billboard valuation: what’s the issue?

Billboard Valuation:What’s the Issue?National Alliance of Highway

Beautification Agencies Annual Conference

August 28, 2006 – Cleveland, Ohio

NAHBA Annual Conference – Presented by J. Allen Smith

The Law Pertaining to Billboard Valuation

Fifth Amendment

““Nor shall private property be taken for Nor shall private property be taken for public use, without just compensation.”public use, without just compensation.”


Highway Beautification Act

““Just compensation shall be paid upon Just compensation shall be paid upon the removal of any outdoor advertising the removal of any outdoor advertising sign, display, or device lawfully erected sign, display, or device lawfully erected under State law…”under State law…”

Billboard Valuation Law 23 U.S.C.A. § 131(g)


Uniform Real Property Relocation and Acquisition Act

“…“…just compensation to be paid for just compensation to be paid for any building, structure, or any building, structure, or improvement…”improvement…”

“…“…outdoor advertising structures… outdoor advertising structures… are ‘structures’ or ‘improvements’ are ‘structures’ or ‘improvements’ within the meaning of [within the meaning of [§ 4652].”§ 4652].” Whitman v. State Highway Comm’n of Mo., 400 F. Supp. 1050, 1070 (W.D. Mo. 1975).

Billboard Valuation Law 42 U.S.C. § 4652


Distinguishing Valuation Methods:Taxation vs. Eminent Domain

• Wisconsin Supreme Court• Opinion dated July 13, 2006• Addresses the proper

distinctions and approaches to valuation of billboard interests in eminent domain and taxation scenarios.

• Most recent case that addresses these issues.

Adam’s Outdoor Adver., Ltd. v. City of Madison

Billboard Valuation Law


The Court Confirmed Three Billboard Property Interests to be Valued:

1.Leasehold2.Billboard Structure3.PermitAdams, 2006 WL 1913059, ¶ 89.

Adam’s Outdoor Adver., Ltd. v. City of MadisonNAHBA Annual Conference – Presented by J. Allen Smith


The Nature of Permits…

1.Permits are “valid for a designated location only”

2.They “terminate when a billboard is moved”

3.The value “primarily inheres in the permit because the City has severely restricted the number of permits” Adams, 2006 WL 1913059, ¶ 85.



A billboard permit is real property “because a billboard permit is a right or privilege appertaining to real property…” Adams, 2006 WL 1913059, ¶ 59.

“The primary value of the permits is unrelated to the structures; rather, the primary value of the permits appertains to the location of the underlying real estate.” Adams, 2006 WL 1913059, ¶ 84.



Three methods of valuation are equally applicable to establishing fair market value in eminent domain cases:

1. Income2.Cost3.Sales Comparison Adams, 2006 WL 1913059, ¶ 87.



“Although the same appraisal methods may be used to establish fair market value for condemnation purposes as may be used to establish true cash value for purposes of personal property tax assessments, the property valued differs depending upon the purpose.” Adams, 2006 WL 1913059, ¶ 88.



In Eminent Domain, fair market value of a billboard is the price “the aggregate asset—the lease, permit and sign—would bring in the marketplace.” Adams, 2006 WL 1913059, ¶ 88 (citing Vivid, Inc. v. Fiedler, 580 N.W.2d 644, 650 (Wis. 1998)).



“In Contrast, an appraisal for personal property tax assessment purposes includes only the value of personal property, and therefore excludes the value of the leasehold and billboard permit.” Adams, 2006 WL 1913059, ¶ 88.



“Therefore, we conclude the same methods of appraisal may be used in eminent domain as are used in appraising personal property for tax purposes, provided care is taken to exclude from a personal property tax assessment any value attributable to elements other than tangible personal property.” Adams, 2006 WL 1913059, ¶ 90.


• Nat’l Adver. Co. v. Nevada Dept. of Transp., 993 P.2d 62 (Nev. 2000). • Florida Dept. of Transp. v. Powell, 721 So. 2d 795 (Fla. Ct. App. 1998).• City of Scottsdale v. Eller Outdoor Adver. Co., 579 P.2d 590 (Ariz. Ct. App.

1978).• Louisiana Dept. of Transp. and Dev. v. Chachere, 574 So.2d 1306, 1311 (La.

Ct. App. 1991).• Illinois Dep. Of Transp. v. Drury Displays, Inc., 764 N.E.2d 166 (Ill. App. Ct.

2002).• Minnesota v. Weber-Connelly, Naegele, Inc., 448 N.W.2d 380 (Minn. Ct.

App. 1989).• Missouri ex rel Missouri Highway & Transp. Comm’n v. Quiko, 923 S.W.2d

489 (Mo. Ct. App. 1996).• New Hampshire v. 3M Nat’l Adver. Co., 653 A.2d 1092, 1094 (N.H. 1995).• Pa. Morgan Signs, Inc. v. Pennsylvania Dept. of Transp., 723 A.2d 1096,

1099 (Pa. 1999).

Other States Include: Arkansas, Virginia, Washington, & Wisconsin

Condemnation Cases Consistent with Wisconsin Supreme Court


Billboard Valuation Law Other States

Government Argument:

Movable structures should not be compensable.

Taxation vs. Eminent Domain




• Federal Court of Appeals Case• Long term lease on filling station• Lessee installed underground

tanks, piping, etc.• Lease provided that the Lessee

could remove the structures upon termination of the lease.

United States v. Seagren, 50 F.2d 333 (D.C. Cir. 1931).NAHBA Annual Conference – Presented by J. Allen Smith

Contract Clause for Removable Structures

• “The United States contends that the tenant here has lost nothing by the taking of the property.”

• “He reserved the right to remove his structures whenever the landlord should terminate the tenancy; now that the United States has terminated his tenancy by taking the land, he may exercise his right and remove his structures.”

• “Nothing has been taken from him, only his performance of an inevitable obligation has been accelerated.” Seagren, 50 F.2d at 335.


Billboard Valuation Law Contract Clause

Government Claims:

• “But much the same argument could be made in support of murder for all that any murderer ever did was to accelerate the debt that every mortal owes to nature.”

• “If the structures here in question have been built by the landlord, they would have been taken and paid for by the government without question, as the government concedes they are now part of the realty. Is the tenant’s reserved power of removal as against the landlord’s termination of the lease to work a forfeiture in favor of the government? We think not.” Seagren, 50 F.2d at 335.



Federal Court Finds:

Federal Court Orders:“and so the agreement for removal

made by these parties at another time, for another purpose and affecting no interest but their own, must be rejected here as irrelevant when set up by the United States to control its condemnation proceedings against the tenant’s interest in the land.” Seagren, 50 F.2d at 355.



• “When condemning the land, the government is in a better position than the average purchaser because it is able to compel the sale. To balance the transaction and to ensure the property owner is not burdened with the cost of community benefits, our constitution requires the property owner receive just compensation for his property.” Biggar, 873 S.W.2d at 13 (citing Armstrong v. United States, 364 U.S. 40, 49 (1960)).


The Government’s Fiduciary DutyBillboard Valuation Law

“A strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.”


Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922)

Billboard Valuation Law U.S. Supreme Court



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billboard valuation: what’s the issue?

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