Billboards battle pits advertising industry against county
Jan. 31, 2001
Greg Simmons
Staff Writer

As billboards go, it was an old one. It wasn't particularly attractive. And not too many people noticed it was gone.

But when county employees tore it down late last year, it was still at the center of a debate that has been brewing in the county for nearly 33 years. The $5 billion-a-year advertising industry is pitted against Montgomery County in a nasty battle over the billboards that until recently had no clear winner, and still has no end in sight.

Beautification enthusiasts in the county found themselves at odds with billboard advertisers.

"Look at downtown Bethesda," said Gus Bauman. "There are no billboards.

"It's just one piece of why downtown Bethesda looks nice," said Bauman, who immersed himself in the struggle to rid the county of its billboards 10 years ago when he was chairman of the county's Planning Board.

Advertisers have aligned with property rights activists to litigate the county into submission, leading to pages and pages of court dockets that span decades.

"The county has been trying for a very long time to take property without paying for it," said Eric Rubin, a D.C. attorney who is arguing a case for Eller Media, the advertising conglomerate that owns 34 billboards in Montgomery County and a majority of the "gold mine" boards in Manhattan's Times Square.

Eller Media vs. Montgomery County has been in the courts since 1982.

Another group battling the county just lost its foothold in October in what could be a pivotal court case.

A long history

That case, Whitehead Associates vs. Montgomery County, started in 1997. But lawyers will say it started 30 years earlier.

The county first outlawed billboards in 1968. The County Council believed the county's billboards were a little too ugly, so they figured drivers on the Beltway didn't need to see them.

The 1968 zoning text reads: "No billboard shall be closer than one hundred (100) feet to any property line nor located closer than six hundred sixty (660) feet to ... the interstate highway system."

That alone outlawed nearly all of the billboards in Montgomery County. But most of the boards had been constructed in 1965, and were allowed to stay up. The council banned the rest of the billboards in the county in 1986, but the law wasn't enforced.

In 1992, the council rewrote the zoning law and said the ones that were banned in 1986 had to come down. This time, they provided a time frame: Any billboards that were up could only stay up for another five years.

"The signs or structures must be removed within 90 days at the owner's expense," the 1992 law reads.

In May 1997, the county seeded the storm cloud.

In a letter addressed to Whitehead Associates, a county department wrote: "According to our records, you are the owner of billboards that are located in Silver Spring ...

"Therefore, we are hereby demanding that you remove your billboards within ten (10) days."

The litany of court motions, filings, counter filings -- and motions to remove the counter filings -- that followed numbered more than 60 state and federal court actions. By November 1999, the case was in the U.S. Court of Appeals, the country's second-highest court. Whitehead lost there too, and appealed to the highest court in the nation.

But in one sentence, the U.S. Supreme Court took the ruling from the U.S. Court of Appeals, reaffirmed that the advertising company's time had run out, and brought any more movement on that case to a screeching halt.

"The court today entered the following ... : The petition for a writ of certiorari is denied," a letter from the court reads.

By denying Whiteheads' request to review the U.S. Court of Appeals decision, the U.S. Supreme Court allowed the county to take down billboards at three sites.

And after that decision, county businesses have fewer options to promote themselves, said Whitehead's lead attorney James Dalrymple. The same county zoning code that bans billboards allows businesses to post signs on their buildings and storefronts.

"But it's not like it's granting private business owners this great windfall by allowing to post a sign on a business ... they own," Dalrymple said.

An able executive

Even with the one billboard along Georgia Avenue gone, there are still 36 left in the county located mainly in Silver Spring and Wheaton, according to county Attorney's Office documents.

The county can only take the two remaining Whitehead billboards down under the U.S. Supreme Court's ruling, but the county has its weapons, too.

Clifford Royalty has been the county's lead attorney in the Whitehead case since its inception in 1997.

"They're in contempt of court," Royalty said of PNE Media, who is now in control of the three remaining billboards in the Whitehead case. "If you ask me, they're breaking the law."

