Petition — Donrey Communications Co. v. City of Fayetteville

Supreme Court brief1984

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In The —

Supreme Court of the United States

October Term, 1983

—

DON RET COMMUNICATIONS COMPANY, INC. d/b/a

DONREY OUTDOOR ADVERTISING COMPANY,

Petitioner,

vs.

CITY OF FAYETTEVILLE, ARKANSAS,

Respondent.

„

PETITION FOR A WRIT OF CERTIORARI

QUESTIONS PRESENTED

(1) Whether 23 U.S.C. $131(g) requires payment of

just compensation for the forced removal of eutdoor ad-

vertising signs not protected by 28 U.S.C. 6 131 (e).

(2) Whether the First Amendment to the United

quely burden national and regional advertisers and wheth-

er the First Amendment requires an evidentary finding

that such sign ordinances are reasonably related to their

stated pu- poses.

4 eer eee Te eee

Questions Presented

Opinion Below

Jurisdicti

Statutory Provisions Involved

Statement of the Case

Reasons for Granting the Writ:

1. The Decision Below Conflicts With Decisions

of the California Supreme Court and the Fed-

eral Highway Administration As to the Prop-

er Interpretation of 23 U.S.C. $131

2. The Decision Below Violates the First

Amendment to the United States Constitu-

tion

Conclusion

Appendix:

Opinion of the Arkansas Supreme Court... A- 1

Amended Opinion of the Arkansas Supreme

Court A-13

Memorandum Opinion of Washington Chancery

Court — A-14

Federal Highway Beautification Act, 23 U.S.C.

9131 A-31

Fayetteville City Ordinance No. 1747 A40

Fayetteville City Ordinance No. 1 7 A-65

Petition for Rehearing A-70

„ idee esciis eiieadianil ead nites

Relief and Amended Opinion, Eller

tive

door Advertising Company et

Nels

Ot PEAS

ee, ey *

INDEX—Continued

Page

Memorandum and Order, Patrick Outdoor Media,

Inc. vs. Borough of Dickson City, Lackawanna

Co. Ct. Comm. Pleas, 83 Civil 372 487

CITATIONS

Caszs: Page

Ackerly Commumications, Inc. vs. City of Seattle, 92

Wash.2d 905, 602 P.2d 1177 (1979), cert. denied 449

U.S. 804 (1980) 6, 7

American Television Company, Inc. d/b/a Donrey

Outdoor Advertising Company, et al., 253 Ark. 760,

489 S. W. ad 754 (1973) 3

Art Neon vs. City of Denver, 357 F.Supp. 466 (D.

Colo.) (1973) rev’d 488 F.2d 118 (10th Cir. 1973) — 14

California Department of Industrial Relations, et al.

vs. Homemakers, Inc., 423 U.S. 1063, 96 S. Ct. 803,

46 L.Ed.2d 655 9

Central Hudson Gas & Electric Company vs. Public

Service Commission, 447 U.S. 557, 100 S.Ct. 2343,

65 L.Ed.2d 341 (1980) 1¹

OCitisens d Southern National Bank vs. Bougas, 434

U.S. 35, 98 8. Ct. 88, 54 L.Ed.2d 818 (1977)

Coz vs. New Hampshire, 312 U.S. 569, 61 S.Ct. 762,

85 L.Ed. 1049 (1941) 10

Eller Outdoor A Co., et al. vs. City of Rose-

ville, et al., Macomb Co. Cir. Ct. No. 81 A8

(Mich. April 16, 1983) — 1

John Donnelly & Sons vs. Campbell, 639 F. 2d 6 (1st

Cir. 1980) — 12, 13

end Beas e fi (PA. of OF 95

CITATIONS—Continued

Page

Metromedia, Inc. vs. City of San Diego, 453 U.S. 490,

101 S.Ct. 2882, 69 L.Ed.2d 800 (1981) 10, 12, 13

Metromedia, Inc. vs. City of San Diego, 610 P.2d 409

(Cal. 1980) 7, 8, 9

Patrick Outdoor Media, Inc. vs. Borough of Dickson

City, Lackawanna Co. Ct. Comm. Pleas, 83 Civil

372 (Pa. Sept. 21, 1983)

State ex rel. Department of Transportation vs. Pile,

603 P.2d 337 (Okla. 1979)

Suffolk Outdoor Advertising Company, Inc. vs. Hulse,

43 N.Y.2d 483, 402 N.Y.2d 368, 373 N.E.2d 263

(1978), appeal dismissed 439 U.S. 808 (1979)

United States vs. Oregon, 366 U.S. 643, 81 S. Ct. 1278,

6 L.Ed.2d 375 (1961)

Vermont vs. Brinegar, 397 F.Supp. 606 (D. vt. 1974)

Virginia Pharmacy Board vs. Virginia Citizens Con-

8 425 U.S. 748, 96 S. Ct. 1817, 48 L.Ed.

346 (1976

MISCELLANEOUS:

Memorandum Opinion of the Federal Highway Ad-

ministrator, Federal Highway Administration

Garch 6, 1979)

Report of the House Committee on Public Works and

ramsportation, No. 95-1485, . e eee

& Admin. News, 1978, pp. 6575,

Tribe, American Constitutional Law (1978) 412-21 —

In The

Supreme Court of the United States

October Term, 1983

DONREY COMMUNICATIONS COMPANY, INC. d/b/a

DONRET OUTDOOR ADVERTISING COMPANY,

Petitioner,

vs.

CITY OF FAYETTEVILLE, ARKANSAS,

fo Respondent.

The petitioner Donrey Communications Company,

Tno., d/b/a Donrey Outdoor Advertising Company re-

spectfully prays that a Writ of Certiorari issue to review

the judgment and opinion of the Arkansas Supreme Court

entered in this proceeding on October 17, 1983, as amended

on December 19, 1983. |

—o—

* OPINION BELOW

The decision of the Arkansas Supreme Court is re-

ported at 280 Ark. 408, 660 S. W. 2d 900 (1983). The opin-

ion of the Washington Chancery Court was not reported.

ey 1

4 JURISDICTION

. The opinion of the Arkansas Supreme Court was en-

es tered on October 17, 1983. A timely petition for rehearing

was filed and in response thereto the Arkansas Supreme

Court issued an amended opinion on December 19, 1983

which granted petitioner no relief. This petition was filed

within 90 days of that date. This Court's jurisdiction is

invoked under 28 U.S.C. 4 1257 (3). 4

STATUTORY PROVISIONS INVOLVED

* the press; or of the right of the people to peaceably

me assemble, and to petition the government for a re-

2 dress of grievances. „

$131. Control of outdoor advertising . 9

p 7

s Ark. 760, 489 S. W.2d 754 (1978).

Fayetteville City Ordinance No. 1747

Because of the length of this provision, the rele-

vant portions are reproduced in the Appendix to this

Petition pursuant to Rule 21.1(f) of the Rules of the

Supreme Court.

Fayetteville City Ordinance No. 1893

Because of the length of this provision, the rele-

vant portions are reproduced in the Appendix to this

Petition pursuant to Rule 21.1(f) of the Rules of the

Supreme Court.

STATEMENT OF THE CASE

This litigation began on July 2, 1971, when the peti-

tioner filed a complaint against the City of Fayetteville,

Arkansas in the Chancery Court for Washington County,

Arkansas. (T.2). In this action, the petitioner seeks a

declaratory judgment and injunctive relief to prevent the

city from enforcing its Ordinances No. 1747 and No. 1893.

Ordinance No. 1747, as amended, limits the location of

commercial outdoor advertising to property zoned C-2 and

designated “thoroughfare commercial.” Ordinance No.

1893 limits the size of free-standing signs to a maximum

of 75 square feet. Petitioner maintains a large number

of 300 square foot “poster panels” and 672 square foot

“painted bulletins,” standard billboard sizes, within the

city. Appendix, p. A-1. An order by the trial court dis-

missing the petitioner’s original complaint was reversed

in American Television Company, Inc. d/b/a Donrey Out-

door Advertising Company, et al. vs. City of Faystteville,

On January 14, 1977, the petitioner filed with the trial

court a Second Amended Petition in Equity raising, inter

alia, precisely the issues it now asks this Court to review,

whether the city ordinances at issue violate the First

Amendment to the United States Constitution (T.206)

and whether the Federal Highway Beautification Act, 23

U.S.C. $131 requires it be compensated for the forced re-

moval of its signs. (T. 210-212).

Affidavits were filed by the petitioner in support of

its position (T.469-519, 523-527, 541-544 and 564-626) and

by the city in its defense. (T.412-418, 423-427 and 691-750).

Stipulations of fact between the parties were also sub-

mitted, including one which provided that:

1. None of the traffic accident reports prepared

and maintained by the Fayetteville Police Depart-

ment indicate that an off-site outdoor advertising

sign was a contributing factor in any motor vehicle

accident in the City.

surface area larger than 75 square feet, and would

prohibit the future erection of any off-site signs lar-

VVV

ette

3. Many of the off-site signs owned by Plaintiff,

Donrey Communications Co., are located

there was no “requirement that removal thereof be com-

pensated, by virtue of the Federal or State Highway Beau-

tification Acts. . . .” Appendix, p. A-30.

A timely appeal followed in which petitioner raised

as its first assignment of error the claim that “Fayette-

ville-City Ordinance No. 1893 when read with City Or-

dinance No. 1747 violates appellant’s First Amendment

rights.” Abstract and Brief for Appellant, Vol. II, p. 499.

Petitioner challenged the trial court’s fact findings and

its conolusion that these ordinances did not constitute an

unconstitutional taking of private property in its second

and third assignments, respectively. In its fourth and

final assignment of error, petitioner argued that “the

chancellor’s interpretation of the Federal and Arkansas

Highway Beautification Acts is incorrect.” Abstract and

Brief for Appellant, Vol. II, p. 523.

In a 43 decision the Arkansas Supreme Court found

no violation of the First Amendment and no statutory

requirement for compensation. Appendix, p. A-Iff.

In response to the state court’s cryptic discussion of

the statutory requirements, petitioner filed a timely peti-

tion for rehearing stressing its argu.nent under the fed-

eral act and citing an accompanying letter from the Fed-

eral Highway Administration in support of its interpreta-

tion. Appendix, p. A-70ff. The petition for rehearing was

not granted but on Devember 19, 1983, the Arkansas Su-

preme Court issued an Amended Opinion explaining its

earlier interpretation of the Arkansas Highway Beautifi-

cation Act, while not elaborating on its affirmance of the

trial court’s reading of the federal statute. Appendix,

p. A-13.

— n

1. The Decision Below Conflicts With Decisions of

the California Supreme Court and the Federal

Highway Administration As to the Proper Inter-

pretation of 23 U.S.C. § 131.

The Federal Highway Beautification Act of 1965 es-

tablishes a joint federal and state mechanism for the “ef-

fective control” of outdoor advertising along the Inter-

state system and the primary system” of this nation’s pub-

lic highways. 23 U.S.C. 4131(a). States failing to comply

with the Act face a reduction in their federal-aid highway

funds. 23 U.S.C. 4131 (b). See, Vermont vs. Brinegar, 397

F.Supp. 606 (D. Vt. 1974).

As amended in 1978, the relevant portions of the Act

include subsection (c), which exempts traffic signs, land-

marks and similar structures from regulation, and sub-

section (d), which authorizes the Secretary of Transpor-

tation and the states to agree to exempt other signs lo-

cated in commercia! and industrial areas. Most important

is subsection (g), which provides, inter alia, that:

Just compensation shall be paid upon the removal of

any outdoor advertising sign, display or device law-

fully erected under state law and not permitted under

subsection (c) of this section, whether or not removed

pursuant to or because of this section.

The petitioner pressed the argument before the trial

court that this provision entitled it to “payment of just

compensation for forced removal of signs adjacent to fed-

eral-aid highways.” See, Appendix, p. A-29, Relying’ on

Ackerly Communications, Inc. en City of Seattle, 98 Wash. , 9

See at ee ae ee

ley Communications, Inc. vs. City of Seattle, supra, the

Washington Supreme Court held that the Federal High-

way Beautification Act could control signs in commercial

and industrial areas only through agreements between

the state and the Secretary of Transportation. In the

absence of any controlling agreement, no compensation

was required when signs were removed from such areas.'

Most of the petitioner’s signs are in areas zoned for com-

mercial or industrial uses. See, Appendix, p. A-1,2. The

petitioner appealed the trial court’s decision. The Ar-

kansas Supreme Court, citing Ackerley Communications,

Inc. vs. City of Seattle, affirmed the result below, although

acknowledging a contrary result in Metromedia, Inc. vs.

City of Sam Diego, 610 P.2d 409 (Cal. 1980), rev’d on other

grounds, 453 U.S. 490, 101 S. Ct. 1817, 69 L.Ed.2d (1981).

The California Supreme Court, in fact, had ruled in

Metromedia, Inc. vs. City of San Diego, supra, that a city

ordinance requiring the removal of signs “existing or sub-

ject to litigation on November 6, 1978,” the effective date

of the 1978 amendments to the Federal Highway Beautifi-

P San ee eee OP eee ee ee ee

pensation for the removal of signs not allowed by subsec-

tion (e) and since subsection (e) applied only to certain

types of official and historic signs, the court concluded

that “the literal language of the federal act therefore com-

pels compensation.” Jd. at 423.

This conclusion was supported by the legislative his-

tory of the 1978 amendments. The California Court ob-

served that according to the Report of the House Commit-

tee on Public Works and Transportation, the fact that cer-

tain signs might be protected by an agreement between

the state and the Secretary of Transportation made no

difference under subsection (g) when no agreement cover-

ing those signs existed. The Report found that “just com-

pensation must be paid upon the removal of any lawfully

erected sign which is not permitted under subsection (o).“

Report, No. 95-1485, p. ann eee

1978, pp. 6575, 6592.

Because the 1978 legislation amended subsection (g)

by merely inserting the phrase “not permitted under sub-

section (e),“ it seems clear that since its passage in 1965,

the Act required just compensation for forced removals.

3 e

Prior to 1978, however, the FEA had interpreted the orig-

inal Act to hold a sign not “lawfully erected” once it be-

came a nonconforming use under local law. The 1978

amendment removed any ambiguity. See, Metromedia,

Inc. vs. City of Saw Diego, supra, at u. 26. Asa result e

FHA, in a March 6, 1979 Memorandum, interpreted the -

108 amendments us cleary requzing “at compensation” —

tow, the remnant of; digas: Se: Dee. 6. Sane 89:8

gress for just this reason. Jd. at n. 27. Consistent with

this later interpretation, the FHA has recently informed

the Arkansas Department of Transportation that the court

below misconstrued the federal law. See, Appendix, p.

A-73.

As opposed to the straightforward interpretation of

the statute made by the California Supreme Court and

eventually made by the FHA, the Washington Supreme

Court and the court below have adopted a strained read-

ing which holds that the mere fact some signs could be

regulated by agreement between the states and the Secre-

tary of Transportation means that those signs are exempt

from the “just compensation” requirement of subsection

(g).“ This conflict justifies a grant of certiorari to review

the judgment below. See, United States vs. Oregon, 366

U.S. 643, 81 S.Ct. 1278, 6 L.Ed.2d 575 (1961); Citizens d

Southern National Bank vs. Bougas, 434 U.S. 35, 98 S. Ct.

88, 54 L.Ed.2d 218 (1977). See also, California Depart-

ment of Industrial Relations, et al. vs. Homemakers, Inc.,

423 U.S. 1063, 96 S.Ct. 803, 46 L. Ed. 2d 655 (1976) (White,

J., dissenting from denial of cert.) (court should resolve

conflict between circuits in determining compensation due

under federal statute).

2 The Decision Below Violates the First Amend-

ment to the United States Constitution.

The decision of the Arkansas Supreme Court upholds

* enn * *

9 3

advertising and a prohibition of standard size commercial

and noncommercial advertisements. These are regulations

of the manner in which the right to freedom of speech

guaranteed the petitioner, its clients and the public by the

First Amendment may be exercised. Regulation of the

noncommunicative aspects of noncommercial speech are

constitutional if they do not unduly restrict the flow of

information or ideas. Coz vs. New Hampshire, 312 U.8.

