Appendix — City of San Diego v. Metromedia, Inc.

vo, 80-196

Supreme Court, U. S.

LED

IN THE AUG 81980

Supreme Court of the United) Ptateg x we, come

October Term, 1980

CITY OF SAN DIEGO, THE CITY COUNCIL OF

SAN DIEGO, VOYD BEIGHTS, Zoning Administrator,

Petitioners,

v.

METROMEDIA, INC., a corporation, doing business

as Foster & Kleiser, and PACIFIC OUTDOOR

ADVERTISING CO., INC., an Arizona corporation,

Respondents.

On Writ Of Certiorari To The

Supreme Court Of California

APPENDICES TO

CONDITIONAL PETITION FOR WRIT OF

CERTIORARI TO THE SUPREME COURT

OF THE STATE OF CALIFORNIA

C. ALAN SUMPTION, Deputy City Attorney

JOHN C. WITT, City Attorney

Litigation Division

233 “A” Street, Suite 300

San Diego, California 92101

Telephone: (714) 236-7221

August 1980

INTERIM PRINTING & MAILING COMPANY

1105 WEST MORENA BOULEVARD, SAN DIEGO, CALIFORNIA 92110 — 275-3050

A-l

METROMEDIA, INC. v. City oF SAN DIEGO

26 Cal.3d 848; — Cal.Rptr. — , — P.2d —

[L.A. No. 30782. Apr. 14, 1980.]}

METROMEDIA, INC., Plaintiff and Respondent, v.

CITY OF SAN DIEGO, Defendant and Appellant. :

PACIFIC OUTDOOR .ADVERTISING COMPANY, INC.,

Plaintiff and Respondent, v.

CITY OF SAN DIEGO et al., Defendants and Appellants.

SUMMARY

A metropolitan city enacted an ordinance banning off-site advertising

billboards and requiring removal of existing billboards following expira-

tion of an amortization period. Plaintiffs, owners of billboards affected

by the ordinance, sued to enjoin enforcement. The trial court granted

plaintiffs’ motion for summary judgment, stating the ordinance was in-

valid as an unreasonable exercise of the police power and an abridge-

ment of constitutional guarantees of freedom of speech and the press.

The trial court then entered judgment enjoining enforcement of the

ordinance. (Superior Court of San Diego County, Nos. 332881 and

333292, Jack R. Levitt, Judge.)

The Supreme Court reversed. The court held the achievement of the

purposes cited in the ordinance, eliminating traffic hazards and improv-

ing the appearance of the city, represented proper objectives for the

exercise of the city’s police power, and the ordinance bears a reasonable

relationship to those objectives. The court further held that a ban on

commercial off-site billboards, enacted under the city’s authority to reg-

ulate the commercial use of real property, did not abridge freedom of

speech or press under either the United States or California Constitu-

tions. The court pointed out the ordinance did not seek to suppress the

content of the advertiser’s message, served significant governmental in-

terest, and left open adequate alternative means of communication.

However, the court held the ordinance was partially preempted by state

law. The court held that by requiring uncompensated removal of bill-

boards within 660 feet of federal interstate and primary highways, the

{[Apr. 1980]

A-2

ordinance endangered the state’s share of federal highway funds, and

thereby came into conflict with provisions of the Outdoor Advertising .

Act (Bus. & Prof. Code, § 5200 et seq.) which required compensation

when necessary to protect the state’s receipt of federal monies. The

court further held the ordinance’s prohibition on construction of new

billboards, and its provisions for uncompensated removal of billboards

beyond the 660-foot limit, were not preempted by state law. The court

rejected plaintiffs’ contention that the city’s failure to pay compensation

for the removal of their billboards, in light of the state’s payment of

compensation to owners of billboards removed under the Outdoor Ad-

vertising Act, denied them equal protection of the law. The court also

held the amortization period provided in the ordinance which ranged

from one to four years depending on depreciated value of the sign, was

not facially unreasonable, and the summary judgment therefore could

not be sustained on that ground, although plaintiffs retained the right,

and the burden of proving, the invalidity of the amortization period as

applied to each particular structure. The court concluded that because

plaintiffs failed to demonstrate the invalidity of the ordinance on its

face, the trial court erred in granting their motion for summary judg-

ment. (Opinion by Tobriner, J., with Bird, C. J., Mosk and Manuel, JJ.,

concurring. Separate concurring opinion by Richardson, J. Separate

concurring opinion by Newman, J. Separate dissenting opinion by

Clark, J.)

HEADNOTES

Classified to California Digest of Official! Reports, 3d Series wet

(1a, 1b) Advertising § 3—Regulation; Police Power—By Counties and

Municipalities; Nuisances; Zoning—Off-site Billboards.—-A muni-

cipal ordinance banning all off-site advertising billboards and re-

quiring the removal of existing billboards following expiration of

an amortization period, which recited the purpose of the ordinance

as elimination of traffic hazards brought about by distracting ad-

vertising displays and the improvement of the appearance of the

city, was valid as a proper application of municipal authority over

zoning and land use for the purpose of promoting public safety and

welfare. As a matter of law, an ordinance which eliminates bill-

boards designed to be viewed from streets and highways reasonably

relates to traffic satety. Moreover, the improvement of the appear-

(2)

(3)

A-3

ance of the community falls within the city’s authority under the

police power. (Overruling Varney & Green v. Williams (1909) 155

Cal. 318 [100 P. 867], which held that esthetic considerations can-

not justify the exercise of the police power to prohibit billboards.

Also disapproving contrary language in City of Escondido v. De-

sert Outdoor Advertising, Inc. (1973) 8 Cal.3d 785 [106 Cal.Rptr.

172, 505 P.2d 1012]; Desert Outdoor Advertising, Inc. v. County

of San Bernardino (1967) 55 Cal.App.2d 765, 769 [63 Cal.Rptr.

- 543); County of Santa Barbara v: Purcell, Inc. (1967) 251 Cal.

App.2d 169, 173 [59 Cal.Rptr. 345]; National Advertising Co. v.

County of Monterey (1962) 211 Cal.App.2d 375, 379 [27 Cal.

Rptr.136]; and City of Santa Barbara v..Modern Neon Sign Co.

(1961) 189 Cal.App.2d 188 [11 Cal.Rptr. 57].)

[See Cal.Jur.3d, Advertising, § 4; Am.Jur. 2d, Advertising, § 4 et

seq. }

Advertising § 3—Regulations; Police Power—By Counties and Mu-

nicipalities; Nuisances; Zoning—Prohibition of Off-site Billboards.

—A city ordinance banning all off-site advertising and billboards

requiring the removal of existing billboards following expiration of

an amortization period, which reasonably related to the public

safety and welfare, and which completely prohibited a business not

found to be a public nuisance, was not invalid as an excessive exer-

cise of the police power. The validity of the ordinance under the

police power did not turn on its regulatory or prohibitory charac-

ter, nor on the size of the city which enacted it, but solely on

whether it reasonably related to the public safety and welfare._

. Constitutional Law § 59—First Amendment and Other Fundamen-

tal Rights of Citizens—Governmental Regulation and Restriction of

Fundamental Rights—Prohibition of Off-site Billboards.—A mu-

nicipal ordinance banning all off-site advertising billboards and

requiring the removal of existing billboards following expiration of

an amortization period, enacted for the purpose of eliminating

traffic hazards and improving the appearance of the city, was a

proper exercise of the city’s authority to regulate the commercial

use of real property and did not, on its face, abridge freedom of

speech guaranteed by U. S. Const., Ist Amend. Neither did the or-

dinance, on its face, violate the free speech clause of Cal. Const.

art. I, § 2, where the ordinance did not seek to suppress the con-

tent of the advertiser's message, where it served significant

e%

A-4

governmental interests (promoting traffic safety and improving the

appearazice of the community) unrelated to the suppression of free

expression, and where the ordinance left open adequate alternative

means of communication. Thus the ordinance was a permissible

regulation of the time, place, and manner of speech. °

(4a, 4b) Advertising § 4—Regwtation; Police Power—Outdoor Advertis-

ing Act—Prohibition of Off-site Billboards—Preemption.—A city

ordinance banning all off-site advertising billboards and requiring

the removal of existing billboards following expiration of an amor-

tization period was preempted by the Outdoor Advertising Act

(Bus. & Prof. Code, § 52C0 et seq.) to the extent the ordinance re-

quired removal without compensation of billboards within 660 feet

of federal interstate and primary highways for which compensation

is required under 23 U.S.C. § 131, and Bus. & Prof. Code, § 5412,

which requires payment of compensation for removal of billboards

when such compensation is necessary to protect the state’s share of

federal highway funds. To that extent, the ordinance was invalid.

_ However, the application of the ordinance to billboards not pro-

_. tected by federal law, that is, billboards more than 660 feet from

(5)

federal interstate or primary highways, or billboards not in exis-

tence or removed subject to litigation prior to a certain date, was

not preempted by the Outdoor Advertising Act. Moreover, the or-

dinance’s prescription on erection of future billboards was likewise

unaffected by the federal requirement for just compensation and

thus not preempted by state law.

Statutes § 44—Construction—Aids—Contemporaneous Adminis-

trative Construction.—Since the Federal Highway Administration

is the agency charged with enforcement of the Highway Beautifi-

cation Act of 1965 (23 U.S.C. § 131), its interpretation of the act

is entitled to great weight and, if reasonable, should be sustained.

(6a, 6b) Constitutional Law § 89—Equal Protection—Ciassifica-

tion—Essential and Nonessential Characteristics—Reasonableness

of Classification in Light of Legislative Purpose—Removal of

Billboards—Compensation.—Under a city ordinance banning all

off-site advertising billboards and requiring the removal of existing

billboards following expiration of an amortization period, the city’s

failure to pay compensation for the removal of billboards did not

deny the owners thereof equal protection of the laws, even though

A-5

. the state paid compensation to owners of billboards removed under

the Outdoor Advertising Act. Since the distinction involved purely

- economic regulation it could be sustained if the classification bears

a rational relationship to a legitimate state purpose. Thus, since |

state funds were augmented by a 75 percent federal contribution,

the state could reasonably choose to pay compensation and thus

eliminate billboards without concern for. any amortization period,

while the city, lacking such federally financed funds, could reason-

ably choose the more economical alternative of. requiring

abatement only after expiration of an amortization period. ., .

Zoning and Planning § 21—Elimination of Nonconiorming Uses.

—A city seeking to eliminate nonconforming uses may pursue two

constitutionally equivalent alternatives: it can eliminate the use im-

mediately by payment of just compensation, or it can require

removal of the use ae compensation following ‘ a reasonable

‘amortization period. . 3

(8a-8c) ‘tile and ea § 21—Elimination of Noncénforming

(9)

Uses—Amortization Period.—In an action by owners of billboards

to enjoin the enforcement of a city ordinance banning all off-site

advertising billboards and requiring the removal of existing bill-

‘ boards following expiration of an amortization period, summary

judgment for plaintiffs on the ground that the amortization period

prescribed by the ordinance was unreasonably short and thus de-

nied due process, could not be sustained. The amortization period,

which ranged from one to four years depending on the depreciated

value of the sign, was not unreasonable on its face. Moreover,

plaintiffs had the burden of proving the invalidity of the amortiza-

tion period ‘as applied to each structure, but on motion for

summary judgment plaintiffs did not attempt to meet the burden

as to each structure, limiting their claim to the. argument that the

abatement schedule was facially unconstitutional as not being

based on the fair market value or remaining useful life of the

billboards. : Se

va

Ze ing and Planning § 21—Elimination of resdicaniniilie: teen

—Amortization Period.— Zoning legislation may validly provide

for the eventual tetmination of nonconfirming uses without com-

pensation if it provides a reasonable amortization period

commensurate with the investment involved. The termination of

A-6

the length of a reasonable period of amortization is not merely a

matter of accounting. The determination instead involves a process

of weighing the public gain to be derived from a speedy removal of

the nonconforming use against the private loss which removal of

the use would entail. Relevant factors include the nature of the

‘ nonconforming use, the character of the structure, the location,

what part of the individual’s total business is concerned, the time

. periods, salvage, depreciation for income tax purposes and depreci-

ation for other purposes and the monopoly or advantage, if any,

resulting from the fact that similar new structures are ———

in the same area.

(10s, 10b) Zoning and Planning § 21—Elimination of Nonconforming

Uses—Amortization Period—Billboards.—The reasonableness of

an amortization period as applied to each billboard where removal |

was required pursuant to a city ordinance depended in part on

facts peculiar to that structure, including the cost of the billboard,

its depreciated value, remaining useful life, the length and remain-

- ing term of the lease under which it is maintained, and the harm to

the public if the structure remains standing beyond the prescribed

amortization period. However, even though the fair market value

and remaining useful life are relevant considerations, the failure of

the city to base its abatement schedule on such considerations does

not necessarily render that schedule unconstitutional. If the amorti-

zation period prescribed by the ordinance is a reasonable one, the

fact the city arrived at that period by a formula which did not in-

clude every one of the relevant considerations does not render the ©

ordinance unconstitutional.

mu

(11) Summary Judgment § 27—Appellate Review—Presenting and Re-

serving Objections.—In an action by billboard owners to enjoin

enforcement of an ordinance banning all off-site advertising bill-

boards, summary judgment in their favor could not be sustained on

the ground the city council failed to comply with the California

Environmental Quality Act in enacting the ordinance, where plain- -

tiffs did not allege such noncompliance, and where, although over

three years elapsed between the filing of the complaint and plain-

tiffs’ motion for summary judgment, plaintiffs offered no

amendment to assert such noncompliance. Accordingly, the issue

of the city’s alleged noncompliance with the act was not properly

before the trial court on the motion for summary judgment, and

A-7

ee eee

Judgment.

COUNSEL

John W. Witt, City Attorney, and C. Alan Sumption, Deputy City At-

torney, for Defendants and Appellants.

Walter Wencke, Carter J. Stroud, City Attorney (Alameda), John W.

Scanlon, City Attorney (Hayward), Dan Curtin, City Attorney (Wal-

nut Creek), Roy E. June and R. R. Campagna, City Attorneys (Cosia

Mesa), Harry S: Fenton, Emerson Rhyner and Ronald W. Beals as

Amici Curiae on behalf of Defendants and Appellants.

Gibson, Dunn & Crutcher, Theodore B. Olson, Wayne W. Smith,

Hillyer & Irwin, Oscar F. Irwin, Snell & Wilmer, John J. Bouma, Guy

G. Gelbron, Higgs, Fletcher & Mack, Joe N. Turner, Cahill, Gordon &

Reundel and Floyd Abrams for Plaintiffs and Respondents.

‘Donovan, Leisure, Newton & Irvine, Mahlon F. Perkins, Jr., Weil,

Guttman & Davis, Gilbert H. Weil, Phillip Tocker, Richman-& Gar- -

rett, Lionel Richman, Fadem, Berger & Norton, Michael M. Berger,

Brundage, Beeson & Pappy, Joseph J. Kaplon, Alex Kozinski, Ronald

A. Zumbrun, Thomas E. Hookano and Elleene A. Kirkland as Amici

Curiae on behalf of Plaintiffs and Respondents.

OPINION

TOBRINER, J.—The City of San Diego enacted an ordinance which

A-8

adjudged the ordinance unconstitutional, and issued the injunction as

prayed. ' ’

We reject the superior court’s conclusion that the ordinance exceeded

the city’s authority under the police power. We hold that the achieve-

ment of the purposes recited in the ordinance—eliminating traffic .

hazards and i improving the appearance of the city—represent proper ob-

jectives for the exercise of the city’s police power, and that the present

ordinance bears a reasonable relationship to those objectives. We reject

also the lower court’s alternative holding that the ordinance violates the

First Amendment; judicial decisions demonstrate that a ban on com-

mercial off-site billboards, enacted under the city’s authority to regulate

the commercial use of real property, does not abridge freedom of —

or press.

We agree with plaintiffs, however, that the San Diego ordinance is

partially preempted by state law. By requiring uncompensated removal

of billboards within 660 feet of federal interstate and primary high-

ways, the ordinance endangers the state’s share of federal highway

funds; the ordinance thereby comes into conflict with provisions of the

Outdoor Advertising Act (Bus. & Prof. Code, § 5200 et seq.) which re-

quire compensation when necessary to protect the state’s receipt of

federal monies. The ordinance’s prohibition on construction of new bill-

boards, and its provisions for uncompensated removal of billboards

beyond the 660-foot limit, are not preempted by state law.

J

Plaintiffs also urge that we sustain the summary judgment on a vari-

ety of other grounds; they contend that it denies the equal protection of

the law; that its amortization provisions are facially unreasonable; and

that the city failed to comply with the California Environmental Qual-

ity Act (Pub. Resources Code, § 21000 et seq.). For the reasons we set

forth, we conclude that none of these, grounds will sustain the judgment

below. :

We conclude that the judgment of the superior court should be re-

versed and the case remanded to that court for further proceedings. At

that time the court may determine which if any of plaintiffs’ billboards

fall within the preemptive scope of the Outdoor Advertising Act and

render judgment that the ordinance may not be validly applied to re-

quire uncompensated removal of such billboards.

