A unanimous California Supreme Court has upheld lower court decisions rejecting an advertising company’s claim that it deserves compensation because trees planted along a public street obstructed visibility of six billboards.

The state high court denied Regency Outdoor Advertising’s inverse condemnation claim and also rejected Regency’s arguments that the trial court had erroneously awarded the City of Los Angeles about $100,000 in costs, including $80,000 in expert witness fees.

“[W]e conclude that owners and occupiers of roadside property do not possess a ‘right to be seen’ that requires the payment of compensation for municipal landscaping efforts having no injurious effect on any property rights other than the claimed right to visibility,” Justice Carlos Moreno wrote for the court.

The court further held that compensation provisions in the state’s Outdoor Advertising Act do not apply because they speak only to intentional sign removal or limitations on use of billboards, not to incidental loss of visibility.

To spruce things up for the 2000 Democratic National Convention, the City of Los Angeles planted mature palm trees and placed lighted pylons along Century Boulevard, the primary route into Los Angeles International Airport. Regency at the time complained that the landscaping made at least six of its billboards less visible to Century Boulevard motorists. Claiming the city must pay compensation for the allegedly reduced value of its signs, Regency then filed an inverse condemnation lawsuit.

Prior to trial, the city offered to settle the lawsuit by removing one tree and paying Regency $1,000. The company rejected the offer, so the matter went to trial, after which Los Angeles County Superior Court Judge Jean Matusinka ruled for the city. Relying on different legal footing than Matusinka used, the Second District Court of Appeal upheld the trial judge’s decision on the merits and the award of costs (see CP&DR Legal Digest, May 2005). Regency got no further at the state Supreme Court.

In the inverse condemnation claim, Regency argued that it has an “abutter’s right” to have its property seen from the adjacent public street. The court did find that there is extensive case law on the rights of those who own property along a public street, including a “right to be seen.”
However, the court also found that the “right to be seen” cases concerned a physical taking of loss or access, neither of which Regency suffered. “[T]he virtually unanimous rule provides that there is no freestanding right to be seen, and that the government need not pay compensation for any lessened visibility,” Justice Moreno wrote.

As for a partial takings, the court cited its nearly century-old decision in Williams v. Los Angeles Ry. Co., (1907) 150 Cal. 592, a case in which the court acknowledged the rights of a property owner whose shop was blocked by the construction of an electric railway switching tower on the sidewalk in front of the shop.

“We follow the weight of authority and conclude that Regency has no visibility right warranting compensation here,” Moreno wrote. “It bears emphasis that Williams, the first decision in this state recognizing any ‘right to be seen,’ qualified its holding by noting that ‘any obstruction to the use of the street which impairs or destroys an abutter’s easements is a private injury.’ Our careful phrasing implied that activity that comports with the fundamental purposes served by the roads does not produce a private injury. The planting of trees along a road is, in general, fully ‘consistent with the road’s use as an open public street’ (McNair v. McNulty, (N.Y. App.Div. 2002) 744 N.Y.S.2nd 438, 439), and in fact may enhance both travel and commerce along the street.”

Furthermore, the court noted, Regency has not shown that the landscaping reduced the billboards’ value.

Regency also argued that Business and Professions Code § 5412, a portion of the Outdoor Advertising Act, directed that the company receive compensation because the city had effectively removed or limited the use of the billboards. The statute prohibits the government from blocking “customary maintenance and use” of a billboard, and Regency argued that the tree planting denied the company such maintenance and use.

The court ruled first that the city clearly did not remove the billboards. Secondly, the court said that Regency was reading § 5412 too broadly, and that the compensation requirements of the statute do not “pertain to municipal landscaping efforts that may incidentally impair the visibility of nearby advertising facings.”

“Regency has offered no evidence establishing that the trees at issue were planted along Century Boulevard for the purpose of blocking its billboards from view — indeed, the evidence adduced at trial was to the contrary,” Moreno wrote.

As for the costs awarded to the city, the court rejected all of Regency’s arguments, including the contention that city expert witness fees incurred prior to a settlement offer were not eligible.

Since the court issued its decision, Regency has filed a request for a re-hearing, a potential step toward asking the U.S. Supreme Court to review the case.

The Case:
Regency Outdoor Advertising, Inc. v. City of Los Angeles, No. S132619, 06 C.D.O.S. 7197, 2006 DJDAR 10276. Filed August 7, 2006.
The Lawyers:
For Regency: Michael Berger, Manatt, Phelps & Phillips, (310) 312-4000.
For the city: Eduardo Angeles, city attorney’s office, (310) 646-3260.