Legal Alerts Feb 1, 2016

City Ordinance Banning New Outdoor Billboards, but Authorizing Relocated Ones, Upheld by California Court

Authorizing Relocated Ones Upheld by Court; Constitutional Challenges Rejected; Injunction Order to Remove Billboard Affirmed

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The City of Corona has prevailed in a constitutional challenge to its enforcement of a 12-year-old ordinance banning new outdoor advertising billboards, but authorizing relocated billboards within City limits. In City of Corona v. AMG Outdoor Advertising, Inc., the Fourth District Court of Appeal found no constitutional violation and affirmed the trial court’s issuance of a preliminary injunction requiring AMG Outdoor Advertising to remove a billboard that the firm installed without a permit. The court’s opinion, issued Jan. 7, initially was unpublished. Last week, the Fourth District ordered the case published, which means it now is precedential law. 

In 2004, the City adopted an ordinance prohibiting all new off-site billboards, also referred to as “outdoor advertising signs,” within the City. The ordinance includes a grandfather exception that allows permits for billboards erected before the ordinance took effect to be relocated within the City, pursuant to a relocation agreement with the City. Relocation agreements for existing billboards are authorized by California Government Code section 5412.

AMG Outdoor Advertising is a Southern California owner and operator of off-site billboards. In late 2014, the firm sought a permit from the City to erect an off-site billboard. City staff refused to provide a permit application, citing the 2004 ordinance. AMG nonetheless erected a billboard within City limits without a permit. The billboard advertised a bar owned by AMG’s owner, as well as a casino resort and spa. The City successfully sought a preliminary injunction from the trial court, which prohibited AMG from using the billboard and required the firm to immediately remove it.

AMG challenged the injunction on Constitutional grounds. The firm contended that the City applied the 2004 ordinance in an unlawfully discriminatory manner, arguing that other billboards that were relocated within the City after the ordinance took effect were “new” billboards. AMG further asserted the City had impermissible unfettered discretion to approve or deny new billboard applications. 

The court disagreed. The evidence showed that the relocated billboards cited by AMG were installed prior to the ordinance’s adoption and were properly moved to other sites within the City pursuant to the requisite relocation agreements. This did not represent unlawful discrimination, nor unfettered discretion by the City to approve or deny new billboard applications. Rather, according to the court, it constituted “orderly relocation” of already existing billboards, which the ordinance allows. The court concluded that, because the 2004 ordinance banned all new off-site billboards and the record showed the City uniformly enforced it, “the City had no authority to discriminate and did not in fact discriminate among any new off-site billboard applicants.”

The court also rejected other claims by AMG that the 2004 ordinance violated the firm’s equal protection rights, amounted to an unconstitutional prior restraint on free speech, and violated the firm’s free speech rights under the California Constitution. With regard to the California Constitutional challenge, the court relied on “the law of the land” in Metromedia, Inc. v. City of San Diego, in which a plurality of the U.S. Supreme Court concluded that a City of San Diego ordinance did not violate the First Amendment to the extent that it banned all off-site commercial billboards.

For more information about this decision and how it may impact your agency, contact the authors of this Legal Alert listed at right in the firm’s Municipal Law practice group, or your BB&K attorney.

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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

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