadway, whichever is higher." Code, § 66.214(g). The obvious axnbiguity is which "surface of
roadway" serves as a benchmark when there is more than one roadway in the vicinity of the
sign? LIEP azgued that it had a"longstanding interpretation" of this ordinance that required the
height to be measured from the roadway from which the sign was intended to be read. The ALJ
2.
��-r`�
correctly observed that "The ordinance did not state that the applicable roadway was the roadway
from which the sign was intended to be read." Report at 11, Conciusion No. 9.
The evidence showed that L1EP propounded and the City adopted au amendment in 7une
1997 to the above-quoted Code provision in direct response to the disagreement over the
Vandalia sign height and the ambiguity concerning which "surface of roadway" could serve as a
benchmark for determining a sign's height. The AL7 concluded, however, that the 7une 1997
amendment to Section 66.214(g) "may not properly be retroactively applied to the Vandalia
sign." Report at 14. This conclusion is supported by the City's own Code Section 66.301, which
the t1LJ noted "declares that it is the intent of the zoning chapter `to pemut legal nonconforming
signs existing on the effective date of this chapter or amendments thereto, to continue as legal
nonconforming signs ...."' Id. at 14-15 (emphasis in Report). Since the sign height ordinance
amendment followed the construction of the Vandalia sign, the express intent of the Code was to
allow the sign as a legal nonconforming sign in spite of the amendment. This conclusion is
further supported (as the ALJ noted) by general principles of statutory construction, which __
dictate that a law should not be construed to be retroactive "unless clearly and manifestiy so
intended by the legislature." Report at 15, n. 66 (quoting Minn. Stat. § 645.21).
Accordingly, the ALJ conectly concluded that
' DeLite ... did not violate St. Paul Legislafive Code § 66.214(g) as
it existed prior to the June 1997 amendment by measuring the
height of the Vandalia sign from the surface of the exit ramp. The
ordinance was ambiguous conceming the roadway from which the
measurement should be made, and the City did not prove by a
preponderance of the evidence that it had a longstanding practice
that sign height could not be measured from an exit ramp.
1 Indeed, LIEP never argued for retroacrive application of the amendment; instead relying on its
azgument that the amendment was merely a"clarification" of a"longstanding interpretation."
This azgument was rejected by the AI,J, as argued below.
3.
D � -��
Report at 11, Conclusion No. 12. As noted in the above-quoted conclusion, the ALJ found
LTEP's evidence of "longstanding practice" sorely lacking. The ALJ weighed conclusory
statements by LIEP's 3ohn Hardwick (which the AI,7 obviously did not find credible against
the undisputed facts that (a) City inspectors inspected and approved the Vandalia si�t on at least
rivo occasions; and (b) the City "has not consistently or uniformly applied its interpretation of the
height ordinance to other sign contractors: ' Report at 15. Evidence showed that an outdoor sign
immediately west of the Vandalia sign (the Infinity sign) "is over 80 feet tall from base to top of
the sign and over 65 feet tall from the surface of the roadway of the I-94 entrance ramp to the top
of the sign." Id. There was no evidence that the City has ever taken any adverse action against
the Infiruty sign, "even though this si� reflects a more egregious violation of the City's height
ordinance than the Vandalia sign." Id.
Finally, the ALJ properly applied principles of law established by the Minnesota
Supreme Court in concluding that the ambiguous sign height ordinance had to be read in a
manner least restrictive upon the rights of the private property owner—DeLite. __
Pursuant to Frank's Nursery, Inc. v. City ofRosevilZe, where a
zoning ordinance is ambiguous, weight must be given "to the
interpretation that, while still within the confines of the term, is
least restrictive upon the rights of the property owner to use his
land as he wishes." Construing the ordinance in favor of the
property owner ... the Administrative Law Judge concludes that
the sign should be allowed under the ordinance if the top of the .
sigp is 37.5 feet or less from the surface of the I-94 exit ramp, and
should be allowed under the perxnit if the top of the sign is 37 feet
or less from the surface of the exit ramp. Because the most recent
survey established that the top of the sign is 36.3 feet above the
surface of the exit ramp, the Admiriistrative Law Judge concludes
that the Vandalia sign conforms to both the pexxnit and the
ordinance that was then in effect.
