Federal judge favors city on sign ordinance

City did not violate equal protection rights when it tore down billboard sign last year

By RICHARD HANNERS / Whitefish Pilot

A federal judge in Missoula denied a jury trial to an outdoor advertising company and the owner of a former trailer court on the U.S. 93 strip after city employees removed an illegal billboard sign there last year.

Dennis Rasmussen, who owned the trailer court, and Roger Nastase, of In Sight Advertising, filed suit last year in federal court. They claimed the city denied their equal protection rights by removing In Sight's billboard sign while not removing an illegal billboard sign owned by Lamar further south on the U.S. 93 strip.

In Sight claimed the city "enforced its off-site sign ordinance by intentionally avoiding the pursuit of large off-site sign companies with significant financial resources that threatened litigation."

U.S. District Court Judge Donald Molloy disagreed, however, and granted the city's motion for summary judgment.

Molloy described the city's efforts to regulate outdoor signs since 1990 and noted that the city's ordinance was upheld by the Montana Supreme Court in 2003.

"Through the city's methodical removal of illegal signs, there are only two off-site signs remaining within the city's zoning jurisdiction," Molloy said.

He also described actions taken by Rasmussen after he closed Greenwood Trailer Court, including filing a document with the Montana Department of Transportation to transfer his outdoor sign permit to Nastase.

Nastase was well aware of the city's sign ordinance because he was a principal with Montana Media when it lost its Montana Supreme Court case against the city in 2003.

After the city ordered In Sight's sign taken down, Nastase requested a hearing with the city's zoning administrator, who determined the sign was illegal. In Sight then filed for a preliminary injunction in federal court, which Molloy denied.

In his Aug. 18 order granting summary judgment to the city, Molloy noted that In Sight provided no material evidence that the city's actions were malicious, irrational or arbitrary or that the city targeted Nastase.

He also pointed out the difference between Lamar, whose billboard sign was legal when first constructed but has since become illegal, and In Sight, whose billboard was illegal from day one.

The city established a six-year grace period in 1990 by which time all 31 off-site signs were to be removed, but Lamar still has a billboard sign inside the city limits.

"A city is not required to enforce its ordinances simultaneously or in any particular order," Molloy said, adding, "The fact that the city has not prosecuted all companies in violation of the ordinance is irrelevant."

Molloy also addressed In Sight's claim that statements by city attorney John Phelps during the hearing with the zoning administrator proved the city treated Nastase unfairly.

"The parties' descriptions of what Phelps said during the hearing are different," Molloy said. "This difference, however, does not create a disputed issue of material fact. Under both parties' descriptions, Phelps stated the city pursued In Sight before Lamar because of Lamar's size and financial resources, not because In Sight was connected to Nastase."