Commentary

California County And City Win Battle Over Billboards

by Pam J. Walls

0th the County of Riverside and the City of San Mateo have emerged victorious from lawsuits and appeals B filed against them by billboard operators seeking to

prevent them from removing their illegal signs. The Ninth Circuit Court of Appeals in Valley Outdoor, lnc.

v. County of Riverside, 2003 wL21757155, F.3d (9th Cir. 2003), recently ruled that billboard operators were entitled to no relief when their billboards violated zoning, height, and size provisions of a sign ordinance. The Ninth Circuit rejected the billboard operators’ argument that they were entitled to damages and injunctive relief because the ordinance was unconstitutional at the time the billboards were erected. The Ninth Circuit found that the billboards were illegal under the original ordinance and continued to be illegal under the amended ordinance, which retained these re- strictions intact. The unconstitutional provisions could be severed from the ordinance and the zoning, height and size provisions enforced.

The billboard operators relied on Desert Outdoor Adv., Inc. v. City ofMoreno Valley, 103 F.3d 814 (9th Cir. 1996), which struck down an unconstitutional sign ordinance. In Desert Outdoor, the Ninth Circuit observed that the sign operators had stand- ing, in part because “a declaration that the ordinance is un- constitutional would likely redress their injuries by enabling them to maintain their signs.” The Desert Outdoor case also did not allow severance of the unconstitutional provisions.

The same billboard operator involved in the Desert Out- door case, Outdoor Media Group (”OMG”), filed an action against the County to restrain enforcement of the ordinance and for damages. While that action was pending, Regency Outdoor Advertising sued OMG for unfair business prac- tices based on violations of the sign ordinance. OMG, Re- gency, and Valley settled the lawsuit by becoming partners in the illegal billboards. Valley and Regency filed this action

Pam J. Walls is an Assistant Attorney for the City of Oceanside, Califor- nia. She represented the County of Riverside during the initial phases of the VuZley Outdoor case, and prepared the amicus brief that the Ameri- can Planning Association filed in the case.

10 August 2003 American Planning Association

after the ordinance was amended removing the purportedly unconstitutional provisions.

The District Court found that the grandfathering provision in the amended ordinance was unconstitutional to the extent that it required compliance with the original ordinance, but concluded that this provision could be severed and the bal- ance of the ordinance enforced. The County of Riverside did not appeal this determination. The billboard operators con- tended that although the billboards, were twice the height and three times the size permitted under the ordinance, they were vested, legal nonconforming uses, immune from the require- ments of the amended ordinance. The Ninth Circuit found that the billboards were ”independently” illegal under the content-neutral zoning, size, and height restrictions in both the original and the amended ordinance, and therefore, the amended ordinance could be enforced against the billboard operators and no damages were warranted.

A few days after the decision in Valley Outdoor, was ren- dered, the Ninth Circuit also issued its decision in Virtual Media Group, Inc. v. City of Sun Mateo, 66 Fed.Appx. 129 (9th Cir. 2003), which found that billboards constructed without first obtaining building and electrical permits in violation of City ordinances did not qualify as legal, nonconforming uses.

The APA filed an Amicus Brief with the Ninth Circuit in opposition to the billboard operators’ appeal in the Valley Outdoor case. The Ninth Circuit decision in Valley Outdoor has not been ordered published. The County of Riverside, APA, and other amici are requesting publication of the Ninth Circuit decision to aid other jurisdictions in their efforts to regulate billboards. Billboard operators in Florida, Califor- nia and other jurisdictions routinely file actions challenging local sign ordinances in order to obtain billboards, or loca- tions for billboards, that would otherwise be illegal under the ordinance. Publication of this case could help prevent un- scrupulous billboard operators from challenging sign ordi- nances merely as a method for extorting illegal billboards.

[Note: On August 1, 2003, the Ninth Circuit decided to publish its Valley Outdoor opinion.]