569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941). In a similar vein,

though perhaps to a lesser extent, commercial speech is

constitutionally protected. Government regulation of com-

mercial speech is permissible, but it must be neutral as

to content, serve a significant public interest and “leave

open ample alternative channels for communication.

Virginia Pharmacy Board vs. Virginia Citizens Consumer

Council, 425 U.S. 748, 96 S. Ct. 1817, 48 L.Ed.2d 346 (1976).

When a message rises from a newspaper to a billboard,

it is entitled to no less protection. See, Metromedia, Inc.

highway, “more focused regulations of ‘time, place or man-

ner’ are constitutionally compelled....” Tribe, Ameri-

can Constitutional Law § 12-21 (1978). For at least two

reasons, the ordinances upheld by the Arkansas Supreme

Court may not survive scrutiny under these standards.“

a ee . aif a, Sd

—

eder

First, the result below will severely burden those in-

dividuals seeking to advertise on the few billboards the

ordinances would permit. The evidence was uncontra-

dicted that replacing the posters on exi.ting standard size

billboards with posters for mini-billboards would increase

costs by fifty percent. See, Appendix, p. A-6, 7. Admittedly,

some restrictions on outdoor advertising are permissible.

The Fayetteville ordinances, however, restrict such ad-

vertising in a most disturbing way, by discriminating

against certain classes of advertisers. National and state-

wide advertisers print posters suitable for standard 300

square foot billboards; to advertise in Fayetteville, Arkan-

sas, they would have to print posters to fit that city’s mini-

billboards. (T.593, T.602, T.612). National advertisers,

be they automobile manufacturers, presidential candidates

or charitable organizations, would face unique obstacles

and increased costs in trying to bring their message to

Fayetteville.‘

Second, regulations affecting speech, even commercial

speech, should be no greater than that necessary to achieve

legitimate governmental objectives. Central Hudson Gas

& Electric Corporation vs. Public Service Commission, 447

U.S. 557, 100 S.Ct. 2343, 65 L. Ed. 2d 341 (1980). It would

le ee

ere SO ae ee

tives of a regulation and its provisions. The principal

stated goals of the Fayetteville ordinances were to pro-

mote traffic safety and to preserve the local scenery. See,

Appendix, p. A-4. Yet in this case, the parties stipulated

that none of the traffic accident reports maintained by the

Fayetteville Police Department indicated that outdoor

advertising had ever been a factor in any reported traffic

accident. These reports, prepared by the investigating

officer, included a section for noting “vision blocked by

signboard” and “inattention.” (T.520). As to aesthetics,

the Fayetteville ordinances ban outdoor commercial ad-

vertising in areas where drag strips, junk yards, stock-

yards, coal storage, manufacturing and meat slaughtering,

among other indelicate activities, are permitted. (T.340-

60). Rather than find as fact on this evidence that the

city’s ordinance did reasonably relate to lawful objectives,

the court below relied on the plurality opinion by this

Court in Metromedia, Inc. vs. City of San Diego, supra,

which refused to declare various lower court decisions hold-

ing billboards unattractive traffic hazards “unreasonable.”

Id. at p. 509. At least one lower court, however, has recog-

nized that such legislative pronouncements may be imper-

missibly broad. In John Donnelly & Sons vs. Campbell, 639

F.2d 6 (ist Cir. 1980), the court, in overturning a Maine

billboard prohibition said:

The statute’s condemnation is universal, regardless

of the nature of the ways, of the extent of the unim-

peded view, and of particular traffic conditions. In

This view is consistent with Mr. Justice Brennan’s

expressed reluctance “to accept legal conclusions in other

cases as an adequate substitute for evidence in this case

that banning billboards directly furthers traffic safety.”

Metromedia, Inc. vs. San Diego, supra, at pp. 521, 528

(Brennan, J., concurring). As to legitimacy of pro-

hibiting billboards in commercial and industrial areas,

Mr. Justice Brennan has recognized a need for regulators

to establish that the prohibition was part “of a compre-

hensive coordinated effort in its (the city’s) commercial

and industrial areas to address other obvious contribu-

tors to an unattractive environment.” Id. at 531.5

When due consideration is given to the restrictions

Ordinances No. 1747 and No. 1893 impose on freedom of

speech, and the need to demonstrate some reasonable basis

for those restrictions, the result below becomes suspect.

Although the plurality in Metromedia, Inc. vs. City of San

Diego, supra at n. 14, cited various lower court rulings

upholding sign ordinances, two subsequent state court de-

cisions reach a different result. In Eller Outdoor Adver-

tising Company, et al. vs. City of Roseville et al., Macomb

nizing that 672 square foot painted signs represented a

national standard, the court found that the 300 square

foot limitation “severely restricts” advertisers who are

regional and national in scope. Appendix, p. A-81. The

Michigan court, noting that smaller, less readable signs

might actually be more distracting than larger signs, found

no relationship between size restrictions and traffic safe-

ty. Aesthetics alone was held not to be sufficient justifi-

cation. Appendix, p. A-81. In Patrick Outdoor Media,

Inc. vs. Borough of Dickson City, Lackawanna Co. Ct. Com.

Pleas, 83 Civil 372 (Pa. Sept. 21, 1983), the court, ac-

knowledging the existence of national standards in the

industry, found that the effect of an ordinance limiting

outdoor signs to 100 square feet “is to effectively exclude

outdoor advertising from the municipality.”” Appendix,

p. A-91, 92. Since the evidence suggested outdoor advertis-

ing did not pose a traffic hazard, although this was the

principal objective of the ordinance, the court ruled the de

facto ban did not bear a “substantial relationship to the

public health, safety, morals and general welfare.

Appendix, p. A-94.

These First Amendment issues justify a grant of

certiorari to review the result below.

CONCLUSION

For these reasons, a Writ of Certiorari should issue

to review the decision of the Arkansas Supreme Court.

. Respectfully submitted,

2 MICHAEL G. THOMPSON GEORGE O. KLEIER

5 WALTER A. PAULSON II RICHARD F. COOPER

4 JEFF BROADWATER P. O. Box 135

; 2000 First Commercial Building Fort Smith, Arkansas 72902

5 Little Arkansas 72201 (501) 785-7806

(501) 376-2011 he,

—

APPENDIX

SUPREME COURT OF ARKANSAS

No. 83-67

DONREY COMMUNICATIONS CO., INC.

(FORMERLY AMERICAN TELEVISION CO., INC.

d/b/a DONREY OUTDOOR ADVERTISING CO.),

Appellant

CITY OF FAYETTEVILLE, ARKANSAS,

Appellee

APPEAL FROM WASHINGTON CHANCERY COURT

THOMAS F. BUTT, Chancellor

AFFIRMED

Opinion Delivered October 17, 1983

ROBERT H. DUDLEY, Associate Justice

Appellant, Donrey Communications Company, Inc.,

maintains sixty billboards for commercial advertising and

noncommercial messages within the City of Fayetteville.

They are “off-site signs” as the advertising or message on

each billboard is about something not sold or offered on the

land where the billboards are located. They consist of

“standard poster panels” which are twelve feet by twenty-

five feet, or 300 square feet, and “painted bulletins” which

are fourteen feet by forty-eight feet, or 672 square feet.

Two Fayetteville ordinances restrict the size and location

of appellant’s billboards. One is a zoning ordinance and

the other is a comprehensive sign ordinance.

The zoning ordinance, No. 1747, enacted in 1970, limits

the location of billboards to property zoned C-2. Most

of appellant’s billboards are located on property zoned — x

a Calor ornare mer Sai an etary

A-2

located on property zoned C-3, central business district,

or I-1, light industrial and heavy commercial district.

The comprehensive sign ordinance, No. 1893, restricts

the size of both on-site and off-site freestanding signs to a

maximum of 75 square feet and prescribes minimum set-

back requirements from street right-of-way for the signs.

Appellant’s billboards conform neither to the size re-

strictions nor to the setback requirements. Its billboards

were erected from 12 to 24 years ago at a cost of $500 to

$1,000 per sign and, at the time of erection, complied with

all applicable ordinances.

Section 17B-5(A)2 of the sign ordinance provides that

off-site nonconforming signs shall be removed or shall

be altered to conform with the provisions of the ordinance

by January 19, 1977, which was four years’ amortization

from the effective date of the ordinance. The zoning

ordinance, in Art. 4, § 5(g), requires that nonconforming

signs be removed by the same date.

This case was filed July 2, 1971, over twelve years

ago and came to this court in 1973. American Television

Co., Inc., d/b/a Donrey Outdoor Advertising Co., et al vs.

City of Fayetteville, 253 Ark. 760, 489 8.W.2d 754 (1973).

It was reversed, and the pleadings were amended to test

the constitutionality of the city’s restrictions of the size

and location of billboards. On cross-motions for summary

judgment the trial court upheld the billboard restrictions

and amortization requirement, as applied to appellant,

and granted the city’s prayer for a mandatory injunction

ordering appellant to comply with the two ordinances.

We affirm the decree. Rule 29(1)(¢) provides that the

appeal of cases testing the constitutionality of a municipal

ordinance shall be heard in this court. ;

A-3

Appellant first contends that, when read together, the

two ordinances violate appellant’s right under the First

Amendment to the United States Constitution.

Billboards are noncommunicative structures designed

to stand out and apart from their surroundings, but also

they are a medium of communication warranting First

Amendment protection. The government has a legitimate

interest in controlling the noncommunicative aspects of the

medium but the First and Fourteenth Amendments fore-

close a similar interest in controlling the communicative

aspects. Metromedia, Inc. vs. San Diego, 453 U.S. 490

(1981).

Alexander Meiklejohn in Free Speech and Its Relation

to Self-Government 27 (1948) wrote that the First Amend-

ment “does not forbid the abridging of speech. But...

it does forbid the abridging of the freedom of speech.”

He argues that the phrase “the freedom of speech” implies

rules regarding procedure, or order. He used the New

England town meeting as his model to demonstrate there

could be no freedom of speech if everyone spoke at once

but, at the same time, any argument relevant to the issue

before the meeting, no matter how unpopular, is protected

by the strong language of the amendment. In this con-

text the Supreme Court of the United States has ruled that

restrictions on time, place and manner are permissible if

“they are justified without reference to the content of the

regulated speech, . . serve a significant governmentul

interest, and . . leave open ample alternative channels

for communication of the information.” Virginie Pharm-

acy Board vs. Virginia Citieens Consumer Council, 425

U.S. 748 at 771 (1976).

“The freedom of speech” is not a self-defining phrase.

The speech which cannot be abridged is that which is pro-

tected. Nor is the word “abridging” unambiguous. What

is protected and how extensively it is protected is deter-

mined on a case by case basis by the courts. See Welling-

ton, On Freedom of Expression, 88 Yale L. J. 1105 (1979).

The ordinance, as applied to appellant, its advertisers

and the viewers of the billboards are content neutral; they

merely restrict their size, height and location. The ordi-

nances seek to implement a substantial governmental in-

terest and they directly advance that interest. See Cen-

tral Hudson Gas d Electric Corp. vs. Public Service Com-

mission, 447 U.S. 557 (1980) and Metromedia, Inc. vs. San

Diego, 453 U.S. 490 (1981).

The preamble "to the sign ordinance provides that the

purpose of the ordinance is to promote the reasonable,

orderly and effective display of signs, to promote safety

and to preserve natural beauty. The city board of direc-

tors made the following findings:

That the uncontrolled proliferation of signs is

hazardous to the users of streets and highways within

the limits of the city of Fayetteville, Arkansas.

The scattering of signs throughout the city is detri- ts

mental to the preservation of those scenic resources,

and so to the economic base of the city, and is also :

not an effective method of providing information to 3

tourists about available facilities. i

The goals which the city seeks to further are sub-

stantial governmental goals. This matter was laid to rest

in Metromedia, id., at 507, 508. 3

Nor can there be substantial doubt that the twin goals

that the ordi seeks to further - traffie safety

and the ap of the city —are substantial gov-

ernmental goals. It is far too late to coutend other-

wise with respect to either traffic safety, Railway

Express Agency, Inc. vs. New York, 336 U.S. 106, 93

L Ed 533, 69 S Ct 463 (1949), or aesthetics, see Penn

Central Transportation Co. vs. New York City, 438

U.S. 104, 57 L Ed 2d 631, 98 S Ct 2646 (1978); Village

of Belle Terre vs. Boraas, 416 U.S. 1, 39 L Ed 2d 797,

94 S Ct 1536 (1974); Berman vs. Parker, 348 US.

26, 33, 99 L Ed 27, 75 S Ct 98 (1954).

Hand in hand with aesthetics is tourism, one of Fay- .

etteville’s important industries and a substantial economic

resource. 9

—

“

’

}

Cor e e ak thee Mick

as is practically and legally possible and the city has gone

no further than necessary to meet its goals. This type of

ordinance directly advances the legitimate governmental

interests in traffic safety, the aesthetic landscape and the

tourism industry. See Metromdedia, Inc. vs. San Diego,

id., p. 508, 509, 510 and 511.

The next First Amendment issue is, do the restrictions

close a channel for communication? Initially, we note

that this is not one of those cases where a channel of

— 8

CE Ae ee Te oe NS

RE EE VAD CET REPL eRe ee

some governmental purpose, such as prohibiting the cir-

culation of handbills under the rationale of preventing

litter. See Schneider vs. State, 308 U.S. 147 (1939).

Here, the billboard channel of communication is not pro-

hibited, it is only limited as to size and place. The only

questionable aspect of the limitation in size is that ad-

vertisements or messages which are prepared for nation-

wide and statewide distribution are prepared for the 300

square feet standard poster panels and they will be elimi-

nated. The use of the standard poster panel allows an

inexpensive form of communication. However, the appel-

lant has not demonstrated that the size cannot be reduced

to 75 square feet without unduly increasing the cost of this

channel. The affidavit of Lloyd E. Schuh, Jr. is

explanative :

I develop and contract for all advertising by

Increasing the average poster cost by 50%, or from

$35 to $52.50 would not eliminate billboards as a channel

of communication; it could only moderately affect the

cost. The law is settled that “a municipality may enforce

a rule that curtails the effectiveness of a particular means

of communication.“ Metromedia, Inc. vs. San Diego, id.,

at 550.

Similarly, in Yarbrough vs. Arkansas State Highway

Com’n., 260 Ark. 161, 539 S.W.2d 419 (1976), we rejected

appellant's contention that the Highway Beautification

Act., Ark. Stat. Ann. 5 76-2501 et seq., deprived him of his

right to advertise. We stated:

We find that he has not been denied the right to ad-

vertise, but the right has been limited by valid

restrictions. . . . Furthermore, appellants had no

vested right to capitalize on the flow of traffie over

Interstate 40.

Appellant makes an economic, or loss of income, argu-

ment but we decline to adopt that approach to the First

Amendment. The First Amendment affords less pro-

tection to the medium than the message. See Kaufman,

The Medium, The Message And The First Amendment, 45

N.Y.U. L. Rev. 761 (1970). We find the ordinances do

not violate appellant’s First Amendment rights.

Appellant’s next point of appeal is that the trial

court erred in granting a summary judgment in favor of

the City and erred in refusing to grant summary judgment

in its favor because (a) legislation which prohibits a law-

ful business is unreasonable as a matter of law, and (b)

the declared purpose of the ordinance has no substantial

connection with the real purpose. |

Wenn * , n ‘ne ZA PARE FC ees oF

8 eee, . RE AP hs

8 8 we 2 8 8

e een

Ordinances limiting the right to maintain billboards

are not unreasonable as a matter of law. In Board of

Adjustment of Fayetteville vs. Osage Oil & Transporta-

tion, Inc., 258 Ark. 91, 522 S.W.2d 836 at 838 (1975), we

stated :

The outdoor advertising sign. .. is not maintain-

able as a matter of right; such signs have been pro-

hibited altogether. See the extended discussion in

General Outdoor Advertising Co. vs. Dept. of Public

Works, 289 Mass 149, 193 N.E. 799 (1935).

Appellant also contends a genuine dispute exists over

a material fact because the declared purpose is not related

to the restrictions on the size and location of the billboards.

