A potential settlement in the long-running lawsuit over billboards between Rapid City and Epic Outdoor Advertising will be considered by the Rapid City Council on Monday after a similar settlement attempt was shot down by the council last July.
At the city’s Legal and Finance Committee meeting Wednesday, the agreement was forwarded to the council without recommendation or discussion by committee members.
Two lawsuits, dating back to 2012 and 2015, are at the heart of the matter, as are a pair of initiated ordinances passed by Rapid Citians in 2011.
The ordinances, which led to the filing of the lawsuits, prohibited new digital billboards, restricted the size and spacing of new static billboards and established a 20-year expiration date on sign credits — the city's currency for how sign companies can trade old signs for new ones.
Epic ultimately challenged how the city enforced those ordinances, especially a ruling by the city’s Zoning Board of Appeals that found Epic was in violation of the new ordinances banning full-motion video billboards. Epic had been running full-motion videos on four billboards in Rapid City since 2005 and believed those billboards were thus grandfathered in as legal nonconforming uses.
Last December, the 7th Judicial Court ruled that the Zoning Board of Appeals exceeded its authority by “retroactively applying” the new, initiated ordinances against Epic’s four full-motion video billboards. Epic continues to run full-motion video on the billboards in question.
Interestingly, Epic and Rapid City both appealed that decision. Epic appealed the court’s decision to deny their request that the city pay for Epic’s attorney fees — around $20,000 — whereas the city appeal challenged the ruling that Epic’s billboards were a grandfathered use. Briefs for those appeals are due to the South Dakota Supreme Court by mid-April.
As part of the new settlement agreement, Epic would cease running full-motion video on all of its signs and would operate all of its signs in full compliance with city ordinances in the future.
In exchange for that concession, the city would need to approve multiple ordinance amendments that would increase the maximum allowable size and height of billboards along Interstate 90 — up to 672 square feet in area and 40 feet in height — exempt existing billboards from being required to obtain conditional use permits before altering the existing signs, and remove the requirement that full-motion video billboards run public service advertising for at least 12 minutes of every hour.
The four original full-motion video billboards would be considered legal nonconforming uses and would also cease running full-motion video, according to assistant city attorney Wade Nyberg. Current city ordinance limits the size of billboards to 250 square feet and their height to 30 feet.
A pending lawsuit between Epic, Lamar Advertising — which was granted the right to intervene and be included in the court case on Tuesday — and Rapid City over the legality of the city’s sign credit system is not part of the settlement agreement and will continue in civil court.
Michal K. Sabers, the attorney representing Epic, proposed the potential settlement Feb. 12 to city attorney Joel Landeen. The proposal is similar to the July settlement agreement that was rejected by the council, 8-1, as both settlements requested an increase in the maximum allowable size of billboards off of I-90 and the removal of the public service advertisement requirement.
As part of the rejected settlement agreement, Epic would also have been allowed to build a sign off I-90 near the Dove Christian Center at 1213 Harmony Heights Lane. The construction would likely include tearing down an existing static billboard at the site and building a new digital billboard at the new maximum allowable size. That area, however, is zoned low density residential, which means construction of new billboards is prohibited per city ordinance. The new settlement agreement doesn’t mention such a request.