So it is also in the instant case. Another recent case, Roberts v. Missouri Highway and Transportation Commission, 741 S.W.2d 815 (Mo.App. 1987), sheds further light on the issues presented when a nonconforming sign's size is changed. The size of the sign in Roberts was originally ten feet by ten feet.
The Commission renewed the permit on June 26, 1998. These changes were described in Roberts v. Missouri Highway Transportation Commission, 741 S.W.2d 815, 817 (Mo.App.S.D. 1987): The "Highway Beautification Act of 1965" (23 U.S.C.A. § 131, et seq.) was enacted requiring states to effectively regulate advertising structures within 660 feet of any interstate or primary highway right-of-way or be penalized 10 percent of their federal highway appropriation.
We disagree. In Roberts v. Highway and Transp. Com'n., 741 S.W.2d 815, 817 (Mo.App. 1987), Judge Greene, in discussing the Act noted: The federal and state governments recognized that many advertising billboards erected before the effective date of the applicable federal and state statutes and administrative rules in question did not comply with sizing and other standards set out in the new laws and rules. . . . [T]he Federal Highway Administration issued rules to assure effective state control of the continuation, use and maintenance of "nonconforming signs," . . . by providing . . . "[t]he sign must remain substantially the same as it was on the effective date of the State law or regulations.
Even if the steel poles would have been replaced with wooden poles, we do not know if the original wooden poles would be used, which technically would be necessary to restore the sign to its original state. The second case Appellant relies on is Roberts v. Mo. Highway Transp. Comm'n, 741 S.W.2d 815 (Mo.App. 1987). Again, the change to the sign was made by a sign painter's inadvertent addition of boards, which increased the size of the sign by twenty square feet.
Missouri law does appear to excuse inadvertent additions to and expansions of roadside signs, so long as those modifications can be and are expeditiously removed. See, e.g., Roberts v. Missouri Highway Transportation Commission, 741 S.W.2d 815 (Mo. 1987).See also Bixler v. Pearson, 188 So.2d 681 (Fla. 4th DCA 1966), the result in which, however, may have depended more upon principles of equitable estoppel than the power of a local government to discontinue a nonconforming use.
Id. at 728. In Roberts v. Missouri Highway and Transportation Commission, 741 S.W.2d 815 (Mo.App. 1987), the court held that the Commission could not order removal of a sign when a painter had mistakenly added a panel to the sign without the knowledge and consent of the owner and the owner promptly corrected the mistake upon notification. In Headrick Outdoor, Inc. v. Missouri Highway and Transportation Commission, 770 S.W.2d 737 (Mo.App. 1989), the court held that an attachment to a nonconforming sign that was only an increase in the size of the sign by 1.6%, done "without the knowledge or consent of the . . . owner" by a customer of the owner, and promptly rectified by the owner upon notice, was insignificant or de minimis and not sufficient to allow the Commission to order removal of the sign.
The Commission primarily relies on the previously cited case of Hulshof and Independent Stave Co., Inc. v. Missouri Highway and Transportation Comm'n, 748 S.W.2d 870 (Mo.App. 1988). Western relies primarily on the cases of Roberts v. Missouri Highway and Transportation Comm'n, 741 S.W.2d 815 (Mo.App. 1987), Boyce Industries, Inc. v. Missouri Highway and Transportation Comm'n, 693 S.W.2d 293 (Mo.App. 1985) and Headrick Outdoor, Inc. v. Missouri Highway and Transportation Comm'n, 770 S.W.2d 737 (Mo.App. 1989). In Hulshof the size of a non-conforming sign was almost doubled.
Even the plastic cover was the same as the previous covering but the words thereon were different. This was a de minimis change which would not destroy the nonconforming use. Rothrock v. Zoning Hearing Bd. of Whitehall Tp., 13 Pa.Cmwlth. 440, 319 A.2d 432, 433[1, 2] (1974). C.f. Roberts v. Highway and Transp. Com'n, 741 S.W.2d 815, 187[1] (Mo.App. 1987). The court erred in holding that the nonconforming use of the freestanding sign had been lost.