In Lamar Central Outdoor, LLC v. DOT (2017AP1823), the Court of Appeals District IV held that the enlargement of a nonconforming outdoor advertising sign along an interstate highway caused it to lose its nonconforming status, making it illegal and subject to removal.

The sign in this case was erected on a state highway in 1991. When the highway became an interstate in 1996, the sign became legal but nonconforming according to state law. Lamar acquired the nonconforming sign in 1999 and later added extensions to it. In 2012, Lamar sought a permit from the Department of Transportation (DOT) to remove vegetation obstructing the sign. From the photographs in Lamar’s permit application, DOT recognized that the sign had been enlarged by the extensions in violation of Wis. Admin. Code § TRANS 201.10(2)(e), causing it to lose its nonconforming status. DOT ordered Lamar to remove the sign.

Lamar argues that DOT cannot order the removal of the sign because:

1. DOT had insufficient evidence that the sign was enlarged beyond legal limits.
2. Enlarging the sign is not prohibited under Wisconsin law and administrative code.
3. If enlargement is illegal, Lamar should have had the right to cure the violation.
4. DOT did not engage in the proper rulemaking process in order to enforce removal of the sign, since it previously treated extensions inconsistently.
5. Common law says that only enlargement changing the use of the sign would invalidate its legal nonconforming use.

The court rejected all of Lamar’s arguments as follows:

1. The photographs of the enlarged sign in addition to Lamar’s internal records provided ample evidence to DOT that the sign was illegally enlarged.
2. Wisconsin law and administrative code do prohibit enlarging legal but nonconforming signs. Wis. Stat. § 84.30(14) gives DOT the authority to promulgate rules related to outdoor advertising. Wis. Admin. Code § TRANS 201.10(2)(e) states that nonconforming signs may not be enlarged after the effective date of state law. The court construed the “effective date of state law” as 1996, when the highway became an interstate, making the enlargements after Lamar acquired the sign in 1999 illegal.
3. Stat. § 84.30(11) provides that owners of “signs erected…in violation” have the right to 60 days to cure the violation. However, the court construed the text of § 84.30(11) to apply only to signs in violation at the time of their erection, not to signs with violations occurring later.
4. DOT was not required to promulgate a rule to enforce the removal of Lamar’s sign because its change in enforcement brought it into conformity with the statutes. This “error-correcting exception” to the requirement for agency rulemaking applies in this case because DOT’s order to remove Lamar’s sign was consistent with Wis. Stat. § 84.30(11).
5. The statutes and DOT regulations control this case, not common law.