Eller Media Co. v. Montgomery County

SALMON, Judge. A useful synopsis of the early history of the litigation involved in this appeal can be found in Montgomery County v. Revere, 341 Md. 366, 369-76 , 671 A.2d 1 (1996). The current appeal involves three consolidated cases, one of which was filed in the last year of Richard M. Nixon’s presidency. 1 The parties currently involved in these cases are Eller Media Company (“Eller”) on one side and the County Executive for Montgomery County, the Montgomery County Council, and Montgomery County, Maryland (collectively, “the County”) on the other. The source of controversy is thirty-four billboards (currently owned by Eller), which are affixed to fourteen structures located in the County.

The County wants the billboards removed but does not want to pay Eller any monetary compensation for the loss of the signs. ⁵⁶⁶ In an effort to have Eller remove the billboards, the County enacted zoning ordinances in 1968, 1986, 1992, and 1997. The last three sign ordinances repealed the sign ordinance that immediately preceded it, leaving only the 1997 ordinance currently in effect. The 1968 and 1992 sign ordinances allowed lawfully nonconforming signs to stay in place for a period of time (an amortization or grace period) before the signs were required to be removed. 2 The 1986 sign ordinance did not allow for any amortization period. The 1997 ordinance (Montgomery County Ordinance No. 13-76, now codified-as Chapter 59F of the Montgomery County Zoning Code (1997)), does not distinguish between commercial arid non-commercial signs.

It provides, in part: Off-site sign. Except for signs permitted by this ordinance, a sign must not be used to identify a site other than the site where the sign is erected. Signs or structures that were lawful on July 28, 1986 or were lawfully constructed, structurally altered, or relocated after July 28, 1986 may be continued for a period of 5 years from July 13, 1992. At the end of this amortization period, the signs or structures must be removed within 90 days at the owner’s expense.

See Montgomery County Zoning Code, Chapter 59, Section F.1-7.1(i). For example, under the terms of the 1997 ordinance, if a McDonald’s restaurant had on its premises a billboard identifying the site as a McDonald’s, that sign would be permitted ⁵⁶⁷ as an on-premise sign; if a site had a sign that read “McDonald’s one mile,” it would not be permitted. The 1997 sign ordinance also limits the size of all signs in Montgomery County. For example, in a residential zone, a sign may not exceed two square feet (section 59F-8(a)) and must not exceed 200 square feet in rural or agricultural zones (section 59F 4.2(d)).

All of Eller’s signs exceed 200 square feet. Signs not visible outside the property where erected, signs used by government agencies or utilities erected by order of a police officer or utility official in the performance of its official duties (e.g., to control traffic, warn of danger, etc.) are exempted. Also exempted are signs required to be displayed by law or regulation. The 1997 ordinance, like the three ordinances that preceded it, did not provide for any monetary payment to be made by the County to reimburse the owners of the billboards for the fair market value of the signs, even though the Maryland General Assembly, in 1983, passed Senate Bill 712, now codified as article 25, section 122E, which provides: (a) Definitions.— (1) In this section the following words have the meanings indicated.

(2) (i) “Fair market value” means a value, determined by a schedule adopted by the Department of Transportation, that includes the value of integral parts of an outdoor advertising sign, less depreciation. (ii) “Fair market value” does not include a value for loss of revenue. (3) (i) “Outdoor advertising sign” mpans an off-premises outdoor sign: 1. Commercially owned and maintained; and 2.

Used to advertise goods or services for sale in a location other than that on which the sign is placed. ⁵⁶⁸ (ii) “Outdoor advertising sign” includes signs composed of painted bulletin or poster panel, and usually referred to as billboards. (b) In general. — A county or municipality shall pay the fair market value of an outdoor advertising sign, removed or required to be removed by the county or municipality, that was lawfully erected and maintained under any State, county, or municipal law or ordinance. See Md. Ann.Code art. 25, § 122E (1999 Repl.Vol.) (emphasis added). On December 31, 1998, Revere National Corporation, Inc. (one of Eller’s predecessors in interest) filed a second amended complaint in the Circuit Court for Montgomery County, in which it sought to have the Court declare unlawful and enjoin ... the ...