1. Summary of proceedings in the trial court.

The present case concerns the constitutionality of San Diego Ordi-

nance No. 10795 (New Series), enacted March 14, 1972. With limited

exceptions specified in the footnote,' the ordinance as subsequently

amended prohibits all off-site “outdoor advertising display signs.”? Off-

site signs are defined ‘as those which do not identify a use, facility or

service located on the premises or a product which is produced, sold or

manufactured on the premises. All existing signs which do not conform

to the requirements of the ordinance must be removed following expira-

'The original ordinance permitted the following off-site signs: Signs maintained in

the discharge of a governmental function; bench advertising signs; commemorative

plaques, religious symbols, holiday decorations and similar such signs; signs located

within shopping malls not yisibie from any point on the boundary of the premises; signs

designating premises for sale, rent or lease; public service signs depicting time, tem-

perature or news; signs on vehicles conforming to city’ regulations; and temporary

off-premises subdivision directional signs. ; ’ ;

As originally enacted, the ordinance contained no exception for political signs. On

October 19, 1977, the city council amended the ordinance to permit “Temporary politi-

cul campaign signs, including their supporting structures, which are erected or

maintained for no longer than 90 days and which are removed within 10 days after the

clection to which they pertain.” (Ord. No. 12189 (New Series).) This amendment may

have been prompted by, the decision of the Ninth Circuit in Baldwin v. Redwood City

(9th Cir. 1976) 540 F.2d 1360, in which that court held an ordinance regulating tem-

porary signs to be an unconstitutional restriction upon political speech. ,

2The ordinance does not define the term “outdoor advertising display signs.” The his-

tory of the ordinance and the arguments of the parties demonstrate that the purpose of

the ordinance is the prohibition of commercial billboards. But although the amended

ordinance excludes signs which fall within 12 specific exceptions, it fails to exclude

many varieties of less obtrusive, noncommercial signs that present no significant aes-

thetic blight or traffic hazard. That failure, in light of the absence of a definition of the

‘class of signs prohibited, suggests a danger that the ordinance might be construed to

upply to signs of a character very different from commercial billboards—for example,

to a picket sign announcing a labor dispute or a small sign placed in one’s front yard

proclaiming a political or religious message. /

To avert that danger, and to avoid the risk of unconstitutional overbreadth which a

broad construction of the ordinance might entail, we adopt a narrow construction limit-

ing its proscription to those signs which clearly fall within the intendment of the

enactment. (Cf. Welton v. City of Los Angeles (1976) 18 Cal.3d 497, 506-507 [134

Cal.Rptr. 668, 556 P.2d 1119]; Braxton v. Municipal Court (1973) 10 Cal.3d 138,

144-145 [109 Cal.Rptr. 897, 514 P.2d 697].) We find such a construction in the defini-

tion of the term “outdoor advertising display” in Revenue and Taxation Code section

18090.2: “a rigidly assembled sign, display, or device permanently affixed to the

ground or permanently attached to a building or other inherently permanent structure

constituting, or used for the display of, a commercial or other advertisement to the

public.” Although that specific definition was not before the San Diego City Council

when it adopted Ordimance No. 10795, incorporation of that definition into the ordi-

mance will fulfill the city’s purpose of banning permanent structures used

predominantly for commercial advertising, while avoiding the constitutional issues

raised by a less certain or more expansive reading of the ordinance. ea

7%

A-10

tion of an amortization period, ranging from 90 days to 4 years

depending upon the location and depreciated value of the sign.

Plaintiffs, Metromedia, Inc., and Pacific Outdoor Advertising Com-

pany, Inc., are engaged in the outdoor advertising business and own a

substantial number of off-site billboards subject to removal under Ordi-

nance No. 10795. Plaintiffs filed separate actions against the city,

attacking the validity of the ordinance. The actions were consolidated

by stipulation.> After extensive interrogatories and requests for admis-

sion had been answered all parties moved for summary judgment.

To facilitate the determination of the motion for summary judgment

the parties entered into a stipulation of facts. The following portions of

that stipulation are particularly pertinent to the present appeal: “2. If

enforced as written Ordinance No. 10795 will eliminate the outdoor ad-

vertising business in the City of San Diego. . . . 13. Each of the plaintiffs

are the owners of a substantial number of outdoor advertising displays

(approximately 500 to 800) in the City of San Diego... .17. The dis-

plays have varying values depending upon their size, nature and

location. 18. Each of the displays has a fair market value as a part of

an income-producing system of between $2,500 and $25,000. 19. Each

display has a remaining useful income-producing life in excess of 25

years. 20. All of the signs owned by plaintiffs in the City of San Diego

are located in areas zoned for commercial and industrial purposes

....28. Outdoor advertising increases the sales of products and pro-

duces numerous direct and indirect benefits to the public. Valuable

commercial, political and social information is communicated to the

public through the use of outdoor advertising. Many businesses and

politicians and other persons rely upon outdoor advertising because oth-

er forms of advertising are insufficient, inappropriate and prohibitively

expensive... .31. Many of plaintiffs’ signs are within 660 feet and oth-

ers are within 500 feet of interstate or federal primary highways... . 34.

The amortization provisions of Ordinance No. 10795 have no reason-

able relationship to the fair market value, useful life or income

generated by the signs and were not designed to have such a

relationship.”*

3Defendants in the consolidated action are the city, the members of the city council,

and the city planning director.

‘Plaintiffs filed no declaration to support the motion for summary judgment, but re-

lied solely u the pleadings, the city’s response to interrogatories, and the agreed

stipulation of facts.

A-ll

The trial court filed a memorandu.n opinion stating that the ordi-

nance was invalid as an unreasonable exercise of police power and an

abridgment of First Amendment guaranties of freedom of speech and

press. The court then entered judgment enjoining enforcement of the

ordinance. The city appeals from that judgment.

2. The summary judgment cannot be sustained

_, . on the ground that the San Diego ordinance

'.. exceeds the city’s “ateated under the

police power. pan’ ,

(12) The San Diego ordinance, as we shall explain, represents a

proper application of municipal authority over zoning and land use for

the purpose of promoting the public safety and welfare.5 The ordinance

recites the purposes for which it was enacted,° including the elimination

of traffic hazards brought about by distracting advertising displays and

the improvement of the appearance of the city. Since these goals are

proper objectives for the exercise of the city’s police power, the city

council, asserting its legislative judgment, could reasonably believe the

instant ordinance would further those objectives.

Plaintiffs cannot question that a city may enact ordinances under the

police power to eliminate traffic hazards. They maintain, however, that

the city failed to prove in opposition to plaintiffs’ motion for summary

judgment that the ordinance reasonably relates to that objective. We

could reject plaintiffs’ argument on the simple ground that plaintiffs, as

the parties asserting the unconstitutionality of the ordinance, bear the

burden of proof (see Associated Home Builders etc., Inc. v. City of

Livermore, supra, 18 Cal.3d 582, 609), and cannot rely upon the city’s

5An ordinance restricting land use is valid under the police power if it has a real or

substantial relation to the public health, safety, morals or general welfare. (Associated

Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 604 [135

Cal.Rptr. 41, 557 P.2d 473, 92 A.L.R.3d 1038]; Miller v. Board of Public Works

(1925) 195 Cal. 477, 490 [234 P. 381, 38 A.L.R. 1479].)_ .

6Part A of the ordinance declares: “It is the purpose of these regulations to eliminate

excessive and confusing sign displays which do not relate to the premises on which they

are located; to eliminate hazards to pedestrians and motorists brought about by dis-

tracting sign displays; to ensure that signing is used as identification and not as

advertisement; and to preserve and improve the appearance of the City as a place in

which to live and work.

“It is the intent of these regulations to protect an important aspect of the economic

base of the City by preventing the destruction of the natural beauty and environment of

the City, which is instrumental in attracting nonresidents who come to visit, trade, va-

cation or attend conventions; to safeguard and enhance property values; to protect

public and private investment in buildings and open spaces; and to protect the public

health, safety and general welfare.”

A-12

failure of proof. To avoid unnecessary litigation upon remand of this

cause, however, we have probed plaintiffs’ broader argument: We hold

as a matter of law that an ordinance which eliminates billboards de-

signed to be viewed from streets and highways reasonably relates to

traffic safety.

Billboards are intended to, and undoubtedly do, divert a driver’s at-

tention from the roadway. Whether this distracting effect contributes to

traffic accidents invokes an issue of continuing controversy.’ But as the

New York Court of Appeals pointed out, “mere disagreement” as to

“whether billboards or other advertising devices. . .constitute a traffic

hazard...may not cast doubt on the statute’s validity. Matters such as

these are reserved for legislative judgment and the legislative determi-

nation, here expressly announced, will not be disturbed unless

manifestly unreasonable.” (New York State Thruway Auth. v. Ashley

Motor Ct. (1961) 10 N.Y.2d 151 [218 N.Y.S.2d 640, 176 N.E.2d

566].) Many other decisions have upheld billboard ordinances on the

ground that such ordinances reasonably relate to traffic safety;* we can-

not find it manifestly unreasonable for the San Diego City Council to

reach the same conclusion. As the Kentucky Supreme Court said in

Moore v. Ward (Ky. 1964) 377 S.W.2d 881, 884: “Even assuming

[plaintiffs] could produce substantial evidence that billboard signs do

not adversely affect traffic safety,...the question involves so many in-

tangible factors as to make debatable the issue of what the facts

establish. Where this is so, it is not within the province of courts to hold

a statute invalid by reaching a conclusion contrary to that of the

legislature.”

7™No matter what one’s position on the sign and safety issue one can find the study

to support it.... [DJespite the insights provided by statistical analyses, the case for the

hazards of private signs rests largely upon common sense and the informed judgments

of traffic engineers and other experts. The arguments are complex and sometimes

highly technical, but on the whole, the courts are increasingly likely to conclude that

regulation of private signs may be reasonably expected to enhance highwcy safety.”

(Dowds, Private Signs and Public Interests, in 1974 Institute on Planning, Zoning and

Eminent Domain, p. 231.)

®See City of Escondido v. Desert Outdoor Advertising, Inc. (1973) 8 Cal.3d 785

[106 Cal.Rptr. 172, 505 P.2d 1012]; £.B8. Elliott Adv. Co. v. Metropolitan Dade

County (Sth Cir. 1970) 425 F.2d 1141, 1152; General Outdoor Adv. Co. v. Department

Pub. Works (1935) 289 Mass. 149, 171 [193 N.E. 799); Newman Signs, Inc. v. Hjelle

(N.D. 1978) 268 N.W.2d 741, 757, app. dism. (1979) 440 U.S. 901 [59 L.Ed.2d 449,

99 S.Ct. 1205}; Opinion of the Justices (1961) 103 N.H. 268 [169 A.2d 762]; United

Advertising Corp. v. Metuchen (1964) 42 N.J. 1, 4 [198 A.2d 447]; State v. Lotze

(1979) 92 Wn.2d 52 [593 P.2d 811, 813-814), app. dism. — U.S. — [62 L.Ed.2d 177,

100 S.Ct. 257]; Markham Advertising Co. v. State (1978) 73 Wn.2d 405, 416 [439

P.2d 248], app. dism. (1969) 393 U.S. 316 [21 L.Ed.2d 512, 89 S.Ct. 553}.

A-13

We further hold that even if, as plaintiffs maintain, the principal pur-

pose of the ordinance is.not to promote traffic safety but to improve the

appearance of the community, such a purpose falls within the city’s au-

_ thority under the police power. In contending that . aesthetic

considerations cannot justify the exercise of the police power to prohibit

billboards, plaintiffs rely on Varney & Green v. Williams (1909) 155

Cal. 318 [100 P. 867], which held unconstitutional an ordinance of the

City of East San Jose prohibiting all advertising billboards. Asserting

that the ordinance rested solely on the “promotion of aesthetic or artis-

tic considerations,” we stated that “it has never been held that these

considerations alone will justify, as an exercise of the police power, a

radical restriction of the right of an owner of property ....” (/d. at

p. 320, quoting City of Passaic v. Patterson Bill Posting Co. (1905) 72

N.J.L. 285, 287 [62 A. 267].) ag EtG ny

Constrained by this precedent, subsequent California Court of Ap-

peal decisions have stated that aesthetic considerations cannot justify an

ordinance prohibiting billboards. (See Desert Outdoor Advertising, Inc.

v. County of San Bernardino (1967) 255 Cal.App.2d 765, 769 [63

Cal.Rptr. 543]; County of Santa Barbara v. Purcell, Inc. (1967) 251

Cal.App.2d 169, 173 [59 Cal.Rptr. 345]; National Advertising Co. v.

County of Monterey (1962) 211 Cal.App.2d 375, 379 [27 Cal.Rptr.

136].) Only one decision, however, has actually invalidated a city ordi-

nance on this ground. (City of Santa Barbara v. Modern Neon Sign Co.

(1961) 189 Cal.App.2d 188, 191-194 [11 Cal.Rptr. 57].) In all other

cases the courts have found some additional ground for the ord’ xance,

such as elimination of driving hazards or promotion of tourist traffic.

Relying on such additional grounds, the cases conclude that the ordi-

nance did not become unconstitutional merely because aesthetic

considerations may have played some part in motivating its enactment.?

Thus we could distinguish the present case from Varney & Green v.

Williams, supra, 155 Cal. 318, on the ground that the present ordi-

nance was not enacted exclusively for aesthetic purposes. We believe,

however, that the holding of Varney & Green v. Williams, that aesthet-

ic purposes alone cannot justify assertion of the police power to ban

%See Desert Outdoor Advertising Inc. v. County of San Bernardino, supra, 255

Cal.App.2d 765, 769; County of Santa Barbara v. Purcell, Inc., supra, 25\ Cal.App.2d

169, 173; Burk v. Municipal Court (1964) 229 Cal.App.2d 696, 701-702 [40 Cal.Rptr.

425]; Metromedia, Inc. v. City of Pasadena (1963) 216 Cal.App.2d 270, 273 [30

Cal.Rptr. 731]; National Advertising Co. v. County of Monterey, ye oe -211

Cal.App.2d 375, 378-379; see also City of Escondido v. Desert Outdoor Advertising,

Inc., supra, 8 Cal.3d 785,-790. ; he ee

A-14

billboards, is unworkable, discordant with modern thought as to the

scope of the police power, and therefore compels forthright repudiation.

Because this state relies on its scenery to attract tourists and com-

merce, aesthetic considerations assume economic value. Consequently

any distinction between aesthetic and economic grounds as a justifica-

tion for billboard regulation must fail. “Today, economic and aesthetic

considerations together constitute the nearly inseparable warp and woof

of the fabric upon which the modern city must design its future.” (Me-

tromedia, Inc. v. City of Pasadena, supra, 216 Cal.App.2d 270, 273;

Burk v. Municipal Court, supra, 229 Cal.App.2d 696, 702.) —

The holding of Varney & Green v. Williams also conflicts with pre-

sent concepts of the police power. Most jurisdictions now concur with

the broad declaration of Justice Douglas in Berman v. Parker (1954)

348 U.S. 26 [99 L.Ed. 27, 75 S.Ct. 98]: “The concept of the public wel-

fare is broad and inclusive. [Citation.] The values it represents are

spiritual as well as physical, aesthetic as well as monetary. It is within

the power of the Legislature to determine that the community should be |

beautiful as well as healthy, spacious as well as clean, well-balanced as

well as carefully patrolled.” (Jd., at p. 33 [99 L.Ed. at p. 38].) Al-

though Justice Douglas tendered this description in a case upholding

the exercise of the power of eminent domain for community redevelop-

ment, it has since been recognized as a correct description of the

authority of a state or city to enact legislation under the police power.

(Village of Belle Terre v. Boraas (1974) 416 U.S. 1, 5-6 [39 L.Ed.2d

797, 801-802, 94 S.Ct. 1536]; City of Phoenix v. Fehlner (1961) 90

Ariz. 13, 17 [363 P.2d 607]; People v. Stover (1963) 12 N.Y.2d 462;

467-468 [240 N.Y.S.2d 734, 191 N.E.2d 272]; Oregon City v. Hartke

(1965) 240 Ore. 35, 48 [400 P.2d 255]; Markham Advertising Co. v.

State, supra, 73 Wn.2d 405, 424.) As the Hawaii Supreme Court suc-

cinctly stated: “We accept beauty as a proper community objective,

attainable through use of the police power.” (State v. Diamond Motors,

Inc. (1967) 50 Hawaii 33, 36 [429 P.2d 825].)'°

10Among other decisions holding that a state or city pursuant to the police power

may ban billboards on the basis of aesthetic considerations alone are: Meritt v. Peters

(Fla. 1953) 65 So.2d 861; John Donnelly & Sons v. Mallar (D.Me. 1978) 453 F.Supp.

1272; Donnelly Advertising Corp. v. City of Baltimore (1977) 279 Md. 660 [370 A.2d

1127, 1133]; £.B. Elliott Adv. Co. v. Metropolitan Dade County, supra, 425 F.2d

1141, 1151; Stuckey’s Stores, Inc. v. O'Cheskey (1979) — N.M. — [600 P.2d 258,

—]; Matter of Cromwell v. Ferrier (1967) 19 N.Y.2d 263 [279 N.Y¥.S.2d 22, 225

N.E.2d 749, 21 A.L.R.3d 1212]; Opinion of the Justices, supra, 103 N.H. 268; Mark

A-15

Present day city planning would be virtually impossible under a doc-

trine which denied a city authority to legislate for aesthetic purposes

under the police power. Virtually every city in this state has enacted

zoning ordinances for the purpose of improving the appearance of the

urban environment and the quality of metropolitan life. Many munici-

palities engage in projects of one type or another designed to beautify

their communities. Indeed, Varney & Green v. Williams itself asserted

“That the promotion of aesthetic or artistic considerations is a proper .

object of governmental care will probably not be disputed.” (155 Cal.

318, 320.) But as the New York Court of Appeals pointed out, “Once it

be conceded that aesthetics is a valid subject of legislative concern the

conclusion seems inescapable that reasonable legislation designed to

promote that end is a valid and permissible exercise of the police

power.... [W]hether such a statute or ordinance should be voided

should depend upon whether the restriction was ‘an arbitrary and irra-

tional method of achieving an attractive. ..community—and not upon

whether the objectives were primarily aesthetic.” (People v. Stover, su-

pra, 12 N.Y.2d 462.)

In a subsequent decision, the New York Court of Appeals confirmed

that aesthetic considerations may justify the exercise of the police

power to ban all off-site billboards in a community. (Suffolk Outdoor

Adv. Co., Inc. v. Hulse (1977) 43 N.Y.2d 483 [402 N.Y.S.2d 368, 373

N.E.2d 263], app. dism., 439 U.S. 808 [58 L.Ed.2d 101, 99 S.Ct. 66].)

