Board Lord Bites Back

The Battle Against Butt-Ugly Billboards Bubbles Up Again.

IT'S NICE TO be admired for your community-oriented activities.

It's just that Mark Mayer, a volunteer city planning commissioner and frequent critic of unrestrained growth and the developers who love it, could do without the backhanded compliment from billboard baron Karl Eller.

Eller, for whom the entrepreneurial program at the University of Arizona was named after he popped for a $26 million donation, is suing the City of Tucson, as well as Mayer individually, in the latest in an endless series of skirmishes over Tucson's billboard blight.

Mayer calls Eller's latest move nothing more than a "slap suit," generally defined as an abuse of the judicial process by big-money interests and their unscrupulous lawyers in an effort to bully critics into silence.

Of course, Don Dybus, Eller Media Company's vice president for real estate and public affairs, and an Eller in-house lawyer, maintains the case against Mayer "is meritorious."

Mayer speculates that Eller may have named him personally in the suit in an effort to discredit him before the Arizona Legislature in future billboard battles. Dybus says that's ridiculous.

The current lawsuit is not clear on what, precisely, Mayer may have done as an individual to threaten Eller's unsightly empire. Papers filed in Pima County Superior Court state:

"As part of its campaign, the City hired an outside operative, Defendant Mayer, at substantial public cost, to identify outdoor advertising structures which could be targeted for attack by the city."

Other than several allegations that Mayer thus acted "in concert" with the city, which allegedly violated the company's rights, the suit does not claim Mayer misidentified billboards that might be of interest to the city, nor that he acted beyond the scope of his city contract.

"It's notice pleading," Dybus says. "You put him on notice of what you're alleging. The articulation of facts takes place during the fact-finding process, not in the complaint."

"Doesn't this rather smack of the witch hunts of the McCarthy era?" Mayer responds.

The "substantial cost" the multi-millionaire Eller says the city paid Mayer amounts to a $10,000 contract that was twice renewed, for a total of $30,000 in 1995, and what Mayer describes as "nickel-and-dime stuff thereafter."

"He [Eller] just donated $25,000 to the Coalition for an Adequate Water Supply [a group supporting CAP delivery to local homes] -- that would have covered most of my costs right there," Mayer quips.

The City Attorney's Office has already offered to defend him, Mayer says, adding that he may hire his own attorney -- to sue Eller for allegedly filing a frivolous and vexatious suit against him.

"We're not making new law here," Dybus counters. "When you act in concert to violate the rights of a company or a person, and you actually organize your effort to violate their rights knowingly," then you can expect to be sued.

He adds that if Mayer hadn't accepted money for his work, perhaps he wouldn't be in this legal pickle today. And Dybus points out the lawsuit names five "Jane Does," city employees who may find themselves personally liable as well, should Eller manage to win its suit.

Mayer says the billboard industry in general and Eller in particular, are very aggressive in their attempts to silence critics.

"We don't take any delight in doing this," Dybus counters. "And we're not looking for fights that don't need to be fought. This is strictly business, and anybody who understands what's happening would do the same thing."

Eller's suit alleges the city, contrary to state law, has sought to remove 23 billboards without offering to pay the $1 million or so Eller currently claims they're worth. In order to understand the conflict, however, one must understand the history of the dispute:

In 1985, the Tucson City Council, backed by voters 2-1 in a subsequent referendum, banned the construction of most new billboards. The Council also passed the so-called Vacant Lot Ordinance, which requires billboard removal when land is developed or redeveloped.

Then, in 1994, the Arizona Legislature, under intensive lobbying from the billboard industry, squeaked through a law overturning the Vacant Lot Ordinance. The Legislature did this right after state and federal courts had upheld the ordinance after seven years of litigation.

The crux of the issue here, Mayer claims, is that Eller is trying to use the legislation repealing the Vacant Lot Ordinance to prevent the city from enforcing its code against some 100 billboards that otherwise appear to be illegal. They include the 23 billboards Eller is trying to protect with this suit that are alleged to be in illegal zones, unlawfully relocated, or constructed to an illegal height.

Mayer notes that "just last week the Arizona Supreme Court upheld a trial court order requiring removal of 11 illegal Eller billboards. Five of those billboards were unlawfully relocated, just like the ones Eller is now trying to protect."

Dybus, on the other hand, sees the case as more complicated than that, and one which touches on, among other things, First Amendment and due process rights under the U.S. Constitution.

"Back in the 1800s and into this century in the South," he says, "there were a lot of states that said, 'This is the way we do it here. We do it differently here, and if you don't like it, that's just too bad.' Guess what -- the Constitution of the United States of America dictates what's legal and what's not, not some local municipality."

But Mayer and others in city government shake their heads at such innuendo, pointing out they're hardly a bunch of murderous crackers skulking around in bed sheets lynching innocent people. They say they're merely trying to make Tucson a better place to live. And anyway, they claim, most of these legal issues have already been settled by the courts -- in favor of local efforts to regulate billboards.

They admit they have no legal right to quarrel with the Legislature passing a law to serve the billboard special interests at the expense of whole communities. But they maintain they do have the right -- and the authority -- to deal with those crappy signs not covered by that crappy law.

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