Federal Court’s Ruling Did Not Strike Down City’s Entire Scheme of Sign-Regulation

In Desert Outdoor Advertising, Inc. v. City of Oakland, (— F.3d —-, C.A.9 (Cal.), March 18, 2010), the United States Court of Appeals for the Ninth Circuit considered whether a previous decision by a federal court struck down a city’s entire scheme of sign-regulation. The Court of Appeals held that the previous decision did affect the remainder of the ordinance.

Facts

In 2002, Desert Outdoor Advertising, Inc. (“Desert Outdoor”) displayed a billboard that was visible from the freeway on East 9th Street in Oakland, California. The City of Oakland (“City”) sent Desert Outdoor a letter demanding that either the billboard be removed or Desert Outdoor must seek a variance because City’s ordinances prohibited the sign. Desert Outdoor applied for a variance but City denied its application.

Desert Outdoor brought a lawsuit against City in federal district court alleging that City’s sign ordinance violates the First Amendment to the United States Constitution. The federal district judge found that City’s sign regulations were contained in two different enactments, the Oakland Municipal Code (“OMC”) and the Oakland Planning Code (“OPC”). The OPC banned the construction of any new advertising sign without a variance. The OPC also limited the number, placement and size of signs but provided for the option of a variance. The OMC contained an absolute ban on advertising signs that are visible from a freeway. The OMC contained an exception for time and temperature signs.

The federal judge struck down the portion of the OMC that allowed time and temperature signs but found this section severable from the rest of the OMC’s provisions. The provisions of the OPC that allowed for conditional use permits and a design review process were also stricken. These provisions were not severable and the court did not analyze whether the OPC’s offending provisions were severable from the remainder of the OPC or from City’s entire sign-regulation scheme.

City filed an action in state court seeking the right to remove Desert Outdoor’s sign as a nuisance per se under its sign ordnances. The court granted the request and City tried to enforce the state court judgment. In response, Desert Outdoor filed an emergency order in federal district court requesting that the court clarify its earlier judgment in regard to City’s sign-regulation scheme. The federal district court found that the state’s order did not contravene the earlier federal court judgment.

Decision

The Court of Appeals found that the federal district court’s order “cannot reasonably be understood to have struck down the entire scheme of sign-regulation.” The federal district court judge in the earlier action “was clear that he was treating the OMC and OPC as two separate enactments.” Although the judge struck down specific OMC sections, he found they were severable. The Court of Appeals found that while the district judge “found portions of the OPC unconstitutional and not severable, that part of his order cannot be read to have affected the OMC.”

City was attempting to enforce the OMC, not the OPC, in state court. In the California state proceeding, City contended OMC § 1501 rendered Desert Outdoor’s East 9th Street sign a nuisance per se. The Court of Appeals found that “Desert Outdoor is wrong when it contends that merely having a conditional use permit under the OPC would allow the display of a sign otherwise banned under the flat prohibition of the OMC.”

The Court of Appeals held that the federal district judge did not strike down the OMC in its entirety. City is therefore entitled to enforce its ordinance against Desert Outdoor.

Questions

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Mona G. Ebrahimi | 916.321.4500