947 F.2d 1158 (4th Cir. 1991), 90-3086, National Advertising Co. v. City of Raleigh

Docket Nº:90-3086.
Citation:947 F.2d 1158
Party Name:NATIONAL ADVERTISING COMPANY, Plaintiff-Appellant, v. CITY OF RALEIGH, North Carolina, Defendant-Appellee. Southern Environmental Law Center, Amicus Curiae.
Case Date:October 25, 1991
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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947 F.2d 1158 (4th Cir. 1991)

NATIONAL ADVERTISING COMPANY, Plaintiff-Appellant,

v.

CITY OF RALEIGH, North Carolina, Defendant-Appellee.

Southern Environmental Law Center, Amicus Curiae.

No. 90-3086.

United States Court of Appeals, Fourth Circuit

October 25, 1991

Argued Jan. 8, 1991.

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[Copyrighted Material Omitted]

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Michael M. Berger, argued, Fadem, Berger, Norton, Los Angeles, Cal., for plaintiff-appellant.

Thomas A. McCormick, argued, City of Raleigh, Raleigh, N.C., for defendant-appellee.

Katherine E. Slaughter, Southern Environmental Law Center, Charlottesville, Va., on the brief, for amicus curiae.

Before RUSSELL and WILKINS, Circuit Judges, and ELLIS, District Judge for the Eastern District of Virginia, sitting by designation.

OPINION

ELLIS, District Judge:

Appellant National Advertising Company commenced this action in April 1989 under 42 U.S.C. § 1983 alleging that a 1983 ordinance adopted by the City of Raleigh, North Carolina, restricting off-premise outdoor advertising signs, violated the First and Fourteenth Amendments and also resulted in a taking without just compensation in violation of the Fifth and Fourteenth Amendments. The district court found that National's suit was barred by North Carolina's three-year limitations period set forth in G.S.N.C. § 1-52(2). On appeal, National contends that it suffered no injury from the ordinance, and hence no cause of action accrued, until a five-and-one-half (5 1/2) year grace period provided in the ordinance for nonconforming signs expired. National also contends that its action is timely because the ordinance constitutes a "continuing" constitutional violation. The district court rejected National's contentions. Finding no error below, we affirm.

I.

On October 18, 1983, the Raleigh city council adopted Ordinance No. 210 TC 198 ("the 1983 ordinance" or "the ordinance"), which by its terms became effective October 23, 1983. 1 This ordinance amended a 1979 ordinance that established zoning regulations for signs in Raleigh. The 1979 ordinance allowed "on-premise" signs, defined as signs located on the premises which "direct[ ] attention to a business, profession, commodity, service, or entertainment conducted, offered, sold, manufactured,

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or provided at a location on the premises where the sign is located or to which it is affixed," and permitted "off-premise" signs (or "non-point-of-sale" signs) and special category signs, including political signs, real estate signs and governmental and public purpose signs, in certain areas of Raleigh.

The 1983 ordinance modified the 1979 ordinance, inter alia, by reducing the size of permissible off-premise signs from 672 square feet to 150 square feet for signs facing streets with four or more traffic lanes, and to 75 square feet for signs facing streets with fewer than four traffic lanes. A further modification confined the location of such signs to so-called "industrial zones" as defined in the ordinance. Existing signs larger than the specified dimensions were declared nonconforming uses. Furthermore, the 1983 ordinance prohibited the construction of any new nonconforming signs and, except for ordinary maintenance and poster panel replacements, it also barred any structural alteration, reconstruction, or other material change to existing nonconforming signs unless the signs and their entire structures were brought into conformity with the 1983 ordinance. But existing nonconforming signs were not immediately banned. Rather, they enjoyed a 5 1/2 year grace period beginning October 23, 1983. At the end of this period nonconforming signs were required to be removed, unless they fell within a state law exception for signs located adjacent to highways on the National System of Interstate and Defense Highways or on the Federal-Aid Primary Highway system. The 5 1/2 year grace period (referred to in the ordinance as an "amortization" period) was in lieu of any other form of compensation.