Z Determinations of the credibility of wimesses by the ALJ aze entitled to weight by the
reviewing agency. First NaYl bank v. Dept. of Commerce, 245 N.W.2d 861, 865 (Minn. 1983).
�
D � , ��
Report at 16. Accordingly, the evidence and law support the ALJ's conclusion that the Vandalia
si� is legal.
B. The ALJ Correctiv Concluded that the Re-HanQinQ of the Existin� Sim Panel on
the Pierce Butler Sian at a Cost of $185 Did Not Require a Permit.
The ALJ rejected LIEP's contention that DeLite was required to obtain a pemut before it
reattached (not changed or replaced) an existing sign panel on the Pierce Butler sign that had
become detached in a wind storm. LTEP did not dispute that the cost of the repair was $185.
Assuming that the type of permit LIEP contends was required was a building permit, Section
33.03(a) of the St. Paul Legislative Code, concerning the need for building pernuts, expressly
exempts repairs costing less than $300 from the permit requirement. Id. (providing that building
permits aze not required "for repairs for maintenance only or for minor alterations ..." and
"provided the cost of such repairs and minor alterations does not exceed the present market value
of three hundred dollars").
LIEP relied on Sections 66.201 and 66.405 of the St. Paul Legislative Code for its
contenrion, but the AL7 concluded that neither section requires a permit under these
circumstances. As to Section 66.201, the ALJ correctly stated,
Section 66.201 merely provides that "[n]o person shall place, erect
or maintain a sign ... which does not conform to the following
requirements and without first obtauung the requisite permit for
such sign: ' There is not contention that DeLite did not obtain the
appropriate initial permit for the Pierce Butler sign. This provision
does not address the need to obtain a permit for maintenance or
repair.
3 LIEP's Wendy Lane, when asked what type of pernrit was needed by DeLite to make this
minor repair, said "thaYs a good question" and admitted this was unclear. This showed that not
even LIEP understood what its supposed regulation was concerning the need for permits for sign
repairs.
�
oi-��
Report at 16 (emphasis in original). The ALJ fiuther noted that one subparagraph of Section
66.201 actually imposed a duty on DeLite to repair the sign and, in so imposing that duty, failed
to state that a pernut was required for such a repair:
Section 66.201{3) requires that "[a]li signs which aze unsafe and/or
unsightly shall be repaired or removed" but is silent concerning the
need to obtain any pemut to make a repair, thereby giving rise to
an azgument that DeLite had an obligation to repair the sign once it
became damaged.
Id.
As to Section 66.405(1), the ALJ correctly concluded that this ordinance is "far from
cleaz" on whether a permit would be needed to make this minor repair. LIEP relied on a March
2000 memorandum it issued to sign owners in the City which made vague reference to a"recent
court decis3on" (without enclosing it) concerning Section 66.405(1) and asserted that some
unspecified type of permit was required "for changing or replacing any advertising sign panel
...." City Ex. 15. The ALJ analyzed the referenced court decision and noted that the judge
interpreted Section 66.405(1) to distinguish between changing advertising on the sign panel and
changing oz replacing the sign panel itsel£ "The first is permitted without a permit [and] [t]he
second constitutes a renovation of the billboard and requires a pernut " Report at 17. The AL3
stated that based upon this distinction, DeLite was not required to obtain a permit for the repair
because "DeLite did not change or replace the sign panels but merely reattached the e�sting
undamaged sign panel to the sign support structure." Id 4 The ALJ concluded that neither
LIEP's March 2000 memorandum, nor the referenced court decision required that DeLite obtain
a pernut before making the $185 repair.
° Lane admitted in her testunony that the ordinances should be amended to state clearly under
what circumstances a pemut would be required far work on outdoor signs and what type of
permit would be required.
Q
D�-�Y�
The March 9, 2000 memorandum initially stated that permits were
necessary for "changing or replacing any advertising sign panel"—
a situation that was not involved with respect to the Pierce Butler
sign. Although the memorandum thereafter stated that the only
type of work for which a permit would not be required was for
"changing advertising content placed on the panels of a billboard,"
it did not make any reference to the exception for repairs costing
less than $300 made in section 33.03(a) of the St. Paul I,egislative
Code or state that secrion 33.03(a) would be revised to be
consistent with the memorandum.