This same argument was made and rejected in Metro-

media, Inc. vs. City of San Diego, swpra. In Board of

Adjustment of Fayetteville vs. Osage Oil & Transporta-

tion, Inc., swpra, we stated:

The basic power of a municipality to regulate the size

and location of billboards and other commercial signs

has been sustained in so many jurisdictions that it

would be a waste of time and effort to cite the cases.

such regulations have been upheld upon many

grounds, including the promotion of traffic safety,

the control of potentially hazardous structures, and

the fundamental considerations of city planning and

— beautification that underlie the zoning concept

itself.

Appellant points out that billboards are prohibited

in districts zoned commercial and industrial but the fol-

lowing businesses are permitted there: dance halls,

taverns, truck repair and service establishments, drag

strips, meat slaughtering, auto salyage, junk yards, scrap

metal, stockyards and wrecking and demolition services.

From that, appellant contends that the zoning ordinance

bears no reasonable relationship is aesthetic considera-

tions and, consequently, summary judgment should have

been granted to appellant as a matter of law.

Perhaps dance halls, taverns, truck repair establish-

ments, etc., arguably can be said to be ugly, but it does not

follow that these businesses cannot be carried on among

more pleasant surroundings. The city board obviously

concluded that the appearance of the commercial and in-

dustrial districts would be aesthetically enhanced by the

elimination of billboards. The ordinance bears a reason-

able relationship to aesthetic considerations and is a direct

approach to solving the problems created by the billboards.

Many courts have rejected the argument that it is un-

reasonable to prohibit billboards in commercial and indus-

trial areas of little, if any, natural beauty. E. B. Elliott

Advertising Co. vs. Metropolitan Dade County, 425 F.2d

1141 (5th Cir. 1970); John Donnelly d Sons, Inc. vs.

Outdoor Advertising Board, 339 N.E.2d 709 (Mass. 1975);

John Donnelly d Sons vs. Campbell, 639 F.2d 6 (ist Cir.

1980) ; Metromedia Inc. vs. City of Sam Diego, 610 P.2d

407 (Cal. 1980), rev. in part 453 U.S. 490 (1981) and

Metromedia, Inc. vs. City of San Diego, 453 U.S, 490

(1981).

We affirm the granting of summary judgment in favor

of the city and we affirm the denial of summary judgment

in favor of appellant.

The appellant next contends that the chancellor erred

in not finding that the sign ordinance and zoning ordi-

nances in their amortization provisions amonnted to a

r eer a eee

§ 22, of the Constitution of Arkansas. 5

A-10

In two recent cases we held a similar amortization

provision, as applied, was not a public taking of private

property without just compensation. In fact, those cases

dealt with the same ordinances, No. 1893, before the amend-

ment. City of Fayetteville vs. Mcilrey Bank & Trust Co.

et al, 278 Ark. 500, 647 S.W.2d 439 (1983); Hatfield vs.

City of Fayetteville, 278 Ark. 544, 647 S.W.2d 450 (1983);

see also Gitelman, Signs of the Times in Arkansas, 1983

Ark. Law Notes 91.

The test to be used in determining whether an

amortization requirement is constitutional is the test of

reasonableness. City of Fayetteville vs. McIlroy Bank d

Trust Co., supra. Appellant’s sixty billboards were con-

structed from twelve to twenty-four years ago at a cost

of $500 to $1,000 per sign. On the facts of this case the

four year amortization period was fai In addition, this

litigation has prolonged appellant's sigus by another six

years.

Appellant additionally contends that, aside from the

loss of its billboards, the ordinances constitute a public

taking because they may render its business, as heretofore

conducted, unprofitable. The argument is not convincing.

There is no reason to treat the loss of a profit generated

by a competitive monopoly on nonconforming billboards

any different that we treat the loss of the asset. The

principle of amortization rests on the reasonable exercise

of the police power and the financial detriment imposed

upon a property owner by the reasonable exercise of police

power does not constitute the taking of private property.

within the inhibition of the constitution.

Appellant’s final point is that the Arkansas Highway

Beautification Act, Ark. Stat. Ann. 4 76-2501, et seq., pre-

A-ll

cludes the city from requiring the uncompensated removal

of its billboards which are adjacent to federal aid high-

ways. The act was adopted to provide effective control

of outdoor advertising within 660 feet of federal aid high-

ways and to conform with the Federal Highway Beau-

tification Act of 1975, as amended, 23 U.S.C. 5 131. It

provides that no municipality shall remove any outdoor

advertising without paying just compensation. Ark. Stat.

Ann. § 76-2508. Appellant contends that the city ordi-

nances allow the taking of its billboards without paying

just compensation and therefore they are in contravention

of the state law. It concludes that such contraventions

violate Art. 12 § 4 of the Constitution of Arkansas: “No

municipal corporation shall be authorized to pass any law

contrary to the general laws of the state.

However, all areas zoned commercial or industrial are

exempt from the provisions of the Arkansas Highway

Beautification Act, Ark. Stat. Ann. § 76-2506; Yarbrough

vs. Arkansas State Highway Commission, 260 Ark. 161, 539

S.W.2d 419 (1976). All of appellant's signs are located

on property zoned commercial or industrial and are there-

fore exempt from the provisions of the act. Accord

Ackerly Communications vs. City of Seattle, 602 P.2d 1177

(1979), cert. denied 449 U.S. 804 (1980; contra Metro-

media vs. City of San Diego, 610 P.2d 407 (1980).

We affirm.

Hickman, J., concurs, still maintaining view expressed

in City of Fayetteville vs. & & H, Inc., 261 Ark. 148, 547

S. W. ad 94 (1977). ;

Adkisson, C. J., Holt and Purtle, JJ, dissent.

4 1 r

(Caption omitted in printing)

DISSENT

RICHARD B. ADKISSON, Chief Justice

It is my view that the amortization provisions of the

sign and zone ordinances constitute a public taking of

private property in violation of Ark. Const. art. 2, 622.

A four year amortization period for a sign con-

structed of concrete or steel seems unreasonable. The

anticipated useful life at the time of construction would

clearly be in excess of four years as evidenced by the fact

that all of the sixty signs are from twelve to twenty-four

years old.

I would also disagree with the majority in their hold-

ing that the cost of, the sign, standing alone, is sufficient

evidence of its value.

Farther, I cannot agree with the majority’s suggestion

that the fact that this case has been in litigation for some

years has some effect on the fair market value of the signs.

Purtle, J., joins in this dissent.

(Caption omitted in printing)

DISSENT ;

FRANK HOLT, Associate Justice

I would reverse based upon the reasons expressed in

my dissent in City of Fayetteville vs. McIlroy Bank &

Trust Co. et al, 278 Ark. 500, 647 S.W.2d 439 (1983).

Purtle, J., joins in this dissent.

(Caption omitted in printing)

AMENDED OPINION.

Opinion delivered December 19, 1983

ROBERT H. DUDLEY, Associate Justice

The last two paragraphs of the original opinion are

amended as follows:

Appellant’s final point is that the Arkansas Highway

Beautification Act, Ark. Stat. Ann. § 76-2501, et seq., pre-

cludes the city from requiring the uncompensated removal

of its billboards which are adjacent to federal aid high-

ways. The act was adopted to provide effective control

of outdoor advertising within 660 feet of federal aid high-

ways and to conform with the Federal Highway Beautifi-

cation Act of 1975, as amended, 23 U.S.C. § 131. A 1981

amendment to the Arkansas act provides that no munic-

ipality shall remove any outdoor advertising without pay-

ing just compensation. Ark. Stat. Ann. § 76-2508. Appel-

lant contends that the city ordinances allow the taking of

its billboards without paying just compensation and there-

fore they are in contravention of the state law. It con-

cludes that such contraventions violate Art. 12 4 4 of the

Constitution of Arkansas: “No municipal corporation

shall be authorized to pass any law contrary to the general

laws of the state.

However, long before the 1981 amendment to the

Arkansas act became effective, the municipal ordinances

had already mandated that appellant’s signs be altered or

removed. The amortized life of the signs had ended on

January 19, 1977. Appellant would have us apply the

1981 amendment retroactively in order to give new life

to its signs. Like the Supreme Court of Washington, we 2a

A-14

Communication vs. City of Seattle, 602 P.2d 1177 at 1186

(Wash. 1979). Without retroactive application of the

act, the ordinances are not in contravention of state law.

Affirmed.

No. 22176

THE CHANCERY COURT OF

WASHINGTON COUNTY, ARKANSAS

FIRST DIVISION

DONREY COMMUNICATIONS CO., INC.,

(Formerly American Television Co., Inc.,

d/b/a Donrey Outdoor Advertising Co.),

and TRI-STATE REALTY COMPANY

Plaintiffs

vs.

CITY OF FAYETTEVILLE, ARKANSAS

Defendant

LAWRENCE HESTER,

ROBERTS ENTERPRISES, INC.,

SIGNA-LUME SIGN COMPANY, INC.,

WHITECO INDUSTRIES, INC.,

NATIONAL ADVERTISING CO.

Intervenors

1 : MEMORANDUM OPINION

* This is an action for declaratory judgment whereby

¥ plaintiffs and intervenors (hereafter, generally, “plain-

a tiffs”) ask that defendant City’s Ordinances No. 1747 and

1ᷣ.0'988, as amended, be adjudged unconstitutional as applied

= to them.

nn .

5 0 **

5 d . * “

3 -

A-15

Ordinances 1747 (adopted June 29, 1970) and 1893

(adopted December 19, 1972) constitute, in combination, a

comprehensive zoning scheme for the City. No. 1893 is

a substantial re-writing and amendment of No. 1747. No.

1893 was later amended by Ordinances 2109, 2126 and

21401.

With respect to this case, the ordinances forbid out-

door billboard advertising in all parts of the city except

those areas zoned C-2 commercial, and restrict the size

of billboards and establish setback requirements. Existing

billboards are required to be moved from now forbidden

zones, and those within the permitted zone that exceed the

limits specified must either be altered to conform or re-

moved; all by January 19, 1977, thus providing a 4-year

“amortization” period for plaintiffs to bring themselves

into conformity.

It is the threatened enforcement of the ordinances by

imposition of money fines for violations, together with

averred substantial detrimental effects upon their eco-

nomic interests that plaintiffs seek to prevent by this

action, invoking various provisions of the Arkansas and

United States Constitutions as bases therefor.

The litigious course of this case has been both pro-

tracted and sporadic and has thus seen a correspondingly

long time in coming to decision. A chronology is here in-

serted, not for substantive worth, but to illustrate the com-

plexity of the case (from the mass of pleadings, and

voluminous briefs) as well as the ingenuity and assiduity

of counsel:

—Complaint, filed July 2, 1971.

—ist amendment to complaint, September 7, 1971.

ON ee ae i ees ee

1 . x

ee, ay ee ee.

= ak

—2nd amendment to complaint, November 12, 1971.

—At this juncture, the case went off on demurrer and

experienced a round-trip to and from the Supreme

Court, with remand to the trial court. (See

American TV et al vs. City of Fayetteville, 253

Ark. 760, January 15, 1973).

—(A hiatus ensued hereafter until):

— Answer, June 4, 1975, to complaint and Ist and 2nd

amendments.

—Amendment to answer, October 31, 1975.

—(A second hiatus ensued until):

—2nd amendment to complaint, January 14, 1977

(although not so styled, this pleading appears to

be, in substance, an amended and substituted

complaint).

—Answer, January 14, 1977, to 2nd amendment to

complaint.

Motion (July 15, 1977) and order (July 18, 1977) to

amend 2nd amendment to complaint of January 14,

1977, to correct typos therein.

—Amendment to answer, and counterclaim; counter-

claim to interventions of Hester, Roberts and Signa-

Lume, October 13, 1977.

—Defendant’s motion for summary judgment and

brief, October 13, 1977.

(A third hiatus ensued until):

—Plaintiffs’ response and brief, November 1, 1978.

—Stipulation of Facts, November 3, 1978.

(A fourth hiatus ensued until) :

—Defendant City’s reply brief, ee 19, —

and Arkansas Highway Department,

A-17

—Plaintiffs’ cross-motion for summary judgment and

brief, June 2, 1981.

—Defendant’s response and brief, June 26, 1981.

—Defendant’s supplemental brief supporting motion

for summary judgment, August 6, 1981.

—Plaintiffs’ supplemental brief supporting motion for

summary judgment, August 14, 1981.

—Defendant’s supplemental reply brief, August 21,

1981.

(A fifth and final hiatus ensued until the date of

this memorandum for which the court assumes full

responsibility, suggesting only that the final sub-

mission of the case, more than a year ago, became

lost in the ruck of other and supervening work to

which the Court’s daily attention has been required).

It appears that plaintiffs, in the aggregate, own or

lease and maintain numerous free-standing off-site, that

is, not on property of the business or services advertised,

billboard structures throughout the City. In some in-

stances the plot of ground on which the billboard stands is

leased by the owner of the billboard. In most instances,

both the ground and the billboard are owned by the same

person. Donrey maintains by far the greatest number of

billboards, some 80 or more; and Tri-State owns and

leases the greatest number of ground plots on which bill-

boards stand. Intervenors, among them, own and main-

tain relatively few billboards and lease the plots for their

billboards.

For many years, plaintiffs have maintained adver-

tising billboards in two conventional sizes of display space:

“Poster panels” 12 x 25 feet, 300 square feet; and

“painted bulletins”, 14 x 48 feet, 672 square feet. The

strictures of the challenged ordinances limit such off-site, —

free-standing billboards to a display surface of 75 square

feet. x,

Te 2 n

A-18

It is the gravamen of the complaint that these

strictures effectively destroy plaintiffs’ business and busi-

ness properties in that: (1) Most of their billboards will

have to be removed or reduced in size to an impracticable

degree; (2) the small size and irregular shapes of the

ground plots on which the billboards stand cannot be used

for any other purpose, hence, their economic usefulness

is totally lost.

Plaintiffs’ attack upon the ordinance is based pri-

marily on Arkansas and U.S. Constitutional grounds, that

enforcement of the ordinances deprives them of their prop-

erty without due process of law; that plaintiffs’ U.S.

Constitution Ist Amendment rights of freedom of speech

and 14th Amendment rights of equal protection of the law

are invaded. These assertions stem from the fact that

other permitted signs and billboard type advertising struc-

tures and devices may be permissibly located where plain-

tiffs’ cannot, and may carry various kinds of messages that

plaintiffs’ cannot. It is also strongly asserted that the

application of the ordinances to plaintiffs offends against

Arkansas Constitution, Art. 2, Sec. 22, as a taking of pri-

vate property without just compensation.

The City’s principal response, and the basis for its

motion for summary judgment, is that the ordinances are

a proper exercise of the city’s police power in promotion

of the public health, safety, morals and welfare. Being

such, there is no “back-door” eminent domain requiring

compensation; and even if substantial economic loss is to

be suffered as a result it is not compensable.

In the language of our Supreme Court, this case, as

in so many of similar nature, “brings into sharp focus the

conflict between private property rights and the right of

—2

Aa * nn > 4

A-19

municipal government to control the owner’s use of prop-

erty” (Blundell vs. City of West Helena, 258 Ark. 123,

522 S.W.2d 661) and “arises from the constant friction

between two inherent rights—the right of private prop-

erty and the police power, both of which we consider to

exist without constitutions grant”, (Fogleman, J., concur

in part, dissent in part, City of Fayetteville vs. & & H, Inc.,

261 Ark. 148 at 157, 547 S.W.2d 94.)

The spate of supplemental briefs filed by counsel in

August, 1981 after the close of normal brief submission

time, was occasioned by the decision of the U.S. Supreme

Court in Metromedia, Inc. vs. City of San Diego, 269, Ed.

(2d) 800 (July 2, 1981). That case, on facts strikingly

similar to the instant case, primarily involved questions

of Federal Ist Amendment rights inhering in private

owners of billboard displays, which displays had been

sharply limited as to location and content by municipal

ordinance,

Both counsel and the court, in the instant case, deli-

berately allowed this case to “lay by” until time for possible

re-hearing by the Federal Supreme Court had elapsed.