“It cannot be seriously argued,” the New York court said, “that a pro-

hibition of this nature is not reasonably related to improving the

aesthetics of the community.” (Jd., at p. 490.)!! The fact that the ordi-

ham Advertising Co. v. State, supra, 73 Wn.2d 405, 424; John Donnelly & Sons y

Outdoor Advertising Bd. (1970) 369 Mass. 206 [339 N.E.2d 709}.

Indeed, the four cases cited in Varney & Green v. Williams to support the proposi-

tion that aesthetic considerations will not uphold a prohibition on billboards are no

longer law in their respective jurisdictions. City of Passaic v. Patterson Bill Posting

Co., supra, 73 N.J.L. 285, was repudiated by the New Jersey Constitution in 1947.

Commonwealth v. Boston (1905) 188 Mass. 348 [74 N.E. 601], was overruled in Gen-

eral Outdoor Advertising Co. v. Dept. of Public Works (1935) 289 Mass. 149, 159-161

[193 N.E. 799]; Bryan v. City of Chester (1905) 212 Pa. 259 [61 A. 894], was distin-

guished as antedating enactment of zoning enabling legislation by the court in Silver v.

Zoning Board (1955) 381 Pa. 41 [112 A.2d 84]. People v. Green (1903) 85 App.Div.

400 [83 N.Y.S. 460] was. rejected in People v. Stover, supra, 12 N.Y:2d 462, 466-467,

and Matter of Cromwell v. Ferrier, supra, 19 N.¥.2d 263, 270. ma

11Numerous cases have commented on the unaesthetic impact of highway billboards.

(See, ¢.g., State v. Diamond Motors, supra, 50 Hawaii 33, 36;. United Advertising

Corp. v. Metuchen, supra, 42 N.J. 1, 6; Markham Advertising Co. v. State, supra, 73

Wn.2d 405, 417.) Public opinion surveys sponsored by the Federal Highway Beautifi-

A-16

nance bans billboards in commercial and industrial areas, and that it

permits on-site signs, does not demonstrate that the ordinance as a

whole lacks a reasonable relationship to improving community appear-

ance. (E.B. Eiliott Adv. Co. v. Metropolitan Dade County, supra, 425

F.2d 1141, 1152.) “[T]he notion that an extensively commercial or in-

dustrial area will be made more attractive by the absence of billboards

is open to debate. Since the issue is debatable, however, the modern ju-

dicial presumption in favor of legislation [requires the court] to uphold

the ordinance as a rational means of enforcing the legislative purpose of

preserving aesthetics.” (Lucking, The Regulation of Outdoor Advertis-

ing: Past, Present and Future (1977) 6 Envt’l Aff. 179, 188.)

If the San Diego ordinance reasonably relates to the public safety

and welfare, it should logically follow that the ordinance represents a.

valid exercise of the Police power. (2) Plaintiffs contend, however,

that the police power is subject to an additional limiting doctrine: That

regardless of the reasonableness of the act in relation to the public

health, safety, morals and welfare the police power can never be em-'

ployed to prohibit reer a business not found to be a public

nuisance.

This argument also rests on our , decision in Varney & Green v. Wil-

liams, supra, 155 Cal. 318. There the court, as an alternative ground

for its decision, held the East San Jose ordinance unconstitutional on

the grounds that it did “not attempt...regulation, but undertakes to

absolutely forbid the erection or maintenance of any bill-board for ad-

vertising purposes.” (P. 321.) No California decision since Varney &

Green has invalidated a billboard ordinance as prohibitory, but a few

decisions of other states have struck down billboard ordinances on this

ground, (See Combined Communications Corp. v. City & Cty., Denver

(1975) 189 Colo. 462 [542 P.2d 79, 82-83]; Metromedia, Inc. v. City of

Des Plains (1975) 26 Ill.App.3d 942 [326 N.E.2d 59, 61-62]; Stoner

McCray System v. City of Des Moines (1956) 247 Iowa 1313, 1319-

1320 [78 N.W.2d 843, 58 A.L.R.2d 1304]; Norate Corp., Inc. v. Zon-

ing Board of Adjustment (1955) 417 Pa. 397, 407 [207 A.2d 890].)

For the reasons we shall offer, however, we believe that this doctrine.

too, conflicts with reality and with current views of the police power.

The distinction between prohibition and regulation in this case is one of

words and not substance. “[E]very regulation necessarily speaks as a

cation Commission indicate that the general public agrees that billboards are unsightly.

(See Dowds, Private Signs and Public Interests, op. cit. supra, p. 233.)

A-17

prohibition.” (Goldblatt v. Hempstead (1962) 369 U.S. 590, 592 [8

L.Ed.2d 130, 133, 82 S.Ct. 987].) In the present case, for example,

plaintiffs describe the ordinance as a prohibition of off-site advertising,

while the city describes it as a regulation of advertising, one which lim-

its advertising to on-site signs. Surely the validity of the ordinance does

not depend on the court’s choice between such verbal formulas.

Rather than strive to develop a logical distinction between “regula-

tion” and “prohibition,” and to find themselves embroiled in language

rather than fact, courts of other jurisdictions in recent decisions have

held that a community can entirely prohibit off-site advertising. (John

Donnelly & Sons v. Mallar, supra, 453 F.Supp. 1272; Murphy, Inc. v.

Westport (1944) 131 Conn. 292 [40 A.2d 177, 156 A.L.R. 568]; John

Donnelly & Sons, Inc. v. Outdoor Advertising Bd., supra, 339 N.E.2d

709; Suffolk Outdoor Adv. Co., Inc. v. Hulse, supra, 43 N.Y.2d 483;

Matter of Cromwell v. Ferrier, supra, 19 N.Y.2d 263.) These decisions

fall within the general principle that a community may exclude any or

all commercial uses if such exclusion reasonably relates to the public

health, safety, morals or general welfare. (Town of Los Altos Hills v.

Adobe Creek Properties, Inc. (1973) 32 Cal.App.3d 488, 502-504 [108

Cal.Rptr. 271], and cases there cited; see Associated Home Builders

etc., Inc. v. City of Livermore, supra, 18 Cal.3d 582, 606, fn. 23.) As

the Oregon Supreme Court explained in Oregon City v. Hartke, supra,

240 Ore. 35, “[I]t is within the police power of the city wholly to ex-

clude a particular use if there is a rational basis for the exclusion... . It

is not irrational for those who must live in a ¢ mmunity from day to

day to plan their physical surroundings in such a way that unsightliness

is minimized. The prevention of unsightliness by wholly precluding a

particular use within the city may inhibit the economic growth of the

city or frustrate the desire of someone who wishes to make the pro-

scribed use, but the inhabitants of the city have the right to forego the

economic gain and the person whose business plans are frustrated is not

entitled to have his interest weighed more heavily than the predominant

interest of others in the community.” (Pp. 49-50.)

Plaintiffs stress that most of the cases upholding a community ban on

billboards or other commercial uses have involved small, predominantly

residential, towns or rural localities. Recently, however, the Massachu-

setts Supreme Judicial Court upheld an ordinance similar to the one at

issue here involving a total prohibition of billboards in a densely popu-

lated town with a sizable business and industrial district. (John

Donnelly & Sons, Inc. v. Outdoor Advertising Bd., supra, 339 N.E.2d

A-18

709.) The court there stated that “We believe that it is within the scope

of the police power for the town to decide that its total living area —

should be improved so as to be more attractive to both its residents and

its visitors. Whether an area is urban, suburban or rural should not be

determinative whether the residents are entitled to preserve and en-

hance their environment. Urban residents are not immune to ugliness.”

(P. 720.)

Relying on the cited Massachusetts decision, the United States Dis-

trict Court for the District of Maine recently upheld a statewide ban on

off-site commercial billboards, including urban regions within the state.

Its decision observes that it “can find no rational basis for conclu-

ding. . .that residents of and visitors to urban, commercial or industrial

districts are not entitled to the benefit of an aesthetically pleasing envi-

ronment, while those living in or visiting suburban, residential or rural

regions are.” (John Donnelly & Sons v. Mallar; supra, 453 F.Supp.

1272, 1281.) Pht weer : ,

Nor do we perceive how we could rationally establish a rule that a

city’s police power diminishes as its population grows, and that once it

reaches some unspecified size it no longer has the power to prohibit bill-

boards. San Diego, for example, has already prohibited billbcards

within 97 percent of its limits—a region which in area and population

far surpasses most California cities. Plaintiffs claim that a ban covering

97 percent of the city is a “regulation,” while the extension of that ban

to the remaining 3 percent of the city is a “prohibition,” but such soph-

istry is a mere play upon words.

Thus the validity of Ordinance No. 10795 under the police power

does not turn on its regulatory or prohibitory character, nor upon the

size of the city which enacted it, but solely on whether it reasonably re-

lates to the public safety and welfare. (1b) As we have explained, the

ordinance recites that it was enacted to eliminate traffic hazards, im-

prove the appearance of the community, and thereby protect property

values. The asserted goals are proper objectives under the police power,

and plaintiffs have failed to prove that the ordinance lacks a reasonable

relationship to the achievement of those goals. We conclude that the

summary judgment cannot be sustained on the ground that the ordi-

nance exceeds the city’s authority under the police power.'?

12Varney & Green v. Williams, supra, 155 Cal. 318, is hereby overruled. Language

in the following cases contraiy to the views expressed herein is disapproved; City of Es-

A-19

3. The summary judgment cannot be sustained

on the ground that the San Diego ordinance on

. its face ne annie of sega

(3) Although the trial court held that the my Diego ohatiiali un-

constitutionally invaded the First Amendment rights of billboard

advertisers, controlling precedent invalidates that conclusion. On almost.

every occasion in which a law which prohibited off-site commercial bill-

boards has been challenged as an abridgment of freedom of speech, the

courts have rejected that challenge and sustained the law. (See Howard

v. Staie Department of Hwys. of Colorado (10th Cir. 1973) 478 F.2d

581; John Donnelly & Sons'v. Mallar, supra, 453 F.Supp. 1272; John

Donnelly & Sons, Inc. v. Outdoor Advertising Bd., supra, 339 N.E.2d

709; Donnelly Advertising Corp. v. City of Baltimore, supra, 370 A.2d

1127, 1132; Newman Signs, Inc. v. Hjelle, supra, 268 N.W.2d 741,

760-762; United Advertising Corp. v. Borough of Raritan, (1952) 11

N.J. 144 [93 A.2d 362]; Stuckey’s Stores, Inc. v. O’Cheskey, supra,

600 P.2d 258; Suffolk Outdoor Advertising Co., Inc. v. Hulse, supra,

43 N.Y.2d 483; Lubbock Poster Co. v. City of Lubbock (Tex.Crim.

App. 1978) 569 SW.2d 935, 945; Ackerley Communications, Inc. v.

City of Seattle (1979) 92 Wn.2d 905 [602 P.2d 1177]; State v. Lutze,

supra, 593 P.2d 811, 813-815; Markham Advertising Co. v. State, su-

pra, 73 Wn.2d 405.)

Plaintiffs note that some of the decisions in point relied heavily on

Valentine v. Christensen (1942) 316 U.S. 52 [86 L.Ed. 1262, 62 S.Ct.

-

condido v. Desert Outdoor Advertising, Inc., supra, 8 Cal.3d 785; Desert Outdoor

Advertising, Inc. v. County of San Bernardino, supra, 255 Cal.App.2d 765; County of

Santa Barbara v. Purcell, Inc., supra, 251 Cal.App.2d 169; National Advertising Co.

v. County of Monterey, supra, 211 Cal.App.2d 375; City of Santa Barbara v. Modern

Neon Sign Co., supra, 189 Cal.App.2d 188.

13The only exception is an unreported decision of a Colorado district court in Com-

bined Communications Corporation v. City and County of Denver, cited in the trial

court's memorandum opinion. The Colorado Supreme Court subsequently affirmed the

decision without discussion of the First: Amendment issue. (Combined Communications

Corp. v. City & Cty., Denver (1975) 189 Colo. 462 {542 P.2d 79].)

The Oklahoma Supreme Court in State ex rel. Dept. of Transp. v. Pile (1979) 603

P.2d 337 held a state law prohibiting the erection of billboards within 660 feet of fed-

eral highways in rural areas violated an Oklahoma constitutional free speech provision

as applied to prohibit a noncommercial billboard. The opinion is cast in broad terms

which imply that the federal Highway Beautification Act and all state laws enacted to

conform to that act abridge freedom of speech. The specific holding of the court, how-

ever, is limited to a question of Oklahoma constitutional law, and is —— on

several counts from the present case.

. 920], in which the Supreme Court declared that “the Constitution im-

poses no...restraint on government as respects purely commercial

advertising.” (Jd., at p. 54 [86 L.Ed. at p. 1265].) Within the last five

‘years, a series of that court’s decisions have repudiated Valentine v.

Christensen and held that commercial speech may command First

‘Amendment protection. (Bigelow v. Virginia (1975) 421 U.S. 809 [44

L.Ed.2d 600, 95 S.Ct. 2222]; Pharmacy Bd. v. Va. Consumer Council

(1976) 425 U.S. 748 [48 L.Ed.2d 346, 96 S.Ct. 1817]; Linmark Asso-

ciates, Inc. v. Willingboro (1977) 431 U.S. 85 [52 L.Ed.2d 155, 97

S.Ct. 1614]; Bates v. State Bar of Arizona (1977) 433 U.S. 350 [53

L.Ed.2d 810, 97 S.Ct. 2691].) Plaintiffs contend that as a result of

these decisions, a law — commercial billboards can no longer

be sustained. . Sok ;

When frat poansateid to us, plaintiffs’ First Amendment contention

presented an arguable issue. While this case was pending before us,

however, the New York Court of Appeal, in Suffolk Outdoor Advertis-

ing Co: v. Hulse, supra, 43 N.Y.2d 483, upheld a community-wide ban

on off-site billboards. The advertising company appealed to the United

States Supreme Court, which dismissed the appeal for want of a sub-

stantial federal question. (439 U.S. 808 [58 L.Ed.2d 101, 99 S.Ct. 66].)

Subsequently the court also dismissed appeals in two cases which sus-

tained state laws banning off-site billboards outside of commercial or

industrial areas. (Newman Signs, Inc. v. Hjelle, supra, 268 N.W.2d

741; State v. Lotze, supra, 593 .P.2d 811.)

Each of the cited cases in which the Supreme Court dismissed ap-

peals expressly rejected the contention that a prohibition on off-site

billboards conflicts with the reasoning of the commercial speech cases.

Since the Supreme Court regards the dismissal of an appeal as a deci-

sion on the merits (Hicks v. Miranda (1975) 422 U.S. 332, 343-345 [45

L.Ed.2d 223, 235-237, 95 S.Ct. 2281]), we conclude that the high court

has resolved that a prohibition of off-site billboards does not violate the

First Amendment..

An issue ‘remains as to whether the San Diego ordinance violates the

free speech clause of the California Constitution. (Art. I, § 2.) We

therefore set forth our reasons for concluding that the San Diego ordi-

nance is a permissible regulation of the time, place, and manner of

speech, and thus does not abridge freedom of speech under the Califor-

nia Constitution.

A-21

Eight decisions of other jurisdictions, filed after the United States

Supreme Court first ruled that commercial speech is protected under

the First Amendment, have each held that laws prohibiting commercial

Pe pemggsions 4 wah Cay endo hay

ulated speech,’ (2) the restriction must ‘serve a significant

interest,’ and (3) in so doing, the restriction must ‘leave open ample al-

ternative channels for communication of the information.” (John

Donnelly & Sons v. Mallar, supra, 453 F.Supp. 1272, 1277, citing Lin-

mark Associates, Inc. v. Willingboro, supra, 431 U.S. 85 and Va.

Pharmacy Bd. v. Va. Consumer Council, supra, 425 U.S. 748.) The

_ San Diego ordinance complies with these requirements.

First, the instant ordinance does not seek to suppress the content of

the advertiser’s message. Each of the high court decisions on which

plaintiffs rely struck down laws aimed at the suppression of a particular

message based on the content of that message. Bigelow invalidated a

law prohibiting advertising which explained how to obtain an abortion;

Virginia Pharmacy Board invalidated a law banning advertisement of

drug prices; Linmark invalidated an ordinance banning residential “for

sale” and “sold” signs; Bates invalidated a state bar rule against attor-

ney advertising. Ordinance No. 10795, by way of contrast, was not

enacted to prevent an advertiser from communicating his message to

the public, but only.to bar him from using a particularly unsightly and

intrusive mode of communication.

Second, as we have already explained, the ordinance serves signifi-

cant governmental interests—promoting traffic safety and improving

the appearance of the community—unrclated to the suppression of free

expression. (Cf. United States v. O’Brien (1968) 391 U.S. 367, 377 [20

L.Ed.2d 672, 680, 88 S.Ct. 1673].)

Finally, the ordinance leaves open adequate alternative means of

communication. In upholding a Maine statute which imposed a

statewide ban on off-site commercial billboards, the federal district

court observed that the act “leaves open ample alternative channels for

A-22

communication of the information now carried by off-premise outdoor

advertising. ...Many, if not all, of the commercial messages displayed

on off-premise signs can be conveyed to the traveling public through on-

premise advertising, official business directional signs, and tourist infor-

mation centers and publications, all of which are sanctioned by the

Act... .Other forms of print media, which, like outdoor advertising, en-

joy the advantage of being relatively low in cost, such as pamphleting

and leafleting, lie beyond the scope of the Act altogether ....” (John

Donnelly & Sons v. Mallar, supra, 453 F.Supp. 1272, 1279-1280.)

The New York Court of Appeals, sustaining a community ordinance

which prohibited all off-site billboards, reached the same conclusion:

“Although prohibiting non-accessory billboards, the ordinance permits

the maintenance of accessory or on-premise billboards, thus providing

an operative means of advertising.” (Suffolk Outdoor Advertising Co.

v. Hulse, supra, 43 N.Y.2d 483, 490.) “Since the challenged ordinance

.tegulates only the place and manner in which billboards may be

maintained, we conclude that [it] does not infringe the right to free

speech guaranteed by the First Amendment.” (/d., at p. 489.)

