Over a span of several days, the federal Ninth Circuit Court of Appeals issued three opinions that addressed the authority of cities to regulate billboards. By and large, the Ninth Circuit upheld the regulations against the billboard companies’ challenges.
Desert Outdoor Advertising, Inc. v. City of Oakland
In Desert Outdoor Advertising, Inc. v. City of Oakland, No. 05-15501 (9th Cir. 2007), Desert Outdoor Advertising (“Desert Outdoor”) applied for permits for three freeway-facing billboards in the City of Oakland (“City”). Two of the billboards (which were already standing) had off-site commercial advertising. For the third billboard, Desert Outdoor applied for a variance for a sign that would display the messages, "Volunteer to be a Big Brother" and "Pray at First Baptist Church."
The City’s freeway sign ordinance (which was not part of the zoning ordinance) prohibited commercial advertising signs adjacent to freeways. The City’s zoning ordinance prohibited new commercial advertising signs anywhere in the City. Unlike the freeway sign ordinance, the zoning ordinance allowed for variances.
When the City denied the permits and the variance, Desert Outdoor filed suit. The City then amended the zoning ordinance to delete the requirement that a variance not adversely affect the character, livability, or development of abutting properties or the surrounding area or be detrimental to the public welfare.
The district court held that the exception for time and temperature displays was an impermissible content-based regulation of non-commercial speech, but upheld the rest of the two ordinances.
The Ninth Circuit upheld the district court’s judgment. The Ninth Circuit began by reciting the rule that sign ordinances may not impose greater restrictions on non-commercial speech than commercial speech, nor may they regulate non-commercial speech based on content. Here, however, the City’s freeway sign ordinance by its terms did not regulate non-commercial speech, but rather prohibited only signs with freeway-visible commercial advertisement, explained the court.
The Ninth Circuit next affirmed that a licensing scheme involving protected speech must contain narrow, objective, and definite standards to avoid giving city officials unbridled discretion to deny permits. Here, however, given that the freeway sign ordinance flatly prohibited commercial advertising, City officials exercised no discretion when denying Desert Outdoor’s applications for the two commercial signs.
As for the sign with the non-commercial messages, the City had merely refused to grant a variance. The variance standards of Government Code § 65906 (the variance statute) were sufficiently specific to constrain the authority of City officials to deny permits. Desert Outdoor therefore suffered no injury when its variance was denied, the court concluded.
Get Outdoors II, LLC v. City of San Diego
In Get Outdoors II, LLC v. City of San Diego, No. 05-56366 (9th Cir. 2007), Get Outdoors II (“Get Outdoors”) filed numerous applications for billboard permits with the City of San Diego (“City”). The proposed billboards had a display square footage of 672 and a pole height of 50 feet, but the San Diego Municipal Code limited displays to no more than 350 square feet and pole height to no more than 30 feet.
When the City refused to grant any permits, Get Outdoors filed suit. The district court granted summary judgment for the City.
Most of the Ninth Circuit’s opinion concerned the "standing" of Get Outdoors to sue. The Ninth Circuit acknowledged that standing requirements are considerably relaxed in First Amendment cases, but the plaintiff still must show an actual injury. Here, Get Outdoors was injured by the denial of the permits, and therefore had standing at least to challenge the ordinance’s size and height restrictions.
The Ninth Circuit stated that size and height restrictions for signs are evaluated as content-neutral time, place and manner regulations: the regulation must be narrowly tailored to serve a significant government interest, leave open ample alternative channels of communication, and not be substantially broader than necessary to protect the city’s interests. Here, the ordinance’s size and height restrictions satisfied these standards, the court determined.
Get Outdoors also attempted to challenge the ordinance on the grounds that it vested too much discretion in City officials to deny permits — a "prior restraint" challenge. But the Ninth Circuit ruled that Get Outdoors did not have standing to bring a prior restraint challenge. Inasmuch as the proposed billboards violated the City’s size and height restrictions, Get Outdoors could not have been granted a permit even if it could show that other parts of the ordinance gave City officials too much discretion. Get Outdoors therefore did not suffer the necessary injury to have standing to bring a prior restraint challenge.
Outdoor Media Group, Inc. v. City of Beaumont
In Outdoor Media Group, Inc. v. City of Beaumont, No. 05-56620 (9th Cir. 2007), Outdoor Media Group (“Outdoor Media”) applied for permits for four commercial billboards. The City of Beaumont’s ordinance prohibited signs with off-site copy. Political signs were exempt, as were certain directional and informational signs. The City denied the permits.
After Outdoor Media filed suit, the City enacted a new ordinance that merely prohibited off-site signs with commercial copy, and allowed existing legal commercial copy to be replaced by non-commercial copy. In light of the new ordinance, the district court dismissed the case as moot.
The Ninth Circuit first held that exhaustion of administrative remedies is not required under 42 U.S.C. § 1983, the federal law that provides a damages remedy for violations of the Constitution. Consequently, Outdoor Media was not barred from federal court by having failed to file suit in state court.
Next, the Ninth Circuit ruled that the district court properly dismissed Outdoor Media’s procedural due process claim, because Outdoor Media lacked a vested right in its unapproved billboard permit applications.
But the Ninth Circuit reversed the district court’s dismissal of Outdoor Media’s First Amendment and equal protection claims on vested rights grounds. The existence of a vested property right is irrelevant to these challenges, the Ninth Circuit explained. Even if a person has no vested right to a permit, that right may not be denied in a way that violates the First Amendment or equal protection.
Turning to the "prior restraint" argument, the Ninth Circuit noted that a sign ordinance must contain adequate standards to prevent City officials from exercising unbridled discretion. Here, however, the ordinance required City officials to make findings regarding the proximity of signs in relation to the freeway, the number of signs in the area, the sign’s height, design, and location in relation to its proposed use, and the sign’s compatibility with the style or character of adjacent property.
These criteria were sufficiently specific, in the Ninth Circuit’s view. That the design criteria were flexible and required the exercise of discretion did not by itself render the ordinance invalid as a prior restraint.
The Ninth Circuit then upheld the City’s prohibition against all new "off-site" billboards copy as being justified by the interest in avoiding visual clutter and promoting traffic safety. Such bans may be enacted without relying on aesthetic or traffic studies, the Court added.
The Ninth Circuit next held that while cities may prohibit off-site commercial billboards, they may not prohibit off-site non-commercial billboards because cities may not regulate non-commercial signs based on content, except under compelling circumstances. The prior ordinance’s exemptions for political signs and certain directional and informational signs required the City to examine the content of non-commercial signs, and therefore was unconstitutional.
The new ordinance, however, limited the off-site sign prohibition to commercial copy and included a message substitution clause which allowed non-commercial copy to replace legal commercial copy. With these safeguards, the new ordinance was constitutional, in the court’s opinion.
Summary
The foregoing opinions send a clear signal: cities have broad latitude to regulate commercial billboards, but any regulation of non-commercial messages will be closely scrutinized. Even with the regulation of commercial messages, however, there are numerous pitfalls. KMTG attorneys can assist municipalities with drafting sign regulations that will withstand judicial challenge.