The Dog Ate the Homework: The Rebuttable Presumption and the Argument for Billboard Amnesty

According to city records, there is no permit on file for this Clear Channel billboard

According to city records, there is no permit on file for this Clear Channel billboard

Suppose, for a moment, that you own a house and decide to add on a couple of rooms. You know you’re legally required to get a permit but you figure you won’t get caught so you don’t bother with the hassle and expense of getting plans approved and the work inspected. And you’re lucky, because more than five years go by before you hear a knock on the door and it’s an inspector from the city building department wanting to see your permit.

Why lucky? Because a state law applying only to single-family homes says that if the building department hasn’t cited you within five years, the work you did is presumed to be lawful. Which means that you don’t have to produce a permit, but can tell that inspector that he has to prove that you never got one. There’s nothing on file at the building department? Maybe it was lost. Maybe it was filed under the wrong address. Who knows? It’s not your problem, but the city’s.

This is a fantasy, of course, because there’s no such law that applies to single-family homes. If you can’t produce a permit and there’s nothing on file at the building department, you have violated the law, end of story. This is logical, makes perfect sense.

In the upside-down world of outdoor advertising, though, fantasy becomes reality. If a billboard is put up without a permit or modified in some way without a permit and it’s not cited by a city inspector within the ensuing five years, it’s presumed lawful unless the city can somehow prove otherwise. The company can’t produce a permit? Doesn’t matter. No permit on file? Doesn’t matter. The permit could have been lost, stolen, eaten by rats, used for scratch paper, and it’s the city’s burden to prove otherwise.

This blatant gift to the billboard industry comes in the form a 1984 California law commonly known as the “Rebuttable Presumption.” It’s particularly relevant to Los Angeles, where the city has classified almost 1,000 unpermitted and out-of-compliance billboards as “presumed lawful” because they were never cited within the five-year limit. And claiming a high likelihood of lawsuits if the city now tries to enforce the law, a City Council committee has proposed granting all the billboards permanent legal status.

One might wonder how a law that doesn’t apply to any other industry got on the books in the first place. The answer lies in events following the passage by Congress of the Highway Beautification Act of 1965, which aimed to limit billboards along interstate highways and other federally-funded roads. Intense lobbying by the outdoor advertising industry led to amendments that required states, cities, and other government jurisdictions to pay compensation if they tried to force the removal of any billboards that were deemed to have been “lawfully erected.”

In California, the term “lawfully erected” apparently caused queasiness in billboard owners who feared they might not be able to demand compensation for billboards that were put up without permits or were altered illegally. So instead of telling those owners that taxpayers shouldn’t pay a single cent to remove such billboards, the legislature heeded the blandishments of the billboard lobby and passed the law granting a presumption of lawfulness to those signs if they weren’t cited within the five-year period.

Why five years? Probably because many billboards without permits had already existed for longer than that. The billboard industry also knew that most cities and counties had few resources for inspecting signs, and that any member of the public who lodged a complaint about a new or altered sign would likely do it early in the sign’s existence. In other words, the chances of getting caught were slim.

In the past decade, two attempts have been made to repeal this law that many regard as completely unjustified. Both were sponsored by former Los Angeles City Attorney Rocky Delgadillo, which might seem peculiar given that Delgadillo was long a villian to anti-billboard activists for his role in pushing through an illegal backroom deal to allow digital billboards in the city. In any case, the first repeal bill, introduced by L.A. County Supervisor Mark Ridley-Thomas in 2007 when he was in the California state senate, never made it to the floor, and the second, introduced two years later by state senator Mark Leno of San Francisco, suffered the same fate.

In both cases, however, the bills cleared their first committee hurdle only to die in other committees. The Ridley-Thomas bill was initially approved by the Senate’s Transportation and Housing Committee, with one of the yes votes coming from Gil Cedillo, who is now an L.A. City councilman. Interestingly, Cedillo is a member of the City Council’s PLUM committee, which is now considering the aforementioned “amnesty” for the city’s unpermitted and out-of-compliance billboards.

Although the law has been on the books for more 30 years, it appears to have been at issue in only one major court proceeding. In that case, which involved an unpermitted 8,000 sq. ft. wallscape along the 10 freeway near downtown L.A. , the property owner argued that the fact the sign hadn’t been cited by the state within five years of its erection meant it had to be considered legal. The property owner also argued that the lack of a permit on file with the state did not rebut the presumption of legality.

The California Court of Appeal rejected both of these arguments in a 2012 ruling, saying, “The lack of a permit may rebut the presumption of lawful erection if Caltrans establishes a permit was required for the display and none was sought or issued.”

So why did the City Council’s PLUM committee members propose “amnesty” for all the unpermitted and illegally altered billboards with the justification—in the words of councilman Mitchell Englander—that the city would face endless litigation if it tried to enforce the law?

It’s because building department officials, with the apparent support of City Attorney Mike Feuer’s office, are saying that they don’t think they can prove that these billboards were actually put up without permits. The billboard companies haven’t come forth with any permits from their files, so the public is just being asked to accept that all these signs are eligible to remain in perpetuity on their streets. Or become part of some exchange for shiny new digital billboards on their streets or nearby freeway or parcel of public property.

Where are the permits, then, if they once existed? If they were lost, or thrown away, the public deserves an explanation with details of who, when, and how. Otherwise, the public is just hearing that “the dog ate the homework.” What evidence is needed to rebut the presumption of legality? The City Attorney needs to tell us, and maybe someone can actually point to a piece of that evidence. Otherwise, the city is waving a very large white flag to Clear Channel, Lamar, and the other billboard companies.

Dennis Hathaway

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