County ..., from enforcing Article 59 F of the Montgomery County Zoning Ordinance (the “Sign Regulations”), which makes nonconforming and requires the removal of certain existing lawfully erected signs used for the dissemination of noncommercial and commercial messages, while permitting the continued existence of a substantially greater number of signs that are used for commercial purposes; Revere also seeks compensatory and punitive damages, attorneys fees pursuant to 42 U.S.C. § 1988 and such other relief as the Court deems just and proper. Montgomery County filed a motion to dismiss the second amended complaint and a motion for summary judgment. The motions court granted summary judgment in favor of Montgomery County as to all counts in the second amended complaint, except for the counts in which the plaintiff claimed (1) entitlement to the fair market value of the billboards under article 25, section 122E or (2) that the sign ordinance, as written, constituted a “taking,” without compensation, as prohibited by both the United States and the Maryland constitutions. After hearing. evidence as to the fair market value issue, the trial judge, in an apparent change of position, held ⁵⁶⁹ that the County was not required to pay Eller any monetary compensation for the removal of the signs under section 122E.

In the court’s opinion, the amortization provisions set forth in the 1997 ordinance adequately compensated Eller. Moreover, the trial court expressed the opinion that the 1997 ordinance did not constitute a “taking” under either the Maryland or federal constitution. Nevertheless, as a precautionary matter, in case an appellate court was to disagree with his opinion regarding section 122E or the “taking” issue, the trial judge concluded that the fair market value of the signs (using the methodology set forth in article 25, section 122E(a)(2)(i)) was $470,000. In arriving at this damage figure, the trial judge did not include the fair market value of Eller’s leasehold interest in the real property on which the signs were located.

Eller filed this timely appeal and raises seven issues. I. ISSUE I Did the trial court err in holding that amortization was a lawful substitute for the monetary payment required by article 25, § 122E? In an oral opinion, the trial court characterized the issue to be resolved as follows: [D]oes the concept of amortization contained in the Montgomery County ordinance trump the requirement of 122(E) that a County pay the fair market value, or vice versa, does 122(E) trump the County ordinance and require payment of fair market value, even though there may have been an amortization!?] The lower court, relying exclusively on an opinion by this Court in Chesapeake Outdoor Enterprises, Inc. v. Mayor and City Council of Baltimore, 89 Md.App. 54 , 597 A.2d 503 (1991), concluded that section 122E was inapplicable if a county provided for a reasonable amortization period for the removal of the signs. The court concluded that the amortiza ⁵⁷⁰ tion period set forth in the 1997 sign ordinance was reasonable. 3 A. Legislative History of Article 25, Section 122E In 1982, the Maryland General Assembly had before it Senate Bill 702, which, insofar as is here relevant, is substantively identical to the statute that later was codified as article 25, section 122E.

Senate Bill 702 passed the General Assembly, but Governor Harry Hughes vetoed it. His veto message included the following language: This bill prohibits any county or principality from removing or requiring the removal of an “off-premises outdoor advertising sign” unless it pays the “fair market value” of the sign in accordance with a schedule of the State Department of Transportation used in conjunction with its highway beautification program. The effect of the bill would be to eliminate the phasing out or “amortization” of certain signs by a local jurisdiction without requiring payment as a sign regulation and removal strategy. The amortization approach has been employed “by” local government in Maryland for at least 25 years to promote traffic safety and the economic well being, natural beauty, and esthetic features of the particular jurisdiction within certain constitutional limitations, the Maryland courts have recognized amortization as a valid exercise of the governmental police power which does not amount to an unconstitutional “taking” for which the owner of the sign is entitled to compensation.

Grant v. City of Baltimore, 212 Md. 301 , 129 A.2d 363 (1957); Donnelly Adv. Corp. v. City of Baltimore, 279 Md. 660 , 370 A.2d 1127 (1977). ⁵⁷¹ That this bill fundamentally changes that which has traditionally been a matter of local concern in Maryland is highlighted by the requests of the Mayor of the City of Baltimore and the County Executive of Montgomery and Baltimore Counties for a veto of Senate Bill 702. In addition, other local elected officials, the Maryland Association of Counties and the Maryland Municipal League have requested a veto. In conclusion, I am vetoing Senate Bill 702, not because I oppose compensation to sign owners, but because it does not provide sufficient local flexibility and because its substantial fiscal impact may well halt sign regulation programs at the local level.

(Emphasis added.) In 1983, Senate Bill 712 was introduced. Opposition to Senate Bill 712 was voiced in a letter from the Maryland Department of State Planning to the Senate’s Constitutional and Public Laws Committee. The letter said: The Department is opposed to Senate Bill 712 which would require local jurisdictions to pay a certain value to owners of non-conforming outdoor advertising signs when such signs are removed, or are required to be removed, by a county or municipality. Senate Bill 712 would virtually destroy the existing programs of certain local jurisdictions who have amortization schedules for the removal of such signs.

