# Petition — Donrey Communications Co. v. City of Fayetteville > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1306%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 466 U.S. 959 ## Text 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: 9 15 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 * R N 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 — 14 14 In The Supreme Court of the United States October Term, 1983 3 a 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 88 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 7 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. é 9 8 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 * + 10 1 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 r — eder Dr J re N 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 12 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 13 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. 15 CONCLUSION For these reasons, a Writ of Certiorari should issue to review the decision of the Arkansas Supreme Court. 1 ra a * 9 * 5 * N . 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, . ra . * — 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 v. 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). 8 7 A4 “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. ha 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 * * * — — 2 > “ 2 ’ } 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 L 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. | 1 . Wenn * , n ‘ne ZA PARE FC ees oF 8 eee, . RE AP hs 8 8 we 2 8 8 e een A8 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- 6 am 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 D . (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 es 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 3 —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 2. * 1 5 +g — 7 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, Se 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 N „ * * — 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 N e, 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, Rr . i =e ROTM BN 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 (c) obtain economy of public funds in the pro- 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) re Re F) 42 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 (C) Uses Permissible on Appeal to the Planning Com- mission 8 (D) 2 Ir Rr rr ae 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 8 rr (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 a 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 7 ys ‘ 4 9 2 0 ay arn 1 * “a > ae os, 4 2 . * — bee An's 2 1 4 * q . 7 47 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 K rr 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 7 A l off 42 ed s 4 * 7 i : 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- en Unit 3 uses by conditional use per- t 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 7 : 1 * ie 2 5 1 . - - if 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> : : (C) Uses Permissible os Appeal to the Planning Com- mission i 3 Unit 2—City-wide uses by conditional use per. mi Unit 19—Commercial recreation Unit 20—Commercial recreation—Large sites Unit Be for collecting recyclable materi- ee 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) F) 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- My AR vy ; 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 N (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 n i a (Ord. No. 2490, 6 2, 12-5-78) : 5 1 5 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 2 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 F f i tf i — 7 VS IY SOE NE Se aay eS OM ee pee AY hs Seg el es. 7 = A-67 (A) Al District: (1) Off-site freestanding signs shall be pro- hibited. om: Sad don 1 n 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 foot restrictions do not advance any of the purposes of © 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 2 s 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 L 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 exclusi [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1306%3A1. Public record. Not legal advice.