The foregoing decisions properly hold that a community ordinance

prohibiting off-site cornmercial billboards leaves open adequate alterna-

tive means of communication. Advertisers of consumer products and

services can communicate through newspapers, magazines, radio, and

television. Local business can in addition employ on-site billboards. The

relatively few noncommercial advertisers who would be restricted by the

San Diego ordinance also possess a great variety of alternative means of

communication, including some methods, such as leafleting, which are

not more expensive than billboards.'* The San Diego ordinance is not

unique; over 100 cities and towns in California and the entire States of |

Hawaii, Maine, and Vermont have banned off-site billboards; adver-

tisers in such areas make use of other means of communicating with the

public.

“Plaintiffs call attention to stipulation No. 28, which states in part that “Many busi-

nesses, politicians, and other persons rely upon outdoor advertising because other forms

of advertising are insufficient, inappropriate and prohibitively expensive.” The possibil-

ity that the ordinance may impede an occasional advertiser from communicating his

message to the public, however, is not sufficient to invalidate the ordinance on its face.

In the present litigation, which pits only the owners of the billboards against the city,

individual advertisers are not parties; such an advertiser retains the ability to assert

that, owing to the absence of reasonable alternative means of communication, the ordi-

mance cannot convtitutionally be applied to prevent him from using a billboard to

Prociaim his message.

A-23

In arguing that the San Diego ordinance cannot be sustained as a

regulation of time, place, and manner, plaintiffs cite to cases involving

leaflets, sound trucks, newspapers, maps, and other forms of communi-

cation which courts have held can be subjected only to narrowly drawn

regulations serving a compelling governmental interest.'5 We do not

find those cases controlling here. Unlike leaflets, newspapers, and the

like, a billboard is a large, immobile, and permanent structure which

like other structures is subject to zoning regulation. The city’s right to

regulate the commercial use of property, and to ban uses which imperil

traffic safety or denigrate the appearance of the community justifies re-

strictions which go beyond those imposed upon more transitory or less

obtrusive media. : | " “S

We find support for our conclusion that the city’s interest in regulat-

ing the commercial use of property justifies the instant ordinance in the

decision of the United States Supreme Court in Young v. American

Mini Theaters (1976) 427 U.S. 50 [49 L.Ed.2d 310, 96 S.Ct. 2440]. |

Upholding a zoning ordinance which prohibited adult theaters within

500 feet of residential areas or 1,000 feet of other adult establish-

ments, the court held that the city’s interest in regulating commercial

use of real property outweighed the incidental effect of the ordinance

upon First Amendment values. (See 427 U.S. at p. 63 [49 L.Ed.2d at

pp. 321-322]; id., at p. 76, 84 [49 L.Ed.2d at pp. 329-330, 334]

(Powell, J., conc.).) Rejecting the contention that the challenged ordi-

nance abridged freedom of speech, Young reiterated the principle that

commercial speech acquires only a lesser degree of constitutional pro-

tection.’ Significantly the court, to illustrate that principle, cited

several examples of valid regulation of commercial speech, among

which was the proposition that “A state statute may permit highway

billboards to advertise businesses located in the neighborhood but not

15See Schneider v. State (1939) 308 U.S. 147 [84 L.Ed. 155, 60 S.Ct. 146] (leaf-

lets); Welton v. City of Los Angeles (1976) 18 Cai.3d 497 [134 Cal.Rptr. 668, 556

P.2d 1119] (roadside sale of maps); Wollam v. City of Palm Springs (1963) 59 Cal.2d

276 [29 Cal.Rptr. 1, 379 P.2d 481] (soundtrucks); Kash Enterprises, Inc. v. City of

Los Angeles (1977) 19 Cal.3d 294 [138 Cal.Rptr. 53, 562 P.2d 1302] (newsracks).

16]n Ohralik v. Ohio State Bar Assn. (1978) 436 U.S. 447 [56 L.Ed.2d 444, 98 S.Ct.

1912] the Supreme Court summarized the limited constitutional protection given com-

mercial speech: “We have not discarded the ‘commonsense’ distinction between speech

proposing a commercial transaction, which occurs in an area traditionally subject to

government regulation, and other varieties of speech....[W]e instead have afforded

commercial speech a limited measure of protection, commensurate with its subordinate

position in the scale of First Amendment values, while allowing modes of regulation

that might be impermissible in the realm of non-commercial expression.” (436 U.S. at

pp. 455-456 [56 L.Ed.2d at pp. 452-454].)

A-24

elsewhere.” (427 U.S. at p. 68 [49 L.Ed.2d at p. 325], citing the court’s

dismissal of the appeal in Markham Advertising Co. v. State, supra, 73

Wn.2d 405, app. dis., 393 U.S. 316 [21 L.Ed.2d 512, 89 S.Ct. 553].)!”

The New York Court of Appeals also supports our distinction be-

tween billboards and other media. In 1976 that court held

unconstitutional an ordinance which prohibited all commercial hand-

bills. (People v. Remeny (1976) 40 N.Y.2d 527 [387 N.Y.S.2d 415,

355 N.E.2d 375].) One year later, however, the court upheld an ordi-

nance which prohibited all off-site billboards as a permissible regulation

of the time, place, and manner of speech. (Suffolk Outdoor Advertising

Co., Inc. v. Hulse, supra, 43 N.Y.2d 483.) :

In summary, San Diego asserts a strong interest in removing com-

mercial off-site billboards to enhance the appearance of the community

and to improve traffic safety. To further those ends, the city enacted a

zoning ordinance which does not seek to suppress the content of the ad-

vertising messages, but only to prohibit one means by which such

messages are placed before the public. A multitude of published deci-

sions support the proposition that such an ordinance does not abridge

freedom of speech. Finding that the recent commercial speech cases of

the United States Supreme Court do‘not undermine those decisions,

and that billboards, as permanent intrusive uses of land, may reason-

ably be distinguished from other media, we conclude that the San

Diego ordinance does not on its face abridge freedom of speech under

either the United States or California Constitutions.

4. (4a) The San Diego ordinance is preempted

by the Outdoor Advertising Act to

the extent that the ordinance

requires removal without compensation

of billboards within 660 feet

of federal interstate and primary

highways.

Plaintiffs contend that the summary judgment below should be sus-

tained on the ground that Ordinance No. 10795 is preempted by

provisions of the Outdoor Advertising Act (Bus. & Prof. Code, § 5200

et seq.). Plaintiffs rely on two provisions: Section 5226, which states

17The Maryland Court of Appeals, sustaining a ban on billboards in the Oldtown ur- |

ban renewal district of Baltimore, relied squarely on the Supreme Court decision in

Young v. American Mini Theaters. (Donnelly Advertising Corp. v. City of Baltimore,

supra, 370 A.2d 1127, 1132.)

A-25

generally the legislative policy and findings underlying the Outdoor Ad-

vertising Act, and section 5412, which requires payment of

compensation for removal of billboards when such compensation is nec-

essary to protect the state’s share of federal highways funds.

4

Section 5226 reads as follows: “The regulation of advertising displays

adjacent to any interstate highway or primary highway. . .is hereby de-

clared to be necessary to promote the public safety, health, welfare,

convenience and enjoyment of public travel, to protect the public invest-

ment in such highways, to preserve the scenic beauty of lands bordering

on such highways, and to insure that information in the specific interest

of the traveling public is presented safely and effectively, recognizing

that a reasonable freedom to advertise is necessary to attain such objec-

tives. The Legislature finds:

“(a) Outdoor advertising is a legitimate commercial use of property

adjacent to roads and highways. ;

“(b) Outdoor advertising is an integral part of the business and mar-

keting function, and an established segment of the national economy,

and should be allowed to exist in business areas, subject to reasonable

controls in the public interest.”

The significance of section 5226 is not clear. The section states broad

policy objectives but neither expressly authorizes billboards in business

areas nor explicitly limits the authority of municipalities to prohibit

billboards in such areas. Although the findings of section 5226 coald be

read literally to authorize maintenance of billboards in commercial

areas despite any contrary local prohibition'® such an interpretation ap-

parently conflicts with section 5229, which provides that “The

provisions of this chapter shall not be construed to permit a person to

place or maintain in existence...any outdoor advertising prohibited

by. . .any ordinance of any city... .” Section 5230 further confirms the

authority of a city under the police power; it states that “The governing

body of any city, county, or city and county may enact ordinances, in-

cluding, but not limited to, land use or zoning ordinances, imposing

' 181f section 5226 were construed to authorize billboards in commercial areas of cities,

including locations not adjacent to state or interstate highways, it might be invalid as a

regulation of a municipal affair. (See Bishop v. City of San Jose (1969) | Cal.3d 56,

63 [81 Cal.Rptr. 465, 460 P.2d 137].)

restrictions on advertising displays adjacent to any street, road, or high-

way equal to or greater than those imposed by this chapter.”!°

Viewed in context, section 5226 appears to be a statement of policy,

adopted to explain why the Legislature enacted a statute providing for

the eventual elimination of outdoor advertising displays adjacent to

state and interstate highways in noncommercial areas, but not for the

prohibition of such displays within business areas. The section does not

constitute a substantive limitation on the police power of the municipal-

ity, and thus should not be construed to preempt municipal authority.

Section 5412, the other provision on which plaintiffs rest their pre-

emption argument, does serve to preempt the San Diego ordinance to a

limited extent. Section 5412 provides that: “If federal law requires the

states to pay just compensation with regard to the removal of any ad-

vertising display, the owner or owners of such advertising display and

the owner or owners of the land upon which such display is located,

shall be paid just compensation. The sole intent of the Legislature in

enacting this section is to comply with federal law, and it is otherwise

not the intent of the Legislature to in any manner relinquish any of its

powers relating to the removal of advertising displays under the police

power.”2° As the language of the section demonstrates, it requires pay-

ment of compensation only when such payment is necessary to comply

with federal law. (See 55 Ops.Cal.Atty.Gen. 1 (1972). Analysis of the

alleged preemptive effect of section 5412, consequently, requires a re-

view of the provisions of the relevant federal statute, the Highway

Beautification Act of 1965 (23 U.S.C. § 131), as amended | in Novem-

ber of 1978 (see 92 Stat. 2700-2701).

Subsection (b) of the act provides for a 10 percent cut in federal-aid

highway funds to any state which fails to provide effective control of

outdoor advertising signs, displays, and devices which fall in either of

two categories: (1) signs “within six hundred and sixty feet of the near-

est edge of the right-of-way and visible from the main traveled way [of]

'9Further lack of clarity arises from the language of section 5227, which states that

“It is the intention of the Legislature to occupy the whole field of regulation by the

provisions of this chapter except that nothing in this chapter prohibits. . .the passage by

any county of reasonable land use or zoning regulations affecting the placing of adver-

tising displays ....” If this language is intended to grant only counties, and not cities,

authority to regulate advertising by zoning, it is inconsistent with section 5230.

The quoted language is the text of section 5412 as enacted in 1975. The language

of prior section 5412 (enacted in 1970), and of prior section 5288.3a (enacted in 1967

and repealed by the enactment of § 5412) does not differ from the present section in

any respect material to the instant case

A-27

the Interstate System and the primary system [of federal highways],”

and (2) “those additional outdoor advertising signs, displays, and de-

vices which are more than six hundred and sixty feet off the nearest

edge of the right-of-way, located outside of urban areas, visible from

the main traveled way of the system, and erected with the purpose of

their message being read from such main traveled way.”?' Since all

signs at issue in this litigation are located within urban areas, we are

concerned only with the first category—signs within 660 feet of federal

primary or interstate highways. » gat

Under subsection (c), “effective control” of outdoor advertising signs

requires that all signs within 660 feet of federal interstate and primary

highways must be removed except for official and directional signs,

signs advertising property for sale or lease, on-site advertising, land-

mark signs, and signs advertising free coffee.??

21Subsection (b) reads in full as follows: “(b) Federal-aid highway funds apportioned

on or after January |, 1968, to any State which the Secretary determines has not made

provision for effective control of the erection and maintenance along the Interstate Sys-

tem and the primary system of outdoor advertising signs, displays, and devices which

are within six hundred and sixty feet of the nearest edge of the right-of-way and visible

from the main traveled way of the system, and Federal-aid highway funds apportioned

on or after January |, 1975, or after the expiration of the next regular session of the

State legislature, whichever is later, to any State which the Secretary determines has

not made provision for effective control of the erection and maintenance along the In-

terstate System and the primary system of those additional outdoor advertising signs,

displays, and devices which are more than six hundred and sixty feet off the nearest

edge of the right-of-way, located outside of urban areas, visible from the main traveled

way of the system, and erected with the purpose of their message being read from such

main traveled way, shall be reduced by amounts equal to 10 per centum of the amounts

which would otherwise be apportioned to such State under section 104 of this title, un-

til such time as such State shall provide for such effective control. Any amount which

is withheld from apportionment to any State hereunder shall be reapportioned to the

other States. Whenever he determines it to be in the public interest, the Secretary may

a for such periods as he deems necessary, the application of this subsection to a

tate.”

22Subsection (c) reads as follows: “(c) Effective control means that such signs, dis-

plays, or devices after January |, 1968, if located within six hundred and sixty feet of

the right-of-way and, on or after July 1, 1975, or after the expiration of the next regu-

lar session of the State legislature, whichever is later, if located beyond six hundred and

sixty feet of the right-of-way, located outside of urban areas, visible from the main

traveled way of the system, and erected with the purpose of their message being read

from such main traveled way, shall, pursuant to this section, be limited to (1) direc-

tional and official signs and notices, which signs and notices shall include, but not be

limited to, signs and notices pertaining to natural wonders, scenic and historical attrac-

tions, which are required or authorized by law, which shall conform to national

standards hereby authorized to be promulgated by the Secretary hereunder, which

standards shall contain provisions concerning lighting, size, number, and spacing of

signs, and such other requirements as may be appropriate to impement this section, (2)

A-28

Subsection (d), however, provides that a state may agree with the

Secretary of Transportation to permit signs whose size, lighting, and

spacing are consistent with customary usage in areas zoned commercial

or industrial; although subsection (d) is not explicit on the point, its ap-

parent purpose is to permit signs in commercial and industrial areas

which absent agreement would be prohibited by subsection (c).*

Pursuant to subsection (d), the State of California entered into an

agreement in 1968 with the Secretary of Transportation to permit bill-

boards, subject to restrictions on size, spacing, and similar matters, in

commercial and industrial zones of all California cities. The agreement,

however, contains a caveat: “Nothing contained herein shall be con-

strued to abrogate or prohibit the State or any subdivision of the State

from exercising a greater degree of control of outdoor advertising signs,

displays and devices than that required by the Act or from adopting

standards which are more restrictive in controlling outdoor advertising

signs, displays and devices than the provisions of this Agreement.”

Hence the agreement itself does not prevent San Diego from prohibiting

commercial off-site billboards; in effect, the state has elected to protect

such billboards under a subsection (d) agreement only when communi-

signs, displays, and devices advertising the sale or lease of property upon which they

are located, (3) signs, displays, and devices, including those which may be changed at

reasonable intervals by electronic process or by remote control, advertising activities

conducted on the property on which they are located, (4) signs lawfully in existence on

October 22, 1965, determined by the State, subject to the approval of the Secretary, to

be landmark signs, including signs on farm structures or natural surfaces, of historic or

artistic significance the preservation of which would be consistent with the purposes of

this section, and (5) signs, displays, and devices advertising the distribution of nonprofit

Organizations of free coffee to individuals traveling on the Interstate System or the pri-

mary system. For the purposes of this subsection, the term ‘free coffee’ shall include

coffee for which a donation may be made, but is not required.”

23Subsection (d) reads as follows: “(d) In order to promote the reasonable, orderly

and effective display of outdoor advertising while remaining consistent with the pur-

poses of this section, signs, displays, and devices whose size, lighting and spacing,

consistent with customary use is to be determined by agreement between the several

States and the Secretary, may be erected and maintained within six hundred and sixty

feet of the nearest edge of the right-of-way within areas adjacent to the Interstate and

Primary systems which are zoned industrial or commercial under authority of State

law, or in unzoned commercial or industrial areas as may be determined by agreement

between the several States and the Secretary. The States shall have full authority un-

der their own zoning laws to zone areas for commerciai or industrial purposes, and the

actions of the States in this regard will be accepted for the purposes of this Act. When-

ever a bona fide State, county, or local zoning authority has made a determination of

Customary use, such determination will be accepted in lieu of controls by agreement in

the zoned commercial and industrial areas within the geographical jurisdiction of such

authority. Nothing in this subsection shall apply to signs, displays, and devices referred

to in clauses (2) and (3) of subsection (c) of this section.”

A-29

ties within the state do not prohibit those billboards under the local

police power. In 1972, by enacting the ordinance at issue in this litiga-

tion, San Diego exercised its power under this caveat and prohibited

- off-site commercial billboards in areas of the city zoned for commerce

or industry. |

Finally, we come to subsection (g), the language of which is crucial

to the determination of this appeal. That subsection, as amended in

1978, provides that “Just compensation shall be paid upon the removal

of any outdoor advertising sign, display, or’ device lawfully erected un-

der State law and not permitted under subsection (c) of this section,

whether or not removed pursuant to or because of this section.”*4

Some of the billboards banned by the San Diego ordinance stand

within 660 feet of federal interstate or primary highways. Since these

are ordinary advertising billboards, not official signs, landmark signs, or

other signs exempt from removal under the act, subsection (c) of the

act required their removal. The 1968 agreement between the state and

the Secretary of Transportation, however, permitted those billboards to

remain standing unless a subdivision of the state adopted more restric-

tive standards. As we have stated, in 1972, San Diego enacted more

restrictive standards by prohibiting off-site commercial billboards,

thereby depriving those billboards of the protection of the 1968 agree-

ment. The question therefore arises whether just compensation must be

paid upon the removal of billboards previously saved from removal by

an agreement between the state and the Secretary of Transportation,

but which no longer fall within the protective scope of that agreement.