With these latest briefs in hand, the substantive

dimensions reduced essentially to two: (1) Whether the

Fayetteville ordinances are an unconstitutional infringe-

ment on plaintiff’s Ist Amendment rights and (2) whether

they are an infringement of plaintiffs’ property rights

under the 14th amendment equal protection clause and

eee oer gsi ai id A

A-20

opinions, among them, cited virtually every case decided in

the last 50 years, bearing on the point involved. Many,

if not all, of these cases are relied upon by counsel here.

For purposes of this case, the primary point in Metro-

media requiring attention is the rationale of the plurality

opinions striking down the San Diego ordinance because it

discriminated between allowed and forbidden commercial

and non-commercial messages, in violation of 1st Amend-

ment free speech rights. The opinion says,

“Because some noncommercial messages may be con-

veyed on billboards throughout the commercial and

industrial zones, San Diego must similarly allow bill-

boards conveying other noncommercial messages

throughout those zones.”

In this case, it is shown that, following the U.S. Court’s

decision in Metromedia, defendant’s Board of Directors,

on August 18, 1981, amended Ordinance 1893 to remove

any prohibitions against display of noncommercial mes-

sages on any sign, whether on-site, off-site or outdoor

(billboard) advertising. (See Ordinances 2752 and 2753

— defendant's supplemental reply brief and exhibit, filed

August 21, 1981). Thus, the impediment seen to the San

Diego ordinance in Metromedia does not obtain as to de-

fendant’s Ordinance 1893, as .:mended, and the Ist Amend-

ment flaw does not obtain. This court concludes that the

challenged ordinances are not violative of plaintiffs’ 1st

Amendment rights of free speech.

With respect to the question of deprivation of prop-

erty rights, in the context of equal protection of the laws,

that is, the limitations imposed upon plaintiffs’ off-site

billboards, as distinguished from other property owners’

on-site signs, there appears to be little question.

A-21

In Metromedia, the appellant sign owners (occupying

the position of plaintiffs here) argued that the distinction

drawn between permitted on-site signs and prohibited off-

site signs was invidious and artificial. The plurality opin-

ion, acknowledging the logical force of the argument said

that:

“Despite the apparent incongruity, this argument has

been rejected, at least implicitly, in all of the cases

sustaining the distinction between off-site and on-site

commercial advertising. We agree with those cases

and with our own decisions in Suffolk Outdoor Adv. vs.

Hulse, 439 U.S. 808 (1978); Markham vs. Adv. Co.

vs. Washington, 393 U.S. 316 (1969); Newman Signs

Inc. vs. Hjelle, 440 U.S. 901 (1979). . . . Thus, off-site

commercial billboards may be prohibited while on-site

billboards are permitted.”

This proposition is recognized by our own Supreme

Court in a case involving the same ordinance, in earlier

form, here involved. In Fayetteville Bd. of Adjustment

vs. Osage Oil, 258 Ark. 91, 522 S.W.2d 836 (1975), the

court said:

“The basic power of a municipality to regulate the

size and location of billboards and other commercial

signs has been sustained in so many jurisdictions that

it would be a waste of time and effort to cite the cases.

Such regulations have been

ing signs.

1ü KW. 2d 897 (1980); Berkau vs. City of Little

Rock, 174 Ark. 1145, 298 8. W. 514 (1927).

A-22

I conclude that the questioned ordinance does not

violate plaintiffs’ property rights contrary to either the

U.S. or State Constitutions guaranteeing equal protection

of the laws.

Plaintiffs’ most vigorous argument is that their prop-

erty rights are infringed by defendant’s ordinance, con-

trary to due process of law as protected by Federal and

State Constitutions; and in particular that the ordinance

offends against Art. 2, Sec. 22 of the Arkansas Constitu-

tion, in that it takes away their properties — billboards

and the ground upon which they are erected — without just

compensation.

Art. 2, Sec. 22 is one of the noblest and most funda-

mental statements of a free peoples’ rights contained in

our organic law. It says:

“The right of property is before and higher than any

constitutional sanction; and private property shall

not be taken, appropriated or damaged for public use

without just compensation.”

Plaintiffs say that their business and business prop-

erties will be completely destroyed by the challenged ordi-

nance. Persuasive argument and factual data are ad-

vanced to this end. Stripped to essentials, it is this:

Plaintiffs’ business has evolved to comprehend an inte-

grated system of outdoor advertising displays—billboards

—of conventional sizes, the 12 x 25 foot poster panel and

the 14 x 48 foot painted bulletin: These are located at.

sites designed to catch the eye, if not the attention, of the

greatest number of passing motorists, over as large an

area as experience shows will produce results, that is,

transmitting the advertising message to the general public.

ne Ue

1 * 2

Wanne

—

A-23

Plaintiffs says that they are now required physically

to remove these signs, abandon the small plots of ground

holding the signs, and thus lose the effective and profit-

able use of the physical properties, as well as the intang-

ible availability and use of the many and dispersed signs

and locations—the very heart of their business.

But, methinks the plaintiffs do protest too much. The

undisputed fact is that their business will not be destroyed.

The physical locations are restricted; the square footage

of displays is reduced. But the erection and maintenance

of signs is not, per se, forbidden, nor are the numbers

thereof necessarily reduced. It i a reductio ad absurdum

to say that their business will be completely destroyed.

The real question is whether the defendant's restric-

itons are a proper exercise of the municipal police power.

The principal underlying existence and exercise of the po-

lice power is that the exercise of such by legislating to pro-

hibit or prevent that which is inimical to the public health,

safety and welfare is an inherent power of sovereignty,

which is necessary for the protection of the citizens of the

state, and when delegated by the state to its municipal

corporations, is tested on judicial review in this state to

determine whether constitutional limits have been trans-

cended. Geurin vs. City of Little Rock, 203 Ark. 103;

City of Helena vs. Dwyer, 64 Ark. 424; Williams vs.

State, 85 Ark. 464; Replogle vs. City of Little Rock, 166

Ark. 617; Bennett vs. City of Hope, 204 Ark. 147.

Judicial review tests legislation in the assumed exer-

cise of the police power in the interest of the health, safety

and welfare of the public, not to review the exercise of

A-24

of the power in a given case, but to determine whether the

legislation bears a real or substantial relationship to the

protection of public health, safety and welfare in order

that personal rights and property rights not be subjected

to arbitrary or oppressive, rather than reasonable invas-

ion. Union Carbide Carbon Corp. vs. White River Dis-

trict, 224 Ark. 558; City of Helena vs. Dwyer, supra; Wil-

liams vs. State, supra; Missouri & N.A.R. Co. vs. State,

82 Ark. 1; Dreyfuss vs. Boone, 88 Ark. 353; Pierce Oil Co.

vs. City of Hope, 127 Ark. 38; Noble vs. Davis, 204 Ark.

156. *

If, therefore, the questioned ordinance bears a reason-

able relation to the promotion of public health, safety and

welfare it is immune from constitutional attack, even

though property values be reduced or, as in this case,

property of value must be removed and, in the business

sense, “destroyed.”

Ordinance 1893 declares that,

“The construction, repair, alteration, location and

maintenance of signs should be controlled within the

city limits of the City of Fayetteville, Arkansas, in

order to protect the public investment in the streets

and highways, to promote the safety and recreational

value of public travel and to preserve natural beauty,

WHEREAS, the purpose of this Ordinance is to pro-

mote the reasonable, orderly, and effective display of

signs while remaining consistent with the city policy

to protect the public investment in the streets and

highways, to promote the safety and recreational value

of public travel and to preserve natural beauty, and

WHEREAS, the Board of Directors has made the

A-25

(1) That the uncontrolled proliferation of signs

is hazardous to the users of streets and high-

ways within the limits of the City of Fayetteville,

Arkansas.”

Plaintiffs argue and submit factual data by affidavit,

that there is no recorded instance in defendant’s police

records where a traffic casualty was caused by interfering

or distracting effect on motorists or pedestrians of plain-

tiff's billboards; and reason from this that they do not

constiute and will not be traffic hazards; hence, defend-

ant’s declarations of promotion of public safety are a

sham; that is, the stated reason for the ordinance, to

promote public safety, is not demonstrable nor sustainable.

The same argument was advanced and rejected in

Moore vs. Ward, 377 S.W.2d 881 (Ky. 1964). There, the

Kentucky court, after noting that even if appellants could

produce substantial evidence that billboard signs do not

adversely affect traffic safety held that

.. our common knowledge suggests that the ques-

tion involves so many intangible factors as to make

debatable the issue of what the facts establish. Where

this is so, it is not within the province of the court to

hold a statute invalid by reaching a conclusion con-

trary to that of the legislature. Radice vs. People of

the State of New York, 264 U.S. 292.”

Likewise, in the Metromedia case the same argument was

made, that the San Diego ordinance was not based on any

demonstrated connection between billboards and traffic

safety; hence, it did not directly advance governmental ©

interests in traffic safety and the appearance of the city.

The U.S. Supreme Court’s plurality opinion, noting that

the California Supreme Court (from whence came the

appeal) agreed with many other courts that a legislative

A-26

judgment that billboards are traffic hazards is not mani-

festly unreasonable and should not be set aside, said:

“We likewise hesitate to disagree with the accumu-

lated, common-sense judgments of local lawmakers and

of the many reviewing courts that billboards are real

and substantial hazards to traffic safety. There is

nothing here to suggest that these judgments are un-

reasonable. As we said in a different context, Rail-

way Express Agency, Inc. vs. People of New York,

336 U.S. 106, 109 (1949):

‘We would be trespassing on one of the most in-

tensely local and specialized of all municipal

problems if we held that this regulation had no

relation to the traffic problem of New York City.

It is the judgment of the local authorities that it

does have such a relation. And nothing has been

advanced which shows that to be palpably false.“

The fact that there have been no recorded traffic acci-

dents attributable to hazards offered by billboards is

neither conclusive nor very persuasive that they do not

constitute hazards. Their very purpose is to draw the

eye to them, and thus, even fractionally, to divert a driver’s

attention from operation of his vehicle. On reason and

authority, I cannot find that the regulation of billboards is

not reasonably related to the public safety and welfare.

Nor does the statement of purposes in the ordinance

“to preserve natural beauty” and the preservation of scenic

resources, combined with consideration of public safety,

weaken the legislative justification for regulating bill-

boards. Herring vs. Stannus, 169 Ark. 244. The fact that

aesthetic considerations were a significant factor in the

exercise of the police power should not invalidate an ordi-

nance for an otherwise legitimate police power objective.

The question of unreasonableness or arbitrariness is

A-27

plainly one of fact. In the absence of anything on the face

of the ordinance or in the evidence to show that it was arbi-

trary or unreasonable, the courts must presume it to be

valid. Bd. of Adjustment vs. Osage Oil and Transporta-

tion, Inc., 558 Ark. 9; City of Helena vs. Miller, 88 Ark.

263; Berkau vs. City of Little Rock, 174 Ark. 1145.

As above noted, in the Osage Oil case, the power of

defendant city to regulate the size and location of bill-

boards is not subject to question. Hence, it is unnecessary

to decide whether they may be prohibited altogther, al-

though Osage suggests this may be done; and there is

language in Metromedia suggesting the same ultimate

power. Here, however, we are not concerned with this

ultimate power, but only with the power reasonably to

regulate for the public safety, health and welfare.

Concluding, as the court does, that Ordinance 1893, as

amended, is a proper exercise of defendant’s police power,

a question remains whether the economic loss averredly

to be sustained by plaintiffs by requisite compliance with

the ordinance is an invalidating factor. The court con-

cludes that it is not. The ordinance seeks to embrace and

apply the “amortization” theory to plaintiffs; this being

that, as the undisputed facts show, plaintiffs’ average cost

in erecting its signs is in the range of $500-$1000, and all

but one erected over a period of eleven years before June,

1970. The one sign was put up in December, 1971. The

theory of amortization is that a reasonable period of non-

conforming use after prohibition allows the owner to

amortize his investment.

It is unnecessary to pass upon the validity, per se, of

such amortization scheme; such is still an unresolved

A-28

question in Arkansas, although doubtless our high court

will be obliged to decide the matter before too long. The

reason is that, given a proper exercise of police power,

the cost to plaintiffs in removing or altering their bil!-

boards (as well as loss to lessors of this use of land where

the signs are erected) is neither compensable nor invalidly

confiscatory. Such property owners are deemed suffi-

ciently compensated by sharing in the general benefits

stemming from exercise of the police power. City of Little

Rock vs. Sun Bldg. d Dev. Co., 199 Ark. 333; City of West

Helena vs. Bockman, 221 Ark. 667.

Plaintiffs argue with considerable force that the

Arkansas Highway Beautification Act (Ark. Stats. Secs.

75-2501 et seq.) prohibits by pre-emption defendant’s

power to regulate size and location of billboards and from

requiring their uncompensated removal from points ad-

jacent to Federal-aid interstate or primary highways.

U.S. Highway 71, traversing Fayetteville North-South, is a

federal-aid highway, and many of plaintiffs’ signs are lo-

cated adjacent thereto.

- Stipulated Agreement No. 1 in the case record is the

agreement, dated January 24, 1972, between the U.S. Sec-

retary of Transportation and the Arkansas Highway De-

partment, relative to control of outdoor advertising in

areas adjacent to federal interstate and defense highways

and federal-aid primary highway systems. The agreement

was made to permit Arkansas to remain eligible to receive

federal-aid highway funds under the Federal Highway

Beautification Act of 1965.

By its terms, the agreement does not apply to “outdoor

advertising signs legally erected and maintained, in zoned

and unzoned commercial and industrial areas established

A-29

by this agreement, on FAL and FAI Highways prior to the

date of enactment of this agreement.” (p. 4-5 of stipulated

exhibit 1).

The Arkansas Highway Beautification Act does not,

in its terms, pre-empt the area of control of outdoor ad-

vertising from municipalities and there is no fair intend-

ment expressed to this effect. The ordinance here in

question does not purport to permit outdoor advertising

signs that are forbidden under the Beautification Act, and

thus presents no conflict with state law.

The Federal Beautification Act was amended in 1978

to require, so plaintiffs argue, payment of just compensa-

tion for forced removal of signs adjacent to federal-aid

highways. The court finds no Arkansas case law on this

point. The Washington Supreme Court, however, has

passed on the precise point, in Ackerly Communications

vs. City of Seattle, 602 p. 2d 1177 (1979). That court said:

not regulated by, and are wholly outside the scope of,

the federal statute, the only reasonable interpretation

of the statutory language is that it does not require

A-30

which are not within the effective control provisions

of the Act, and having been erected prior to 1971, are

not covered by the agreement between the State of

Washington and the Department of Transportation,

it is clear that none of the provisions of the federal

act, including the compensation requirement, apply to

respondents’ signs.” 602 P. 2d 1184-1185.

It appears, therefore, that if plaintiffs’ signs are not

controlled by either the Agreement (stipulated exhibit 1)

or the Federal Act, no compensation is required thereby.

The record shows that all of plaintiffs’ signs were put up

before January 24, 1972; all are in commercial and in-

dustrial zones of the city, and the agreement does not apply

to such signs that were legally erected in these areas.

Ackerly is virtually on all fours with the present case. In

my judgment therefore, there is neither pre-emption of

the City’s power to regulate plaintiffs’ signs, nor a require-

ment that removal thereof be compensated, by virtue of

the Federal or State Highway Beautification Acts, nor by

the Arkansas Home Rule Act (Ark. Stats. Sees. 19-1042

et seq.)

In all essential respects, the court finds that there is

no genuine issue of material fact in this case, and that de-

fendant is entitled to judgment as a matter of law on its

motion therefor, holding Ordinance 1893, as amended, as

constitutional; and on its counterclaims. By the same

token, plaintiffs’ motions for summary judgment require

to be overruled.

“Let decree enter accordingly.

NOVEMBER 3, 1982.

/s/ THOMAS F. BUTT,

A-31

FEDERAL HIGHWAY BEAUTIFICATION ACT

23 U.S.C. $131. Control of Outdoor Advertising

(a) The Congress hereby finds and declares that

the erection and maintenance of outdoor advertising signs,

displays, and devices in areas adjacent to the Interstate

System and the primary system should be controlled in

order to protect the public investment in such highways,

to promote the safety and recreational value of public

travel, and to preserve natural beauty.

