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Cities Successfully Defend Billboard Regulations

Billboard ordinances in five cities have survived constitutional challenges, as the Ninth U.S. Circuit Court of Appeals has rejected claims filed by three billboard companies.

In three published decisions, the Ninth Circuit upheld billboard regulations in San Diego, Beaumont and Oakland. In unpublished memoranda, the court upheld regulations in Chula Vista and Lemon Grove.

In all five cases, billboard companies argued that local ordinances violated the companies' First and Fourteenth Amendment rights. The court did strike down one provision in Oakland's ordinance, and it returned the Beaumont case to District Court for further proceedings on a company's claim for damages.

Randal Morrison, the attorney for San Diego, Beaumont, Chula Vista and Lemon Grove, said the Ninth Circuit broke no legal ground. The decisions demonstrate that the Ninth Circuit, like other circuits, is "growing weary of billboard companies trying to attack sign ordinances, including portions of the ordinances that don't apply to them."

Billboard companies argue that zoning limitations impinge on their right to free expression. However, the First Amendment applies only to billboard content; whether someone may erect a billboard in the first place, "is a straight zoning issue," Morrison contended.

Oakland Deputy City Attorney Christopher Kee said the Ninth Circuit's decision in the Oakland case "upheld what we thought were the guiding principles of First Amendment law in regard to billboards. It preserved our right to regulate these things. Billboards are of considerable concern because of the proliferation of these things and visual blight."

The lawsuits against San Diego, Chula Vista and Lemon Cove were all filed by the outdoor advertising company Get Outdoors. In San Diego, the company filed 24 billboard permit applications in June 2003. The city rejected all applications because the city's sign ordinance did not permit new off-site billboards. In addition, the city found the applications were incomplete and the proposed billboards would violate size and height restrictions.

Get Outdoors filed a lawsuit the following month asked the court to invalidate the entire sign ordinance. Get Outdoors argued that the ordinance unconstitutionally favored commercial speech over noncommercial speech, favored certain types of commercial speech over others, constituted "prior restraint" because it gave city officials no deadline to decide on applications, and gave officials unbridled discretion.

Before District Court Judge William Hayes ruled, the city amended its ordinance to include a "message substitution" clause permitting noncommercial messages on billboards, and a 45-day deadline for deciding on permit applications. After considering these amendments, Hayes ruled for the city.

At the Ninth Circuit, the primary issue was whether Get Outdoors could challenge the entirety of San Diego's sign ordinance. The Ninth Circuit determined that the company could "challenge only those provisions that applied to it. Get Outdoors II cannot leverage its injuries under certain, specific provisions to state an injury under the sign ordinance generally."

The Ninth Circuit then said that the company could get relief only if the court invalidated both the size and height restrictions, and the off-site ban. But the court upheld the size and height restrictions which vary based on the size of the street and speed limit as "not substantially broader than necessary to protect the city's interests in traffic safety and aesthetics." Thus, the city could use the size and height restrictions to deny Get Outdoors II's applications, according to the court.

Get Outdoors contended the city's discretionary provisions and absence of a time limit amounted to prior restraint in violation of the First Amendment. But the court said the company had no standing to pursue such a claim.

"Get Outdoors II's applications to erect billboard structures were denied on grounds that are constitutionally valid, and neither its filings nor its actions in this case have evinced any intent to file permit applications that comply with these requirements," Judge Cynthia Holcomb Hall wrote for the three-judge panel. "Thus, Get Outdoors II cannot show that it would ever be genuinely threatened by an unconstitutional prior restraint in this case. No change in the permit procedures would result in the approval of the permits it requests."

The arguments were essentially the same in Get Outdoors II, LLC v. City of Lemon Grove, No. 05-56374, and Get Outdoors v. City of Chula Vista, No. 05-56696. In the unpublished memoranda upholding those cities' ordinance, the Ninth Circuit directed readers to the published San Diego decision for analysis.

The Beaumont case was brought by Outdoor Media Group. It had filed a conditional use permit application to erect four billboards at the junction of Interstate 10 and State Route 60 in 2003. Based on subjective standards in the city's ordinance, the planning director recommended disapproval, and both the Planning Commission and City Council voted to deny the application.