The schedules allow a non-conforming sign to remain for a specific period of time before the owner is required to remove it. This grace period allows the owner a chance to gain a fair return on his investment. Thus, Senate Bill 712, by requiring the jurisdiction to make payment when the sign is removed, makes these amortization schedules useless. Another concern of this Department is the potential financial and administrative burden this legislation would place on those jurisdictions who are attempting to regulate signs ⁵⁷² through zoning.

In 1982, we contacted a sampling of metropolitan counties who indicated to us that several hundred non-conforming billboards would be affected by this kind of legislation and the cost to these jurisdictions for removal of these signs would be considerable. The Department urges an unfavorable report on Senate Bill 712. A fiscal note accompanying Senate Bill 712 stated that Baltimore City estimated that passage of the bill would increase City expenditures in the following year in the form of payment to sign owners by $150,000. The City presented a statement opposing Senate Bill 712 to the Senate Constitutional and Public Law Committee.

In the statement, a representative of the City complained that the legislation “would require the City to pay fair market value for the removal of billboards, placing an unnecessary burden on taxpayers.” Senate Bill 712 was passed by the General Assembly on April 9, 1983, and signed into law by Governor Hughes. Shortly before the bill became law, the Maryland Attorney General’s office, on April 1,1983, responded to an inquiry from Montgomery County Delegate Jennie Forehand as to what effect Senate Bill 712 would have on “existing depreciation schedules utilized by local jurisdictions in lieu of monetary payment.” The Attorney General answered the delegate’s question by referring her to Governor Hughes’s 1982 veto message concerning Senate Bill 702 and opined (impliedly) that enactment of the legislation would eliminate the practice of local jurisdictions of allowing for an amortization (or grace) period for the removal of signs in lieu of paying the owners the fair market value of their signs. From the above, it is clear that many involved in the legislative process of enacting Senate Bill 712, which was codified as article 25, section 122E, believed that amortization was not a lawful substitute for the monetary payment called for in the statute. This belief is quite understandable in view of the fact that the statute provides that “fair market value” is ⁵⁷³ to be calculated by reference to schedules adopted by the Department of Transportation.

B. The Case of Chesapeake Advertising, Inc. v. Baltimore In Chesapeake, supra, the plaintiff owned numerous general outdoor advertising signs in Baltimore City. 89 Md.App. at 59 , 597 A.2d 503 . These signs were located in “Residence Districts, B-l Business Districts ... [and] in M-l Industrial Districts.” Id. In those districts, general advertising signs were prohibited outright by various sign ordinances. Id.

Additionally, the plaintiff owned and maintained signs in B-2, B-3, B-4, and B-5 Business Districts and M-2 and M-3 Industrial Districts where outdoor advertising signs were allowed but only if permits were obtained. Id. The Court noted in Chesapeake when the various sign ordinances were adopted and what amortization periods had been provided: Prior to the City’s initial adoption of a zoning ordinance in 1923, building permits had been required for some time for all construction within Baltimore City. See Baltimore, Md., Code, Ordinance 155 (1908).

The City’s prohibition of general advertising-type signs in residential zoning districts dates at least as far back as 1925. Id., Ordinance 1247 (1925). With respect to such signs in office-residential zoning districts, the prohibition dates back no later than to 1950, and with respect to such signs in B-l and M-l districts, to 1971. Id., Ordinance 711 (1953); Ordinance 1051 (1971).

In 1950, the City adopted an amortization provision directing removal of all nonconforming signs in residential and office-residential zoning districts within five years. Id., Ordinance 1101 (1950). In 1971, this provision was recodified and its effect extended to B-l and M-l zoning districts of Baltimore City. Id., Ordinance 1051 (1971).

Thus, facially, even nonconforming general advertising signs have not been permitted in residential zoning districts since 1955, or in office-residential, B-l or M-l zoning districts since 1976. ⁵⁷⁴ Id., 89 Md.App. at 58-59 , 597 A.2d 503 (footnotes omitted) (emphasis added). In Chesapeake, one of plaintiffs contentions was that the City was compelled under article 25, section 122E, to pay it compensation for the removal of its signs. Id. at 64 , 597 A.2d 503 . The trial court held that section 122E did not apply to the City.

