In Viacom Outdoor, Inc. v. City of Arcata, (— Cal.Rptr.3d —, 2006 WL 1550714, Cal.App. 1 Dist., June 8, 2006), a California Court of Appeal considered whether California’s Outdoor Advertising Act preempts municipal ordinances that require a permit to rebuild billboards that have been destroyed by natural forces. The Court found that the power of a municipality to require a permit is not displaced by the Act and such an ordinance is valid and enforceable.
Facts
Viacom Outdoor, Inc., (“Viacom”) owned four billboards located adjacent to a state highway within the City of Arcata (“City”). Viacom had an outdoor advertising permit issued by the California Department of Transportation for each billboard. The billboards, which were made of wood, were destroyed by windstorms. After Viacom had begun to rebuild the billboards, City directed it to cease rebuilding until it applied for the permits which are required under City’s Building Code and Sign Code. City’s Sign Code provides that signs shall not be “erected, re-erected, constructed or maintained” unless the provisions of the Sign Code have been complied with and a permit has been issued.
Viacom did not apply for the permits but instead brought a lawsuit against City alleging that it had no regulatory authority to require the permits because California’s Outdoor Advertising Act (Bus & Prof. code, § 5200 et seq) was enacted with the intent to preempt local governments from regulating billboards except for regulations involving the location and placement of new billboards. The trial court found that regulations made pursuant to the Outdoor Advertising Act (Act) set forth the criteria by which billboards may be re-erected, and if those criteria are met, “no further action by a local public entity is necessary.” The trial court prohibited City from interfering with the re-erection of the billboards.
Decision
The Court of Appeal found that the trial court erred in deciding that the local power to regulate billboards and outdoor advertising has been displaced by the Act. A review of the history of the Act and its current provisions reveals that the regulatory power over outdoor advertising has been shared between the State and municipalities. The Court found that the Legislature intentionally extended the Act’s exclusive reach “only to counties, and only to the unincorporated parts of counties adjacent to what were then state highways” and the Act did not purport to extend any exclusive power to the state highways which are located within cities.
Within the Act, the Legislature specifically declares its “intent to ‘establish minimum standards'” and the Act provides that a city or county may impose restrictions greater than those imposed by the Act. The Court concluded that the language of the Act does not expressly preempt the exercise of local power in the area of outdoor advertising and preemption cannot be implied because the Act “makes considerable allowance for past and future county and city ordinances on the subject of advertising displays.”
The Court also found that a State regulation that governs the “customary maintenance” of billboards does not preempt City’s ordinance because the regulation is meant to apply to upkeep or modest improvements, not to the rebuilding of a billboard after it has been destroyed. The Court concluded that the re-erection of a billboard amounts to a “placement” of a billboard and the Act expressly recognizes local power in regulating the placement of an advertising display.
The Court determined that City’s Sign Code ordinance does not conflict with the Act because the ordinance’s provisions either address subjects that are not addressed by the Act or are compatible with the Act’s intent to establish only minimum standards so that cities and counties can provide additional input. As a result, the Court held that the Act does not preempt the City from enforcing the permit requirement.
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