Outdoor Media sued, arguing that the city's ordinance violated the First Amendment because it regulated based on the billboard content and gave city officials too much discretion. The company also argued that the city violated its due process and equal protection rights. Outdoor Media asked the District Court to throw out the ordinance and award damages.

The city responded by repealing the challenged ordinance and replacing it with one that banned new billboards. District Court Judge Robert Timlin upheld the new ordinance and dismissed Outdoor Media's claims as moot. The same Ninth Circuit panel that decided on the San Diego ordinance upheld Beaumont's new ordinance, but ruled that the District Court should consider whether Outdoor Media was eligible for damages based on the old ordinance.

"The new ordinance justifies its ban on off-site commercial signs by citing the aesthetic harm imposed by billboards," Judge Hall wrote. "The Supreme Court and our prior case law have endorsed this rationale as a substantial government interest, and found that a complete ban on new billboards is no more extensive than necessary to serve that interest."

Much of the opinion, though, discussed Beaumont's repealed ordinance. Outdoor Media contended the old ordinance was unconstitutional because it regulated noncommercial speech based on content. For example, the ordinance permitted political campaign signs, and directional and informational signs. Such provisions are unconstitutional, the Ninth Circuit said, and Outdoor Media should be allowed to develop its argument that it deserves damages because of the provisions.

Judge Consuelo Callahan dissented with the damages ruling. The content of Outdoor Media's proposed billboards was unknown and not the basis for the city's denial of the application, Callahan said, and therefore Outdoor Media cannot argue it was harmed by content-based restrictions. Attorney Morrison said the city would seek a rehearing on the issue based on Callahan's dissent.

In Oakland, Desert Outdoor Advertising erected two freeway-visible billboards and applied for a variance for a third sign displaying the messages "Volunteer to Be a Big Brother" and "Pray at First Baptist Church." The city concluded that the two billboards violated the municipal code and rejected the variance request based on the planning code.

Desert went to court seeking to invalidate the city's ordinances and damages under federal civil rights law. The company argued the city's ordinances imposed content-based restrictions, favored commercial speech and gave city officials too much discretion. The city then amended the planning code to remove a provision allowing rejection of a variance application if the variance would "be detrimental to the public welfare."

District Court Judge Martin Jenkins struck down one exception in the city ordinance allowing time and temperature displays; otherwise, he ruled for the city. On Desert's appeal, the Ninth Circuit upheld the new ordinance. The new ordinance's variance standards are "reasonably specific" and sufficiently constrain city officials' authority, the court ruled. Based on those standards, Desert's application failed, so the company does not have a viable claim for damages, the court ruled. The content of the signs was not a consideration in the city's denial, the court found. The Ninth Circuit also upheld the lower court's decision to remove the time and temperature sign exception from the ordinance.

In the meantime, the city has won Superior Court rulings in a lawsuit demanding that Desert remove its two billboards. Those rulings are on appeal.

The lesson from all of the Ninth Circuit decisions is that cities need to review their billboard regulations, said Kee, Oakland's attorney. "It's incumbent upon municipalities to look at the language of their ordinances to make sure they are keeping up," he said.

Morrison, who specializes in billboard and sign law, agreed. "It general, most city sign ordinances are outdated and will not stand up in court. And typically it's because of time limits on political signs," he said.

First Case:
Get Outdoors II, LLC v. City of San Diego, No. 05-56366, 07 C.D.O.S. 12720, 2007 DJDAR 16448. Filed November 1, 2007.
The Lawyers:
For Get Outdoors: Adam Webb, The Webb Law Group, (770) 444-9325.
For the city: Randal Morrison, Sabine & Morrison, (619) 234-2864.

Second Case:
Outdoor Media Group, Inc., v. City of Beaumont, No. 05-56620, 07 C.D.O.S. 12724, 2007 DJDAR 16455. Filed November 1, 2007.
The Lawyers:
For Outdoor Media: Jeffrey Tidus, Baute & Tidus, (213) 630-5000.
For the city: Randal Morrison, Sabine & Morrison, (619) 234-2864.

Third Case:
Desert Outdoor Advertising, Inc., v. City of Oakland, No. 05-15501, 07 C.D.O.S. 12616, 2007 DJDAR 16324. Filed October 30, 2007.
The Lawyers:
For Desert: Alan Herson, (541) 770-1372.
For the city: Christopher Kee, city attorney's office, (510) 238-3601.