We held that section 122E did apply to Baltimore City (id. at 67, 597 A.2d 503 ), but that the plaintiff was not prejudiced by the circuit court’s error because it had failed to present any evidence that the signs were “lawfully erected and maintained under any state, county, or municipal law or ordinance” as required by section 122E. Id. at 67 , 597 A.2d 503 . Because of the plaintiffs failure “to produce at least some evidence that its signs were nonconforming, that is, that they were lawfully in existence up until the adoption of the zoning restrictions or amortization ordinances in question,” we held that summary judgment was properly granted in favor of the City. Id. at 75 , 597 A.2d 503 (emphasis added).

After announcing this holding, the Chesapeake Court went on to say, in dicta: We also wish to make clear that summary judgment would still have been proper in this case even if [plaintiff] had effectively countered the City’s assertion that there was no genuine issue as to whether the signs in the City’s amortization areas were nonconforming. The Court of Appeals has twice confirmed the constitutional reasonableness of five-year amortization periods for such signs. Grant v. City of Baltimore, 212 Md. 301 , 129 A.2d 363 (1957); Donnelly Advertising Corp. v. Mayor and City Council of Baltimore, 279 Md. 660 , 370 A.2d 1127 (1977). The Fourth Circuit cases previously referred to involve four- and five- and-a-half-year amortization periods for such signs.

Here, in contrast, due to the passage of time between the end of the amortization period and the City’s enforcement of its Zoning Ordinance, sign owners in Baltimore City had an opportunity to amortize their signs over a period of no less than 19 years (and perhaps as long as 41 years). See Harris v. City of Baltimore, 35 Md.App. at 581-82, 371 A.2d ⁵⁷⁵ 706 (court not restricted in determining constitutional reasonableness of amortization provision to consideration of the original amortization period or its later extension, due to the passage of time since the enactment of those provisions). Nor can [plaintiff] be heard to complain that it has only owned the signs between two and four years. The City cannot be bound by a business group’s ill-conceived decision to gamble on nonenforcement of the City’s zoning laws.

See Joy v. Anne Arundel County, 52 Md.App. at 653, 451 A.2d 1237 (delay in enforcing permit provisions is not generally a defense in a zoning enforcement case); Nat'l Inst. of Health Fed. Credit Union v. Hawk, 47 Md.App. 189, 201 , 422 A.2d 55 (1981 [1980]) (“estoppel cannot successfully be invoked against municipal authorities based on zoning actions”). Id. In the case at hand, both the trial court and the County interpreted the just-quoted dicta to mean that, if a county zoning ordinance provides for a reasonable period of amortization, then it need not pay the sign owners the fair market value of the signs as required by section 122E. 4 This is a misinterpretation of the Chesapeake dicta. In Chesapeake, Baltimore City made no attempt to enforce its sign ordinance against the plaintiff until 1989.

Id. at 59, 597 A.2d 503 . The Chesapeake dicta included the assumption that all of the signs were “lawfully in existence up until the adoption of the zoning restrictions” (therefore, a non-conforming use), but the last of the zoning restrictions at issue in Chesapeake was adopted in 1976, and the last of the amortiza ⁵⁷⁶ tion periods expired in 1981, some two years before article 25, section 122E, was enacted. Thus, although the Chesapeake Court did not explicitly say so, section 122E was inapplicable because none of the signs were being lawfully maintained when section 122E came into effect and, under section 122E, there is no requirement for the payment of fair market value unless the signs were being “lawfully ... maintained.” See Md. Ann.Code art. 25, § 122E(b). After Chesapeake was decided, the Court of Appeals said in Revere that it appeared that article 25, section 122E, required the County to make monetary payment to the sign owners.

Thus, the Revere Court did not accept the legal theory that providing for amortization would be a legitimate substitute for payment of fair value as required under section 122E. 341 Md. at 391-92 , 671 A.2d 1 . The Revere case concerned a 1990 settlement agreement between Montgomery County and one of Eller’s predecessors, Reagan Outdoor Advertising, Inc. (“Reagan”). Id. at 372 , 671 A.2d 1 . The agreement involved all of the billboards here at issue.

