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Billboard dispute heads to Montana Supreme Court

About four years ago, Robert Burch, a wealthy businessman, was driving after dark along Interstate 90 toward his 28,000-acre ranch in Sweet Grass County. Up ahead, near his property, was, he thought, a brightly lit construction zone. The lights were "shockingly bright," like klieg lights, he recalls. As he sped closer, he realized there was no roadwork, but rather, right across the interstate from his ranch, two newly built beaming billboards.

"It was like looking out at O'Hare Airport at the landing strip," Burch says. "It was amazing."

And not in a good way. Burch doesn't want his secluded Montana getaway along the Yellowstone River to resemble an airport. So he decided to sue the Montana Department of Transportation (MDT), claiming its billboard permitting process was flawed. MDT had issued two permits to Burch's neighbor, Herbert Bue, who had been paid by Lamar Advertising, the country's largest outdoor advertiser, to construct the billboards on his property.

click to enlarge Robert Burch sued the Montana Department of Transportation for permitting these two billboards along Interstate 90 across the road from his 28,000-acre ranch. - PHOTO COURTESY HOBBLE DIAMOND RANCH
  • Photo courtesy Hobble Diamond Ranch
  • Robert Burch sued the Montana Department of Transportation for permitting these two billboards along Interstate 90 across the road from his 28,000-acre ranch.

Last month, Lewis and Clark County District Court Judge Dorothy McCarter ruled in favor of MDT. Burch's attorney, Jack Tuholske, of Missoula, last week appealed the ruling, sending the case to the Montana Supreme Court. The outcome could have statewide implications for how, how many, and where billboards are sited. Additionally, Tuholske says, "The case presents very important legal questions about the discretion that state agencies have to conduct their administrative processes."

It centers on whether or not MDT complied with the Montana Outdoor Advertising Act, which states that billboards must be built within 600 feet of unzoned commercial or industrial areas. The Bues operate C&H Construction on their 270-acre property, which includes a gravel mining operation, a qualifying industrial activity. But, according to court documents, the closest billboard is 2,380 feet from the actual pit. However, MDT determined, and the court agreed, that the entire 270 acres constitutes an industrial area, not just the 24-acre pit, which the Bues, they told the court, anticipate expanding.

"This was a blatant attempt to manipulate the regulations," Burch says. In his view, "a hole in the ground and a wheelbarrow" would be enough for MDT and Lamar to justify erecting a billboard. Beyond that, Burch expresses frustration that he and his neighbors weren't consulted about the billboards' placement.

"My issue is two-fold," he says. "One, the fact that we're in a rural area like this and these gigantic billboards can go up without any notification, I'm surprised by. And secondarily, I'm offended by the fact that these lights are on all night long... they definitely have an impact on myself and my neighbors...and we have nothing to say about it."

The lights aren't, in fact, on all night long; they go off at 11:30 p.m. In response to neighbors' complaints, Lamar installed shields around the lights in early 2008. They've helped, Burch says, but not much.

Burch, who bought his property, known as the Hobble Diamond Ranch, in 1998, lives most of the year in suburban Philadelphia. He has ties to several companies, including Red Badge, a real estate and venture capital company, where he serves as CEO. Burch also co-founded Everlands, a high-end, conservation-oriented vacation club that went belly-up when the housing market tanked. And he was a member of the ultra-exclusive Yellowstone Club, in Big Sky, before pulling out when it fell into bankruptcy.

MDT declined to comment on the case. So did the Bues, although they expressed disbelief that it's heading to the state Supreme Court. Paul Dennehy, a Lamar manager in Billings, says he's also surprised that the billboards—two among Lamar's roughly 1,000 structures in the state—have become so contentious. "I've been in the business for 20 years and this is the first time I've seen [such a dispute]," he says.

Lamar's 10-year lease with the Bues, which ends in 2017, pays them $1,500 per year for the first five years and $1,750 per year for the second five years, according to court documents. Lamar installed the billboards, near milepost 384, between Greycliff and Reed Point, at a cost of $75,000.

Burch says his cost to pursue the case "far exceeds" what the Bues will earn from the billboards, but it will be money well spent if it forces MDT to be more scrupulous in issuing billboard permits. Burch himself has a gravel pit, and he says the court's recent ruling means that the six-mile stretch of his land that edges the Yellowstone River could be designated an industrial zone if he simply says he intends to mine it in the future.

"I think it's an absurd point of view," he says. "I think it's dangerous...There's a billboard act that these guys are supposed to comply with."

The Montana Supreme Court is expected to take up the case next year.

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