In our opinion compensation is required. Subsection (g) of the High-

way Beautification Act, as amended in 1978, requires compensation

upon removal of any billboard “not permitted under subsection (c).”

The only billboards permitted under subsection (c) are official signs,

on-site advertising, and like exempt signs; the billboards in question do

not fall within any of the exemptions and are therefore billboards “not

permitted under subsection (c).” Under the literal language of the act,

the fact that these billboards were previously protected by an agreement

24The balance of subsection (g) specifies that “The Federal Share of such compensa-

tion shall be 75 per centum. Such compensation shall be paid for the following:

“(A) The taking from the owner of such sign, display, or device of all right, title,

leasehold, and interest in such sign, display, or device; and

“(B) The taking from the owner of the real property on which the sign, display, or

se is located, of the right to erect and maintain such signs, displays, and devices

thereon.”

A-30

between the state and the Secretary of Transportation, an agreement

authorized by subsection (d) of the act, has no bearing upon the fact

that they are billboards “not permitted under subsection (c).” The lit-

eral language of the federal act therefore compels compensation.

This conclusion finds support in the legislative history of the 1978 .

amendment which added the phrase “not permitted under subsection

(c)” to subsection (g) of the act. The Report of the House Committee

on Public Works and Transportation indicated that whenever a state or

local government did not exercise its option to enter into an agreement

with the Secretary of Transportation to protect signs in commercial and

industrial areas, then no distinction could be drawn between signs

which could be protected by agreement under subsection (d) and those

which could not; “all of the signs are nonconforming with the ‘effective

control’ requirements of subsection (c), and the committee is of the

opinion that subsection (g) requires payment of just compensation for

their removal. ... [J]ust compensation must be paid upon the removal

of any lawfully erected sign which is not permitted under subsection

(c).” (Rep., No. 95-1485, p. 16.) Pei Made Re Si

We have carefully considered the decision of the Washington Su-

preme Court in Ackerley Communications, Inc. v. City of Seattle,

supra, 602 P.2d 1177. Denying compensation for removal of signs with-

in commercial and industrial zones, Ackerley stated that “[s]ince signs

within commercial and industrial zones which are not governed by an

agreement between the State and the Department of Transportation are

not regulated by, and are wholly outside the scope of, the federal stat-

ute, the only reasonable interpretation of the statutory language is that

it does not require compensation for such signs.” (602 P.2d at p. 1184.)

We must respectfully. disagree with the analysis of Ackerley. In our

opinion, the federal statute does regulate signs within commercial and

industrial zones which are not governed by a federal-state agreement

—specifically, the act prohibits such signs unless they fall within the

five exempt categories of subsection (c). Consequently, it requires com-

pensation when those signs are removed.?5

5The City of San Diego, seconded by the City of Alameda as amicus, advance an

argument similar to the Ackerley opinion. They contend that subsection (d) of the act

and agreements between the state and the Secretary of Transportation pursuant to that

subsection impliedly amend and limit the scope of subsection (c). The phrase “not per-

mitted under subsection (c),” they contend, refers only to signs which are both barred

by the express language of subsection (c)—that is, signs which are neither official

signs, landmarks, or the like—and which could not have been protected from removal

A-31

The city argues that under the wording of subsection (g) prior to the

1978 amendments, compensation was not required for removal of any

sign which constituted a nonconforming use under local zoning”* (see

Lubbock Poster Co. v. City of Lubbock, supra, 569 S.W.2d 935, 945),

and urges that we should not give the 1978 amendments retrospective

effect. The Federal Highway Administration, however, takes the. posi-

tion that the 1978 amendments apply to require compensation for

“signs still in existence on November 6, 1978, and those additional signs

which were removed prior to November 6, 1978, but were the subject of

‘litigation pending on that date.” (Meio. Fed. Highway Administrator,

Mar. 6, 1979.) (5) Since the Federal’ Highway Administration is the

agency charged with the enforcement of the Highway Beautification

Act, its interpretation of the act merits great weight. (See, e.g., North-

ern Ind. Pub. Serv. Co. v. Walton League (1975) 423 U.S. 12, 15 [46

L.Ed.2d 156, 159, 96 S.Ct. 172]; Los Angeles v. Public Utilities Com.

(1975) 15 Cal.3d 680, 696 [125 Cal.Rptr. 779, 542 P.2d 1371].) Mind-

ful of that interpretation, and of the risk that this state might lose

substantial funds if we were to adopt a construction contrary to that of

the federal administration, we conclude that the amended act applies to

billboards in existence or removed subject to litigation as of November

6, the effective date of the amendments. 7

(4b) We believe that the Highway Beautification Act as amended

requires the payment of compensation for removal of all billboards ex-

isting or subject to litigation on November 6, -1978, located within 660

feet of federal interstate or primary highways within San Diego and

visible from the main traveled way of such highways. We reach that

conclusion reluctantly, since its effect in this case and in future tases

will probably frustrate the original intent of the Highway Beautification

by a subsection (c) agreement. In other words, they maintain that compensation is re-

quired only when the act as a whole compels the removal of a sign, and since the act

permits signs in commercial and industrial areas which conform to a subdivision (c)

agreement, compensation is not required when a local ordinance requires the removal

of such signs. _

We appreciate the policy arguments in favor of limiting the requirement of compen-

sation to cases in which the act as a whole compels removal of the billboard. The cities’

proffered construction of the amended act, however, cannot be reconciled with the lan-

guage of the amended act and the legislative history of the amendments.

26Before 1978 subsection (g) required compensation upon removal of signs‘“lawfully

in existence on the date of enactment of this subsection. : .{or] lawfully erected on or

after January |, 1968.” The chief counsel of the Federal Highway Administration in-

terpreted that ambiguous language to signify that w a sign became a

nonconforming use it ceased to be lawfully erected, and thus no compensation was re-

quired for its removal. Following the 1978 amendment the Federal Highway

Administration withdrew that opinion. :

A-32

Act: to accelerate the removal of billboards and thereby “promote the

safety and recreational value of public travel, and to preserve natural

beauty.” (23 U.S.C. § 131(a).)?” .

The 1978 amendments have, in effect, inverted the purpose of the

act, making the secondary goal of ensuring compensation dominant over .

the primary goal of encouraging billboard removal. (See Steif, The

Billboards are Back (June 1979) The Progressive, at p. 44.) Neverthe-

less, the language and administrative construction of the amended act

clearly compel compensation, and local removal of billboards without

compensation, even though undertaken to promote public safety and

preserve natural beauty, would imperil the state’s receipt of federal

highway funds. ; ee Wn tog

As we noted earlier, section 5412 of California’s Outdoor Advertising

Act sought to preempt local police power authority and to require pay-

ment of compensation when such preempiion was necessary to protect

California’s receipt of federal highway funds. The City of San Diego

contends that the regulation and removal of billboards is a municipal

affair and that the Legislature thus may not constitutionally enact leg-

islation which preempts local regulatory power. (See generally Bishop

v. City of San Jose, supra, 1 Cal.3d 56, 62-63.) We note, however, that

receipt of federal highway funds is a matter of statewide concern; con-

sequently local regulation and removal of billboards, to the extent that

it endangers such receipt, becomes also a matter of statewide concern.

The courts have recognized that municipal action which affects persons

outside of the municipality becomes to that extent a matter which the

State is empowered to prohibit or regulate (CEEED v. California

77In opposing the 1978 amendment to the Highway Beautification Act, the chief

counsel for the Federal Highway Administration stated that: “The proposed amend-

ment will have the effect of severely limiting local prerogatives to control outdoor

advertising by turning the Highway Beautification Act into a statute which protects

signs from local land use decisions and ensuring compensation, irrespective of the rea-

son for removal. This would represent an unprecedented limitation on local zoning

authorities. Traditionally, localities have controlled outdoor advertising, along with

other types of nonconforming land uses, under the police power, which would allow re-

moval by amortization.”

Subsequent to enactment of the amendments, the administration declined to budget

funds for the highway beautification program. It explained to Congress that “in light of

recently enacted legislation that drastically reduces the scope of the highway beautifi-

Cation program, the budget does not request any funds for this purpose pending

complci:on of a comprehensive Department of Transportation review of the program to

determine if it can be successfully continued.” (Budget U.S. Gov., Fiscal Year 1980, p.

184.) Congress, however, voted to appropriate $25 million to continue the program for

1980. (Pub. L. No. 96-131, enacted Nov. 30, 1979.)

A-33

Coastal Zone Conservation Com. (1974) 43 Cal.App.3d 306, 321 [118

Cal.Rptr. 315] and cases there cited); the action of San Diego in that it

affects the receipt of federal funds by the state or other California com-

munities falls within that principle.

‘Accbedingly we conten that San Diego Gelinants No. 10795, to

the extent that it permits the removal without compensation of bill-

boards for which compensation is required under title 23, section 131 of

the United States Code, is preempted by the California Outdoor Adver-

tising Act, and hence invalid.2* The application of Ordinance No. 10795

to billboards not protected by federal law—that is, to billboards more

than 660 feet from federal interstate or primary highways, or billboards

not in existence or removed. subject to litigation on November 6,

1978—is not preempted by the Outdoor Advertising Act. The ordi-

nance’s proscription upon erection of future billboards is likewise

unaffected by the federal requirement for just compensation and thus

not preempted by state law.

5. The San Diego ordinance does not

deny plaintiffs the equal

protection of the laws.

(6a) We reject plaintiffs’ contention that the city’s failure to pay

compensation for the removal of all of their billboards, in light of the

requirement for compensation to owners of billboards within the pre-

emptive scope of the Outdoor Advertising Act, denies the equal

protection of the laws. Since the distinction involves purely economic

regulation it may be sustained if the classification bears a rational rela-"

tionship to a legitimate state purpose. (People ex rel. Dept. of

Transportation v. Desert Outdoor Advertising, Inc. (1977) 68 Cal.

App.3d 440, 450 [137 Cal.Rptr. .221].) |

The City of San Diego argues that “it is to be seriously questioned whether a Fed-

eral Act which purportedly is intended to provide ‘effective control’ and removal of

billboards, but which in actuality, due to lack of funding to pay for removal, results in

protection of billboards, can, without violating the Tenth Amendment of the United

States Constitution, prevent use of local police powers under penalty of withholding

federal monies.” So long as federal funds are available, the Highway Beautification

Act's program for a federal-state partnership in removing billboards visible from fed-

eral highways clearly Fes no substantial issue under the Tenth Amendment. Since

the record before us not indicate that the federal government would not provide

whatever funds are needed to pay its 75 percent share for the removal of billboards

within 660 feet of federal highways in San Diego, we need not reach the issues that

might be by federal regulation in the absence of funding. As noted in footnote

27, ante, Congress appropriated $25 million for carrying out the highway beautification

program for fiscal year 1980.

A-34

(7) California decisions establish that a city seeking to eliminate

nonconforming uses may pursue two constitutionally equivalent alterna-

tives: It can eliminate the use immediately by payment of just

compensation, or it can require removal of the use without compensa-

tion following a reasonable amortization period. (See Livingston Rock

etc. Co. v. County of L.A. (1954) 43 Cai.2d 121, 127 [272 P.2d 4].)

(6b) The choice between the alternative largely involves budgetary

considerations. The state has chosen to require compensation when the

funds for such purpose are augmented by a 75 percent federal contribu-

tion. When such federal funds are not available, the state has not

required compensation, and the city has accordingly chosen the more

economical alternative of requiring abatement after expiration of an

amortization period. We find no denial of equal protection in that deci-

sion. (See Ackerley Communications, Inc. v. Cay of Seattle, supra, oa

P.2d 1177, 1187.) .

6. (8a) The summary judgrient cannot be wantin

on the ground that the amortization period '

prescribed by the ordinance as applied to

all or any of plaintiffs’ signs is unreasonably short.

The San Diego ordinance requires abatement of all off-site billboards

following expiration of an amortization period. That period is computed

in the following manner: First, the owner determines the original cost of

the sign, including the cost of installation. Second, he deducts 10 per-

cent of that cost for each year the sign has been standing prior to the

effective date of the ordinance, arriving at a figure which the ordinance

refers to as “the adjusted market value.” The ordinance then provides

an abatement schedule ranging from one year for signs with an “adjust-

ed market value” of less than $500 to four years for signs with an “ad-

justed market value” in excess of $20,000.79

bp ao ordinance was enacted March 14, 1972. At provides the following abatement

schedule:

“Adjusted Market Value Abatement Date

Less than $ 500.00 April 1, 1973

$ $00.00 to 999.99 July 1, 1973

1,000.00 to 1,499.99 October |, 1973

1,500.00 to 1,999.99 January |, 1974

2,000.00 to 2,999.99 April 1, 1974

3,000.00 to 3,999.99 July 1, 1974

4,000.00 to 4,999.99 . October 1, 1974

5,000.00 to 7,499.99 January 1, 1975

A-35

Finally, the ordinance states that notwithstanding the

schedule in the ordinance, any signs located within 500 feet of freeways

or scenic highways must be removed within 90 days. This provision is

based on the fact that such signs were rendered nonconforming uses by

prior city zoning ordinances. Since those prior ordinances had been in

force for about. 3 years before the effective date of Ordinance No.

10795, the signs in question received an actual amortization period of at

least 3 years and 90 days.

‘Thus the amortization period under the ordinance depends upon the

conformity of the signs under prior ordinances, the original cost of the

signs, and the time elapsed since erection of the signs. As the parties

stipulated, the abatement schedule is not computed on the basis of cur-

rent fair market value, useful life, or income generated ‘by the signs.

Relying on that stipulation, plaintiffs contend that the amortization pe-

riod is unreasonable on its face and hence that the ordinance, to the

extent that it requires removal of billboards without compensation or a

reasonable amortization period, denies due process of law. The trial

court in its memorandum opinion granting the motion for summary

judgment found that plaintiffs had not provided sufficient proof that

the abatement schedule was unreasonable as applied to their billboards.

(9) The California cases have firmly declared that zoning legislation

may validly provide for the eventual termination of nonconforming uses

without compensation if it provides a reasonable amortization period

commensurate with the investment involved. (National Advertising Co.

v. County of Monterey (1970) 1 Cal.3d 875, 878 [83 Cal. Rptr. 577,

464 P.2d 33]; Livingston Rock etc. Co. v. County of Los Angeles, su-

pra, 43 Cal.2d 121, 127; City of Los Angeles v. Gage (1954) 127

Cal.App.2d 442, 454-460 [274 P.2d 34].) The determination of the

length of a reasonable period of amortization is not merely a matter of

accounting. “It is not required that the nonconforming property con-

cerned have no value at the termination date.” (Art Neon Co. v. City

and County of Denver, (10th Cir. 1973) 488 F.2d 118, 121.) The deter-

mination instead involves a process of weighing the public gain to be

derived from a speedy removai of the nonconforming use against the

7,500.00 to 9,999.99 April 1, 1975

10,000.00 to 12,499.99 . July 1, 1975

12,500.00 to 14,999.99 October 1, 1975

15,000.00 to 19,999.99 January |, 1976

20,000.00 and over April |, 1976.” .

A.

private loss which removal of the use would entail. (Hadacheck v. Se-

bastian (1915) 239 U.S. 394 [60 L.Ed. 348, 36.S.Ct. 143]; Art Neon

Co. v. City and County of Denver, supra, at p. 121; National Advertis-

ing Co. v. County of Monterey, supra, | Cal.3d at p. 886 (dis. opn. of |

Sullivan, J.); City of La Mesa v. Tweed & Gambrell Mill (1956) 146

Cal.App.2d 762, 770 [304 P.2d 803]; City of Los Angeles v. Gage, su-

pra, at p. 461; Modjeska Sign Studios, Inc. v. Berle (1977) 43 N.Y.2d

468 [402 N.Y.S.2d 359, 373 N.E.2d 255].)°

In reviewing the constitutionality of an ordinance providing for amor-

tization of nonconforming billboards we held in National Advertising

Co. v. County of Monterey, supra, 1 Cal.3d 875, that a one-year amor-

tization period was unreasonable except as to signs which had been

fully depreciated for federal income tax purposes. (Jd., p. 880.) Other

decisions have also stated that a one-year amortization period is gener-

ally unreasonable (National Advertising Co. v. County of Monterey,

supra, 211 Cal.App.2d 375, 381; City of Santa Barbara v. Modern

Neon Sign Co. (1961) 189 Cal.App.2d 188, 195-196 [11 Cal.Rptr.

57}), but have upheld amortization periods ranging from two years and

eight months (People ex rel. Dept. Pub. Wks. v. Adco Advertisers

(1973) 35 Cal.App.3d 507, 513 [110 Cal.Rptr. 849]), to three years

(City of Escondido v. Desert Outdoor Advertising, Inc., supra, 8 Cal.3d

785; Naegele Outdoor Adv. Co. v. Village of Minnetonka (1968) 281

Minn. 492 [162 N.W.2d 206]), to five years (Art Neon Co. v. City and

County of Denver, supra, 488 F.2d 118, 122; County of Santa Barbara

v. Purcell, Inc., supra, 251 Cal.App.2d 169; E.B. Elliott Adv. Co. v.

Metropolitan Dade County, supra, 425 F.2d 1141, 1154). (8b) In

light of those decisions we conclude that the amortization period pro-

vided in the instant ordinance which ranges from one to four years,

depending upon the depreciated value of the sign, is not unreasonable

On its face.

‘Our conclusion that the amortization schedule established in the San

Diego ordinance is not facially unreasonable does not demonstrate its

validity as applied to each of plaintiffs’ signs. (10a) The reasonable-

, Ress of an amortization period as applied to each billboard depends in

in ining the reasonableless of the period of amortization a great variety of

factors may be . As listed in Art Neon Co. v. City and County of Denver, su-

Pra, 488 F.2d 118, 122, the factors include “The nature of the orming use, the

ation for other purposes the monopoly or advantage, if any, resulting from the fact

i in the same area.”

