City of Lake Wales v. Lamar Advertising Ass'n of Lakeland

• Decision Date: 08 April 1981
• Docket Number: No. 80-582,80-582
• Citation: 399 So.2d 981
• Parties: CITY OF LAKE WALES, Florida, Appellant, v. LAMAR ADVERTISING ASSOCIATION OF LAKELAND, Florida, a partnership d/b/a Lamar Citrus Outdoor, Appellee.
• Court: Florida District Court of Appeals

Page 981

399 So.2d 981

CITY OF LAKE WALES, Florida, Appellant, v. LAMAR ADVERTISING ASSOCIATION OF LAKELAND, Florida, a partnership d/b/a Lamar Citrus Outdoor, Appellee.

No. 80-582.

District Court of Appeal of Florida, Second District.

April 8, 1981.

As Corrected on Denial of Rehearing May 11, 1981.

Robin Gibson of Gibson & Connor, Lake Wales, for appellant.

Michael D. Martin of Martin & Martin, Lakeland, for appellee.

SCHEB, Chief Judge.

Lamar Advertising Association of Lakeland, Florida, rents outdoor advertising space to businesses for display of 300-square-foot poster panels, commonly called billboards. These signs are located away from the sites of the businesses selling the products they advertise. To preserve the beauty of its city, the City Commission of Lake Wales enacted ordinances effectively prohibiting billboards. The trial court held the ordinances unconstitutional. In this appeal we address problems associated with municipal regulation of billboards on the sole basis of aesthetics.

Lamar leased a site in a commercially zoned area in Lake Wales to install a billboard. The City denied Lamar's application for a permit on the basis that its ordinances limited the size of all off-site signs to 200 square feet. Subsequently, the City enacted ordinance 78-5 which prohibited all off-site signs. Again Lamar applied for a permit, and the City denied the application citing ordinance 78-5.

Lamar filed suit against the City. It contended that the City's prohibition of billboards was unconstitutional in that it deprived Lamar of due process of law, equal protection, and freedom of speech and amounted to a taking of its property without just compensation. The City defended ordinance 78-5 on the ground that it was a unique city in Florida by history and planning and that it, therefore, could prohibit billboards to preserve its aesthetic character.

Following trial, the court entered an amended final judgment on April 9, 1979, holding ordinance 78-5 unconstitutional to the extent it prohibited billboards. The court ordered the City to promptly consider amending its ordinance in a manner consistent with the amended final judgment. The City then enacted ordinance 79-21, effective January 2, 1980, amending chapter 3, Signs, of the City's Code of Ordinances which had the objective of promoting "convenience, safety, property values and aesthetics ...." ¹ Ordinance 79-21 reinstated the former 200-square-foot size limitation on billboards. Additionally, it limited billboards to unimproved property in commercial and industrial areas and to a height from the ground to the top of each sign of not more than twenty feet and a length of not more than twenty feet. It provided that billboards must be spaced 1,000 feet apart in commercial areas and 600 feet apart in industrial areas. ² Finally, existing provisions of the City's sign ordinance permitted on-site wall signs to occupy thirty to forty percent of a "signable" area on each wall of a building, while it made the size of on-site ground signs dependent on the number of driving lanes and speed limits on adjacent streets. ³

The parties then submitted newly enacted ordinance 79-21 to the court by stipulation. At trial the City also attempted to defend this ordinance on the basis of the City's aesthetic character. On March 20, 1980, the court entered another final judgment holding that the ordinance was unreasonable and discriminatory and, consequently, unconstitutional. The court ruled that the 200-square-foot limitation was unconstitutional because it effectively prohibited Lamar's signs "unless (Lamar was) able to find a method of altering (its) national copy which is standardized throughout the United States ...." Lamar's billboard material came from a national supplier which furnished 300-square-foot posters. This standardized size enabled Lamar to participate in advertising campaigns of national and regional businesses as well as making possible the preparation of posters in large quantities at reduced costs. See Sunad, Inc. v. City of Sarasota, 122 So.2d 611 (Fla.1960).

The court thus found that the size restriction, together with the other restrictions, rendered ordinance 79-21 unconstitutional when judged by the standard of aesthetics under the Sunad cases. ⁴ Accordingly, the court found the provision limiting billboards to unimproved property unconstitutional noting that "parts of improved property may provide as good or better location for off-site advertising than an improved lot or parcel ...." With regard to the size and length limitations, the court also concluded that "size or length alone is not determinative of and does not create in and of itself an aethetic pattern ...." The trial judge could not comprehend why Lamar's twelve by twenty-five foot signs would be less aesthetic than a sign twenty feet high and ten feet wide or twenty feet wide and ten feet high.

