MuskogeePhoenix.com, Muskogee, OK

Local News

November 3, 2013

Sovereignty focus of sign ban battle

Lawyer for city says it has power to regulate ‘hazards’ despite state statutes

A lawyer representing the city argues that Muskogee’s portable sign ban is a “purely municipal matter” and should be upheld regardless of any possible conflicts with state laws.

Betty Outhier Williams presented that argument in response to the owners of two sign companies who believe that state law renders the city’s proposed ban unenforceable. Williams argues that as Muskogee is a “home-rule charter city,” its councilors have the authority to “enact ordinances to protect the public peace, order, health, morals, and safety even though state statutes may address the same subject.”

Williams has said that portable signs constitute a public hazard because they “are not attached to the ground ... are often in the public right of way ... can blow into people and/or cars and otherwise become hazards.” Such hazards “fall at the heart of municipal matters,” she said, so the city’s portable sign ban “should take precedence over the state statute.”

D.D. Hayes, who represents the owners of the sign companies, argues that the city’s revised “ordinance conflicts with the state act in several crucial respects” and should be struck down for the same reasons an appellate court invalidated the original ban. He cites the lack of a state prohibition of on-premises portable signs and a state law that requires a five-year amortization of signs that constitute a non-conforming use plus compensation for the owners of those signs.

“Muskogee’s ordinance provides for a two-and-a-half year amortization and no compensation for the taking of the sign and rights taken,” Hayes argued in a motion seeking a ruling in favor of his clients. “It is totally arbitrary for sign owners to receive this type of disparate treatment between government agencies. The law is well settled that city ordinances which conflict with state law are invalid.”

Acting City Attorney Matthew Beese said he concurs with the position staked out by Williams in documents she filed in support of the ordinance. Although he believes the city’s position is “well-reasoned,” case law has described the exercise of deciding whether an ordinance is purely municipal or pertains to state law as “cutting a path through a jungle,” he said.

“I agree with the analysis that as a charter city we have the authority of self-governance to a certain extent and that this is an issue that is purely municipal in nature,” Beese said. “But as much as we want to make it clear-cut, courts do have some latitude in the way they interpret the law.”

The city’s attempts to ban portable signs began in 2006 after a tourism expert said they detracted from the community’s appearance. The sign companies’ owners, Kenneth Lane and Tim Lipe, challenged the ban and won.

The Oklahoma Court of Civil Appeals ruled the first ban was unenforceable because it violated state law. Oklahoma law “prohibits termination of any lawfully erected non-conforming sign unless such sign is altered to increase its nonconformity or is abandoned for a period of more than two years.”

Trying to work around the court’s ruling, city officials crafted a second ordinance in 2008 that granted a three-year phase-in period. When that period expired, Lane and Lipe lodged a second challenge by applying for — and being granted — a contempt citation against the city.

Williams and Hayes agreed to let the court sort out the issues. Both sides have since filed motions seeking judgment as a matter of law, arguing there are no material facts in dispute.

Beese said an estimated 45 nonconforming portable signs remain within the city limits. It was unknown how many are owned by Lane or Lipe.

Reach D.E. Smoot at (918) 684-2901 or dsmoot@muskogeephoenix.com.

1
Text Only
Local News
AP Video
Poll

Should a federal judge have the power to strike down Oklahoma's ban on gay marriage?

Yes
No
     View Results
Featured Ads
Parade
Magazine

Click HERE to read all your Parade favorites including Hollywood Wire, Celebrity interviews and photo galleries, Food recipes and cooking tips, Games and lots more.
Stocks