A-37

part upon facts peculiar to that structure (see National Advertising Co.

v. County of Monterey, supra, 1 Cal.3d 875, 879, and cases there cited;

Bohannan v. City of San Diego (1973) 30 Cal.App.3d 416, 426 [106

Cal.Rptr. 333]). Such facts include the cost of the billboard, its depre-

ciated value, remaining useful life, the length and remaining term of the

lease under which it is maintained, and the harm to the public if the

structure remains standing beyond the persed amortization period.

(8c) Plaintiffs have the burden of proving the invalidity of the amor-

tization period as applied to each of plaintiffs’ structures. (See Art

Neon Co. v. City and County of Denver, supra, 488 F.2d 118, 121; Na-

tional Advertising Co. v. County of Monterey, supra, 1 Cal.3d 875,

879.) On motion for summary judgment plaintiffs did not attempt to

meet this burden as to each structure, but limited their argument to the

claim that the abatement schedule was facially unconstitutional because

it was not based upon the fair market value or remaining useful life of

the billboard. (10b) But even though the fair market value and re-

maining useful life are relevant considerations—they are among the

factors which must be evaluated in defining the private loss which is

balanced against the public benefit in order to determine the reasonable

period of amortization—the failure of the city to base its abatement

schedule upon such considerations does not necessarily render that

schedule unconstitutional. If the amortization period prescribed by the

ordinance is a reasonable one, the fact that the city arrived at that

period by a formula which did not include every one of the relevant

considerations does not render its ordinance unconstitutional.*!

- ~~

As we have stated, on their motion for summary judgment plaintiffs

did not attempt to prove the amortization pericd was unreasonable as

applied to specific signs, except for those signs located within 500 feet

of freeways and scenic highways for wuich this ordinance prescribed an

amortization period of only 90 days. The city explains, however, that

such signs were already nonconforming uses pursuant to an ordinance

enacted more than three years earlier and consequently that plaintiffs

had already enjoyed an amortization period of three years with respect

to such signs. Plaintiffs’ evidence fils to demonstrate that an amortiza-

tion period of three years and 1. .ety days is unreasonably short as

31Even if the amortization period were found to be unreasonable as to a particular

property, that finding would “not invalidate its application to other property or invali-

date the ordinance of which it is a part.” (Bohannan v. City of San Diego, supra, 30

Cal.App.3d 416, 426.)

A-38

applied to any of the signs in question. We therefore conclude that the

summary judgment in favor of plaintiffs cannot be sustained on the

ground that the amortization period of the ordinance is unreasonable as

to all or any of plaintiffs’ billboards.

7. (11) The summary judgment cannot be sustained

on the ground that the City Council of

San Diego failed to comply with the

California Environmental Quality Act.

Plaintiffs contend that Ordinance No. 10795 is invalid because the

city council failed before enacting that ordinance to prepare an environ-

mental impact report as required by Public Resources Code section

21151. Plaintiffs’ complaints, however, do not allege the city’s noncom-

pliance with the requirements of the California Environmental Quality

Act, and although over three years elapsed between the filing of those

complaints and plaintiffs’ motion for summary judgment, plaintiffs of-

fered no amendment to assert such noncompliance. On. motion for

summary judgment the pleadings define the issues; thus “‘[I]n the ab-

sence of some request for amendment there is no occasion to inquire

about possible issues not raised.by the pleadings.” (Krupp v. Mullen

(1953) 120 Cal.App.2d 53, 57 [260 P.2d 629]; Gardenswartz v. Equita-

ble etc. Soc. (1937) 23 Cal.App.2d Supp. 745, 752 [68 P.2d 322]; see

Dawson v. Rash (1958) 160 Cal.App.2d 154, 161 [324 P.2d 959].) The

issue of the city’s alleged noncompliance with the California Environ-

mental Quality Act therefore was not properly before the trial court on

the motion for summary judgment, and thus cannot be asserted here as

a ground for sustaining that judgment.

8. Conclusion.

In summary, we conclude that neither the federal nor the state Con-

s\itution bars a municipality from enacting a zoning ordinance which

rohibits off-site billboards and requires removal of existing billboards

after expiration of a reasonable amortization period. The Outdoor Ad-

vertising Act, however, preempts local law to bar the uncompensated

removal of existing billboards located within 660 feet of federal inter-

State or primary highways. Plaintiffs accordingly may avoid

uncompensated removal for any billboards falling within the preemptive

scope of the Outdoor Advertising Act; plaintiffs also retain the right to

- Show that the amortization period prescribed by the San Diego ordi-

nance is unreasonably short as applied to some or all of their structures.

A-39

Because plaintiffs have failed to demonstrate the invalidity of the ordi-

nance on its face, however, the trial court erred in granting their motion

for summary judgment.

To hold that a city cannot prohibit off-site commercial billboards for

the purpose of protecting and preserving the beauty of the environment

is to succumb to a bleak materialism. We conclude with the pungent

wares of Ogden Nash:

“I think that I shall never see

: “A billboard lovely as a tree.

“Indeed, unless the billboards fall,

* “Pll never see a tree at all.”

~ The judgment is reversed.

Bird, C. J., Mosk, J., and Manuel, J., concurred.

RICHARDSON, J.—I concur in the judgment. I share some of the sub-

stantial doubts raised by the dissent of Justice Clark, who discerns

serious constitutional difficulties with any governmental scheme calling

for the total prohibition of any legitimate business enterprise. Nonethe-

less, I am persuaded by the majority's analysis that the present ban an

off-site billboards meets the minimum constitutional standards estab-

lished by the United States Supreme Court and that, persian ti the

challenged eeGinenee must be upheld.

. The high court has recently dismissed for want of a substantial fed-

eral question an appeal which raised identical issues. In Suffolk Out-

door Adv. v. Hulse (1977) 43 N.Y.2d 483 [402 N.Y.S.2d 368, 373

N.E.2d 263], the New York Court of Appeals upheld a local ordinance

totally banning all off-site billboards as a rational method of improving

community aesthetics. The majority herein correctly observes that the

subsequent dismissal of the appeal to the United States Supreme Court

must be regarded as a dispositive decision on the merits. (Hicks v.

Miranda (1975) 422 U.S. 332, 343-344 [45 L.Ed.2d 223, 235-236, 95

S.Ct. 2281].) No convincing basis appears for distinguishing Sufolk.

Accordingly, I agree with the judgment of reversal. 2%,

NEWMAN, J., Concurring.—I share Justice Richardson’s unease re-

garding the prohibition that Justice Clark finds illegal. Unlike both of

them, however, I believe that we must examine carefully the state as

well as the federal Constitution.

Article I, section 2 of the California Constitution declares: “Every

person may freely speak, write and publish his or her sentiments on all

subjects, being responsible for the abuse of this right. A law may not re-

strain or abridge liberty of speech or press.”

That second sentence is meuthealine: By no means does it imply that

federal precedents confine freedom of expression in this state. (See art.

I, § 24: “Rights guaranteed by this Constitution are not dependent on

those guaranteed by the United States Constitution”; Wilson v. Su-

perior Court (1975) 13 Cal.3d 652, 658 [119 Cal.Rptr. 468, 532 P.2d

116] (*A_ protective provision more definitive and inclusive than

the First Amendment is contained in our state constitutional guar-

antee...”); Note, Rediscovering the California Declaration of Rights

(1974) 26 Hastings L.J. 481.)

Notwithstanding Ogden Nash’s poignant dictum (see next-to-last

sentence of the majority opinion), I am not persuaded that this court:

should defer to city officials’ views that one mode of communication in

the city should be outlawed because it seems “particularly unsightly and

intrusive” (ante, p. 868).

Some limits on time, place, and manner are of course permissible.

Yet as the majority suggest (see their fn. 16), other varieties of speech

indeed may merit more protection than is accorded “commercial

speech”. Further, I stress the brief reminder in footnote 14 of the ma-

jority opinion that an individual advertiser “rciains the ability to assert

that, owing to the absence of reasonable alternative means of communi-

Cation, the ordinance cannot constitutionally be applied to prevent him

from using a billboard to proclaim his message.” (Cf. the exhibits in

Annex A of the amicus brief filed here on Aug. 27, 1979.)

The ordinance here ought to be redrafted. I hope the drafters will not

feel too circumscribed by the majority's footnote 2, which purports

(with no citation of legislative history) to proscribe signs that “clearly

fall within the intendment of the enactment.” Those signs are distin-

guished from “less obtrusive, noncommercial. signs that present no

significant aesthetic blight or traffic hazard.” Then, in order to articu-

late that distinction, a definition in the Revenue and Taxation Code i is

endorsed somewhat heroically.

I find in the record no evidence that San Diego lawmakers would

have adopted or would now adopt that cryptic, tax-based definition.

What about hillside displays and cloth or plastic banners, for example,

and signs painted on fences and on the walls of warehouses, barns, other

buildings: Are they “rigidly assembled sign[s], display[s], or device[s]

permanently affixed...or permanently attached” within the endorsed

definition? Yet they seem to be “outdoor advertising display signs”

within the meaning of the ordinance, and many of them would have

some permanence. Also, what happens if a large rather than “a small

sign placed'on one’s front yard” announces a political or religious mes-

sage or a labor dispute? (Cf. the final sentence of the first paragraph in

the majority's fn. 2.) | my

Those kinds of borderline issues do seem solvable, and thus I concur

in the reversal of the judgment. '

CLARK, J.—I dissent. The San Diego ordinance unconstitutionally pro-

hibits speech protected by the First Amendment. Because the ordinance

must be considered a nullity, other issues are not reached. |

The outdoor sign or symbol is a venerable medium for expressing po-

litical, social and commercial ideas. From the poster or “broadside” to

the billboard, outdoor signs have played a prominent role throughout

American history, rallying support for political and social causes. (See,

Davidson, Propaganda and The American Revolution (U-N.C. Press

1941); Houck, Outdoor Advertising: History and Regulation (U.Notre

Dame Press 1969).) The majority today call for absolute prohibition of

this expression in violation of the First Amendment. (Bates v. State Bar

of Arizona (1977) 433 U.S. 350 [53 L.Ed.2d 810, 97 S.Ct. 2691); Lin-

mark Associates, Inc. v. Willingboro (1977) 431 U.S. 85 [52 L.Ed.2d

155, 97 S.Ct. 1614]; Va. Pharmacy Bd. v. Va. Consumer Council

(1976) 425 U.S. 748 [48 L.Ed.2d 346, 96 S.Ct. 1817]; Bigelow v. Vir-

ginia (1975) 421 U.S. 809 [44 L.Ed.2d 600, 95 S.Ct. 2222]; Weltca v.

City nf Los Angeles (1976) 18 Cal.3d 497 [134 Cal.Rptr. 668, 556 P.2d

1119].)

' The briefs before us reveal political, cultural and social messages on

San Diego billboards that encourage the 55 mph speed limit and safety

seatbelt; protest involvement in the United Nations and Vietnam; blast

A-42

rising taxes; condemn assassination of the Israeli delegation to the Mu-

nich Olympic Games. All such communication is protected by the First

Amendment. Commercial communication may be restricted by govern-

ment only after considering informational value to the public, adequate

alternative means for dissemination, and state interest. (Va. Pharmacy

Bd. v. Va. Consumer Council, supra, 425 U.S. 748; 770 [48 L.Ed.2d

346, 363); Ohralik v.. Ohio State Bar Assn. (1978) 436 U.S. 447,

455-456 [56 L.Ed.2d 444, 452-453, 98 S.Ct. 1912].) But the issue be-

fore us is not scope of permissible regulation of commercial thought. By

written stipulation the parties have. agreed on the valuable content of

materials displayed on outdoor signs the ordinance would prohibit. The

stipulation provides that plaintiffs’ signs “are located in areas zoned for

commercial and industrial purposes”; that outdoor advertising “pro-

duces numerous direct and indirect benefits to the public”; and that

“(vjaluable commercial, political and social information is communi-

cated to the public through the use of outdoor advertising. Many

businesses and politicians and other persons rely upon outdoor advertis-

ing because other forms of advertising are insufficient, inappropriate

and prohibitively expensive.” (Joint stipulation of facts Nos. 20, 28,

ante, p. 857; italics added.) As applied in this case, the ordinance clear-

ly prohibits expression of political, social and commercial thought. The

ordinance must therefore satisfy the most stringent rules flowing from

the First Amendment. 7:

In spite of the stipulation, and without scrutiny of the effect on pro-

tected speech, the majority grandly uphold the San Diego ordinance.

The majority's withdrawal from this court’s recent and unanimous deci-

sion in Welton v. City of Los Angeles, supra, 18 Cal.3d 497, by

effectively ignoring it, is particularly significant and distressing.

Under a municipal ordinance not unlike that before us today, the

City of Los Angeles prosecuted Mrs. Welton for sidewalk sale of maps

revealing the homes of movie stars. When challenged as an invasion of

Mrs. Welton’s First Amendment rights, the city contended her commer-,

Cial activity constituted unprotected speech. In holding the ordinance

could not be constitutionally applied to Mrs. Welton, we stated: “The

fact that some may view the map as lacking opinion, newsworthiness or

information of social worth, is constitutionally irrelevant. ...Mrs. Wel-

ton and her maps are entitled to the same First Amendment protection

as the political candidate and his political pamphlet.” (/d., at p. 504.)

A-43

Using both stale and distinguishable cases, the majority attempt to

justify the ordinances’ blanket prohibition by claiming (1) outdoor signs

are not entitled to the same protection as other speech, (2) governmen-

tal interests here outweigh any First Amendment interest involved, and

(3) “probable” alternative means exist for plaintiffs to communicate

public messages. !

Cases cited by the majority predating recognition of First Amend-

ment protection of commercial speech, upholding zoning ordinances

prohibiting off-site billboards, are of no precedential value. Those cases

assumed commercial communication lacks First Amendment protection

and failed to recognize signs might be used for noncommercial mes-

sages. (See, Markham Advertising Co. v. State (1968) 73 Wn.2d 405,

429 [439 P.2d 248]; Murphy, Inc. v. Westport (1944) 131 Conn. 292,

302 [40 A.2d 177]; Matter of Cromwell v. Ferrier (1967) 19 N.Y.2d

263, 270 [279 N.Y.S.2d 22, 225 N.E.2d 749, 21 A.L.R.3d 1212]; How-

ard v. State Department of Hwys. of Colorado (10th Cir. 1973) 478

F.2d 581, 584; United Advertising Corp. v. Burrough of Raritan (1952)

11 N.J. 144, 152 [93 A.2d 362].) .

Further, cases relied on by the majority decided following recognition

of First Amendment protection of commercial speech (see, Va. Phar-

macy Bd. v. Va. Consumer Council, supra, 425 U.S. 748; Bigelow v.

Virginia, supra, 421 U.S. 809) are clearly en from the case

at bench.

- we

Contrary to majority assertion (ante, p. 867), Suffolk Outdoor Adv.

v. Hulse (1977) 43 N.Y.2d 483 [402 N.Y.S.2d 368, 373 N.E.2d 263],

does not resolve the issue of whether the San Diego ordinance violates

the First Amendment. Examination of Suffolk reveals the New York

Court of Appeals devoted a scant paragraph to the First Amendment,

summarily determining the ordinance in question was not a regulation

based on content, and operative alternative means such as accessory or

on-premise billboards existed for outdoor advertising. Suffolk does not

deal with the issue of whether the ordinance curtailed noncommercial

thought similar to the communication stipulated to in this case, so does

not examine the availability of adequate alternatives. Thus, while of

some precedential value on the issue of permissible regulation of com-

mercial ideas, Suffolk does not address the critical issue faced by this

A-44

court: whether noncommercial as well as commercial speech can be

constitutionally restricted in the manner provided in the ordinance.

Other cases relied on by the majority, while upholding banning of

billboards, exempt noncommercial messages from the ban. (John Don-

nelly & Sons v. Mallar (S.D.Me. 1978) 453 F.Supp. 1272, 1280; John

Donnelly & Sons, Inc. v. Outdoor Advertising Bd. (1975) 369 Mass.

206 [339 N.E.2d 709, 721]; Newman Signs, Inc. v. Hjelle (N.D. 1978)

268 N.W.2d 741, 760-762.) Such cases have no precedential value

when, as here, the ordinance includes noncommercial thought.

Still other cases relied on by the majority uphold restrictions on bill-

boards because they were banned only in one area but permitted in

other areas of the community. (Connelly Advertising Corp. v. City of

Baltimore (1977) 279 Md. 660 [370 A.2d 1127, 1132] (urban renewal .

ordinance banning billboards only in the renewal area of the city); Lub-

bock Poster Co. v. City of Lubbock (Tex.Crim.App. 1978) 569 S.W.2d

935, 945 (ordinance did not totally prohibit billboards but rather regu-

lated only the location, size, separation and height); State v. Lotze

(1979) 92 Wn.2d 52 [593 P.2d 811, 813] (Washington State Advertis-

ing Control Act prohibited billboards along scenic highways but

Permitted them in commercial and industrial areas).) In contrast, the

San Diego ordinance constitutes a total ban on all off-site billboards

anywhere in the City of San Diego. .

BILLBOARDS ARE ENTITLED TO THE SAME FirST

AMENDMENT PROTECTION AS OTHER ForMS OF SPEECH -

_First Amendment protection extends to virtually a!l media utilized to

disseminate ideas, (Erznoznik v. City of Jacksonville (1974) 422 U.S.

205 [45 L.Ed.2d 125, 95 S.Ct. 2268] (drive-in movies); Police Depart-

'The majority view the Supreme Court dismissal of a 1 in Suffolk as indicating

that court's approval of the prohibition of off-site billboards. (Ante, p. 867; citing

ae . Miranda (1975) 422 U.S. 332, 343-345 [45 L.Bd.2d 223, 235-237, 95 S.Ct.