Id. For these reasons, the ALJ concluded that "Under these circumstances, it was not
unreasonable or clearly inappropriate for DeLite to assume that its $185 repair ... did not require
a permit " Id.
II.
C+:1
A. LIEP Has Failed to Show that the ALJ's Reoort is in Error in Any Respect
Concernina the Lack of Anv Heieht Violation of the Vandalia Si�n.
LIEP's Exceptions continue to argue "longstanding interpretation" in the face of
substantial evidence of past conduct by the City that was clearly inconsistent with its claimed
interpretation and the AL7's rejection of the conclusory statements of Hardwick.
In its Exceptions, LLEP impernussibly looks to the spacing ordinance (Section 66.214( fl)
for assistance in interpreting the ambiguous sign height ordinance. The ALJ properly rejected
this assertion:
The Administrative Law Judge is not persuaded that the exclusion
of exit and entrance ramps in another portion of the zoning
ordinance (section 66.214(b), relating to spacing of signs) or the
mention in that ordinance that spacing of signs is determined in
part by the classificarion of the street from which the sign is
intended to be read is sufficient to justify the same interpretation of
the height ordinance.
Report at 15, n. 69 (emphasis added). Indeed, this merely shows that when the City wished to
define more specifically "surface of roadwa}�', it lrnew how to do it—and failed to do so with
7.
0 t -�''��
respect to the sign height ordinance. Certainly the City's 1997 amendment to the sign height
ordinance to exclude exit and entrance ramps shows that even the City recognized the ambiguity
in the original ordinance and affirmarively acted to cure it. A recent Minnesota Court of Appeals
decision in connecrion with the City of Rochester outdoor sign ordinances rejects the same
reasoning that LIEP azgues here. DeLite Outdoor AdvertisinQ, Inc. v. Citv of Rochester (slip
opinion provided to ALJ and included as part of record). The court of appeals rejected the City
of Rochester's arguxnent that an ordinance which on its face allowed DeLite to replace a sign had
to be read in connection with all other city ordinance provisions, one of which, the city azgued,
would have prohibited the replacement of the sign. The couzt noted that no legislative history
supported such a reading of Rochester's ordinances. Similarly, LIEP here offer no credible
evidence and no legislative lustory of its interpretation of the sign height ordinance or that it
should be read together with the spacing ordinance.
LIEP clauns that its interpretation of the sign height ordinance is entitled to deference.
This misstates the proper legal standazd. As the ALT corrected stated, an agency interpretatio�a is
entitled to deference onlv where the language is technical and the agency can show a
longstanding and consistent agency interpretation. Report at 15, n. 67 (citing Hibbin¢ Education
Assn. V. Public Employment Relations Boazd, 369 N.W.2d 527, 529 (Nlinn. 1985)). LIEP failed
on both counts. The ordinance language at issue concerning height ("surface of roadwa}�') is
certainly not technical. Furthermore, the ALJ properly concluded that LIEP failed to carry its
burden of proving that there was any longstanding agency intexpretation consistent with its
claims and in the face of undisputed evidence of (a} prior inspection approvals of the Vandalia
sign and (b) non-enforcement of an even more egregious "violation" of the claimed longstanding
interpretation (the Infiiuty sign).
�
��Yv�
LIEP ara es in its Exceptions with respect to the I�ifinity si� that "there was no evidence
presented that the City was aware that any violation existed ...." Exceprions at 4. This is an
incredible assertion given the Iufiniry sign's proximity 1000 feet immediately west of and
adjacent to the Vandalia sign. LIEP has only itself to blame for any lack of proof. As noted
above, the burden of proof is on LIEP to establish the violations. Accordingly, it cannot rely on
an absence of proof to support its claims.
LIEP's Exceptions re-raise an estoppel Doument that was soundly rejected by the ALJ
because only one of four essential elements for proving estoppel was present here. Report at 14.
