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Challenge Of San Bernardino County Billboards May Proceed

A lawsuit challenging San Bernardino County's approval of billboards along desert freeways has been reinstated by the Fourth District Court of Appeal. The court ruled the lawsuit, filed by a county resident, need not comply with the speedy filing requirement of a state law pertaining to First Amendment matters.

In September 2006, the San Bernardino County Board of Supervisors approved 14 conditional use permits (CUPs) allowing General Outdoor Advertising to erect billboards along Interstates 15 and 40 in the Mojave Desert. Before approving the use permits, however, supervisors amended the county general plan and rezoned the land for highway commercial uses; otherwise, the billboards would not have been allowed.

Twenty-nine days later, Frederic Stearn sued the county, arguing it had violated the California Outdoor Advertising Act (Business & Professions Code 5200 et seq.) and the federal Highway Beautification Act. A resident of Newberry Springs, along I-40 about 20 miles east of Barstow, Stearn argued the county engaged in "phony zoning" because the rezoned land was not near a "business area." The state law defines business area as an area within 1,000 feet of a commercial or industrial building or activity located in an industrial or commercial zone or in an unzoned commercial or industrial area.

San Bernardino County Superior Court Judge John Wade dismissed three of the lawsuit's causes of action for traditional mandate because the county's land use decisions were reviewable only by administrative mandate. Wade dismissed the final portion of the suit, seeking an administrative mandate from the court, because Stearn did not file within the 21-day statute of limitations in Code of Civil Procedure 1094.8. Stearn appealed only the ruling on the statute of limitations, and a unanimous three-judge panel of the Fourth District, Division Two, overturned the lower court.

The state Legislature enacted 1094.8 in response to the Ninth U.S. Circuit Court of Appeals' decision in Baby Tam & Co. v. City of Las Vegas, (1998) 154 F.3d 1097 (Baby Tam I). In that case, the Ninth Circuit ruled that when a licensing scheme constitutes a prior restraint on protected speech in that case, a Las Vegas ordinance regulating adult bookstores the applicant must be afforded prompt judicial review of the regulating agency's decision. Because California did not provide prompt judicial review, the Legislature passed 1094.8, which includes the 21-day statute of limitations and a 50-day deadline for judges to render a decision. (The court later modified its requirement for judicial review in the Baby Tam II and Baby Tam III decisions; see CP&DR Legal Digest, June 2001, March 2000.)

California's statute, however, applies only to aggrieved proponents of protected speech and government agencies, the Fourth District noted.

"Here, appellant [Stearn] does not challenge the denial of a license to Outdoor. Neither is appellant involved in any government action imposing a prior restraint on Outdoor's protected expressive activity," Presiding Justice Manuel Ramirez wrote for the court. "He is not a public agency imposing a prior restraint on Outdoor. Rather, appellant seeks to have a court determine whether the county complied with the [California Outdoor Advertising] Act and federal law when it rezoned the areas at issue and then issued the CUPs.

"Baby Tam I does not require that actions filed by third parties challenging the issuance or denial of a permit for expressive conduct receive expedited review and decisions. And, because the purpose of 1094.8 is to fulfill the requirements set forth in Baby Tam I, there is simply no rationale for imposing the 21-day filing requirement on third parties," Ramirez continued.

Thus, the court concluded Stearn should not be held to the 21-day statute of limitations and General Outdoor is not entitled to prompt judicial review of the suit.

The billboard company also argued that the court should dismiss the suit because it challenged both the county and state permitting processes, even though the company has not received Caltrans approval. But the court ruled that both Caltrans and the county are charged with enforcing the Outdoor Advertising Act, which "explicitly prohibits local agencies from allowing billboards to be placed or maintained if they violate the act."

"We are not convinced that any purpose would be served by requiring appellant to wait to raise these issues later in the permitting process," Ramirez wrote.

The Case:
Stearn v. County of San Bernardino, No. E043334, 09 C.D.O.S. 864, 2009 DJDAR 986. Filed January 5, 2009. Ordered published January 22, 2009.
The Lawyers:
For Stearn: Randal Morrison, Sabine & Morrison, (619) 234-2864.
For General Outdoor Advertising: Gary Mobley, (949) 729-0700.
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