(b) Federal-aid highway funds apportioned on or

after January 1, 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 Jan-

uary 1, 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 pro-

vision for effective control of the erection and mainten-

ance along the Interstate 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 out-

side of urban areas, visible from the main traveled way

of the system, and erected with the purpose of their mes-

sage being read from such main traveled way, shall be

reduced by amounts equal to) per centum of the amounts

which would otherwise be apportioned to such State un-

der section 104 of this title, until such time as such State

A-32

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 suspend, for such periods us he deems necessary, the

application of this subsection to a State.

(e) Effective control means that such signs, displays,

or devices after January 1, 1968, if located within six hun-

dred and sixty feet of the right-of-way and, on or after

July 1, 1975, or after the expiration of the next regular

session of the State legislature, whichever is later, if lo-

cated 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) directional

and official signs and notices, which signs and notices

shall include, but not be limited to, signs and notices per-

taining 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, nd spacing of signs, and such other require-

ments as may be appropriate to implement this section,

(2) signs, displays, and devices advertising the sale or

lease of property upon which they are located, (3) signs,

displays, and devices, includiag 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,

A-33

subject to the approval of the Secretary, to be landmark

signs, including signs on farm structures or natural sur-

faces, 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 by nonprofit organizations of free coffee

to individuals traveling on the Interstate System or the

primary 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.

(d) In order to promote the reasonable, orderly and

effective display of outdoor advertising while remaining

consistent with the purposes of this section, signs, dis-

plays, and devices whose size, lighting and spacing, con-

sistent with customary use is to be determined by agree-

ment 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

under their own zoning laws to zone areas for commercial

or industrial purposes, and the actions of the States in

this regard will be accepted for the purposes of this Act.

Whenever a bona fide State, county, or local zoning au-

thority has made a determination of customary use, such

determination will be accepted in lieu of controls by agree-

ment 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

9 8 r 2 * Nn

4-34

referred to in clauses (2) and (3) of subsection (e) of this

section.

(e) Any sign, display, or device lawfully in exist-

ence along the Interstate System or the Federal-aid pri-

mary system on September 1, 1965, which does not con-

form to this section shall not be required to be removed

until July 1, 1970. Any other sign, display, or device law-

fully erected which does not conform to this section shall

not be required to be removed until the end of the fifth

year after it becomes nonconforming.

(f) The Secretary shall, in consultation with the

States, provide within the rights-of-way for areas at appro-

priate distances from interchanges on the Interstate Sys-

tem, on which signs, displays, and devices giving specific

information in the interest of the traveling public may be

erected and maintained. The Secretary may also, in con-

sultation with the States, provide within the rights-of-way

of the primary system for areas in which signs, displays,

and devices giving specific information in the interest of

the traveling public may be erected and maintained. Such

signs shall conform to national standards to be promul-

gated by the Secretary.

(g) Just compensation shall be paid upon the re-

moval of any outdoor advertising sign, display, or device

lawfully erected under State law and not permitted under

subsection (c) of this section, whether or not removed

pursuant to or because of this section. The Federal share

of such compensation shall be 75 per centum. Such com-

pensation shall be paid for the following:

“3

a 1

A-35

(A) The taking from the owner of such sign,

display, or device of all right, title, leasehold, and in-

terest in such sign, display, or device; and

(B) The taking from the owner of the real prop-

erty on which the sign, display, or device is located,

of the right to erect and maintain such signs, displays,

and devices thereon.

(h) All public lands or reservations of the United

4 States which are adjacent to any portion of the Interstate

Rs System and the primary system shall be controlled in ac-

q cordance with the provisions of this section and the nat-

5 ional standards promulgated by the Secretary.

(i) In order to provide information in the specific

f interest of the traveling public, the State highway depart-

ments are authorized to maintain maps and to permit in-

q formation directories and advertising pamphlets to be

. made available at safety rest areas. Subject to the ap-

. proval of the Secretary, a State may also establish infor-

4 mation centers at safety rest areas and other travel in- 4

; formation systems within the rights-of-way for the pur- 1

pose of informing the public of places of interest within

the State and providing such other information as a State ;

| may consider desirable. The Federal share of the cost *

. of establishing such an information center or travel in- .

> formation system shall be that which is provided in sec

tion 120 for a highway project on that Federal-aid system

to be served by such center or system.

(j) Any State highway department which has, under

this section as in effect on June 30, 1965, entered into an

agreement with the Secretary to control the erection and

maintenance of outdoor advertising signs, displays, and =

devices in areas adjacent to the Interstate System shall =

de entitled to receive the bonus payments as set forth in

of . e 2 4

5 1

„ * * — 7

r Ars Pees vast 2

1 ay

A-36

the agreement, but no such State highway department shall

be entitled to such payments unless the State maintains

the control required under such agreement: Provided,

That permission by a State to erect and maintain infor-

mation displays which may be changed at reasonable in-

tervals by electronic process or remote control and which

provide public service information or advertise activities

conducted on the property on which they are located shall

not be considered a breach of such agreement or the con-

trol required thereunder. Such payments shall be paid

only from appropriations made to carry out this section.

The provisions of this subsection shall not be construed

to exempt any State from controlling outdoor advertising

as otherwise provided in this section.

(k) Subject to compliance with subsection (g) of this

section for the payment of just compensation, nothing in

this section shall prohibit a State from establishing stand-

ards imposing stricter limitations with respect to signs,

displays, and devices on the Federal-aid highway systems

than those established under this section.

(1) Not less than sixty days before making a final

determination to withhold funds from a State unde? sub-

section (b) of this section, or to do so under subsection

(b) of section 136, or with respect to failing to agree as

to the size, lighting, and spacing of signs, displays, and

devices or as to unzoned commercial or industrial areas

in which signs, displays, and devices may be erected and

maintained under subsection (d) of this section, or with

respect to failure to approve under subsection (g) of sec-

tion 136, the Secretary shall give written notice to the

State of his proposed determination and a statement of the

A-37

State an opportunity for a hearing on such determination.

Following such hearing the Secretary shall issue a written

order setting forth his final determination and shall fur-

nish a copy of such order to the State. Within forty-five

days of receipt of such order, the State may appeal such

order to any United States district court for such State,

and upon the filing of such appeal such order shall be

stayed until final judgment has been entered on such ap-

peal. Summons may be served at any place in the United

States. The court shall have jurisdiction to affirm the

determination of the Secretary or to set it aside, in whole

or in part. The judgment of the court shall be subject to

review by the United States court of appeals for the cir-

cuit in which the State is located and to the Supreme Court

of the United States upon certiorari or certification as

provided in title 28, United States Code, section 1254. If

any part of an apportionment to a State is withheld by

the Secretary under subsection (b) of this section or sub-

section (b) of section 136, the amount so withheld shall

not be reapportioned to the other States as long as a suit

brought by such State under this subsection is pending.

Such amount shall remain available for apportionment in

accordance with the final judgment and this subsection.

Funds withheld from apportionment and subsequently ap-

portioned or reapportioned under this section shall be

available for expenditure for three full fiscal years after

the date of such apportionment or reapportionment as the

case may be.

(m) There is authorized to be appropriated to carry

out the provisions of this section, out of any money in the

Treasury not otherwise appropriated, not to exceed $20,-

— rennen

A-38

ceed $20,000,000 for the fiscal year ending June 30, 1967,

not to exceed $2,000,000 for the fiscal year ending June 30,

1970, not to exceed $27,000,000 for the fiscal year ending

June 30, 1971, not to exceed $20,500,000 for the fiscal year

ending June 3, 1972, and not to exceed $50,000,000 for the

fiscal year ending June 30, 1973. The provisions of this

chapter relating to the obligation, period of availability

and expenditure of Federal-aid primary highway funds

shall apply to the funds authorized to be appropriated

to carry out this section after June 30, 1967.

(n) No sign, display, or device shall be required to

be removed under this section if the Federal share of the

just compensation to be paid upon removal of such sign,

display, or device is not available to make such payment.

(o) The Secretary may approve the request of a

State to permit retention in specific areas defined by

such State of directional signs, displays, and devices law-

fully erected under State law in force at the time of their

erection which do not conform to the requirements of sub-

section (c), where such signs, displays, and devices are

on existence on the date of enactment of this subsection

and where the State demonstrates that such signs, dis-

plays, and devices (1) provide directional information

about goods and services in the interest of the traveling

public, and (2) are such that removel would work a sub-

stantial economic hardship in such defined area.

(p) In the case of any sign, display, or device re-

quired to be removed under this section prior to the date

of enactment of the Federal-Aid Highway Act of 1974,

which sign, display, or device was after its removal law-

fully relocated and which as a result of the amendments

janie So eee Wy vy A NE

OR a Oe oy ORME Mw ae Pe hte

A-39

the United States shall pay 100 per centum of the just

compensation for such removal (including all relocation

costs).

(q) (1) During the implementation of State laws

enacted to comply with this section, the Secretary shall

encourage and assist the States to develop sign controls

and prograins which will assure that necessary directional

information about facilities providing goods and services

in the interest of the traveling public will continue to be

available to motorists. To this end the Secretary shall

restudy and revise as appropriate existing standards for

directional signs authorized under subsections 131(c) (1)

and 131(f) to develop signs which are functional and es-

thetically compatible with their surroundings. He shall

employ the resources of other Federal departments and

agencies, including the National Endowment for the Arts,

and employ maximum participation of private industry

in the development of standards and systems of signs

developed for those purposes.

(2) Among other things the Secretary shall en-

courage States to adopt programs to assure that removal

of signs providing necessary directional information, which

also were providing directional information on June 1,

1972, about facilties in the interest of the traveling public,

be deferred until all other nonconforming signs are re-

moved.

aa! dak

eae,

. i

=e ROTM

A40

ORDINANCE NO. 1747

ARTICLE 5. ZONING DISTRICT’ PROVISIONS

For the purposes of this ordinance, the City of Fayetteville

is divided into the following districts:

District A-1. Agricultural

District R-1. Low Density Residential

District R-2. Medium Density Residential

District R-3. High Density Residential

District C-1. Neighborhood Commercial

District C-2. Thoroughfare Commercial

District C-3. Central Business Commercial

District I-1. Heavy Commercial and Light Industrial

District I-2. General Industrial

District R-O. Residential—Office

District P-1. Institutional

District F-1. Flood Zone

(I) DISTRICT A-1. AGRICULTURAL

(A) Purposes

The regulations of the Agriculture District are

designed to:

protect agricultural land until an orderly

° transition to urban development has been

(B)

(C)

(D)

(E)

AAl

viding of public improvements and services

for orderly growth

(d) conserve the tax base

(e) prevent unsightly development

(f) increase scenic attractiveness

(g) conserve open space

Uses Permitted

Unit 1—City wide uses by right

Unit 3—Public protection and utility facilities

Unit 6—Agriculture

Unit 7—Animal husbandry

Unit 8—Single family and two family dwellings

Uses Permissible on Appeal to the Planning Com-

mission

Unit 2—City-wide uses by conditional use permit 1

Unit 4 Cultural and recreational facilities

Unit 20—Commercial recreation: large sites

Bulk and Area Regulations

Lot Width—200 ft. minimum :

Lot Area: 15

Residential—2 acre minimum 9

Non-Residential—2 acre minimum

Lot Area per ©

Dwelling Unit—2 acre minimum

Tard Requirements (Feet)

Height Requirements

There shall be no maximum height limits in the

Al District, provided, however, that any building

which exceeds the height of 15 feet shall be set

back from any boundary line of any Residential

District a distance of 1.0 feet for each foot of

height in excess of 15 feet. Such setbacks shall

be measured from the required yard lines.

(II) DISTRICT R-1. LOW DENSITY RESIDENTIAL

DISTRICT

(A) Purposes

(B)

(C)

The low density residential district of four fam-

ilies per acre or less in the case of single family

homes and seven families per acre or less in the

case of two family dwellings is designed to per-

mit and encourage the development of low dens-

ity detached dwellings in suitable environments,

as well as to protect existing development of these

types.

Uses Permitted

Unit 1—City-wide uses by right

Unit 26—Single family dwelling

Uses Permissible on Appeal to the Planning Com-

set

Unit 2—City-wide uses by conditional use permit

Unit 3—Public protection and utility facilities

Unit 4—Cultural and recreational facilities

443

D) Bulk and Area Regulations

F Single Family Two Family

) Lot Width Minimum 70 ft. 80 ft.

Lot Area Minimum 8000 sq. ft. 12,000 sq. ft.

| Land Area per

Z Dwelling Unit 8000 sq. ft. 6,000 sq. ft.

(E) Yards Requirements (Feet)

Front Yard Side Yard Rear Yard A

Interior Corner Lot y

One Other Interior Exterior

25 8 8 25 20

i st le i

1 1

(F) Building Area. On any lot the area occupied by

) all buildings shall not exceed forty (40) per cent

a of the total area of such lot. (Ord. No. 1880, § 2,

: 8-15-72)

(III) DISTRICT R-2. MEDIUM DENSITY RESIDEN-

TIAL

(A) Purposes a

The medium density residential district with four 1

5 to twenty-four families per acre is designed to 2

3 permit and encourage the developing of a variety 2

of dwelling types in suitable environments in a A

4 variety of densities. >

5. (B) Uses Permitted

Unit 1—City-wide uses by right

Unit 8—Single-family dwellings

Unit 9—Multifamily dwellings—medium density

mission 8

(D)

2 Ir

Rr rr

A44

Unit 3—Public protection and utility facilities

Unit 4—Cultural and recreational facilities

Unit 11—Mobile home park

Unit 25—Professional offices

Bulk and Area Regulations

Lot width minimum:

Mobile home park 100 feet

Lot within a mobile home park — 50 feet

Townhouse 24 feet

One family 60 feet

Two family 60 feet

Three or more 90 feet

Professional offices 100 feet

Lot area minimum:

Mobile home park A acres

Lot within a mobile home park —

4,200 square feet

Townhouse or row house

Development 10,000 square feet

Individual lot , 2,500 square feet

Single family 6,000 square feet

Two family 7,000 square feet

Three or more 9,000 square feet

Fraternity or sorority 2 acres

Professional offices 1 acre

(E)

(F)

A-45

No bedroom 1,700 square feet

Fraternity or sorority 1,000 square feet

per resident

Yard Requirements (Feet)

Front Yard Side Yard Rear Yard

Interior Corner Lot

Interior Exterior

25 8 8 25 2

Side yards may be waived to permit common

walls between townhouses.

Height Regulations

Any building that exceeds 20 feet in height shall

be set back from the building line one (1) foot

for each foot of height in excess of 10 feet. (Ord.

No. 2320, $4 1, 2, 45-77)

(IV) DISTRICT R.. HIGH DENSITY RESIDENTIAL

(A) Purposes

(B)

(C)

The high density residential district with 16 to

40 families per acre is designed to protect exist-

ing high density multifamily development and to

encourage additional development of this type

where it is desirable.

Uses Permitted

Unit 1—City-wide uses by right

Unit 8—Single-family and two family dwellings

Unit 9—Multifamily dwellings—medium density

Unit 10—Multifamily dwellings—high density

Uses Permissible on Appeal to the Planning Com-

mission

U eo

ove

A46

Unit 4—Cultural and recreational facilities

Unit 11—Mobile home park

Unit 25—Professional offices

(D) Bulk and Area Regulations

Lot width minimum:

Mobile home park 100 feet

Lot within a mobile home park — 50 feet

Townhouse 24 feet

One family 60 feet

Two family 60 feet

Three or more 90 feet

Professional of fices 100 feet

Lot area minimum:

Mobile home park 3 acres

Lot within a mobile home par

4,200 square feet

Townhouse or row house

Development 10,000 square feet

Individual lot 2,500 square feet

One family 6,000 square feet

Two family 6,500 square fee

Three or more 8,000 square feet

Fraternity or sorority 1 acre

Professional offices 1 acre

5 Land area per dwelling unit:

. 4

— 1 ¥ * N

a ö 7

ys ‘ 4 9 2 0 ay arn 1 *

“a > ae os, 4 2

. * — bee An's 2

4 * q . 7

Apartments

Two or more bedrooms 1, 200 square feet

One bedroom 1,000 square feet

No bedroom 1,000 square feet

Fraternity or sorority... 500 square feet

per resident

7 (E) Yard.Requircments (Feet)

J Front Yard Side Yard Rear Yard

Interior Corner Lot

Interior Exterior

: 25 8 8 23 20

1 Side yards may be waived to permit common

walls between townhouses.

