Whitefish poised to fight remaining illegal billboards

By LYNNETTE HINTZE

The Daily Inter Lake

The city of Whitefish is ready to do battle with the owners of two remaining billboards that violate the city's sign law.

"I've received authorization from the city to pursue litigation, if necessary, with the companies that own both signs," Whitefish City Attorney John Phelps said. "I have contacted them in the past and notified them that they need to come down. They have declined."

Phelps said he plans to notify them again, give them 30 days to voluntarily remove them and then file a lawsuit asking Flathead District Court to order them removed.

"It will be pretty much like our lawsuit against Montana Media several years ago," he added.

Whitefish sued Montana Media Inc. to have two off-premise billboards taken down. That case went to the Montana Supreme Court, which upheld the city's sign law.

Two weeks ago the city took down a billboard at the former Greenwood Trailer Court after a federal court ruling denied the sign owner a preliminary injunction to keep it. Once the trailer court closed, the sign advertising it became an illegal off-premise sign, the city maintained.

In Sight Advertising, which advertised a real-estate development on the trailer-court sign, sued the city, alleging the city violated In Sight's right to equal protection under the law. The lawsuit also claimed the city deprived the sign owner of just compensation in violation of the "takings clause" of the Fifth and 14th amendments to the U.S. Constitution.

THE TWO remaining billboards in Whitefish are a key piece of In Sight attorney Chad Wold's argument that the city has been discriminatory in its dealings with off-premise signs. He pointed to testimony during a hearing before the Whitefish zoning administrator in which Phelps said he had "intentionally delayed" going after the billboard owners because fighting them in court will cost the city considerable time and money.

However, Federal Magistrate Jeremiah Lynch sided with the city in his preliminary ruling, finding that the city has "methodically" removed the vast majority of illegal off-premise signs.

"In Sight Advertising has failed to sustain its burden of persuasion through a 'clear showing' that the city's enforcement of the ordinance, as against In Sight Advertising, was motivated by a discriminatory purpose that was part of a policy or plan on the part of the city," Lynch wrote.

In a court affidavit, Phelps said illegal off-premise signs removed to date have including those advertising Whitefish Hotel, Whitefish Lake Lodge, Bay Point Subdivision, Shaker's Steakhouse, the Downtowner Motel, and numerous off-site real estate signs.

Wold said he plans to pursue the case all the way to a federal jury trial.

Greenwood Trailer Court property owner Dennis Rasmussen also intends to join the legal battle with a civil lawsuit that alleges the city violated his state and federal constitutional rights to due process. Wold, who represents Rasmussen, said his client claims the city trespassed on his land and without notification took the sign structure that he still owned. In Sight was leasing the sign and had transferred state registration for the sign to its company.

Phelps said the city fully complied with the sign law with respect to the trailer-court sign. Notice in excess of that required was given, a hearing was held and the city zoning administrator issued a written determination that the sign was illegal and should be removed.