The Lamar Company, LLC v. The Mississippi Transportation Commission

Filing 58

ORDER denying 24 Motion for Partial Summary Judgment; granting in part and denying in part 26 Motion for Summary Judgment Signed by District Judge Louis Guirola, Jr on 11/14/2019 (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

MEMORANDUM OPINION AND ORDER GRANTING IN PART THE
MISSISSIPPI TRANSPORTATION COMMISSION’S MOTION FOR
SUMMARY JUDGMENT AND DENYING LAMAR COMPANY, LLC’S
AMENDED MOTION FOR PARTIAL SUMMARY JUDGMENT
BEFORE THE COURT are the [24] Amended Motion for Partial Summary
Judgment filed by the Lamar Company, LLC, and the [26] Motion for Summary
Judgment filed by the Mississippi Transportation Commission (“MTC”). The
parties have fully briefed the Motions. After reviewing the submissions of the
parties, the record in this matter, and the applicable law, the Court finds that
Lamar’s Motion should be denied, and MTC’s Motion should be granted as to
Lamar’s request for a declaratory judgment concerning the meaning of Miss. Code
Ann. § 49-23-9(2)(b) but denied as to Lamar’s takings claim.
BACKGROUND
Lamar is an outdoor advertising company that builds and maintains outdoor
advertising signs in Mississippi. MTC, by and through the Mississippi Department
of Transportation (“MDOT”), regulates the dimensions of outdoor advertising signs.
Lamar owns a vertical sign that is designated as Structure 5821 located in Gulfport,
Mississippi.

In May 2015, Lamar notified MDOT that it wanted to change the shape of
Structure 5821. MDOT refused to approve the reconfiguration of the sign because it
considers it a non-conforming structure due to its proposed height, in excess of forty
feet. In summary, the parties dispute the meaning of Miss. Code Ann. § 49-239(2)(b), which provides in part:
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.
The parties also dispute the meaning of the rule that MDOT adopted to implement
that requirements of the statute.
Lamar filed this lawsuit seeking a declaratory judgment that “any sign
structure erected prior to April 15, 2008 may exceed 40 feet in height above the road
grade and such structures are conforming structures” as well as a declaratory
judgment that “MDOT’s determination that Structure 5821 is ‘non-conforming’
because of its existing height is contrary to law, illegal and a misapplication of
Section 449-23-9(2) and Rule 1000.1.c and that Lamar’s plan to reconfigure
Structure 5821 is entitled to be approved as submitted.” (Compl. 5, ECF No. 1-1.)
Lamar also argues that MTC’s interpretation of the statute and rule have resulted
in a taking of Lamar’s property.

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DISCUSSION
A motion for summary judgment may be filed by any party asserting that
there is no genuine issue of material fact and that the movant is entitled to prevail
as a matter of law on any claim. Fed. R. Civ. P. 56. The movant bears the initial
burden of identifying those portions of the pleadings and discovery on file, together
with any affidavits, which it believes demonstrate the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant
carries its burden, the burden shifts to the non-movant to show that summary
judgment should not be granted. Id. at 324-25. The non-movant may not rest upon
mere allegations or denials in its pleadings but must set forth specific facts showing
the existence of a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 256-57 (1986).
Lamar and MTC dispute whether the following statutory language is
ambiguous:
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.
Miss. Code Ann. § 49-23-9(2)(b). MDOT Rule 1000.1.b-c contains nearly identical
language. See Miss. Admin. Code 37-1-13:09002. Lamar argues that the statute
and rule are ambiguous, and that this Court should hold that only signs erected on
or after April 15, 2008 are bound by the height limitation of forty feet. As proof of
legislative intent, Lamar has submitted an affidavit signed by City of Gulfport,
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Mississippi Mayor Billy Hewes in which he testifies that he served as a member of
the Mississippi State Senate’s Highways and Transportation Committee during the
2008 Legislative Session. (Lamar’s Mot. Ex. I, at 1, ECF No. 24-9). Mayor Hewes
sponsored Senate Bill 2955, and the intent of the bill was to allow signs erected on
or before April 15, 2008 to exceed forty feet in height, “but to restrict going forward
all signs erected after April 15, 2008” to forty feet in height. (Id. at 2). He explains
that “[t]he sentence of 49-23-9(2)(b) which reads ‘The height of any sign structure
shall not exceed forty (40) feet.’ should have been deleted from 49-23-9(2)(b);
however, it was not.” (Id.) Mayor Hewes further states that “[t]he second sentence
expresses the true intent of Senate Bill 2955 as passed by the Legislature.” (Id. at
3). MDOT counters: “Plainly, the first sentence referenced [in the statute] prohibits
any signs exceeding forty (40) feet in height. The next sentence clarifies how the
forty (40) feet in height is to be measured after April 15, 2008.” (MTC’s Resp., at 1,
ECF No. 31).
“When applying state law, ‘we interpret the state statute the way we believe
the state Supreme Court would, based on prior precedent, legislation, and relevant
commentary.’” Vielma v. Eureka Co., 218 F.3d 458, 462 (5th Cir. 2000) (quoting
F.D.I.C. v. Shaid, 142 F.3d 260, 261 (5th Cir. 1998)). “If a state’s highest court has
not spoken on the issue, we look to the intermediate appellate courts for guidance.”
Id. (citing Wood v. Armco, Inc., 814 F.2d 211, 213 n.5 (5th Cir. 1987)).1