(F) Height Regulations .

5 Any building that exceeds 20 feet in height shall

2 be set back from the building line one (1) foot for

5 each foot of height in excess of 10 feet. (Ord. No.

2320, $§ 3, 4, 4-5-77)

(V) DISTRICT C-1. NEIGHBORHOOD COMMER-

5 (A) Purposes

2 The borhood commercial district is designed

to provide convenience goods and per-

sonal services for persons living in the surround-

ing residential areas. ;

(B) Uses Permitted

Unit 1—City-wide uses by right

ES Se ae

A48

Unit 18—Gasoline service stations and Drive-in

Restaurants

Unit 25—Professional offices

Uses Permissible on Appeal to the Planning Com-

mission

Unit 2—City-wide uses by conditional use permit

Unit 3—Public protection and utility facilities

Unit 4~—Cultural and recreational facilities

Bulk and Area Regulations

Setback lines shall meet the following minimum

From street row 50 feet

From side property line None

residential 10 feet

From back property line 20 feet

Building Arca

all buildings

AA9

(VI) DISTRICT C-2. THOROUGHFARE COMMER-

(A)

(B)

Purposes

The thoroughfare commercial district is designed

especially to encourage the functional grouping of

these commercial enterprises catering primarily

to highway travelers.

Uses Permitted

Unit 1—City-wide uses by right

Unit 4—Cultural and recreational facilities

Unit 12—Offices, Studios and Related Services

Unit 13—Eating places :

Unit 14—Hotel, Motel and Amusement Facilities

Unit 15—Neighborhood shopping goods

Unit 16—Shopping goods

Unit 17—Trades and Services

Unit 18—Gasoline service stations and Drive-in

restaurants :

Unit 19—Commercial recreation

Unit 20—Commercial recreation: Large sites

Unit 24—Outdoor advertising

Uses Permissible on Appeal to the Planning Com-

mission

Unit 2—City-wide uses by conditional use permit

Unit 3—Public protection and utility facilities

Unit 21—Warehousing and wholesale *

S 3

A l off 42 ed

s 4

* 7

: 5

D) Bulk and Area Regulations ‘

3 Setback lines shall meet the following minimum ‘a

requirements : 5

From street row 50 feet a

From side property line None a

From side property line —

5 when contiguous to a

1 residential distriet 15 feet

1 From back property line 20 feet 2

4 (E) Building Area 4

3 On any lot the area occupied by all buildings shall 4

ö not exceed sixty (60) per cent of the total area of

N such lot.

F (F) Height Regulations

2 In District C-2 any building which exceeds the

; height of 20 feet shall be set back from any bound-

ary line of any Residential District a distance of

me et Ook Sa ek ae aR ee

No building shall exceed six (6) stories or 75 feet

in height. (Ord. No. 2608, § 2, 2-19-80)

(VII) DISTRICT C3. CENTRAL COMMERCIAL

(B) Uses Permitted

(C)

(D)

requirements:

A-51

Unit 1—City-wide uses by right

Unit 4—Cultural and recreational facilities

Unit 5—Government facilities

Unit 9—NMultifamily dwelling—low density

Unit 10—Multifamily—high density

Unit 12—Offices, studios and related services

Unit 13—Eating places

Unit 14—Hotel, motel and amusement facilities

Unit 15—Neighborhood shopping goods

Unit 16—Shopping goods

Unit 18—Gas service stations and drive-in res- 4

taurants 5

Unit 19— Commercial recreation

Lees Permissible on Appeal to the Planning Com-

Unit 3 uses by conditional use per-

Unit 3—Public protection and utility facilities

Unit 17—Trades and services

Unit 3 for collecting recyclable mater- ‘=

(Ord. No. 2351, § 3, 6-21-77) 4

Bulk and Area Regulations a.

7 : 1 * ie 2 5

1 . - -

Nee Te hey

Unit 12—Offices, studios and related services

Unit 13—Eating places

Unit 14—Hotel, motel and amusement facilities

A-52

From street row if parking

is allowed between the

row and the building 50 feet 50 feet

From side property line none none

From side property line

when contiguous to a

residential district 10 feet 25 feet

From center line of a public

alley 10 feet 10 feet

. (Ord. No. 2603, 6 3, 2-19-80)

(VII(a)) DISTRICT CA. DOWNTOWN

(A) Purposes

The downtown district is designed to accommo-

date the commercial, office, governmental and

related uses commonly found in the central down-

town area which provide a wide range of retail,

financial, professional office, and governmental

: office uses.

N (B) Uses Permitted

55 Unit 1—City-wide uses by right

* Unit 4—Cultural and recreational facilities

A-53

(o) Uses Permissible om Appeal to the Planning Com

MASSION 7 ;

Unit PP gs uses by conditional use per-

mi “4

Unit 3—Public protection and utility facilities

Unit 10—Multifamily dwelling—high density a

Unit 17—Trades and services ;

Unit 18—Gas service stations and drive-in res-

taurants

Unit 28—Center for collecting recyclable mater.

» 7

(Ord. No. 2351, § 4, 6-21-77) a

(D) Bulk and Area Regulations

Setback lines shall meet the following minimum

requirements: a

From street row 5 feet *

From street row if a sidewalk is

in existence or to be provided none

tiguous to a residential district 10 feet 7

out easement or alley none 2

From center line of a easement or . fe

alley ; 2 N Roe

a 7 ps: 7 Sh Se

2 . X 4 . |

LV. rere

: 8 5 > a N

Urte 227

C4 District, upon the following standards and

conditions :

For each required parking space waived, the property

owner or developer may:

(1) Dedicate to the city an equivalent amount of

property elsewhere in the C4 District or

within one thousand (1,000) feet of the prop-

: erty to be developed; provided, however, that

* the Planning Commission finds that the pro- 3

g posed dedication is suitable for off-street *

parking for the general public; or N

: (2) Provide off-street parking facilities within

4 one thousand (1,000) feet, measured by the

shortest walking distance from property line 3

to property line. (Ord. No. 2362, 41, 8-2-77) “3

(Ord. No. 2148, § 1, 10-7-75)

(VII) DISTRICT LI. HEAVY COMMERCIAL AND

LIGHT INDUSTRIAL

(A) Purposes

The heavy commercial district is designed pri-

marily to accommodate certain commercial and

light industrial uses which are compatible with

+ Fete 228808

Unit 6—Agricultare

Unit 12—Offices, studios and related services

7 Unit 13—Eating places

% Unit 17—Trades and services

Unit 18—Gas service stations and drive-in ree

taurants —

f Unit 21— Warehousing and wholesale

; Unit 22—Manufacturing

Unit 25—Professional offices

| Unit 27—Wholesale bulk petroleum storage fa-

3 cilities with underground storage tanks

(Ord. No. 2098, 4 1, 4-15-75; Ord. No. 2140, § 1,

8-19-75; Ord. No. 2298, § 1, 12-21-76; Ord. No.

2430, 4 1, 3-21-78)

"RE fe 43> : :

mission i 3

Unit 2—City-wide uses by conditional use per.

Unit 19—Commercial recreation

Unit 20—Commercial recreation—Large sites

Unit Be for collecting recyclable materi-

4 1 * * 1 -

Ord. Ni 12-21-76; Ord. No.

amy” , 8

D) Bulk and Area Regulations 2

Setback lines aa oes Ors

requirements: Bae

= 80 fet

From street B-0.W vin ating

. or B districts) 3 —

1 85 Seen

(E)

A-56

From street R-O-W (when adjoining C,

I, F or P districts) 25 feet

Side (when adjoining A or R districts). 50 feet

Side (when adjoining C, I, F or P dis-

tricts) 10 feet

Rear (when adjoining A or R districts). 25 feet

Rear (when adjoining C, I, F or P dis-

tricts) 10 feet

(Ord. No. 2516, § 1, 43.79)

Reserved. (Ord. No. 2516, 4 2, 43-79)

Height Regulations

There shall be no maximum height ts in I-

District, provided, however, that any building

which exceeds the height of 25 feet shall be set

back from any boundary line of any Residential

District a distance of one foot for each foot of

height in excess of 25 feet.

—

(IX) DISTRICT I-2. GENERAL INDUSTRIAL

(A) Purposes

Unit 6—Agriculture

Unit 7—Animal husbandry

Unit 12—Offices, studios and related services

Unit 18—Gas service stations and drive-in res-

taurants

Unit 20—Commercial recreation: large sites

Unit 21— Warehousing and wholesale

Unit 22— Manufacturing

Unit 23—Heavy industrial

Unit 28—Center for collecting recyclable materi-

als

(Ord. No. 2351, 6 6, 6-21-77)

Uses permissible on Appeal to the Planning Com-

Ser

Unit 2—City-wide uses by conditional use per-

mit

Bulk and Area Regulations

Setback lines shall meet the following minimum

requirements:

From street B-O-W (when adjoining A

or B district) 100 feet

From street B-O-W (when adjoining C,

I. F or P districts) 50 feet

Side (when adjoining A or R districts). 50 fest

Side (when adjoining For P dis- <<

trots) ec e 25 ett

(E)

(F)

Rear (all districts) 25 feet

(Ord. No. 2516, § 3, 4-3-79)

Reserved. (Ord. No. 2516, § 4,4-3-79)

Height Regulations

There shall be no maximum height limits in I-2

Districts, provided, however, that any building

which exoceds the height of 25 feet shall be set

back from any boundary line of any Resident 1

District a distance of one foot for each foot of

height in excess of 25 feet.

(X) DISTRICT R-O RESIDENTIAL—OFFICE

(A)

(B)

(C)

Purposes

The Residential—Office District is designed pri-

marily to provide area for offices without limita-

tions to the nature or size of the office, together

with community facilities, restaurants and com-

patible residential uses. (Ord. No. 2414, 6 1, 2-

7-78)

Uses Permitted

Unit 1—City-wide uses by right

Unit 5—Government facilities

Unit 8—Single family and two family dwellings

Unit 12—Offices, studios and related services

Unit 25—Professional offices

(Ord. No. 1832, 6 1, 11-1-71; Ord. No. 2414, 6 2,

2-7-78)

Uses Permissible on Appeal to the Planning Com-

mission

Unit nnn

(D)

(E)

A-59

Unit 3—Publie protection and utility facilities

Unit 4—Cultural and recreational facilities

Unit 9—Multi-family dwelling medium density

Unit 10—Multi-family dwelling-high density

Unit 13—Eating places r

(Ord. No. 2414, 6 3, 2-7-78)

Bulk and Area Regulations

The minimum lot width, lot area and land area

per dwelling unit for residential structures shall

be the same as those in the R-3 district.

Setback lines shall mee the following minimum

requirements:

From street R-O-W 30 feet

From street R-O-W if parking is

allowed between the R-O-W and

the building 50 feet

From side property line 10 feet

From side property line win con-

tiguous to a R-1, R. 2 or 1 5 dis-

triot 15 feet

From back property line 25 feet

From center line of public alley 10 feet

(Ord. No. 2414, 4 4, 2-7-78; Ord. No. 2603, 4 4, 2-

19-80; Ord. No. 2621, § 1, 4-1-80)

Building Area

, nes

Len 1

‘such lot.

Pes?) ans S.C Ue OC ae ee

A-60

which exceeds the height of twenty (20) feet shall

be set back from any boundary line of any R-1,

R-2 or R-3 District an additional distance of one

foot for each foot of height in excess of twenty

(20) feet. (Ord. No. 2414, 4 5, 2-7-78)

(XI) DISTRICT P-1. INSTITUTIONAL

(A)

(B)

(C)

Purposes

The institutional district is designed to protect

and facilitate use of property owned by larger

public institutions and church related organiza-

tions.

Uses Permitted

Unit 1—City-wide uses by right

Unit 4—Cultural and recreational facilities

Uses Permissible on Appeal to the Planning Com-

mission

Unit 2—City-wide uses by conditional use per-

mit

Unit 3—Public protection and utility facilities

Unit 10—Multifamily dwelling—high density

(D) Bulk and Area Regulations

Setback lines shall meet the following minimum re-

. 30 feet

From back property line 25 feet

From center line of public alley 10 feet

Building Area

On any lot the area oceupied by all buildings shall

not exceed sixty (60) per cent of the total area

of such lot.

Height Regulations

There shall be no maximum height limits in P-1

District a distance of one (1) foot for each foot

of height in excess of 20 feet. (Ord. No. 2603, §

5, 2-19-80; Ord. No. 2621, § 2, 41-30)

F-1. FLOOD DISTRICT

General regulations

Type of Construction: Any permi

shall be of a type of constructi

waters.

]

711

* :

’ -

* 0 7 a

— 4

— 83

* , é

27 >

My AR

; 1

g ‘

A-62

(B) District Regulations

After the effective date of this ordinance, it shall

be unlawfal in an F-1 District to:

1. Construct, reconstruct, move or alter any res- 7

idence unless the elevation of the lowest habitable

floor is at least two feet above the elevation of

the maximum probable flood, as determined by

a registered professional engineer;

2. Construct, reconstruct, move or alter any

structure, make any excavation or place any fill

or materials which may Arey restrict the

considering recommendations thereon by the City

Engineer;

3. Construct, reconstruct, move or alter any

structure for residential occupancy, other than 7

temporary facilities, provided that this ordinance q

shall not be interpreted to prevent routine main- }

tenance of residential structures existing at the

, effective date of this ordinance;

leas the elevation of the lowest floor, except for

elevators, stairwells and

(B)

(C)

(XXIV) UNIT 24. OUTDOOR ADVERTISING

A-63

mitted uses are ordinarily listed in alphabetical

order. In these use units where there is a pre-

liminary descriptive statement (which may men-

tion specific uses) in addition to the detailed list

of uses, the detailed list shall govern.

Interpretation of Use Units

In each use unit section, permitted uses are set

forth in the subsection entitled “Included Uses.”

decide. A use shall not be interpreted as being

in any use unit if it is listed in an-

Off-Street Parking Space Requirements

One per 1200 square feet of floor area

7 e 2 * n — a eS eie *

* J , * +. oan

‘ . 2S

* -

_ — : *

> aS

A-64

(XXV) UNIT 25. PROFESSIONAL OFFICES

0 Deseripeion

Unit 25 consists of small professional offices that

are compatible with medium and high density

’ residential areas.

(B) Included Uses

Office for no more than four (4) doctors

Office for no more than four (4) dentists

Insurance sales

Studio for teaching any of the fine or liberal arts

s Photography studio

a Welfare agencies

Architect

a (Ord. No. 2490, 6 2, 12-5-78)

A-65

ORDINANCE NO. 1893

AN ORDINANCE REGULATING THE EREC-

TION, CONSTRUCTION, REPAIR, ALTERATION,

LOCATION, OR MAINTENANCE OF SIGNS WITHIN

THE CITY OF FAYETTEVILLE, ARKANSAS; THE

ISSUANCE OF PERMITS AND FEES THEREFOR;

THE REVOCATION OF PERMITS; INSPECTION

AND FEES THEREFOR; REPEAL OF CERTAIN

ORDINANCES; AND PROVIDING PENALTIES FOR

VIOLATION THEREOF.

WHEREAS, the Board of Directors of the City of

Fayetteville, Arkansas, believes that the construction, re-

pair, alteration, location, and maintenance of signs should

be controlled within the city limits of the City of Fayette-

ville, Arkansas, in order to protect the public investment

in the streets and highways, to promote the safety and

recreational value of public travel and to preserve natural

beauty, and

WHEREAS, the purpose of this Ordinance is to

promote the reasonable, orderly, and effective display of

signs while remaining consistent with the city policy to

protect the public investment in the streets and highways,

to promote the safety and recreational value of public

travel and to preserve natural beauty, and

WHEREAS, the Board of Directors has made ‘the a

following findings of fact:

(1) That the uncontrolled proliferation of signs is

, ee kee ae, e a

A-66

(2) That a large and increasing number of tourists

have been visiting the City of Fayetteville, Arkansas, and

as a result the tourist industry is a direct source of income

for citizens of said city, with an increasing number of

persons directly or indirectly dependent upon the tourist

industry for their livelihood.