LIEP claims that its Apri127, 19971etter was a Notice of Violation from which DeLite's
predecessor, Midwest Outdoor Advertising, Inc. ("Midwest"), never appealed. But the ALJ
properly found that the language of the letter was decidedly unclear whether it was an action or
decision that was itself appealable: "it appears from a fair reading of the letter that LIEP was
simply infomung Midwest that any decision the City ultimately made regarding the sign would
be subject to appeal." Report at 13 (emphasis in Report).
This conclusion was further supported by the undisputed fact that rivo yeus passed
between the Apri127, 19971etter and the City's issuance of a Notice of Violation as to the
Vandalia sign on Apri116, 1999 (Ex. 8). During this two-year period, the evidence showed that
Midwest worked with another sign company to attempt to resolve differences and reach a
compromise solution on sign issues in this azea of the City. Midwest's president testified that he
was "shocked and surprised" when the City ultimately issued a Notice of Violation in 1999,
given that Midwest had taken down 20 signs to build the Vandalia sign. After DeLite acquired
5 The AI,J's finding was appropriate given the letter's statement that, "Any decision we make
regarding the sign ordinance is subject to an appeal ...." City Ex. 5(emphasis added). The clear
�
d 1-P�l�
all MidwesYs signs, DeLite made a comprehensive proposal to the City conceming all signs it
owned in the City. After the City rejected DeLite's proposal, another Notice of Violation on the
Vandalia sign issued. Based on this lustory, the ALJ concluded that to bar DeLite from any
hearing on ttris issue would deprive it of its fundamental right to due process: "Under these
circumstances, it would violate due process principles if DeLite were precluded from challenging
the underlying basis for the City's current adverse licensing action." Report at 14. These
findings and conclusions should be affirmed and adopted by the Council.
B. LIEP Has Failed to Show that the ALJ's FindinQS or Conclusions Were WronQ
Conceming the Lack of Anv Violation Arisin� Out of the Minor Repair of the
Pierce Butler Sign.
As it did before the ALJ, in its Exceptions LIEP conspicuously omits key language from
Section 66.201, which LIEP claims required DeLite to obtain a perxnit for its minor repair. LIEP
paraphrases the ordinance to state, "[n]o person shall ... maintain a sign ... without first
obtaining the requisite permit " Exceptions at 5. This is not what the ordinance states. The
ordinance provides, as found by the ALJ, that "[n]o person shall place, erect or maintain a sign
... which does not conform to the following requirements and without first obtaining the
requisite permit for such sign." Report at 16 (emphasis in Report). LIEP steadfastly ignores the
key phrase "for such sign", which the ALJ conectly concluded only requires that an appropriate
initial permit must be obtained for a sign: "There is no contention that DeLite did not obtain the
appropriate uutial permit for the Pierce Butler sign. This provision does not address the need to
obtain a permit for maintenance or repair." Id. In addirion, the ALJ pointed out that .
subpazagraph (3) of SecYion 66.201 mandates that unsafe and/or unsightly signs must be repaired
or removed, "but is silent conceming the need to obtain any permit to make a repair ...." Id. As
implicarion is that the right to appeal would arise from any fuhxre decision made by LIEP
conceming the sign, not that a decision had been made from which appeal rights azose.
10.
o �..��
noted above, the City's own Code does not require a building pernut for maintenance or minor
alterations that cost Iess than $300. Code, § 33.03(a). AccardingIy, LTEP has failed to make any
credible argumenT That DeLite's $185 repair was subject to any permit requirement.
CONCLUSION
For all the above reasons, DeLite Outdoor Advertising, Inc. respectfully requests the St.
Paul City Council to adopt and affirm all aspects of the Adu�inistrative Law Judge's Report.
There aze simply no violations stated or proved by LIEP in this case and no action should be
taken against DeLite's business license.
Dated: ,/9'� 2���
::ODMA�PCDOCS\LIB ] \697 383\1
Gary an Cleve (156310)
L , HOFFMAN, DALY & LINDGREN, Ltd.
1500 We11s Fazgo Plaza
7900 Xe�es Avenue South
Bloomington, Minnesota 55431-1194
(612)835-3800
Attorneys for Licensee DeLite Outdoor Advertising, Inc.
11.