The Mississippi Supreme Court recently “abandon[ed] the old standard of review
giving deference to agency interpretations of statutes,” because it is solely the
1

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In considering a statute the first question is whether the statute is
ambiguous. If the statute is not ambiguous, the court must apply the statute
according to its plain meaning and should not use principles of statutory
construction. City of Natchez, Miss. v. Sullivan, 612 So. 2d 1087, 1089 (Miss. 1992).
“A statute is ambiguous when open to two or more reasonable interpretations.”
Cellular S., Inc. v. BellSouth Telecomms., LLC, 214 So. 3d 208, 212 (Miss. 2017).
The function of the Court is not to decide what a statute should
provide, but to determine what it does provide. The Court must not
broaden or restrict a legislative act. Whether a statute is ambiguous,
or not, the ultimate goal of this Court in interpreting a statute is to
discern and give effect to the legislative intent. In determining
legislative intent, this Court must first look to the language of the
statute at issue.
Clarksdale Mun. Sch. Dist. v. State, 233 So. 3d 299, 305 (Miss. 2017) (internal
quotation marks and citations omitted). “The best evidence of legislative intent is
the text of the statute; the Court may also look to the statute’s historical
background, purpose, and objectives.” Miss. Methodist Hosp. & Rehab. Ctr., Inc. v.
Miss. Div. of Medicaid, 21 So. 3d 600, 607 (Miss. 2009). “If a statute is ambiguous,
it is the Court's duty to ‘carefully review statutory language and apply its most
reasonable interpretation and meaning to the facts of a particular case.’” Id. at 608
(quoting Caldwell v. N. Miss. Med. Ctr., 956 So. 2d 888, 891 (Miss. 2007)).
The Court finds that Miss. Code Ann. § 49-23-9(2)(b) as written is not
ambiguous. The disputed portion of § 49-23-9(2)(b) begins with the restriction that

court’s duty to interpret statutes. King v. Miss. Military Dep’t, 245 So. 3d 404, 409
(¶12) (Miss. 2018).
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“[T]he height of any sign structure shall not exceed forty (40) feet.” The remainder
of the section at issue provides the metric by which the forty feet height restriction
will be applied to structures erected after April 8, 2008. Thus, taken as a whole,
there is nothing ambiguous about the plain language of § 49-23-9(2)(B). In contrast,
and in order to attribute an alternate meaning to the statutory language, Lamar
asks the Court to disregard an entire sentence in the statute; something that the
legislature has not done by amendment since 2008.
Notwithstanding the language proposed by the 2008 Senate Highways and
Transportation Committee, the final version of § 49-23-9 enacted by the Mississippi
Legislature says what it says. The presence of statutory language cannot be ignored
or treated as mere surplusage, and the Court cannot restrict or enlarge the meaning
of an unambiguous statute. Wayne Cty. Sch. Dist. v. Morgan, 224 So. 3d 539, 542
(Miss. 2017). When reasonable, a court is obliged to reach an interpretation that
gives effect to all of the statutory language. Miss. Methodist Hosp. & Rehab. Ctr.,
Inc. v. Miss. Div. of Medicaid, 21 So.3d 600, 608 (Miss. 2009). Therefore, the Court
finds that MTC’s Motion for Summary Judgment should be granted to the extent
that Lamar is not entitled to the declaratory judgments it seeks.
Lamar has also filed a takings claim. While MTC seeks summary judgment
as to Lamar’s entire lawsuit, it has not provided any analysis, argument, or
authority concerning Lamar’s taking claim. MTC’s Motion for Summary Judgment
is therefore denied as to Lamar’s takings claim.

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CONCLUSION
For the foregoing reasons, the Court finds that Miss. Code Ann. § 49-239(2)(b) and MDOT Rule 1000.1.b-c are clear and unambiguous as to the limitation
on the height of outdoor advertising sign structures. MTC’s Motion for Summary
Judgment is granted as to Lamar’s requests for a declaratory judgments adopting a
different interpretation of the statute and MTC rule at issue. For the same reasons,
Lamar’s Amended Motion for Partial Summary Judgment seeking declaratory
judgments adopting a different interpretation of the statute and MTC rule must be
denied. However, Lamar’s quiescent takings claim remains pending due to MTC’s
failure to adequately address it on the merits.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the [24]
Amended Motion for Partial Summary Judgment filed by the Lamar Company,
LLC, is DENIED.
IT IS, FURTHER ORDERED AND ADJUDGED that the [26] Motion for
Summary Judgment filed by the Mississippi Transportation Commission is
GRANTED as to Lamar’s requests for declaratory judgment and DENIED as to
Lamar’s takings claim.
SO ORDERED AND ADJUDGED this the 14th day of November, 2019.
s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
UNITED STATES DISTRICT JUDGE

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