National, a national advertising company, owns approximately thirty-six billboards in Raleigh. Sixteen of these billboards are located on federal highway systems and hence are exempted from the 1983 ordinance. National filed its complaint on April 28, 1989, more than three years after adoption of the 1983 ordinance and approximately one-month after expiration of the 5 1/2 year amortization period. Raleigh responded with a motion for summary judgment pursuant to Rule 56, Fed.R.Civ.P., contending that the action was barred either by G.S.N.C. § 1-54.1, which establishes a nine-month limitation period for "actions contesting the validity of any zoning ordinance or amendment thereto," or by G.S.N.C. § 1-52(2), which establishes a three-year limitations period for lawsuits based on "liability created by statute, either state or federal." The district court determined that the latter statute applied and barred National's suit. On appeal, National concedes that § 1-52(2) establishes the applicable limitations period. It contends, however, that it was not injured by the 1983 ordinance until the 5 1/2 year amortization period for nonconforming signs expired and it was forced to remove its signs or contest the validity of the ordinance. Accordingly, National argues that the district court erred in finding that the cause of action accrued upon enactment of the ordinance in October 1983. Instead, National contends the cause of action did not accrue until either the expiration of the amortization period or, at the earliest, January 6, 1989, the date it received a notification letter from Raleigh demanding the removal of its nonconforming billboards by April 1989. Alternatively, National claims that the 1983 ordinance created a continuing constitutional violation and therefore National's action is timely. We review these claims seriatim.

II.

Because there is no federal statute of limitations applicable to suits under § 1983, "it is the rule that the applicable 'provision limiting the time in which an action [under § 1983] must be brought, must be borrowed from the analogous state statute of limitations.' " Bireline v. Seagondollar, 567 F.2d 260, 262 (4th Cir.1977), quoting Cox v. Stanton, 529 F.2d 47, 49 (4th Cir.1975). The parties take the view that the analogous state limitations period is the three-year limitations period established in G.S.N.C. § 1-52(2) for actions based on "liability created by statute, either state or federal." While we agree

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that a three-year limitations period is applicable, we find that this limitations period is supplied by G.S.N.C. § 1-52(5), relating to personal injury actions, and not § 1-52(2). 2

The selection of the appropriate statutory limitations period is only the first step in the analysis. There remains the question of when National's cause of action accrued. While the statutory limitations period for § 1983 actions is borrowed from state law, "[t]he time of accrual of a civil rights action is a question of federal law." Id. at 50; Campbell v. Haverhill, 155 U.S. 610, 15 S.Ct. 217, 39 L.Ed. 280 (1895); Bridgford v. United States, 550 F.2d 978, 981 (4th Cir.1977). "Federal law holds that the time of accrual is when plaintiff knows or has reason to know of the injury which is the basis of the action." Cox, 529 F.2d at 50; see Urie v. Thompson, 337 U.S. 163, 170, 69 S.Ct. 1018, 1024-25, 93 L.Ed. 1282 (1949) ("statutes of limitations ... conventionally require the assertion of claims within a specified period of time after notice of the invasion of legal rights"); Blanck v. McKeen, 707 F.2d 817, 819 (4th Cir.), cert. denied, 464 U.S. 916, 104 S.Ct. 279, 78 L.Ed.2d 258 (1983); Young v. Clinchfield Railroad Co., 288 F.2d 499, 503 (4th Cir.1961).

The basis of a takings claim is the assertion that a regulation's "interference with appellants' property is of such magnitude that 'there must be an exercise of eminent domain and compensation to sustain [it].' " Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 136, 98 S.Ct. 2646, 2665, 57 L.Ed.2d 631 (1978), quoting Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413, 43 S.Ct. 158, 159, 67 L.Ed. 322 (1922). In determining whether a taking has occurred, courts examine several factors, including "the economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations." Penn Central, 438 U.S. at 124, 98 S.Ct. at 2659. Courts conducting a takings analysis in the zoning context "have traditionally looked to the existing use of property as a basis for determining the extent of interference with the owner's 'primary expectation concerning the use of the parcel.' " Esposito v. South Carolina Coastal Council, 939 F.2d 165, 170 (4th Cir.1991), 3 quoting Penn Central,

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38 U.S. at 136, 98 S.Ct. at 2665. Interference with the primary uses of a property is the touchstone of the analysis. In the zoning context, "diminution in property value, standing alone, [cannot] establish a 'taking'.... [T]he 'taking' issue in these contexts is resolved by focusing on the uses the regulations permit." Penn Central, 438 U.S. at 131, 98 S.Ct. at 2662-63. The same principle applies in the present case. Hence, National's cause of action arose when the ordinance was enacted because it was then, if at all, that National suffered the regulatory interference with the primary uses of its property.

National contends that its cause of action did not accrue until the expiration of the 5 1/2 year amortization period in April 1989, when it faced the City's demand that the nonconforming signs be removed. Until then, National asserts, it suffered no actual injury because the 1983 ordinance was neither applied nor enforced against it. Given this, National contends...

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