Anyone who is glad to see the billboard companies in court fighting for their lives should thank County Executive Douglas M. Duncan and his enforcers, whom Royalty is among, Bauman said.

Bauman was the chairman of the Planning Board, the spot now filled by William Hussmann, from 1989 to 1993. While there, he uncovered an agreement between the county Attorney's Office and Revere National Corp., who later sold out to Eller Media.

In 1989, Bauman had noticed that Bethesda didn't have any billboards, but Silver Spring still did. He wanted to know why. Eight months later, he said one of his employees dug up some hearsay that the council had passed a law in secret session. Soon enough, he had the document in his hands.

"When I read it I couldn't believe it," Bauman said. In closed session, the County Council had signed a contract that said Revere's billboards could stand for at least another 10 years, only removing billboards in Bethesda.

"The billboard industry got everything it wanted. Montgomery County got nothing," Bauman said.

The county tested the validity of the agreement in court, but the billboard company won.

For its credit, though, Bauman said the council's agenda had been whitewashed, and its members didn't know the full implications of what they were signing. Regardless, he said, "it was very embarrassing."

William Hanna, who was the council chairman in 1990, said the council had good intentions. He said the council hoped the agreement would allow the billboard companies to buy some time.

"I don't think [council members] were duped ... but [they] thought that it would work," Hanna said.

'Beauty is in the eye

of the beholder'

The one case that remains in court that has any affect on billboards in Montgomery County is in the state court system.

Eric Rubin, an Eller Media attorney, is helping to keep Eller's case within state limitations in hopes that it will not meet the same fate of the Whitehead case.

For now, Rubin is confident the abrupt outcome of the 18-year-old Whitehead case will have no effect on his case.

"I know it's not going to [have any effect]," he said. "They're unrelated."

Rubin said the law covering his case is simple.

For example, he said, if the state were going to widen a highway, it could buy the surrounding land at fair market value. With the billboards, Rubin said, the county acted differently. It would be as if the county said, "Instead, what we're going to do is we're going to let you use it for a couple years, and then it's ours."

Under its 1992 zoning law, Montgomery County does not have to pay the billboard owners any money.

"This is specific state law that specifically precludes that from happening," Rubin said.

Both the Maryland Constitution and the U.S. Constitution have clauses that define illegal taking of property.

"All I know is that what the law says is, they cannot force the removal of this property without paying for it," Rubin said. "If we win, [the county] will have to pay us for it. ... It would be in the millions."

Eller Media is also a subsidiary of Clear Channel Communications -- owner of 19 television stations and 900 radio stations, including three in Baltimore.

Bill Hooper, Eller Media's vice president of marketing, said Eller's billboards on Times Square are a "gold mine." But in relation to other industries, Hooper said the advertising industry is an easy one to pick on.

"We're very easy for a councilperson to stick a feather in their cap and say they've taken on an industry," he said. Because his company faces constant attacks from small interest groups, he said "our position nationwide is to protect our property rights."

However, Hooper said, there are several high-profile instances where a city might actually want billboards. For instance, a zoning district in Manhattan requires buildings to have lighted signs. Sunset Strip in Hollywood and Toronto, Canada, recently passed special signing districts to enhance the neighborhoods, Hooper said.

"Take the billboards out of Times Square and tell me how many people would go down to see it," he said. "Beauty is in the eye of the beholder."

The fight continues

Whether Montgomery County is doomed to an eternity of billboards seems to lie in the hands of those who work the court system.

The Eller Media case was argued Jan. 8 in the state Court of Special Appeals, Maryland's second-highest court.

The decision may not come for months, but even if the county wins this phase, "it wouldn't surprise me if Eller Media company were to appeal," Royalty said, signaling more legal actions that could last for years to come.

But the county's whistleblower Bauman said there's still hope for those who want billboards to be led out of the county once and for all.

"There is a light at the end of the tunnel," he said. "Montgomery County government, with each step backward, they've been making several steps forward."

By taking down billboards, the county will help the rest of the county prosper, he said.

"The urban revitalization efforts that people have worked so long for in places like Silver Spring and Wheaton," Bauman said, "will actually come to complete fruition."