The agreement was incorporated into an April 11,1990, order of court. The agreement allowed Reagan to continue “maintain[ing] within the County ... forty-seven [billboards]” for a period of ten years. Reagan could replace and relocate billboards to a new location if either “(i) a lease for the premises on which a sign is located is not to be continued, or (ii) an outdoor advertising structure has been destroyed or has deteriorated to the point that it is no longer in a safe condition.” Relocation of billboards was limited to not “more than five signs within any calendar-year,” with Reagan having the sole discretion as to which signs were to be relocated. The agreement placed certain restrictions on where billboards could be relocated but stated that “in no event shall the County utilize procedures or fees to impair Reagan from exercising its rights under this Agreement.” Id, at 372-73, 671 A.2d 1 .

In March 1992, the County denied Revere National Corporation (“Revere”), one of the successors in interest to Reagan, ⁵⁷⁷ permission to construct a replacement sign pursuant to the settlement agreement. Id. at 373 , 671 A.2d 1 . The County justified its denial upon the legal theory that the agreement with Reagan was void ab initio and therefore Revere was impermissibly attempting to build a prohibited sign. Id.

What happened next was recounted in Revere : Upon the County’s denial of its request, Revere filed in the Circuit Court for Montgomery County a “Motion to Adjudicate Defendants In Contempt of Court and For An Order to Enforce Stipulated Consent Agreement.” After setting forth the pertinent facts, Revere’s Motion asserted that the defendants “have violated the April 11, 1990 Order of this Court.” Revere sought to have the defendants adjudicated in contempt, sought an order requiring the defendants to comply with the settlement agreement “which was entered as an order of the [circuit] Court,” and requested compensatory damages. In response, the County filed a “Motion To Vacate The Stipulated Consent Agreement of April 11, 1990,” as embodied in the court’s order. The County asserted that the settlement agreement is “void ab initio because it purports to permit what the Montgomery County Zoning Ordinance prohibits, namely the existence of 47 billboards in Montgomery County.” The County went on to state that it “has no authority to make such an agreement or to consent to a court order which violates the Zoning Ordinance’s prohibition on billboards.. .. ” The County requested the court to find that the settlement agreement “is void ab initio and order that it be vacated.” The County filed a separate answer to Revere’s motion, also asserting, inter alia, that the settlement agreement was void. Id. at 373-74 , 671 A.2d 1 .

The circuit court held that the settlement agreement should be vacated because the County had no power to enter into an agreement that was contrary to its zoning regulations. Id. at 375 , 671 A.2d 1 . The County cited several cases from other jurisdictions, which recognize “that the fundamental public ⁵⁷⁸ policy of a State may sometimes require that a final consent judgment be vacated or not given preclusive effect.” 5 The Court of Appeals, after analyzing several cases from sister jurisdictions (id. at 380-83, 671 A.2d 1 ), said: We shall assume, arguendo, that it would have been proper to vacate the settlement agreement and judgment of April 11, 1990, if the agreement were clearly ultra vires as contended by Montgomery County. Nevertheless, for the reasons set forth in Part IV below, we do not agree that the substance of the agreement was clearly ultra vires.

Id. at 383 , 671 A.2d 1 . In Revere , the County maintained that (1) implementation of the settlement agreement would clearly be a violation of law because the local zoning regulation prohibits all billboards and (2) “public contracts] must comply with [the] law or be declared null and void.” Id. at 390 , 671 A.2d 1 . The Revere Court responded to the County’s argument by pointing out that, ⁵⁷⁹ [i]n determining whether implementation of the settlement agreement would involve activity in violation of law, however, it is necessary to examine all of the applicable law and not simply the district council’s zoning regulations. Although a particular activity might be prohibited under local zoning regulations viewed in isolation, when all of the applicable law is considered, including prevailing state or federal law, the local zoning prohibition may be invalid or superseded.

Id. The Revere Court went on to say: When all of the applicable law is considered, it is not at all clear that Revere’s contractual right under the settlement agreement to maintain its 47 billboards for ten years was in violation of law. Rather, it is Montgomery County’s position in this case which appears to be in violation of law. In arriving at this conclusion, we need not reach the federal and state constitutional provisions invoked by Revere.

Montgomery County’s argument entirely overlooks Code (1957, 1994 Repl.Vol.), Art. 25, § 122E(b), enacted by the Maryland General Assembly in 1983. This statute unequivocally mandates that “[a] county or municipality shall pay the fair market value of an outdoor advertising sign, removed or required to be removed by the county or municipality. ...” Neither the district council’s 1986 regulations prohibiting all billboards, nor any other enactments by Montgomery County ivhich have been called to our attention, provide for compensation to the owner of pre-existing lawfully erected billboards. Insofar as the record in this case discloses, Montgomery County has never offered compensation to Revere or its predecessors. Instead, prior to the April 1990 settlement agreement, Montgomery County resisted the demands by Revere’s predecessors for compensation.