. The majority's one-paragraph analysis of Suffolk (ante, p. 867) based on only a one-

a Supreme Court order, itself based on a one-paragraph discussion by the New York

ourt of Appeals summarily determining there are adequate alternatives while focusing

only on advertising alternatives, is not the type of close scrutiny mandated by the First

Amendment in limiti speech.

th Further, summary dismissals are of only limited precedential value and do not carry

- full weight of a Supreme Court ruling after full briefing and argument and cer-

nly do not endorse any matter not considered by the opinion below. (Washington v.

Yakima Indi

S.Ct. 740) ) an Nation (1979) 439 U.S. 463, 477, fn. 20 [58 L.Ed.2d 740, 753, 99

ment of Chicago v. Mosley (1972) 408 U.S. 92 [33 L.Ed.2d 212, 92

S.Ct. 2286] (picketing); Schneider v. State (1939) 308 U.S. 147 [84

L.Ed. 155, 60 S.Ct. 146] (leafletting); Welton v. City of Los Angeles,

supra, 18 Cal.3d 497 (roadside sale of maps); Dulaney v. Municipal

Court (1974) 11 Cal.3d 77 [112 Cal.Rptr. 777, 520 P.2d 1] (posting

signs on public utility poles); Dillon v. Municipal Court (1971) 4

Cal.3d 860 [94 Cal.Rptr. 777, 484 P.2d 945] (demonstrations and pa-

rades); Wollam v. City of Palm Springs (1963) 59 Cal.2d 276 [29

Cal.Rptr. 1, 379 P.2d 481] (sound trucks); California Newspaper Pub-

lishers Assn., Inc. v. City of Burbank (1975) 51 Cal.App.3d 50 [123

Cal.Rptr. 880] (newspaper racks).) “The right of free speech necessar-

ily embodies the means used for its dissemination because the right is

worthless in the absence of a meaningful method of its expression. To

take the position that the right of free speech consists merely of the

right to be free from censorship of the content rather than any protec-

tion of the means used, would, if carried to its logical conclusion,

eliminate the right entirely.” (Wollam v. _ soli Palm § prings, supra,

59 Cal.2d 276, 284.) |. Senn wig

In addressing their first basis in justification of the San Diego ordi-

nance’s blanket prohibition—outdoor signs are not entitled to the same

protections as other forms of gpeech—the majority attempt to distin-

guish outdoor signs from “other forms of communication which courts

have held can be subjected only to narrowly drawn regulations serving a

compelling governmental interest” (¢.g., leafletting, sound trucks, etc.)

because an outdoor sign is a “large, immobile and permanent structure”

as opposed to “more transitory and less obtrusive media.” (Ante,

p. 870.) Such distinction suffers the same overbreath as the ordinance

itself. While the ordinance may seek to prohibit small, unobtrusive off-

site signs, it permits obtrusive and perhaps even offensive on-site bill-

boards. Being equally inconsistent, the majority selectively sustain the

prohibition of “offensive” billboards but support the use of sound

trucks, picketing, leafletting and demonstrations as constituting “more

transitory or less obtrusive media.”

Obtrusiveness does not justify total prohibition of protected expres-

sion. In Erznoznik v. City of Jacksonville, supra, 422 U.S. 205, the

Supreme Court struck down a city ordinance prohibiting exhibition of a

motion picture displaying the bare female body by a drive-in theater

whose screen was visible from a public street. Off-site advertising hard-

ly commands the same attention as the “unique type of eye-catching

display” of an animated drive-in movie (id., at p. 222 [45 La. 2d at

i AY

A-46

p. 138]; Burger, C. J., dis.), yet the court noted “the screen of a drive-in

theater is not ‘so obtrusive as to make it impossible for an unwilling

individual to avoid exposure to it.” ; Ue. at p. 212 id L.Ed.2d at

p. 132).):

Obtrusiveness is thus seal by not oaly quality or degree of of-

fensive intrusion, but also by the ability of the offended to avoid it. Is it

not fair to assume that a display of animated nudes on a screen consti-

tutes an intrusion of greater degree than a motionless sign or symbol

advertising some product? Yet the Supreme Court did not find the

nude display so offensive that its effect could not be kept within permis-

sible limits. Off-site displays also are not so offensive that they cannot

be kept within reasonable limits.

While obtresivences 1 may ite a faites to be weighed in the balance in

determining whether a restriction is reasonable as to time, place and

manner, the majority fail to even attempt'a balance. Rather, they use

obtrusiveness as a sole reason, a la Ogden Nash, for the blanket ban on

billboards.

In instances when. obtrusiveness has been deemed a factor justifying

billboard regulation, the courts were persuaded by other considerations,

such as the discredited view that the Constitution did not protect com-

mercial speech, or that only those billboards next to interstate and state

highways should be banned. (General Outdoor Adv. Co. v. Department

of Public Wks. (1935) 289 Mass. 149 [193 N.E. 799, 803-804, 814);

Markham Advertising Co. v. State (1968) 73 Wn.2d 405, 428-429 [439

P.2d 248].) In this case, obtrusiveness must be balanced against consti-

tutional protection given noncommercial as well as commercial uses of

billboards, and the total ban of the San Diego ordinance. These factors

compel the conclusion the ordinance is over-broad, constituting an im-

permissible infringement on First Amendment protections. —

GOVERNMENTAL INTERESTS Do Not JuSTIFY THE

ORDINANCE’'S INFRINGEMENT ON FirST AMENDMENT RIGHTS

The majority assert as their second justification for blanket prohibi-

tion that the balance must be tilied in favor of governmental interests,

resulting in imbalance.

While recognizing that aesthetic beauty and traffic safety are legiti-

mate police power objectives, the majority fail to show these interests

outweigh First Amendment rights of plaintiffs, advertisers and the:

viewing public.2? The conflict between police powers on the one hand

and First Amendment rights on the other must seek compromise, allow-;

ing government to reasonably regulate the time, place and manner in’

which First Amendment rights may be exercised. (Grayned v. City of;

Rockford (1972) 408 U.S. 104 [33 L.Ed.2d 222, 92 S.Ct. 2294]; Healy: M%

v. James (1972) 408 U.S. 169 [33 L.Ed.2d 266, 92 S.Ct. 2338]; Welton:

v. City of Los Angeles, supra, 18 Cal.3d 497; Burton v. Municipal,

Court (1968) 68 Cal.2d 684 [68 Cal.Rptr. 721, 441 P.2d 281]; Wollam;

v. City of Palm Springs, supra, 59 Cal.2d 276.) Thus government may,

validly regulate the use of newsracks (Kash Enterprises, Inc. v. City of.

Los Angeles (1977) 19 Cal.3d 294 [138 Cal.Rptr. 53, 562 P.2d 1302)),!

sound trucks (Kovacs v. Cooper (1949) 336 U.S. 77 [93 L.Ed.513, 69.

S.Ct. 448, 10 A.L.R.2d 608]), street sales of. goods or merchandise

(Welton v. City of Los Angeles, supra, 18 Cal.3d 497), and the oper:

‘ation of “adult” movie theaters (Young v. American Mini Theatres

(1976) 427 U.S. 50 [49 L.Ed.2d 310, 96 S.Ct. 2440)). ihe off

site advertising signs may be reasonably regulated. siti

Notwithstanding the state’ s power to regulate, ‘such power ‘deine n ot

necessarily sanction the outright prohibition.” (Wollam v. City of Palm:

Springs, supra, 59 Cal.2d 276, 284.) To be constitutionally reasonablet

regulation of time, place or manner must be written narrowly and ext

plicitly, in furtherance of a legitimate police power purpose. (Welton ‘

City of Los Angeles, supra, 18 Cal.3d 497.) But here the majority push,

police power objectives so far from center balance as to abolish protect-_

ed speech. The absolute prohibition of off-site signs-is justificd by; yy

neither community appearance nor traffic improvement. Furthermore,;

the ordinance—written in terms of total prohibition—is not susceptible,

to interpretation avoiding constitutional infirmity. (See Welton v. City

of Los Angeles, supra, 18 Cal.3d 497.) . 4

224

Further, in support of the conclusion that the city’s interest in Re. 4

lating commercial use of property justifies the instant ordinance the

majority mistakenly rely on Young v. American Mini Theatres, supra,

427 U.S. 50. While upholding a zoning ordinance restricting the loca-

tion of “adult” theaters, Young was careful to observe the First

Amendment protection of such communication from total suppressi mn.

21t is well-settled that the right to receive “information of potential interest a

value” is protected by the First Amendment. (Bigelow v. Virginia, supra, 421 U.S. 809;

822 [44 L.Ed.2d 600, 612); see also, Stanley v. Georgia sha 394 U.S. 557, 564 f

L.Ed.2d 542, 549, 89 S.Ct. 1243].)

A-48

While Young affirms the proposition that commercial speech acquires a

lesser degree of constitutional protection than other more traditionally

protected varieties of thought (id., at p. 68 [49 L.Ed.2d at pp. 324-

325}; Ohralik v. Ohio State Bar Assn., supra, 436 U.S. 447, 455-456

[56 L.Ed.2d 444, 452-453]), the statute was upheld in part because it

did not completely ban theaters from the city. Instead, theaters were re-

stricted to areas more than 500 feet beyond residential areas and 1,000

feet beyond other adult establishments. In contrast, the San Diego ordi-

nance bans billboards altogether. ' 7

ADEQUATE ALTERNATIVE MEANS OF DISSEMINATION

OF SPEECH ARE Not AVAILA'LE - 3

The third purported justification urged by the majority in support of

the ordinance—existing “adequate alternative means” for advertisers to

communicate their ideas—is likewise without merit. The parties’ stipu-

lation establishes that the ordinance will eliminate outdoor advertising,

that outdoor advertising benefits the public in numerous ways, and that

politicians and others rely on outdoor advertising because other forms

of advertising are “insufficient, inappropriate and prohibitively expen-

sive.” (See Joint Stipylation of Facts Nos. 20 and 28, ante, p. 857.)

Thus, in numerous situations, including the delivery of political mes-

Sages, traditional off-site advertising is the only practical means of

communicating. ,

The majority further rely on John Donnelly & Sons v. Mallar, supra,

453 F.Supp. 1272, as support for the proposition that alternative means

of communicating such as on-premise advertising, official business di-

rectional signs, tourist information centers and publications justify the

ordinance’s prohibition against outdoor advertising. However, Mallar is

limited to a ban on only commercial billboards: “.. .non-commercial

Messages such as those conveyed by political, civic and charitable signs,

are specifically exempted from the broad ban on off-premises advertis-

ing.” (Id., at p. 1280.) Mallar’s holding that existing alternatives

justified a ban on commercial speech, while specifically exempting non-

commercial messages from that holding, forecloses any argument that

Such alternatives would justify a ban on noncommercial messages as

Proposed by the broad San Diego billboard ban.

Recognizing freedom of speech entails not only communication, but

effective communication, courts have refused to impose absolute prohi-

bition of a medium when there exists no practical alternative. In our

\

A-49

recent case of Welton v. City of Los Angeles, supra, 18 Cal.3d 497, we

unanimously invalidated on First Amendment grounds an ordinance

banning sidewalk and parkway sales of commercial books, magazines,

maps, and other constitutionally protected material despite readily ap-

parent a'ternative methods of distribution. We noted the “city has failed

to demonstrate that such a broad prohibition is necessary to the attain-

ment of a legitimate police power purpose. Its interest in abating public

nuisance cannot be pursued by means infringing personal liberties when

less restrictive alternatives are available.” (/d. at pp. 507-508.) In Wol-

lam v. City of Palm Springs, supra, 59 Cal.2d 276, we held

unconstitutional an ordinance prohibiting use of stationary sound trucks

where other methods including moving sound trucks were available.

Similarly, in Linmark Associates, Inc. v. Willingboro, supra, 431 U.S.

85, the Supreme Court rejected a contention that because ample alter-

native methods of communication existed, an ordinance prohibiting the

posting of real estate “For Sale” and “Sold” signs should be sustained.°

There being no basis upon which the absolute prohibition of outdoor

advertising can be justified, the judgment should be affirmed. —

3The majority's statement that the “possibility that the ordinance may impede an oc-

casional advertiser from communicating his message to the public, however, is not

sufficient to invalidate the ordinance on its face” (ante, p. 869, fn. 14), ignores both the

joint stipulation of facts by which we are bound and traditional First Amendment over-

breadth analysis. The parties’ stipulation that many advertisers rely exclusively on

outdoor advertising provides more than mere “possibility” that communication will be

impeded. Furthermore, while the overbreadth doctrine may not apply with the same

force in situations involving commercial speech (see Bates v. State Bar of Arizona, su-

pra, 433 U.S. 350, 380 [53 L.Ed.2d 810, 833}), the instant ordinance affects social and

political expressions as well as commercial speech. It is apparent, for instance, that po-

litical expression will be significantly curtailed henge Lngage campaign posters are

authorized. The restriction to temporary signs, less in terms of cost and effec-

tiveness than the prohibited large and permanent display structures whose costs can be

depreciated over long periods, will work to the detriment of “the financed causes

of little peopic” (Martin v. Struthers (1943) 319 U.S. 141, 146 [87 L.Bd. 1313, 1319,

63 S.Ct. 862)}), whone proponents are wasiie to afford other mese cently same mate

advertising.

B-!

Merromenia, Inc. vy. Ciry of SAN DIEGO

23 Cal. 3d 762: -— Cal. Rpir. : P.2d

{L.A. No 30782. Mar. 21, 1979.]

METROMEDIA, INCORPORATED, et al., ( pape aan hi a

Plaintiffs and Respondents, v. | | aN

CITY OF SAN DIEGO et al., Defendants and Appellants.

SUMMARY |

A metropolitan city enacted an ordinance banning off-site advertising

billboards and requiring the removal of existing billboards following

expiration of an amortization period. Plaintiffs, owners of billboards

affected by the ordinance, sued to enjoin enforcement. The trial ‘court

granted plaintiffs’ motion for summary judgment, stating the ordinance

was invalid as an unreasonable exercise of the police power and an

abridgment of constitutional guarantees of freedom of speech and the

_press. The trial court then entered judgment enjoining enforcement of the

ordinance. (Superior Court of San Diego County, Nos. 332881 and

333292, Jack R. Levitt, Judge.) 7 th

The Supreme Court reversed and remanded for further proceedings.

The court held the achievement of the purposes cited in the ordinance,

eliminating traffic hazard and improving the appearance of the city,

represented proper objectives for the exercise of the city’s police power,

and the present ordinance bore a reasonable relationship to those

objectives. The court further held that a ban on commercial off-site

billboards, enacted under the city’s authority to regulate the commercial

use of real property, did not abridge freedom of speech or press. The

court pointed out the ordinance did not seek to suppress the content of

the advertiser's message, served significant governmental interest, and left

open adequate alternative means of communication. The court also held

that the ordinance was not preempted by the Outdoor Advertising Act

(Bus. & Prof. Code, § 5200 et seq.), which preempts local ordinances only

when they threaten to subject the state to a penalty under the federal

Highway Beautification Act; the federal act, however, does not penalize a

state merely because a subdivision of the state, acting pursuant to valid

zoning ordinances, requires the removal of billboards without .compensa-

[Mar. 1979}

tion. The court rejected plaintiffs’ contention that the city’s failure to pay

compensation for the removal of their billboards, in light of the state’s

payment of compensation to owners of billboards removed under

Outdoor Advertising Act, denied. them equal protection under the laws.

The court further held the amortization period provided in the ordinance,

which ranged from one to four years depending on depreciated value of

the sign, was not unreasonable on its face. However, the court held

plaintiffs retained the right to show that the amortization period

described in the ordinance was unreasonably short as applied to some or

all of their structures. (Opinion by Tobriner, J., with Bird, C. J., Mosk

and Manuel, JJ., concurring. Newman, J., concurred in the result.

arate concurring opinion by Richardson, J. pe dissenting

opaaica PY Clark, J.) j

HEADNOTES |

Classified to California Digest of Official Reporis, 3d Series | .

(la, 1b) Advenihten § Scteetendis Police Hommes Counties and

~ Municipalities; Nuisances; Zoning——A municipal ordinance ban-

ning all off-site advertising billboards and requiring the removal of

existing billboards following expiration of an amortization period,

which recited the purpose of the ordinance as elimination of traffic

hazards brought about by distracting advertising displays and the

improvement of the appearance of the city, was valid as a proper

application of municipal authority over zoning and land use for the

purpose of promoting public safety and welfare. As a matter of law,

an ordinance which eliminates billboards designed to be viewed ©

from streets and highways reasonably relates to traffic safety.

Moreover, the improvement of the appearance of the community

falls within the city’s authority under the police power. (Overruling

Varney & Green v. Williams (1909) 155 Cal. 318 [100 P. 867}, which

held that aesthetic considerations cannot justify the exercise of the

police power to prohibit billboards. Also disapproving contrary

language in City of Escondido v. Desert Outdoor Advertising, Inc.

(1973) 8 Cal.3d 785 [106 Cal.Rptr. 172, 505 P.2d 1012); Desert

Outdoor Advertising, Inc. v. County of San Bernardino (1967) 55

Cal.App.2d 765, 769 [63 Cal. Rptr. $43}; County of Santa Barbara v.

Purcell, Inc. (1967) 251 Cal.App.2d 169, 173 [59 Cal.Rptr. 345]; Nat.

Advertising Co. v. County of Monterey (1962) 211 Cal. App.2d 375,

(2)

(3)

(4)

379 [27 Cal. Rptr. 136}; and City of Santa Barbara v. Modern Neon

Sign Co. (1961) 189 Cal.App.2d 188 [11 Cal.Rptr. 57].)

