Jim A. Atwood Trust v. ODOT

No. 560 June 25, 2025 417 IN THE COURT OF APPEALS OF THE STATE OF OREGON In the Matter of Jim A. Atwood Trust, Applicant for Outdoor Advertising Sign Permit. JIM A. ATWOOD TRUST, Petitioner, v. OREGON DEPARTMENT OF TRANSPORTATION, Respondent. Office of Administrative Hearings 2019ABC03279; A175894 Argued and submitted November 30, 2022. Sara Kobak argued the cause for petitioner. Also on the briefs were Kelly Walsh, Jessica A. Schuh, and Schwabe, Williamson & Wyatt, P. C. Carson L. Whitehead, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General. Before Ortega, Presiding Judge, Powers, Judge, and Hellman, Judge. POWERS, J. Affirmed. 418 Jim A. Atwood Trust v. ODOT POWERS, J. Petitioner Jim A. Atwood Trust seeks judicial review of a final order issued by Oregon Department of Transportation (ODOT) that denied petitioner’s application for a permit for a preexisting, nonconforming outdoor adver- tising sign (OAS). ODOT denied the permit because it deter- mined that petitioner was not the owner of the sign, which was required for the agency to issue the permit. Petitioner challenges that conclusion on review. As explained below, we reject petitioner’s challenge to ODOT’s final order denying the permit application because, at the time petitioner sub- mitted the application, there was no longer a preexisting, nonconforming sign for which to issue a permit. Further, because petitioner’s current challenge is an impermissible collateral attack on a prior final order issued by ODOT, we affirm. We review ODOT’s conclusions of law in its final order for legal error and its factual findings for substantial evidence. ORS 183.482(8)(a), (c). We begin by briefly setting out the statutory framework to contextualize the dispute before us and supplement the applicable law in our later discussion. The Oregon Motorist Information Act (OMIA) “gen- erally prohibits erecting or maintaining most signs visible to the traveling public from a state highway, unless the sign complies with the provisions of the OMIA, rules adopted under the OMIA, and any federal requirements.” Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634, 637- 38, 20 P3d 180 (2001).1 Under the terms of the regulatory framework, the OMIA “prohibits all but certain preexisting [OASs] and restricts the placement of those signs.” Id. at 638. A preexisting OAS is one that existed before May 30, 2007. ORS 377.712(1). “[T]he owner of any [OAS] visible from a road or street that is designated as a state highway after 1 The Supreme Court explained that the legislature enacted the OMIA to comply with the federal Highway Beautification Act of 1965, 23 USC § 131. Outdoor Media Dimensions Inc., 331 Or at 637. That federal act requires states to provide “effective control” of outdoor advertising signs, which “essentially requires states to prohibit all outdoor advertising signs that are visible from an interstate or primary highway, unless a particular sign” meets certain statutory exceptions. Id. Cite as 341 Or App 417 (2025) 419 May 30, 2007, is entitled to the issuance of an [OAS] permit for the sign upon application by the owner of the sign * * * if the sign was lawfully located within a commercial or indus- trial zone at the time of designation as a state highway.” ORS 377.712(2). With that background on the statutory frame- work, we turn to the relevant facts, which are not disputed. Petitioner owns a building located on West Burnside Street in downtown Portland, Oregon. The building has an exposed, west-facing, brick wall that abuts a ground-level parking lot and is visible to eastbound traffic on Burnside Street. Petitioner leased the wall space to advertising companies that, until 2009, would either paint advertisements directly on the building or otherwise affix them to the wall. After 2009, a cable, anchor, and bolt system with lighting was installed on the wall that allowed printed vinyl advertise- ments to be mounted and stretched over the wall’s surface. The cable system was purchased by petitioner’s les- see at the time, and petitioner reimbursed the lessee for the costs of the materials and installation by reducing the lessee’s rent for some time. In 2014, that lessee assigned its interest in the lease with petitioner to OnDisplay Advertising, LLC. By that point, West Burnside Street, which is also known as Highway 596, was designated part of the National Highway System and became subject to the OMIA. That rendered any sign placed on petitioner’s wall nonconf