The district council’s regulations purporting to ban billboards must be considered in conjunction with Art. 25, ⁵⁸⁰ § 122E. As pointed out by this Court in Hanna v. Bd. of Ed. of Wicomico Co., supra, 200 Md. [49] at 57, 87 A.2d [846] at 850, a case relied upon by Montgomery County, “no [government agency] ..'. has the right to ignore or circumvent the mandate of the Legislature.” Under § 122E, Montgomery County has no authority to ban pre-existing lawfully erected billboards without paying the fair market value of .the billboards. In light of § 122E and the facts disclosed by the record in this case, the trial court erred in holding that Revere’s right under the settlement agreement to maintain 47 billboards for ten years was clearly contrary to law. Considering all of the applicable law and the circumstances, the agreement allowing Revere to maintain its 47 pre-existing billboards for ten years appeared to be a reasonable, lawful compromise and resolution of the dispute. 6 Id. at 391-92, 671 A.2d 1 (emphasis added).

In the face of the legislative history surrounding article 25, section 122E, the language of the statute, and the straightforward statement by the Revere Court that Montgomery County “has no authority to ban pre-existing lawfully erected billboards without paying the fair market value of the billboards,” we hold that the trial court erred when it held that the amortization provisions of the 1997 ordinance “trumped” the provisions of article 25, section 122E. Fair compensation, as defined in article 25, section 122E(a), must be paid even if a reasonable amortization period was provided for in the ordinance. 7 ⁵⁸¹ The County argues, in the alternative, that, even assuming that a county cannot evade the requirements imposed by section 122E to pay “the fair market value” of lawfully erected and maintained billboards, that section was here inapplicable because Eller’s billboards have not been lawfully maintained since “the early 1970’s.” While it is true that under the 1968 sign ordinance, the amortization period ended, at the latest, in 1972, 8 there are at least two fatal flaws in the County’s alternative argument. First of all, in the second amended complaint, Eller’s predecessor asked that the 1968, 1986, and 1992 sign ordinances be declared unconstitutional. But the County, in its motion for summary judgment, took the position that all counts alleging the unconstitutionality of the earlier ordinances were moot because the ordinances had been repealed.

The motions judge adopted the County’s mootness argument and dismissed those counts. The County cannot claim on the one hand that it does not matter whether the earlier sign ordinances were constitutional and then assert that the same ordinances legitimately prohibited Eller from maintaining the signs after the amortization period in the 1968 ordinances expired. Additionally, the County fails to explain why, under the holding in Revere , signs in existence while the settlement agreement was in effect (1990-1998) were not being lawfully maintained. Second, in granting summary judgment, the trial judge said that he assumed that the billboards were being lawfully maintained when the 1997 ordinance was enacted.

Unless exceptional circumstances exist, an appellate court cannot ⁵⁸² affirm the grant of summary judgment on a ground not relied upon by the motions court. See Bishop v. State Farm Mut. Auto Ins., 360 Md. 225, 234 , 757 A.2d 783 (2000), and cases cited therein. No exceptional circumstances here exist.

II

ISSUE 2 Did the trial court err when it held that section 8-737 of the Maryland Transportation article does not prohibit Montgomery County from requiring Eller to remove its billboards adjacent to federal-aid primary highways without just compensation? Section 8-737 of the Transportation article of the Maryland Code (2001 Repl.Vol.) reads: Compensation for removal of sign adjacent to federal-aid highway. (a) Removal of signs prohibited without just compensation. — A county or municipality may not remove an outdoor sign which is adjacent to a federal-aid primary highway and which was lawfully erected and maintained under State law and in existence or in litigation on or after November 6, 1978 unless just compensation is paid by the Administration. (b) Expenditures contingent upon matching federal funds. — The Administration is not required to spend any funds under this section until appropriate matching federal funds are available to the State.

(c) Applicability of subsection (a). — The provisions of subsection (a) of this section shall not apply to any outdoor sign which is not eligible for matching federal funds. (Emphasis added.) According to the second amended complaint, some — but not all — of the signs here at issue were “contiguous to” Federal-Aid Primary Highways. Eller argues: The trial court erred when it held that Maryland Transportation article Ann. section 8-737 does not prohibit Montgom ⁵⁸³ ery County from requiring Eller to remove its billboards adjacent to federal-aid primary highways without just compensation being paid. As a practical matter, the answer to this question makes no difference.