[See Cal. Jur.3d, Advertising, § 4; Am. Jur.2d, Advertising, § 4 et

seq.) ,

Adversising § sili Police «seine Counties and Muni-

cipalities; Nuisances; Zoning—Prohibition of Off-site Billboards.—A

city ordinance banning all off-site advertising billboards and requir-

ing the removal of existing billboards following expiration of an

amortization period, which reasonably related to the public safety

and welfare, and which completely prohibited a business not found

to be a public nuisance, was not invalid as an excessive exercise of

the police power. The validity of the ordinance under the police

_ power did not turn on its regulatory or prohibitory character, nor on

the size of the city which enacted it, but solely on wnetner. it

reasonably related to the public safety and welfare.

Constitutional ~= § 59—First Aniendment and Other Fiendemestel

Rights of Citizens—Governmental Regulation and Restriction of

. Fundamental Rights—Prohibition of Off-site Billboards.—A munici-

pal ordinance banning all off-site advertising billboards and requir-

- ing the removal: of existing billboards following expiration of an

amortization period, enacted for the purpose of eliminating traffic

hazards and improving the appearance of the city, was a proper

exercise of the city’s authority to regulate the commercial use of real

property and did not, on its face, abridge freedom of speech

guaranteed by U.S. ‘Const., First Amend. Neither did the ordinance,

on its face, violate the free speech clause.of Cal. Const., art. I, § 2,

where the ordinance did not seek to suppress the content of the

advertiser's message,’ served significant governmental interests

(promoting traffic safety and improving the appearance of the

community) unrelated to the suppression of free expression, and

where the ordinance [eft open adequate alternative means of

communication. Thus the ordinance was a permissible regulation of

the time, place, and manner of speech. :

Advertising § 4—Regulation; Police PonedDshent Siieiliinas

Act—Preemption.—A city ordinance banning all off-site advertising

‘billboards and requiring the removal of existing billboards op

expiration of an amortization period was not preempted by a

provision of the Outdoor Advertising Act (Bus. & Prof. Code,

§ 5266) stating the Legislature’s finding that outdoor advertising is a

legitimate use of property and.should be allowed to exist in business

areas, subject to reasonable controls in the public interest. In view of

other provisions of the act confirming the power of cities to restrict

billboards, the provision does not constitute a substantive limitation

on the police power of the municipality, but merely explains why

the Legisiature enacted a statute providing for the eventual elimina-

tion of outdoor advertising displays adjacent to state and interstate

highways and noncommercial areas, but not for the elimination of

such displays within business areas. Pate

(Sa, Sb) Advertising § 4—Regulation; Police Power—Outdoor Advertising

(6)

Act—Preemption—Federal Law.—A ‘city ordinance banning ‘all

off-site advertising billboards and requiring the removal of existing

billboards following expiration of an amortization period, was not

preempted by a provision of the Outdoor Advertising Act (Bus. &

Prof. Code, § 5226) which requires payment of compensation for

removal of billboards when such payment is necessary to comply

with the Highway Beautification Act of 1965 (23 U.S.C. § 131). The

Outdoor Advertising Act preempts local ordinances only when those

ordinances threaten to subject the state to a penalty under- the

federal act, but that act does not penalize the state where. a

subdivision of the state, acting pursuant to valid zoning ordinances,

require the removal of billboards without compensation. —

Statutes § 44—Construction—Aids—Contemporaneous Administra-

tive Construction.—Since the Federal Highway Administration is

the agency charged with the enforcement of the Highway Beautifica-

tion Act of 1965 (23 U.S.C. § 131), its interpretation of the act is

entitled to great weight and, if reasonable, should be sustained.

(7a, 7b) Constitutional Law § 89—Equal Protection—Classification—Es- ;

sential and Nonessential Characteristics—Reasonableness of Clas-

Sification in Light of Legislative Purpose—Removal of Billboards—

Compensation.—Under a city ordinance banning all off-site adver-

tising billboards and requiring the removal of existing billboards

following expiration of an amortization period, the city’s failure to

pay compensation for the removal of billboards did not deny the

owners thereof equal protection of the laws, even though the state

paid compensation to owners of billboards removed under the

Outdoor Advertising Act. Since the distinction involves purely

economic regulation it may be sustained if the classification bears a

rational relationship to a legitimate state purpose. Thus, since state

(8)

funds were augmented by a 75 percent federal contribution it could

reasonably choose to pay compensation and thus eliminate bill-

boards without concern for any amortization period, while the city,

lacking such federally financed funds, could reasonably choose the

more economical alternative of requiring abatement only after

expiration of an amortization period. ‘es

Zoning and Planning § 21—Elimination of Nonconforming Uses.—A

city seeking to eliminate nonconforming uses may pursue two

constitutionally equivalent alternatives: It can eliminate the use -

immediately by payment of just compensation, or it can require

removal of the use without compensation: following a reasonable

amortization period. © Wits. ;

(9a-9c) Zoning and iieiiee F 21—Elimination of Nonconforming Uses |

—Amortization Period—In an action by owners of billboards to.

‘enjoin the enforcement of a city ordinance banning all off-site

advertising billboards and requiring the removal of existing bill-

boards following expiration of an amortization period, summary

_ Judgment for plaintiffs on the ground that the amortization period

prescribed by the ordinance as applied to all or any of plaintiffs’

signs were unreasonably short, could not be sustained. The amorti-

zation period, which ranged from one to four years depending upon

the depreciated value of the sign, was not unreasonable on its face.

Moreover, plaintiffs had the burden of proving the invalidity of the

amortization period as applied to each structure, but on motion for

summary judgment plaintiffs did not attempt to meet the burden as

to each structure, but only claimed the abatement schedule was

facially unconstitutional as not being based on the fair market value

or remaining useful life of the billboards.

(10)

Zoning and Planning § 21—Elimination of Nonconforming Uses—

Amortization Period.—Zoning legislation may validly provide for the

eventual termination of nonconforming uses without compensation

if it provides a reasonable amortization period commensurate with

the investment involved. The determination of the length of a

reasonable period of amortization is not merely a matter of

accounting. The determination instead involves a process of weigh-

ing the public gain to be derived from a speedy removal of the

nonconforming use against the private loss which removal of the use

would entail. Relevant factors include the nature of the noncon-

forming use, the character of the structure, the location, what part of

the individual’s total business is concerned, the time periods,

salvage, depreciation for income tax purposes and depreciation for

other purposes and the monopoly or advantage, if any, resulting

from the fact that similar new structures are prohibited in be same

area. :

(11a, 11b) Zoning and Planning § 21—Nonconforming Uses—Elimination

of Nonconforming Uses—Amortization Period—Billboards.—The

reasonableness of an amortization period as applied to each*

billboard where removal was required pursuant to a city ordinance

depended in part upon facts peculiar to that structure, including the

cost of the billboard, its depreciated value, remaining useful life, the

length and remaining term of the lease under which it is maintained,

and the harm to the public if the structure remains standing beyond |

the prescribed amortization period. However, even.though the fair

market value and remaining useful life are relevant considerations,

the failure of the city to base its abatement schedule on such

considerations does not necessarily render that schedule unconstitu-

tional. If the amortization period prescribed by the ordinance is a

reasonable one, the fact the city arrived at that period by a formula

which did not include every one of the relevant considerations does

not render the ordinance unconstitutional.

(12) Summary Judgment § 27—Appellate Review—Presenting and

Reserving Objections.—In an action by billboard owners to enjoin

enforcement of an ordinance banning all off-site advertising bill-

boards, summary judgment in their favor could not be sustained on

the ground the city council failed to comply with the California

Environmental Quality Act in enacting the ordinance, where plain-

tiffs complaint did not allege such noncompliance, and where,

although over three years elapsed between the filing of the com-

plaint and plaintiffs’ motion for summary judgment, plaintiffs

offered no amendment to assert such noncompliance. Accordingly,

the issue of the city’s alleged noncompliance with the act was not

properly before the trial court on the motion for summary judgment,

and could not be asserted on appeal as a ground for sustaining that

judgment. )

COUNSEL

John W. Witt, City aieumua ‘cad c. ‘han sumption, Depury City

setae ie Defendants and + ere }

Walter Sone, Carter J. Stroud, City sien (Alameda), John W.

Scanlon, City. Attorney (Hayward), Dan Curtin, City Attorney (Walnut

Creek), Roy E. June and R. R. Campagna, City Attorneys (Costa Mesa),

Harry S. Fenton, Emerson Rhyner and Ronald W. Beals as Amici Curiae

on behalf of Defendants and fpr. ser gies

Gibson, Dunn & Crutcher, Theodore B. Olson, Hillyer & Irwin, Oscar F. -

Irwin, Snell & Wilmer, John J. Bouma, Guy G. Gelbron, Higgs, Fletcher

& Mack and Joe N. Turner for Plaintiffs and Respondents, - :

Donovan, ‘Cota, Nowttn & vias ‘Pelion F, Perkins, ‘ne, Weil. -

Guttman & Davis, Gilbert H. Weil, Phillip Tocker, Richman & Garrett,

Lionel Richman, Fadem, Berger & Norton, Michael M. Berger, Brun-

dage, Beeson & Pappy and Joseph J. Kaplan as | Amici arm on behalf

of Plainti ffs and Respondents. %

OPINION

TOBRINER, J.—The City of San Diego enacted an ordinance which

bans all off-site advertising billboards and requires the removal of

existing billboards following expiration of an amortization period.

Plaintiffs, owners of billboards affected by the ordinance, sued to enjoin

its enforcement. Upon motion for summary judgment, the superior court

adjudged the ordinance unconstitutional, and issued the injunction as

prayed.

We reject the superior court’s conclusion that the ordinance exceeded

the city’s authority under the police power. We hold that the achievement

of the purposes recited in the ordinance—eliminating traffic hazards and

improving the appearance of the city—represent proper objectives for the

exercise of the city’s policé power, and that the present ordinance bears a

reasonable relationship to those objectives. We reject also the lower

court's alternative holding that the ordinance violates the. First Amend-

ment; Jadicial, decisions demonstrate that a ban on commercial off-site

B-8

billboards, enacted under the city’s authority to regulate the commercial

use of real property, does not abridge freedom of speech or press.

Plaintiffs urge that we sustain the summary judgment on a variety of .

other grounds: they contend that the ordinance is preempted by the

Outdoor Advertising Act (Bus. & Prof. Code, § 5200 et seq.); that it will

endanger the state’s share of federal highway funds; that it denies them

the equal protection of the law; that its amortization provisions are

facially unreasonable; and that the city. failed to comply with the

California Environmental Quality Act (Pub. Resources Code, § 21000 et

‘seq.). For the reasons we shall set forth in the body of this opinion, we

conclude that none of these grounds will suffice to sustain the judgment

below. We conclude that the judgment of the superior court should be

reversed, and the case remanded to that court for further proceedings.

1. Summary of proceedings in the trial court.

The present case concerns the constitutionality of San Diego Ordin-

ance No. 10795 (New Series), enacted March 14, 1972. With limited

exceptions specified in the footnote,! the ordinance as subsequently

amended prohibits all off-site “outdoor advertising display signs.”?

Off-site signs are defined as those which do not identify a use, facility or

service located on the premises or a product /hich is produced, sold or

manufactured on the premises. All existing signs which do not conform to

the requirements of the ordinance must be removed following expiration

of an amortization period, ranging from 90 days to 4 years depending

upon the location and depreciated value of the sign... |

'The original ordinance permitted the following off-site signs: Signs maintained in the

discharge of a governmental function; bench advertising signs; commemorative For one

religious symbols, pes decorations and similar such signs; signs located within

shopping malls not visible from any point on the boundary of the premises; signs

designating premises for sale, rent or lease; public service signs depicting time,

temperature or news; signs on vehicles conforming to city regulations; and temporary

off-premises subdivision directional signs. oy

As originally enacted, the ordinance contained no exception for political signs. On

October i, 1977, the city council amended the ordinance to permit “Temporary political

campaign signs, including their supporting structures, which are erected or maintained for

no longer than 90 me and which are removed within 10 days after the election to which

they pertain.” (Ord. No. 12189 (New Series).) This amendment may have been oye

by the decision of the Ninth Circuit in Baldwin v. Redwood City (9th Cir. 1976) 540 F.2d

1360, in which that court held an ordinance regulating temporary signs to be an

unconstitutional restriction upon political speech.

The ordinance does not define the term “outdoor advertising display signs.” The

history of the ordinance and the arguments of the ean demonstrate that the purpose of

the ordinance is the prohibition of commercial billboards. But although the amended

ordinance excludes signs which fall within 12 specific exceptions, it fails to exclude many

Plaintiffs, Metromedia, Inc., and Pacific Outdoor Advertising Co., Inc.,

are engaged in the outdoor advertising business and own a substantial

number of off-site billboards subject to removal under Ordinance No.

10795. Plaintiffs filed separate actions against the city, attacking the

validity of the ordinance. The actions were consolidated by stipulation.3

After extensive interrogatories and requests for admission had been

answered all parties moved for summary judgment. ==... 4

To facilitate the determination of the motion for summary judgment

the parties entered into a stipulation of facts. The following portions of

that stipulation are particularly pertinent to the present appeal: “2. If

enforced as written Ordinance No. 10795 will eliminate the outdoor

advertising business in the City of San Diego... . 13. Each of the.

plaintiffs are the owners of a substantial number of outdoor advertising

displays (approximately 500 to 800) in the City of San Diego. . . . 17. The

displays have varying values depending upon their size, nature and

location. 18. Each of the displays has a fair market value as a part of an

income-producing system of between $2,500 and $25,000. 19. Each

display has a remaining useful income-producing life in excess of 25

years. 20. All of the signs owned by plaintiffs in the City of San Diego are

located in areas zoned for commercial and industrial purposes. . . . 28.

Outdoor advertising increases the sales of products and produces

numerous direct and indirect benefits to the public. Valuable commercial,

political and social information is communicated to the public through

varieties of less obtrusive, noncommercial signs that present no significant aesthetic blight’

or traffic hazard. That failure, in light of the absence of a definition of the class of signs

prohibited, suggests a danger that the ordinance might be construed to apply to signs of a

character very different from coramercial billboards—for example, to a picket sign ~

announcing a labor dispute or a small sign placed in one’s front yard proclaiming a

political or religious message. ;

To avert that a and to avoid the risk of unconstitutional overbreadth which a

broad constructidn of the ordinance might entail, we adopt a narrow construction limiting

its yp apg to those signs which clearly fall within the intendment of the enactment.

(Cf. Welton v. City of Los Angeles (1976) 18 Cal.3d 497, 506-507 [134 Cal.Rptr. 668, 556

P.2d 1119); Braxton v. Municipal Court (1973) 10 Cal.3d 138, 144-145 [109 Cal. Rptr. 897,

514 P.2d 697].) We find such a construction in the definition of the term “outdoor

advertising display” in Revenue and Taxation Code section 18090.2: “a rigidly assembled

sign, display, or device permanently affixed to the ground or permanently attached to a

building or other inherently permanent structure constituting, or use for the display of, a

commercial or other advertisement to the public.” Although that specific definition was

not before the San Diego City Council when it adopted Ordinance 10795, incorporation

of that definition into the ordinance will fulfill the city’s purpose of banning permanent

structures used predominantly for commercial advertising, while avoiding the constitu-

tional issues raised by a less certain or more expansive wading ofthe ordinance.

3Defendants in the consolidated action are the city, the members of the city council,

and the city planning director.

7%

A

B-10

the use of outdoor advertising. Many businesses and politicians and other

persons rely upon outdoor advertising because other forms of advertising

are insufficient, inappropriate and prohibitively expensive. . . . 31. Many

of plaintiffs’ signs are within 660 feet and others are within 500 feet of

interstate or federal primary highways.:. . . 34. The amortization provi-

sions of Ordinance No. 10795 have no reasonable relationship to the fair

market value, useful life or income generated by the signs and were not

designed to have such a relationship.” ; ts

The trial court filed a memorandum opinion stating that the ordinance

was invalid as an unreasonable exercise of police power and an

abridgment of First Amendment guarantees of freedom of speech and

press. The court then entered judgment enjoining enforcement of the

ordinance. The city appeals from that judgment.

2. The summary judgment cannot be sustained on 1 the ground that the

San Diego ordinance exceeds the city’s authority under the police

power.

(la) The San Diego ordinance, as we shall explain, represents a

proper application of municipal authority over zoning and land use for

the purpose of promoting the public safety and welfare.> The ordinance

recites the purposes for which it was enacted,® including the elimination

of traffic hazards brought about by distracting advertising displays and

the improvement of the appearance of the city. Since these goals are

proper objectives for the exercise of the city’s police power, the city |

council, asserting its legislative judgment, could teasonably believe the

instant ordinance would further those objectives.

‘Plaintiffs filed no declaration to support the motion for meng Frag. 08% but relied

pry upon the pleadings, the city’s response to interrogatories, and the agreed stpetation

of facts.

SAn ordinance restricting land use is valid under the police power if it has a réal or

substantial relation to the public health, safety, morals or So welfare. (Associated

Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 604 [135 Cal.Rptr. 41,

557 P.2d 473): Miller v. Board of Public Works (1925) 195 Cal. 477, 490 (234 P. 381, 38

A.L.R. 1479].)

6Part A of the ordinance declares: “It is the purpose of these regulations to eliminate

excessive and confusing sign displays which do not relate to the premises on which they

are located; to eliminate hazards to pedestrians and motorists brought about by

distracting sign displays; to ensure that signing is used as identification and not as

advertisement; and to preserve and improve the appearance of the City as a place in

which to live and work.

“It is the intent of these regulations to protect an important aspect of the economic base

of the City by preventing the destruction of the natural beauty and environment of the

B-11

Plaintiffs cannot question that a city may enact ordinances under the

police power to eliminate traffic hazards. They maintain, however, that |

the city failed to prove in opposition to plaintiffs’ motion for summary

judgment that the ordinance reasonably relates to that objective. We _

could reject plaintiffs’ argument on the simple ground that plaintiffs, as

the parties asserting the unconstitutionality of the ordinance, bear the

burden of proof (see Associated Home Builders etc., Inc. v. City of

Livermore, supra, 18 Cal.3d 582, 609

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