It sometimes seems like a lifetime ago, but some may recall that I served as the Mayor of Southside Place, Texas, a primarily residential suburb of Houston, for about 16 years. And, during the past decade since retiring from political office I’ve been the City Attorney for Southside. The Firm and I have also represented other municipalities on various litigation and transaction engagements. I believe this experience in working for and representing cities affords me a unique perspective in our Firm’s specialty in outdoor advertising legal work. So, I share some of what I’ve observed through representing municipalities, and how that experience can be utilized by outdoor advertisers and their attorneys in more effective dealings with cities.

First, cities, states, and other governmental entities have an automatic and substantial advantage in just about any litigation. For example, in Texas, as well as just about every other State in the Nation, the government enjoys sovereign immunity, meaning that under most circumstances the doctrines of estoppel, detrimental reliance, laches, and other defenses normally available between private litigants can’t be asserted against cities. Thus, if a city grants a billboard permit by mistake, prompting the billboard company to erect the sign, enter a lease, and otherwise incur substantial expense and effort based on the city’s permit, the city is usually authorized to change its position, cancel the permit, and cause removal of the sign. And, cities are also accorded various procedural advantages to exploit their sovereign immunity and other governmental defenses, such as the plea to the jurisdiction strategy. Specifically, almost every time a private litigant sues a city, a plea to the jurisdiction seeking to dismiss the case based on sovereign immunity will be filed. And, most State statutes also authorize governmental entities that loose such a dismissal motion to immediately file an interlocutory appeal, rather than waiting until the conclusion of the trial on the merits of the case before appealing like all other litigants.

Based on this unfortunate but inevitable reality, the billboard attorney needs to be aware of the caselaw and statutes that provide the few exceptions to dismissals based on sovereign immunity. For example, the Tort Claims Acts in Federal and most State statutes establish circumstances where the sovereign immunity is expressly waived and liability for the government can be assessed. In addition, the attorney should fully explain these realities to his billboard company client, thereby adjusting expectations for what the client will undoubtedly consider to be unfair treatment.

A second observation in dealing with municipalities is that the building and sign officials and other bureaucrats are not motivated by the same entrepreneurial profit ideals as private businesspersons. For example, rather that “thinking outside of the box” for resolutions to permit or other disputes, the government employee is not inclined to venture outside of his defined role and authority. In fact, it becomes a far too easy response for the bureaucrat to respond to an inequitable challenge to just say his hand are tied, and the courts or an appeal board will have to resolve the issue instead. In confronting this reality, it’s often best to communicate initially in a diplomatic and polite manner with the government official, but upon concluding such efforts will not be successful, go over his head to the city’s attorney or politicians.

Third, the city’s attorney is often elected, and certainly the mayor and council persons are elected and politicians. As such, these elected office holders are usually more motived to “do the right thing,” at least in terms of what they perceive to be in their constituents’ and voters’ best interests. For example, many open minded politicians realize it’s in their cities’ best interest to enter transactions with the outdoor advertising industry, such as leasing municipal property for the maintenance of billboards; providing public service announcements on billboards; and cap and replacement provisions, in exchange for digital conversion and billboard relocation. Especially when municipal budgets are tight, these and other types of agreements to earn revenue from billboards are deemed preferrable by cities to litigating with the industry.

In sum, get to know your municipal officials, both politically elected and bureaucratically appointed, and deal with them by understanding their motivations and limitations. Good luck—and Happy Thanksgiving!

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