If we were to assume, arguendo, that section 8-737 does prohibit Montgomery County from requiring the removal of Eller’s signs without just compensation being paid, Eller’s position would not improve in any respect. This last statement is true because article 25, section 122E, prohibits the County from requiring the removal of any of the billboards here at issue without payment of the fair market value of the signs. Payment of “the fair market value” of the billboards as required by article 25, section 122E, would also amount to payment of “just compensation.” Neither of the parties to this appeal contend otherwise. We will not answer questions whose resolution would not serve a useful purpose.

Hamilton v. McAuliffe, 277 Md. 336, 340 , 353 A.2d 634 (1976) (“That the declaratory judgment process should not be used where a declaration would not serve a useful purpose or terminate a controversy is ... well settled.”). Question 2 is therefore moot.

III

ISSUE 3 Did the trial court err when, in calculating the fair market value of the billboards, it failed to take into consideration the value of Eller’s leasehold interest in the sites where the billboards are located? The County takes the position that, if Eller is entitled to the fair market value of the billboards, then the trial judge correctly calculated that value at $470,000. Eller does not take issue with the trial judge’s conclusion that the fair market value of the billboards themselves was $470,000. It contends, however, that the lower court erred in failing to award damages for the fair market value of its leasehold interest in the sites where the billboards are located.

Therefore, according to Eller, we should remand this case with ⁵⁸⁴ instructions to the trial court to calculate the fair market value of the leasehold interest and add that amount to the $470,000 figure. Section 122E(a)(2) defines fair market value as “a value, determined by a schedule adopted by the Department of Transportation (“DOT”) that includes the value of the integral parts of an outdoor advertising sign, less depreciation.” The schedule referred to in section 122E(a)(2) is titled “Reproduction Cost Index for Outdoor Advertising Signs.” At trial, the index was admitted into evidence as Exhibit 3. The introduction to the index includes the following language: Depreciation is to be applied taking into consideration the age, economic factors and conditions of the specific sign. The site value may be determined based on the remaining economic life of the sign and applying the present woiih of one period based on yield rates for the remaining life of the sign.

In other cases, where the sign is being acquired from commercial or industrial zoned land, the value of the site will be paid for in the acquisition of the land. (Emphasis added.) In the body of the index, at Page 31 of Exhibit 3, under a section entitled “Site Valuation,” the following language is used: The value of the site is to be accounted for in the appraisal of the land except when doing the valuation for the Highway Beautification Program. Under this program, some signs are considered legal non-conforming use signs and the lease value of the remaining economic life of these signs will determine the site value. (Emphasis added.) Eller contends: [S]ince the valuation in the instant case was being done under Section 122E and not the Highway Beautification Act, Eller was entitled to be compensated for the fair market ⁵⁸⁵ value of its leasehold interests for the real property on which it[s] signs are located.

The trial court rejected Eller’s argument, stating: [T]he plaintiff argues that if you look at page 31 of the schedule, it says that the value of the site should be included in the valuation, and I think they are wrong. I do not think that is what it says. I think it says just the opposite. The trial court provided no hint as to why it thought Eller was wrong, but the County (somehow) manages to uncover the court’s actual reasons, viz: The [circuit [cjourt viewed the absence of a statutory reference to the leasehold and the lack of a precise reference in the schedule to mean that the value of the site is not part of fair market value under the statute.

This makes sense when one considers that many of the leases continue on a monthly basis and terminate upon removal of the billboards. Also, the termination of the lease eliminates an expense of the billboard business, and should not constitute an asset or integral part of the structure. (References to record extract omitted.) There was no need for the index to make any specific “statutory reference” to leasehold interests. In order for one to have a valuable interest in land, it is not essential to possess fee simple title.

A lessee of land, such as Eller, has an interest in the land it leases. This being so, when the index says, with an exception not here relevant, that “the value of the site [i.e., leased premises where the billboard is located] is to be accounted for in the appraisal of the land,” payment for the value of the leasehold must be paid. The County’s argument that the leasehold interest does not constitute an asset because the termination of a lease eliminates an expense is without merit. The argument is based on the false premise that the rent to be paid always equals the value of the lease, which, of course, is not necessarily true.