Further, the court found the ordinance's spacing restrictions in commercial and industrial areas unreasonable on the ground that they effectively crippled the business of any off-site advertiser. Finally, it concluded that the Highway Beautification Program of the Florida Department of Transportation, Florida Administrative Code Chapter 14-10, preempted municipal regulation of billboards along federal-aid primary highways. ⁵

The City filed this appeal from the March 20, 1980, judgment. It challenges only two aspects of the judgment: (1) the court's ruling that the 200-square-foot size restriction on billboards was unconstitutional in that it effectively prohibited Lamar's billboards and (2) its ruling that the Highway Beautification Program of the Florida Department of Transportation preempted any conflicting municipal regulation of billboards on federal-aid primary highways.

We can only surmise that in not challenging the court's rulings on the shape, spacing and location provisions of ordinance 79-21, the City may have concluded that it would have been futile to have amended these provisions to comply with the trial court's judgment as long as the rulings on size restriction and preemption stood. The trial court, of course, had no choice on the size restriction being bound by direct precedent in Sunad, Inc. v. City of Sarasota, 122 So.2d 611 (Fla.1960). In Sunad the supreme court held that a municipality cannot cripple the business of an advertiser or discriminate as to size between on-site signs and billboards on the basis of aesthetics. On the other hand, for the City to have permitted the erection of billboards up to 300 square feet in size to enable Lamar to erect its standardized signs and to comply with Sunad would have emasculated the ordinance and nullified its regulation of billboards. Consequently, the City apparently found no reason to amend the shape, spacing and location restrictions on billboards.

While the City does not challenge the rulings on these restrictions, we agree with the trial court on them. The court was judging the merits of the provisions on the basis of aesthetics, and like the trial court, we do not think they are sustainable under Sunad. ⁶

We now address the two principal issues in this case: (1) whether the City's ordinance which effectively prohibits billboards while permitting on-site signs is discriminatory and (2) whether the Florida Department of Transportation's Highway Beautification Program preempts the City's regulation of billboards along federal-aid primary highways within its boundaries.

We conclude that the trial court properly found ordinance 79-21, which the City had defended on the basis of its unique aesthetic character, unconstitutional because under Sunad there is no valid aesthetic reason for distinguishing between billboards and on-site advertising signs. However, we hold that ordinance 79-21 does not conflict with the Highway Beautification Program of the Florida Department of Transportation. We suggest the supreme court might now wish to reconsider its decision in Sunad, Inc. v. City of Sarasota that an ordinance regulating billboards solely on the ground of aesthetics is unconstitutional. See Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

I. Discrimination between on-site signs and billboards on the basis of aesthetics.

Historically, courts have had difficulty sustaining municipal zoning actions grounded on aesthetics under the police power. Wulfsohn v. Burden, 241 N.Y. 288, 150 N.E. 120 (1925); City of Youngstown v. Kahn Bros. Bldg. Co., 112 Ohio St. 654, 148 N.E. 842 (1925); 1 R. Anderson, American Law of Zoning §§ 7.13, .17 (2d ed. 1976). In fact, initially, "(a)esthetic considerations were held insufficient to support use of the police power to impose even modest limitations upon the location of (billboards)." Id. § 7.16. E. g., Commonwealth v. Boston Advertising Co., 188 Mass. 348, 74 N.E. 601 (1905); Kansas City Gunning Advertising Co. v. Kansas City, 240 Mo. 659, 144 S.W. 1099 (1912); Bryan v. City of Chester, 212 Pa. 259, 61 A. 894 (1905).

Along with other states, however, Florida began to permit its municipalities to consider the beauty of their communities in exercising their police powers. Sunad, Inc. v. City of Sarasota, 122 So.2d 611 (Fla.1960); City of Miami Beach v. Ocean & Inland Co., 147 Fla. 480, 3 So.2d 364 (1941). Numerous other state courts have since taken the view Justice Douglas stated in Berman v. Parker, 348 U.S. 26, 33, 75 S.Ct. 98, 102, 99 L.Ed. 27 (1954) (citations omitted):

The concept of the public welfare is broad and inconclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled.

E. g., Veterans of Foreign Wars v. Steamboat Springs, 195 Colo. 44, 575 P.2d 835, appeal dismissed, 439 U.S. 809, 99 S.Ct. 66, 58 L.Ed.2d 101 (1978); Newman Signs, Inc. v. Hjelle, 268...