The Lamar Company, LLC v. The Mississippi Transportation Commission

Filing 41

ORDER TO SHOW CAUSE WHY CASE SHOULD NOT BE DISMISSED FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES( Show Cause Response due by 8/30/2018 ) Signed by District Judge Louis Guirola, Jr on 08/23/2018 (Guirola, Louis)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
THE LAMAR COMPANY, LLC
v.

PLAINTIFF
CAUSE NO. 1:17cv149-LG-RHW

THE MISSISSIPPI
TRANSPORTATION COMMISSION

DEFENDANT

ORDER TO SHOW CAUSE WHY THIS CASE SHOULD NOT
BE DISMISSED WITHOUT PREJUDICE FOR FAILURE
TO EXHAUST ADMINISTRATIVE REMEDIES
THIS MATTER IS BEFORE THE COURT sua sponte for the purpose of
determining whether the plaintiff, The Lamar Company, LLC, exhausted its
administrative remedies prior to filing this lawsuit against the Mississippi
Transportation Commission.
BACKGROUND
Lamar is an outdoor advertising company that builds and maintains outdoor
advertising signs in Mississippi. The Mississippi Transportation Commission
(“MTC”), by and through the Mississippi Department of Transportation (“MDOT”),
regulates the height of outdoor advertising signs. Lamar owns a sign that is
designated as Structure 5821 and located in Gulfport, Mississippi.
On May 22, 2015, Lamar notified MDOT that it wanted to change the
configuration of Structure 5821. The sign is currently a vertical sign that is 448
square feet with a total height of sixty-one feet. Lamar wishes to replace the
current sign with a horizontal sign that is 300 square feet and forty-five feet tall.
Lamar did not propose any changes to the footing of the existing sign or its position.

On June 2, 2015, MDOT denied Lamar’s request, because it considers the
sign a non-conforming structure under Miss. Code Ann. § 49-23-9(2)(b), which
provides:
The height of any sign structure shall not exceed forty (40) feet. The
height of sign structures erected on or after April 15, 2008, shall not
exceed forty (40) feet above the level of the road grade unless the grade
of the land adjacent to the road is higher than the level of the road
grade, then the height of the sign structure may exceed forty (40) feet
above the level of the road grade but shall not exceed forty (40) feet
above the grade of the site where the sign is placed.
On June 10, 2015, Lamar sent MDOT a letter requesting reconsideration. Lamar
claims that the statute imposes a forty-foot height limit solely for signs erected on
or after April 15, 2008, while MTC argues that the height limit applies to all sign
structures. On July 2, 2015, Lamar sent a letter to MDOT requesting
administrative review of MDOT’s decision pursuant to section 1800 of the MDOT
regulations governing control of outdoor advertising adjacent to state controlled
routes. The parties then agreed that Lamar would ask the Mississippi Legislature
to amend Miss. Code Ann. § 49-23-9(2)(b), but the Legislature failed to amend the
statute.
On March 31, 2017, Lamar filed this lawsuit asking the Court to construe
Miss. Code Ann. § 49-23-9(2)(b), as well as the rule that MDOT adopted to
implement that statute. Lamar also argues that MTC’s interpretation of the
statute and rule have resulted in a taking of Lamar’s property. Lamar further asks
the Court to declare that section 1800 of MDOT’s regulations, which establishes a
procedure for administrative review of MDOT decisions, “is unconstitutional, illegal,

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invalid and deprives Lamar and parties similarly situated constitutional
protections, including its right to have judicial review of the decisions of MDOT
affecting their interests.” (Compl. 9, ECF No. 1-1.) The parties have filed crossmotions for summary judgment.
DISCUSSION
“When primary jurisdiction is properly invoked, the agency and not a court
should make the first decision; the doctrine of exhaustion of remedies requires that
judicial review occur only after the administrative agency has made a complete
decision.” Archer v. Creel, 217 So. 3d 690, 692-93 (Miss. Ct. App. 2016) (quoting
Jeffrey Jackson, Encyclopedia of Mississippi Law § 2:72 (2015)). It appears that
Section 1800 of the MDOT regulations provides for administrative review in this
circumstance. In addition, Lamar began the process of seeking administrative
review before the parties agreed to stay the process and a statutory amendment
from the Mississippi Legislature. Lamar did not complete the administrative
review process after the Legislature failed to amend the statute. The Court finds
that the question of whether Lamar exhausted its available administrative
remedies must be resolved before the Court can reach the merits. The parties are,
therefore, ordered to show cause why this case should not be dismissed without
prejudice due to Lamar’s failure to exhaust administrative remedies.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the parties are
ordered to show cause within seven (7) days of the date of this Order why this

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lawsuit should not be dismissed without prejudice for failure to exhaust
administrative remedies.
SO ORDERED AND ADJUDGED this the 23rd day of August, 2018.

s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
UNITED STATES DISTRICT JUDGE

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