We hold that the trial court erred when it concluded that under section 122E Eller was not entitled to payment of ⁵⁸⁶ the fair market value of its leasehold interest in the sites where the billboards are located.

IV

ISSUE 4 Did the motions court err when it held that Eller’s challenge to Montgomery County’s 1968, 1986, and 1992 sign ordinance was moot, despite the fact that Eller sought damages for injuries suffered as a result of the enactment of those ordinances? In Counts I, II, III, and IV of the second amended complaint, Eller’s predecessor challenged the constitutionality of the 1968 sign ordinance; in Counts IX and X, the constitutionality of the 1986 sign ordinance was challenged; and in Counts XV and XVI, plaintiff alleged that the 1992 sign ordinance was unconstitutional. The motions judge granted summary judgment as to those counts on the ground that the constitutional issue was moot. 9 We disagree with that ruling. First, as already mentioned in our discussion relating to Issue 1, if the 1968 sign ordinance is unconstitutional, then there is no merit, whatsoever, in the County’s argument that article 25, section 122E, is inapplicable because the signs have been unlawfully maintained on the premises since 1972.

If the 1968 ordinance was unconstitutional, then the signs were lawfully erected and maintained in 1983 when section 122E was enacted. On the other hand, if the 1968, 1986, and 1992 sign ordinances were all constitutional, then the County could successfully argue that the billboards have not been lawfully maintained since (at the latest) 1972 (the end of the amortization period allowed in the 1968 ordinance). ⁵⁸⁷ Second, as previously noted, the second amended complaint alleged that plaintiff suffered damages as a result of the enactment of the sign ordinances of 1968, 1986, and 1992. Eller asserts that the ordinances, even though unconstitutional, prevented it from erecting new signs or replacing old ones. The County, in requesting summary judgment, did not controvert the fact that plaintiff, in fact, had been damaged. “Claims for damages or other monetary relief automatically avoid mootness, so long as the claim remains viable.” 13A, Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure 3533.3 at 262 (2nd ed.1984).

See also City of Richmond v. J.A. Croson Co., 488 U.S. 469 , 478 n. 1, 109 S.Ct. 706 , 102 L.Ed.2d 854 (1989) (A plaintiffs suit challenging a repealed minority set aside ordinance was not moot because the plaintiff sought damages for injuries allegedly suffered as a result of the repealed ordinance.); Jackson Court Condominiums v. City of New Orleans, 665 F.Supp. 1235, 1240 (E.D.La.1987), aff'd, 874 F.2d 1070 (5th Cir.1989) (plaintiff, who sought monetary damages for deprivation of its rights caused by the enactment of a city ordinance, presented a present controversy that the court could grant relief, even though the ordinance in question had been repealed, because the plaintiff sought monetary damages). The County relies on the cases of Lake Falls Association v. Board of Zoning Appeals of Baltimore County, 209 Md. 561 , 121 A.2d 809 (1956), and Gresser v. Anne Arundel County, 349 Md. 542, 545 , 709 A.2d 740 (1998), for the proposition that “no challenge can be pursued against a repealed statute.” Neither of these cases contain such a broad holding and, in any event, neither are apposite. The plaintiff in those cases did not allege that damages were caused by the enactment of the challenged statutes. We hold that the motions judge erred when he declined to decide the issue of whether the 1968, 1986, and 1992 sign ordinances were constitutional. ⁵⁸⁸ V. ISSUE 5 Did the trial court err when it ruled, without an evidentiary hearing, that the 1997 sign ordinance was a permissible restriction on speech under the test set forth in Central Hudson Gas and Electric Corporation v. Public Service Commission, 447 U.S. 557 , 100 S.Ct. 2343 , 65 L.Ed.2d 341 (1980), without ever considering whether the ordinance in fact directly advanced the stated governmental objective to a material degree and whether it reached no further than needed to accomplish the stated governmental objective?

Count XXI of the second amended complaint alleges that restrictions on commercial speech embodied in the 1997 ordinance were unconstitutional because the restrictions failed to advance to a material degree the stated governmental purpose in imposing the restriction and reached further than needed to accomplish that purpose. In the Central Hudson case, the Supreme Court utilized a four-part test to determine whether commercial speech was entitled to protection under the first amendment, viz: (1) whether the speech is misleading; (2) whether the restriction seeks to implement a substantial governmental interest; (3) whether the restriction directly advances a substantial governmental