CBS Outdoor, coastal commission attorneys make case before judge
4/3/14
A Humboldt County Superior Court judge heard attorneys’ arguments Wednesday on whether the California Coastal Commission violated a advertising company’s property rights by requiring billboard removal as part of a U.S. Highway 101 safety project between Eureka and Arcata.
Representing the Delaware-based outdoor advertising company CBS Outdoor Inc., attorney Arthur Coon argued that his client was given “no notice (and) no due process” when the commission approved a condition in which Caltrans would remove as many billboards as feasible along the 6-mile corridor as part of the Eureka-Arcata Route 101 Corridor Improvement Project.
Coon’s main argument was that the company — which owns 20 billboards along the corridor — was never informed of any of the hearings or discussions leading up to the condition’s approval on Nov. 14.
“This is a property rights and due process issue,” Coon said.“(CBS) was not informed when the condition was first discussed at the commission’s Sept. 13 hearing. It only learned a week prior to its actual adoption in the form of revised findings.”
The condition was one of four that Caltrans agreed to under a conditional concurrence with the commission in order to obtain approval for coastal development under the California Coastal Act. The $46 million project aims to improve safety along the corridor by closing median crossings at several locations and building a raised interchange at the Indianola Cutoff.
The coastal commission, represented by David Alderson of the State Attorney General’s Office, said the case is “not right,” as the company is making a facial challenge — a challenge in which a plaintiff argues that existing legislation or statutes are unconstitutional — when the condition has not been approved by Caltrans yet.
“The petitioner is challenging a matter that is currently being reviewed and processed by the coastal commission and Caltrans,” Alderson said. “So it is premature for this court to review the matter.”
Alderson made a second argument that CBS Outdoor’s petition was not filed within the required 60-day time limit under state public resources code section 30801.
Coon said this was misleading.
“We’re being told we’re suing too early and too late,” Coon said.
Coon said that there was no constitutional basis between the condition’s directive to remove all the billboards rather than those causing visual impacts, and the purpose of the project. Arguing the condition only necessitates billboard removal to maximize the view of Humboldt Bay from the Indianola Cutoff, Coon said removing all billboards oversteps the purpose of the safety project.
“This is specifically a visual mitigation condition,” Coon said. “This is a relatively small portion of the highway that is affected by the interchange. Yet they’ve issued a sweeping directive to remove all billboards within the 6-mile corridor.”
Arguing that Caltrans has yet to determine whether billboard removal is even possible, Alderson said Coon’s arguments are non-applicable.
“The condition does not require the removal of any billboards whatsoever,” Alderson said. “It merely requires Caltrans to come up with a plan to remove the billboards to the extent feasible. Caltrans has not determined that it is entirely feasible.”
In response, Coon said that CBS Outdoor should be notified of the meetings when Caltrans will determine the feasibility of the condition as “we’re entitled to by law.”
Caltrans’ attorney Jeff Wilcox was present at the hearing through a court call, and confirmed that the agency withdrew its scheduled April 11 demurrer hearing to challenge CBS Outdoor’s claims.
When asked why the department withdrew the hearing, Caltrans District 1 spokesman Scott Burger said that “it is Caltrans policy not to comment on pending litigation.”
The Humboldt County Association of Governments is also being targeted by CBS Outdoor’s petition for writ of mandate as a “real party of interest” due to it being “responsible … for programming and approving the financing of the project, including the financing of actions necessary to implement the (commission’s) condition.”
Judge Bruce Watson scheduled a case management hearing for June 4.
“I’ll look at it and get you a decision,” Watson said.