(3) Scenic resources are distributed throughout the

city, and have contributed greatly to its economic develop-

ment, by attracting tourists, permanent and part-time resi-

dents, and new industries and cultural facilities.

(4) The scattering of signs throughout the city is

detrimental to the preservation of those scenic resources,

and so to the economic base of the city, and is also not an

effective method of providing information to tourists about

available facilities. 7

SEC. 17B-9. FREESTANDING SIGNS.

yf It shall be unlawful to erect any freestanding sign

_ which total height is greater than thirty (30) feet above

e ee eas et ene ee Free-

signs located on property abuts both a

; access highway and a state or federal num-

bered highway may not be erected where the total

of said is greater than thirty (30) feet above the

cated esl ae tanta

— 7

VS IY SOE NE Se aay eS OM ee pee AY hs Seg el es.

A-67

(A) Al District:

(1) Off-site freestanding signs shall be pro-

hibited.

om: Sad don 1 n <a ~

4 er -

(2) On-site freestanding signs subject to the

following:

(a) Only one on-site freestanding sign 4

shall be permitted on a lot. 1

7 (b) Display surface area shall not exceed *

5 sixteen (16) square feet. 5

; (c) Sign may be illuminated by indirect

* illumination only.

Fee TRS oe ee es 3 n Nn

two (2) square feet for each one foot

N the sign is set back from street right-

9 of- way beyond fifteen (15) feet; pro-

i vided further, the maximum display

i surface area for a sign which is set

back from street right-of-way forty

(40) feet or more shall be seventy-

five (75) square feet; provided furth-

er, the maximum display surface area

for an on-site freestanding sign lo-

(b) Shall be set back a minimum of fif-

5 ing sign located on property which

of abuts a controlled access highway shall

3 be set back a minimum of forty (40)

feet from street right-of-way.

— aA

“RL Se, Et (Ny at Seen See ea

ey ve

- +

* *

A-69

Off-site freestanding signs shall be pro-

hibited.

Aae sp

| 1

foe 117835 : -

igislia 1711853 11111 e

— —

(3)

ieee Sek

A-70

spacing provided hereby shall not apply to signs sepa-

rated by buildings or other obstructions in

ner that only one sign is visible

way at any one time. (Ord. No. §

No. 2109, § 7, 6-83-75; Ord. No. 2117, 66 1,

No. 2269, 66 1, 2, 9.7.76; Ord. No. 2270, 4

No. 2297, §§ 1, 2, 12-21-76; Ord. Ne. 2818 5 . —

fie

SUPREME COURT OF ARKANSAS

No. 83-67

DONREY COMMUNICATIONS CO., INC. (FORMER-

LY AMERICAN TELEVISION CO., INC. d/b/a DON-

REY OUTDOOR ADVERTISING CO.)

Appellant,

CITY OF FAYETTEVILLE, ARKANSAS

Appellee.

PETITION

(Filed November 3, 1983)

Petitioner moves that the Court grant a rehearing in

the capticned cause for the following reasons:

| 1. The opinion of the Court is in conflict with an

express statute of the State of Arkansas and a controll-

ing decir’ on of the Court.

2. The opinion of the Court jeopardizes federal -

A-71

tising signs located within zoned industrial or commercial

N areas from the provisions of the Act. It specifically per-

* mits outdoor advertising signs within zoned industrial or

commercial areas. The Preamble to the Arkansas Act

(Acts 1967, No. 640) makes clear that the Arkansas Act

was passed to conform to the Federal Act and to avoid

any loss in federal-aid highway funds. The Federal

Highway Beautification Act specifically requires the pay-

ment of just compensation for the removal of all legal

outdoor advertising signs. 23 USC 4$131(g). The Ar-

kansas Act was amended in 1981 to clarify the just com-

pensation requirement by prohibiting a municipality from

removing any legal outdoor advertising signs without the

4 payment of just compensation (Acts 1961, No. 923). If

: outdoor advertising signs located within zoned commer-

cial or industrial areas within a municipality are exempt

from the Arkansas Act, the 1981 Amendment is mean-

ingless.

The U.S. Department of Transportation, charged with

enforcement of the Federal Highway Beautification Act,

has interpreted the Federal Act to require the payment

* rr

i ee ¥

A-72

of the Supreme Court but believes that the possible effect

of the Court’s opinion on the State of Arkansas warrants

the attachment of the letter.

In City of Fayetteville vs. SH, Inc., 547 SW2d 94

(1977), this Court held the amortization provision of Or-

dinance No. 1893 to be in violation of Article 2, Section

22 of the Arkansas Constitution as applied to on-site

signs used in connection with a going business. As ap-

plied to Appellant, the amortization provision of Ordi-

nance No. 1893 not only results in the uncompensated re-

moval and loss of 60 billboards, it destroys Appellant’s

“standardized” outdoor advertising business. Appellant’s

_ signs are not merely used in connection with a business,

the signs constitute the business. Under the clear hold-

ing in 8H, supra, the ordinances as applied to Appel-

lant are in violation of Article 2, Section 22, of the

Arkansas Constitution.

The undersigned counsel for Petitioner certifies that

he believes there is » merit in the Petition and it is not

filed for the purpose of delay.

ie ee ee ee bs ee

==.) ee

i St a te ee

— TT = 73

U. S. Department of Transportation

Federal Highway Administration

400 Seventh St. S. W.

Washington, D. C. 20590

HCC-40

(October 31, 1983)

Mr. Erie M. Rubin

Rubin, Winston & Diercks

1730 M Street, N. W.

Suite 708

Washington, D. C. 20036

in Donrey Communications vs. City of Fayetteville, (No.

83-67 October 17, 1983). You ask for an expeditious re-

sponse in order that you can use it to file a petition for

rehearing by November 3.

- _ & &

5 P 1 — St

we, oA

eal

A-74

ing sections of the Act but are allowed only pursuant to

OS ete Aan ig men cera arate

spacing of signs in these areas.

Current Federal law rejects the use of amortization to re-

move lawfully erected signs adjacent to the two controlled

highway systems. The compensation requirements are

set forth in 23 U.S.C. $131(g). Thus, owners of signs

lawfully erected which do not conform to 6131 (e) must

receive compensation upon removal if a State is to be

in compliance with Federal law. Signs in commercial

and industrial areas that are permitted under 4131(d)

but do not conform to 6131 (e) would also fall within the

compensation requirements of §131(g).

We trust this letter responds to your concerns. We have

provided a copy of this letter to the State of Arkansas.

Sincerely yours,

/s/ Donato L. Ivers

Chief Counsel

Thomas B. Keys—Chief Legal Counsel

Arkansas Department of

Transportation

5 8 4 1

1 * n

A-75

No. 81-9378-AS

STATE OF MICHIGAN ;

IN THE CIRCUIT COURT FOR THE COUNTY 5

OF MACOMB j

ELLER OUTDOOR ADVERTISING COMPANY OF :

MICHIGAN, an Arizona Corporation, and MeCULLAGH 2

LEASING, INC., a Michigan Corporation,

0 i

CITY OF ROSEVILLE, a Michigan Municipal ‘

Corporation, and GEORGE HICKMAN, 4

Defendants. N

OPINION =

4 1

This matter is before the Court for decision follow-

ing a bench trial on November 12, 18, and 19, 1982. The

parties have filed proposed findings of fact and conelu-

sions of law, and trial briefs.

Plaintiffs filed this complaint for declaratory and

injunctive relief on April 24, 1981, challenging the con-

stitutionality of Roseville’s Ordinance which limits the

size and placement of freestanding off-premises signs to

300 square feet and to vacant property only.

FINDINGS OF FACT

Plaintiff, now named Gannett Outdoor Company of

ee Oe es ee ee

Eller’), is engaged in the business of erecting adver- —

| tng wie- an nate verses Yo pay mee |

A-76

3 abutting the T-94 freeway, 13 Mile Road, Little Mack

and a sand and gravel operation. There is ao contiguous

residential property. McCullagh has located, thereon, a

1 regional headquarters, a rent- a- car building, and fenced

parking for vehicles used in its operation. A large por-

tion of the 23 acres remains unused and unimr oved ex-

cept for fences and lighting.

On June 6, 1980, Eller and McCullagh entered into

a lease whereby Eller would have the right to erect a

billboard on McCullagh property adjacent to the I-94

1 expressway. It provided the lease would be effective on

the date a permit from the City of Roseville was ob-

tained.

Roseville is a Michigan municipal corporation of ap-

proximately 9.9 square miles and a population of approx-

imately 52,000. Thirty percent of the City is residential,

while approximately seven percent is industrial and seven

percent commercial.

Prior to Eller’s application for a permit to build a

sign on McCullagh’s premises, Roseville amended its sign

_ ordinance. It’s text for purposes of this litigation was

_ admitted into evidence as Defendant’s Exhibit I.

4 Eller applied to the City of Roseville Building De- 4

_ * partment for a building permit to erect a sign on Mo-

Callagh’s property. George Hickman, Roseville’s Build-

ung Inspector, denied the permit because the request did

not meet the ‘‘vacant land requirement of the ordinance

es defined by Hickman and the City Assessor.

The purpose of billboards is to convey messages to

333 on adjacent highways. The messages are com-

political, public servies, and editorial. Eller has

‘ 9

et =

| >

te at *

are

1 7

{ 7

pps.’

9 5 2

5 „ 2

2 1

A-77

a practice of using unrented sign space for editorial com-

ment of its choice. Editorial signs are erected and main-

tained at Eller’s cost.

The billboard industry is standardized by size. On

secondary streets poster signs are used. The outside

dimensions of posters are approximately 12’ x 12, the

message area Y x7’. It is called a 300 square foot sign

although the message area is only 200 square feet. This

type of sign uses glued-on paper messages. On freeways,

painted bulletin signs are customarily used. These signs

have a hand-painted display uniformly 14 x 48 feet. The

message area is 672 square feet. Eller also erects cus-

tom spectacular signs which generally have an unusual

configuration, like the sign which is used to count off

automobile production. Eller has eighty custom signs in

the Detroit area, three hundred fifty bulletins, and twen- 1

ty- five hundred posters. N

The industry standardizes signs because clients are

national or regional advertisers. A particular design is

printed and shipped to any part of the country where it

will fit a standard size billboard.

Plaintiffs’ evidence shows that two foot letters are

reduction of the letters to less than one-half che original

size. The evidence indicates there is no relationship be-

tween sign size and traffic safety. However. it does ur-.

gest a smaller sign could reduce traffic e

drivers would be required to divert

the road for a greater period of time

ter larger signa.

The evidence also shows the viewing and compre-

hension of messages by drivers is directly related to the

size of the letters. Not only are drivers able to read the

messages at greater distances but also need not turn

their heads because the larger letters remain in their

cone of vision. Drivers would have to turn their heads

to read smaller letters on 300 square foot signs.

Eller owns only five percent of properties on which

signs are erected. The remainder are on leased prop-

erty. It would be financially impossible for Eller to lo-

cate a sign on vacant land, with a clause calling for its

removal upon the owner’s decision to build on the lot.

* Ninety-five percent of its signs are located on developed

property so Eller has reason to believe the sign’s loca-

tion will be stable. It costs approximately $9,000 for

Eller to erect a poster size sign and $40,000 to erect a

bulletin size sign. There is no practical impediment to

placing a sign on land with an existing structure.

Roseville offered Dennis J. Meagher, vice-president

of Community Planning and Management, P.C., as an

expert witness.

2 Defendant’s evidence shows Roseville’s goal is to

r ee eee eee

urban community of one and two story buildings and

unde vacant land The purpose of the vacant land

_ requirement is to prevent infringement with another use

_ —overshadowing buildings or businesses. The signs would

__ overpower low buildings and industrial properties. Signs

ers See ee ont tom oe

Pes

) 7 Ran

pra de ene

4 ann Win

Ne me Le ee OPE PO eS enn

Da iy. OP TP

~ ay eee

OC ree) ee

77 ae

A-79

industrial zones. Roseville’s witness admitted there would

be nothing overpowering about « sign located on McCul-

lagh’s property. Roseville’s Building Inspector stated the

Ordinance was amended to include the vacant property 2

requirement when a businessman complained à sign erect- 25

ed by National Advertising Co. damaged his property by _

interfering with his view. The Building r er

of no other purpose of the amendment. ille deter- Ss

mined a property was vacant by examining the legal de-

scription to see if any buildings were located within the

description. If so, the property is not vacant.

CONCLUSIONS OF LAW 4

Plaintiff challenges two restrictions of the Roseville *

Sign Ordinance: (1) The vacant property limitation and

(2) The maximum size limitation of 300 feet. Plaintiffs

challenge falls into natural categories which will be ana-

lyzed seriatim: (1) First Amendment to the United |

States Constitution; (2) Equal protection; (3) Due pro-

cess; and (4) Interpretation of the term ‘‘vacant.”

I. FIRST AMENDMENT

Plaintiff argues the vacant property and 300 square

the present Ordinance and restrict speech further than

is necessary to obtain Roseville’s objectives. Plaintiff —

suggests Roseville has the burden of demonstrating a

= ee

' A

In Metromedia, Inc. vs. San Diego, 22

r ates

A-80

plied to the unique forum of expression via billboards.

The Court recognized that billboards are a well-estab-

lished medium of communication, used to convey a broad

range of different messages, both commercial and non-

commercial. It also noted the inherent tension between

the governmental interest in controlling the medium of

communication and the First Amendment’s interest in

protecting the communication. The Court applied a four-

part test for determining the validity of government re-

strictions on commercial speech as distinguished from

more fully protected speech: (1) The First Amendment

protects commercial speech only if that speech concerns

lawful activity and is not misleading. A restriction on

otherwise protected commercial speech is valid only if

it (2) seeks to implement a substantial governmental in-

terest, (3) directly advances that interest, and (4) reaches

no further than necessary to accomplish the given objec-

tive. 453 U.S. at p. 507.

There is no dispute in the instant case that the speech

sought by Eller concerns lawful activity and is not mis-

leading. The dispute lies in the application of the re-

mainder of the test.

The governmental interests advanced by Roseville

are traffic safety and aesthetics — preventing conflicts

with other buildings, lowering of property values and of-

fending good taste.

Tue restrictions on speech are the limitation of signs

to 300 square feet in maximum area and the prohibition

_ of signs except on vacant property only.” Plaintiff —

F xt ei Sato atte em |

Se add nr om the iy of Howl

wt Man or! ody sa MMT eA i

A-81

The evidence at trial shows the 300 square moot limi-

tation has no relationship to the safety of traffic on the

adjoining freeway. Defendant’s own witness admitted

there is no provable relation. Plaintiff offered persuasive

evidence that the smaller sign required by Roseville in =

fact reduces traffic safety by reducing readability and

correspondingly increasing the amount of time a driver

would have to divert his or her attention from the road-

way in order to read the sign. The evidence also shows

the 300 square foot limitation severely restricts commu-

nication by the billboard medium because advertising

campaigns are regional and national in scope using bul-

letin size standardized messages which cannot be custom

tailored to the smaller signs required by Roseville.

The 300 square foot limitation arguably advances the

other governmental interest advanced by Roseville —

aesthetics. A 672 square foot sign, being larger, may well

be considered more unsightly by the legislative body of

Roseville.

Michigan courts have held aesthetics cannot be the

sole force behind sign ordinances. Wolverine Sign Works

vs. Bloomfield Hills, 279 Mich. 205; 271 N. W. ad 823 (1937) ;

stein ok ee 53;

5 199 N.W.2d 525 (1972).

Chile ths b e font W aul Gk

vances the governmental interest of local aesthetics, the

Court finde it ner =

sign proposed by Eller would be located on 23 acres of

—— pevperty, saith lnsgs soem geen Sak 06 iad

oy, SAD

vicinity. There are no residential homes near enough to

be affected by the sign.

