Lamar Outdoor Advertising, Inc. v. Arkansas State Highway and Transportation Department

Annotate this Case
ca03-412

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

LAMAR OUTDOOR ADVERTISING,

INC.

APPELLANT

V.

ARKANSAS STATE HIGHWAY and

TRANSPORTATION DEPARTMENT

APPELLEES

CA 03-412

MAY 5, 2004

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT

[NO. CV-01-3197]

HONORABLE DAVID BOGARD,

JUDGE

AFFIRMED

John B. Robbins, Judge

This appeal is one of three companion cases to Lamar Outdoor Advertising, Inc. v. Arkansas State Highway & Transportation Department, 84 Ark. App. __, __ S.W.3d __ (Dec. 3, 2003) (Lamar I), and comes from the decision of the circuit court's affirming the Department's decision denying a request made by Lamar to erect a billboard adjacent to Interstate 40 in the Dark Hollow area of the City of North Little Rock. Lamar raises two points on appeal. We affirm.

Lamar applied to the Department for a permit to erect a billboard in the Dark Hollow area of the City, just off Interstate 40. The Department denied the application, and Lamar requested an administrative hearing. The facts at the hearing were largely undisputed. The billboard would be located on property zoned "Conservation-C3" by the City of North Little Rock because it is located within a flood plain. Under the City's zoning ordinance,

billboards are not allowed in "C3" areas. On February 28, 2000, the City enacted Ordinance 7274 granting a special-use permit for Lamar to erect a billboard at the Dark Hollow location and on Highway 67/167, in exchange for Lamar's removing another billboard on Highway 107/John F. Kennedy Boulevard in the City. The preamble to the ordinance states that "application was duly made by ... agent of the owner of the land ... seeking a special use of said land for the purpose of erecting a billboard." The property remained zoned "Conservation-C3."

The hearing officer found that the City's zoning action was solely for the purpose of allowing the erection of a billboard and was, therefore, in violation of the federal and state regulations. The hearing officer upheld the Department's denial of the permit.

Lamar filed a petition and an amended petition for judicial review of the hearing officer's decision. The circuit court affirmed the hearing officer's decision based upon the record before the hearing officer. The circuit court also denied Lamar's request to conduct a de novo hearing, as

provided by Ark. Code Ann. § 27-74-203(c) (Supp. 2003). This appeal followed.

Appellant raises two arguments on appeal: that the Department wrongfully applied Ark. Code Ann. § 27-74-204(a)(1) (1994) in denying its application for a permit and that the trial court erred in not conducting a de novo hearing under Ark. Code Ann. § 27-74-203(c). With respect to its first point, we note that this case involves the same ordinance as in Lamar I. The only difference between the present case and the earlier case is that the proposed billboard would be located in a flood plain. However, we hold that this distinction is not significant for purposes of analysis and that the administrative hearing officer did not rely on this fact in his decision. In Lamar I, we held that the Department has discretion to examine the purposes for the zoning action. Because the language of the ordinance itself states that the purpose was to erect a billboard, we hold that there is substantial evidence to support the Department's decision and therefore affirm on this point.

In its second point, Lamar argues that the trial court erred in not conducting a de novo hearing under Ark. Code Ann. § 27-74-203(c). This court rejected appellant's same argument in Lamar I, and appellant presents no new argument. We affirm on this point.

Affirmed.

Neal and Crabtree, JJ., agree.