The vacant land restriction in no way advances traf-

fic safety. It arguably could advance the aesthetic gov-

ernmental interest by preventing a sign from overpow-

ering a small building. However, as applied to Plain-

tiff’s proposal, the provision, does not advance any such

interest. The sign would be far from the nearest build-

img end would be lower in height than buildings allowed

in the Zoning Ordinance and cranes operating in the vicin-

ity. The prohibition is far broader in scope than is neces-

sary to reach the evil“ legislated against.

For these reasons, the Court holds both limitations

unconstitutionally restrict commercial and non-commer-

cial speech contrary to the First and Fourteenth Amend-

ments of the United States Constitution.

IL EQUAL PROTECTION

Plaintiff argues the restriction of off-premise signs

to vacant property denies Plaintiff equal protection under

ene ee eee e Soak en

content, yet content has no relationship to the asserted

goals. Essentially, Plaintiff challenges the distinction be-

3 tween on-premise and off-premise signs.

Plaintiff’s challenge is to be tested under the ques-

eee 392 Mich. 30, 36; 219 N. W. 2d 41 (1974):

Are all persons of the same class included and affected

= . pestering Hos guns eg tueapone!

y er unreasonable class while denied to others of like

A-83

The Court finds the distinction between off-premise

and on-premise signs does not violate equal protection.

The separate classifications are based on natural distin-

guishing characteristics. On-premise signs are those

which advertise a business on the business property. It

is defined as one “which carries only advertisements

strictly incidental to a lawful use on the premises. Rose-

ville Ordinance 63-1601 (15). Such signs have a different

scope, use and intent than the larger signs employed by

Plaintiff in its business.

III. DUE PROCESS

Plaintiff argues due process requires that ordinances

have a real and substantial relation to the promotion of

the welfare, safety, health, or morals of the community.

Plaintiff asserts the Ordinance challenged fails this test.

An Ordinance is not a valid exercise of the police

power and violates due process when it has no reasonable

basis for its very existence. A reasonable basis is de-

fined as including protection of the safety, health, morals,

prosperity, comfort, convenience and welfare of the pub-

lic or any substantial portion of the public. Robinson

Township vs. Knoll, 410 Mich. 293, 312; 302 N.W.2d 146

(1981) ; Cady vs. City of Detroit, 289 Mich. 499; 286 N. W.

805 (1939). Ae

An Ordinance is presumed to be constitutional. The

goal of Roseville’s Ordinance is traffic safety and aes-

thetics. As stated earlier, the Court finds no reason-

able basis for either restriction as to traffic safety. 2

ree cae ones 25

C oe, cae a

3 72 9 D

et, — . > ee

aes 4 x

484

As stated previourty, aesthetics may be an incidental

purpose of an Ordinance but cannot be the moving factor.

Wolverine Sign Works, supra. Since the Court finds

aesthetics to be the sole viable purpose of the dual re-

strictions, it concludes there is no reasonable basis for

the restrictions. The Ordinance is not a valid exercise

of Roseville’s police power.

IV. DEFINITION OF VACANT LAND

Plaintiff also asks the Court to construe the term

“vacant’’ which was undefined by the Ordinance.

In view of the Court’s previous holdings, it is un-

necessary to reach this question.

V. CONCLUSION

The Court holds the Roseville Ordinance unconstitu-

tionally restricts the exercise of commercial and non-com-

mercial speech and violates due process of law under the

Michigan and United States Constitutions. A judgment

granting Plaintiff declaratory and injunctive relief con-

gistent with this opinion will enter pursuant to G.C.R.

* oe ed

;

A-85

Case No. 81 9378 AS

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY

OF MACOMB

ELLER OUTDOOR ADVERTISING COMPANY OF

MICHIGAN, an Arizona Corporation, and McCULLAGH 4

LEASINd, INC., a Michigan Corporation,

Plaintiffs,

vs.

CITY OF ROSEVILLE, a Michigan Municipal Corpora-

tion, and GEORGE HICKMAN, 4

Defendants.

ORDER GRANTING DECLARATORY ABD:

INJUNCTIVE RELIEF

At a session of said

Court, held in Macomb

County, Michigan on

May 12, 1983

PRESENT: HONORABLE ROBERT J.

CHRZANOWSEI, Circuit Judge

In accordance with the findings and conclusions stated

in the Court’s Opinion dated April 26, 1983.

IT IS HEREBY DECLARED that the sign ordinance

of defendant City of Roseville, insofar as it restricts off-

premise signs to a maximum size of 300 square feet, un-

constitutionally restricts commercial and noncommercial _

speech contrary to the First and Fourteenth Amendments _

of the United States Constitution and further violates

A-86

it restricts off-premise signs to vacant property only, un-

constitutionally restricts commercial and noncommercial

Speech contrary to the First and Fourteenth Amendments

ok the United States Constitution and further violates due

process, and therefore is null and void and without effect.

IT IS FURTHER ORDERED that defendants forth-

with issue to plaintiff Gannett Outdoor Company of Mich- t

igan all municipal permits necessary for the erection of

an outdoor advertising sign, in the industry standard

dimensions of 14 feet x 48 feet, on the property of Mo-

Cullagh Leasing, Inc., in the City of Roseville.

4 /s/ Roszer J. Cunzanowsx1

; Cireuit Judge 3

a A TRUE COPY

/s/ Epwa Mui

n. * d _

8 5 4 n * le

9 t; * * : — wie Zh we

A-87

vs.

CITY OF ROSEVILLE, a Michigan Municipal Corpora-

tion, and GEORGE HICKMAN,

Defendants.

AMENDED OPINION CORRECTING

SIGN DIMENSIONS

The third sentence of the first paragraph on page

three is corrected to read that the dimensions of poster

signs are approximately 12’ x 25/, the message area being

97” x 217".

/s/ Rossar J. Cunzanowsxki

Circuit Judge

Dated: May 18, 1983

Copies to: James J. Waile

Attorney for Plaintiffs

34th Floor

100 Renaissance Center

Detroit, MI 48243

J. Russet, UaBanoz, In.

Attorney for Defendants

P.O. Box 275

Roseville Theatre Building

Roseville, MI 48066

83 CIVIL 372

IN THE COURT OF COMMON PLEAS

OF LACKAWANNA COUNTY

PATRICK OUTDOOR MEDIA, INC.

‘a? eee ae

A-88

MEMORANDUM AND ORDER

This is an appeal from the denial by the Dickson

City Borough Council of the appellant’s application for a

curative amendment to the zoning ordinance.

The appellant applied for a building permit to con-

struct an outdoor advertising structure on land which

was leased by them in the Borough of Dickson City. The

request was denied by the Borough Building Inspector by

letter dated September 20, 1982. The stated reason was

that the proposed gross surface area of the billboard ex-

ceeded 100 square feet, the amount permitted in a C-3

zone under the zoning ordinance. The appellant then

requested a curative amendment to the zoning ordinance

on October 18, 1982. A hearing on the request was con-

ducted by the Borough Council on December 14, 1982,

and the Borough denied the request on January 11, 1983.

The present appeal followed.

The appellant takes issue with the Dickson City

Zoning Ordinance in two respects, to wit:

(1) that the ordinance is exclusionary in that

it totally prohibits the construction of off-site ad-

vVertising in the Borough; and

F (2) that it constitutes a de facto exclusion of

such off-site advertising in that it permits only ad-

vertising signs with a gross surface area of 150 square

feet or less.

DISCUSSION AND CONCLUSIONS a

a Where the court takes no additional evidence on an

N from the decision of a zoning board, the scope of

. een

7 re - .

A-89

the court’s review is whether or not the Board abused

its discretion or committed an error of law. Soble Con- 2

struction Co. vs. Zoning Hearing Board of East Strouds- 5

burg, 16 Pa. Commonwealth Ct. 599, 329 A. 2d 912 (1974).

The appellant takes the position that the Borough ff

Zoning Ordinance is unconstitutional in that it amounts

to a total exclusion of outdoor advertising signs. The

law is well-settled that a challenge to the constitution-

ality of a zoning ordinance must overcome a presumption

of its validity. Beaver Gasoline Co. vs. Osborne Boro, et

al., 445 Pa. 571, 285 A.2d 501 (1971). However, the ap-

pellate courts of this Commonwealth have recognized that

the total prohibition of a legitimate business use from

an entire municipality must bear a more substantial re-

lationship to the public health, safety, morals and gen-

eral welfare than a partial prohibition where the busi-

ness is permitted in another district of that municipality.

Ezton Quarries, Inc. vs. Zoning Board of Adjustment, 425

Pa. 43, 228 A.2d 169 (1967); Daikler vs. Zoning Board of

Adjustment, 1 Pa. Commonwealth Ct. 445, 275 A.2d 696

(1971). The Daikler court further stated that where

there is a total exclusion, so matter how d is accom- —

plished, the municipality must bring forward sufficient

and valid reasons for the prohibition.’”” 1 Pa. Common-

wealth Ct. at 454, 275 A.2d at 699-700 (emphasis pro-

vided). See also Beaver Gasoline Co., 445 Pa. 571, 285

A.2d 501 (1971). 2

The burden of proof in cases of total exclusion will

not shift to the municipality, however, where the prohib-

ited land use may be characterized as ‘particularly ob-

jectionable.”” Appeal of Green & White Copter, Inc, —

EE ioe

A-90

In the case of advertising signs, the courts have

acknowledged the power of municipalities to regulate and

prohibit them within certain zoning districts; Norate

Corp., Inc. vs. Zoning Board of Adjustment, 417 Pa. 397,

207 A.2d 890 (1965); but have refused to characterize

them as inherently obnoxious” structures not entitled

to constitutional protection. Daikler, supra, at 1 Pa.

Commonwealth Ct. 449, 275 A.2d 698; Amerada Hess Corp.

vs. Zoning Board of Adjustment, 11 Pa. Commonwealth

115, 313 A.2d 787 (1973) (revolving signs).

> We will examine the facts presented herein to deter-

mine whether the appellant has met its burden of prov-

ing the total exclusion of off-site advertising from the

Borough of Dickson City.

Section 5.850 of the Borough Zoning Ordinance pro-

vides in pertinent part that ‘‘signs may be erected and

maintained only when in compliance with the following

_ provisions . . (emphasis provided). The permitted types

of business or advertising signs are set forth in Section

5.852. The ordinance then defines the term ‘‘business

sign” in Section 11.143 as being one Which directs at-

tention to a business or profession conducted or to a com-

modity, service or entertainment sold or offered wpon

the premises where such sign as located or to which it

ol gmt parapets The ordinance is de-

e ae Ee Oe eee at gra on

of any off-site advertising signs; those which direct at-

_ tention to businesses located elsewhere.

The Commonwealth Court considered a similar set of

fs 3 in the Daikler case, supra, at 1 Pa. Commonwealth

0 448, 75 A. 2d 696-697, where they concluded that a re-

TWG

a etl iL

7 re, 4G

ov!

A-91

the omission of any provision for off-site business signs,

amounted to a township-wide prohibition of off-site ad-

vertising. See also Creative Displays, Inc. vs. Township

of Lower Macungie Zoning Hearing Board, 40 Lehigh LJ.

1 (1982).

We are compelled to reach the same conclusion in the

case sub judice. Although no explicit prohibition of off-

site advertising is contained in the ordinance, the omission

of any provision for such advertising has the same effect.

II.

The appellant’s second contention is that the size limi-

tations on advertising signs contained in the Borough Zon-

ing Ordinance are a de facto exclusion of off-site advertis-

ing from the Borough. Section 5.852(a) of the Borough

Zoning Ordinance provides that “no sign shall have a gross

surface of more than one hundred square feet in any “C”

district or more than one hundred and fifty square feet in

any “M” district.

Gerard Joyce, the President and General Manager of

the appellant Patrick Outdoor, testified that three hundred

square feet is the “standard size of the whole outdoor ad-.

vertising medium in America.” (N. T. 12). In addition, be

„ er eta Ae it seg

appellee and members of the Borough Council to the stand-

ard size billboard utilized in the off-site advertising in-

dustry, namely, three hundred square feet. There has also

been jodisial recogsition that thres imniied —

the standard size billboards utilized in the off-site advertis-

ing industry, and that an attempt to limit the size of signs —

to less than the standard is to effectively exclude outdoor.

A-92

advertising from the municipality. See Shrewbury Town-

ship vs. Glatfelter, 87 York Leg. Rec. 41 (1973) ; Creative

Displays, Inc. vs. Township of Lower Macungie Zoning

Hearing Board, 40 Lehigh L.J. 1 (1982).

We are convinced that the appellant has met its bur-

den of overcoming the presumption of the validity of the

ordinance in that it has shown the ordinance to be a total

exclusion of off-site advertising. The burden then shifts

to the appellee to prove sufficient and valid reasons for

the exclusion.

If a municipality is to sustain the validity of a total

ban, it must present evidence to establish the public pur-

pose served by the regulation. Beaver Gasoline Co., supra,

at 445 Pa. 577, 285 A.2d 505. In addition, it must demon-

_ strate that these reasons cannot be satisfied by thoughtful

regulation short of prohibition and that the prohibition

does not arbitrarily discriminate against that business.”

Duaikler, supra at 1 Pa. Commonwealth Ct. 454, 275 A.2d

700.

The appellee advances two reasons in support of its

prohibition of off-site advertising. The first is that there

: are fourteen (14) billboards utilized for off-site advertis-

tag cnrrestiy existing within the Borough os non-conform-

‘The existence of non-conforming uses within a munici-

_ pality will not cure the failure of a zoning ordinance to

"Spee eka

an exclusion.” Township of Paradise vs.

Mow: Airy Lodge, Inc., — Pa. Commonwealth —, 443

20 640 668-854 n (citations omitted).

„

A-93

In this case the appellee introduced two witnesses in

support of their position. Both testified that at the time

the zoning ordinance was adopted, a determination was

made by the Planning Commission and the Borough Coun-

cil that fourteen billboards were enough, and that no more

would be permitted.

The witnesses established that there are some thirty-

seven (37) miles of roadway in the Borough of Dickson

City, and one estimated that the lands adjacent to approxi-

mately seven (7) miles of that roadway are zoned for com-

mercial use. No testimony was offered as to the number

of miles of land adjacent to the roadways which was zoned

for manufacturing use. In addition, no testimony was of-

fered to establish the density of the billboards existing as

non-conforming uses along the roadways in commercial and

manufacturing zones.

The second justification advanced by the Borough is

that the billboards are a distraction to drivers in the Bor-

ough, and are therefore a safety hazard to motorists. Wil-

liam Stadnitski, the Borough’s Police Chief, testified that

in his opinion, “80% of our accidents on Route 6 is because

of inattentiveness of the driver where they turn their head

for one second and you have an accident,” (N.T. 40). How-

ever, he admitted that, of some three hundred auto acci- |

dents which occurred on Route 6 in Dickson City during

1982, not one was ever attributed to the distraction of the

driver's attention by a billboard. He also admitted that

feel sees eee en eee 4

A review of the ses det dt e Sadlas Sictiade 4

oo Bong Ga as at ate we |

A-94

vanced by the Borough in support of the size restrictions

on advertising signs contained in the ordinance.

We find the justifications offered by the appellee in

support of their exclusion of off-site advertising from the

Borough to be unpersuasive. The testimony presented by

the appellee was, at best, speculative. We therefore hold

that the Borough has not met its burden of proving that

the exclusion bears a substantial relationship to the public

health, safety, morals and general welfare. While we be-

lieve that the thoughtful regulation of off-site advertising

is both necessary and desirable, a blanket prohibition of 9

such advertising in the Borough of Dickson City is un- 2

constitutional. 4

ORDER ea

NOW, this 21 day of September, 1983, it is hereby :

ORDERED that the Zoning Appeal of Patrick Out- a

door Media, Inc. is sustained.

BY THE COURT ‘=

/s/ Kostx, P.J. as

For Appellant: James J. Gillotti, Esquire

For Appellee: John P. Pesota, Esquire =

Pursuant to Rule 28.1 of the Rukes of the

_ Supreme Court, petitioner makes the following

disclosure. After this litigation began,

_ petitioner was absorbed by Donrey, Inc. Donrey,

Ine. owns partial interests in Sun Printing

Company, Progress Publishing Company and

_ Overthrust Cablevision, Inc.

‘ng

ine.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.