City and County of San Francisco v. Eller Outdoor Advertising

• Decision Date: 11 June 1987
• Citation: 237 Cal.Rptr. 815,192 Cal.App.3d 643
• Court: California Court of Appeals Court of Appeals
• Parties: CITY & COUNTY OF SAN FRANCISCO, Plaintiff and Appellant, v. ELLER OUTDOOR ADVERTISING, et al. Defendants and Respondents. CITY & COUNTY OF SAN FRANCISCO, Plaintiff and Appellant, v. FOSTER & KLEISER, et al., Defendants and Respondents. A028919, A029026.

Page 815

237 Cal.Rptr. 815

192 Cal.App.3d 643

CITY & COUNTY OF SAN FRANCISCO, Plaintiff and Appellant, v. ELLER OUTDOOR ADVERTISING, et al. Defendants and Respondents.

CITY & COUNTY OF SAN FRANCISCO, Plaintiff and Appellant, v. FOSTER & KLEISER, et al., Defendants and Respondents.

A028919, A029026.

Court of Appeal, First District, Division 2, California.

June 11, 1987.

Louise H. Renne, City Atty., Paula A. Jesson, Andrew W. Schwartz, Deputy City Attys., San Francisco, for plaintiff and appellant

Paul M. Hupf, Hupf and Pollak, San Francisco, for defendants and respondents.

SMITH, Associate Justice.

In these two actions which have been consolidated for purposes of this appeal, the City and County of San Francisco (hereinafter the City) brought complaints for injunctive relief against two billboard companies, defendants and respondents Eller Outdoor Advertising (Eller) and Foster and Kleiser (F & K), as well as the owners of certain real properties who lease space to Eller and F & K for the purpose of maintaining outdoor advertising structures. The City sought to compel removal of general advertising signs located within the "Market Street Special Sign District," in violation of San Francisco's sign ordinance (§§ 601 et seq. of the San Francisco Planning Code). The City suffered a judgment of dismissal for failure to bring the causes to trial within the mandatory period prescribed by former Code of Civil Procedure section 583, subdivision (b). Prior to the dismissal, however, the City moved for summary judgment. The motion was denied because the trial court determined that the constitutionality of the ordinance under which the City brought these actions was a triable issue of fact.

The City does not contest the merits of the dismissal order, but contends that the point does not matter because the trial court should have granted summary judgment in its favor. We therefore face the issue of whether the constitutionality of San Francisco's sign ordinance should have been upheld as a matter of law in the summary judgment proceedings below. We conclude that the ordinance passes constitutional muster except in certain minor respects; that offending provisions can be judicially construed so as to avoid constitutional difficulties; and that the City was therefore entitled to injunctive relief.

BACKGROUND

San Francisco's board of supervisors (the Board) first enacted a sign ordinance (Art. 6, of the San Francisco Planning Code) in 1965. Among the stated "Special Purposes" of the ordinance were the protection and enhancement of property values, the preservation of the character and dignity of public buildings and the "distinctive appearance of San Francisco which is produced by its unique geography, topography, street patterns, skyline and architectural features," the promotion of business development, the lessening of the objectionable effects of competition in the placement and size of signs, the aid in the attraction of tourists to the City, and the reduction of hazards to motorists and pedestrians. The ordinance regulates the size, placement and location of signs throughout the City. The definition of "sign" as set forth in section 602.18 ¹ is a broad one, covering virtually every outdoor display, symbol, or inscription A critical distinction created by the ordinance is that between a "General Advertising Sign" which directs attention to a "business, commodity, industry or other activity which is sold, offered or conducted elsewhere than on the premises upon which such sign is located ..." (§ 602.7, emphasis added) and a "Business Sign," which "directs attention to a business, commodity, service, industry or other activity which is sold, offered, or conducted, other than incidentally, on the premises upon which such sign is located...." (§ 602.7, emphasis added.) The distinction is one that is frequently made in the enactment of local sign ordinances and is commonly referred to as the difference between "offsite" signs and "onsite" signs. (See Metromedia, Inc. v. San Diego (1981) 453 U.S. 490, 498-499, 101 S.Ct. 2882, 2888, 69 L.Ed.2d 800, citing Suffolk Outdoor Advertising Co. v. Hulse (1977) 43 N.Y.2d 483, 402 N.Y.S.2d 368, 373 N.E.2d 263, app. dism., 439 U.S. 808, 99 S.Ct. 66, 58 L.Ed.2d 101.)

                consisting of characters used for communicative purposes. 2  As will be discussed in more detail in a later section of this opinion, section 603 of the ordinance exempts certain signs altogether from the scope of the ordinance, such as public notices, traffic control devices, temporary political campaign posters, house numbers and religious symbols. 3
                

The sign ordinance designates certain areas of the City, such as those near parks, freeways, certain scenic streets and residential districts, and subjects them to special sign regulation. (§§ 608.1-608.10.)

In 1968, the voters of San Francisco approved a $24.5 million bond issue for the reconstruction and improvement of downtown Market Street. Market Street is the main thoroughfare for downtown traffic; it attracts more pedestrians than any other street in the city; it is the center for public ceremonies, parades and much tourist activity and is the location of many landmark buildings. The development plan called for the installation of specially designed brick sidewalks, street furnishings, plazas and abundant landscaping in and along the avenue.

As an outgrowth of the 1965 sign legislation and the Market Street development project, the Board unanimously enacted Ordinance No. 125.70 (adding § 608.8 to the Planning Code), which created the Market Section 608.8 comprises the regulatory scheme for the MSSSD and establishes standards for the height and projection of sign structures. In addition, "General Advertising Signs" (offsite signs) within the district are absolutely prohibited. (§ 608.8(b).) On the other hand, "Business Signs" (onsite signs) are allowed throughout the MSSSD, provided they conform to the height and projection specifications prescribed in the code. ⁵

Street Special Sign District ("MSSSD"). The stated purpose of the district's creation was to further the beautification project and to enhance street appearance and economic stability of the redevelopment area through regulation of street signs, many of which were deemed to be harmful to the aesthetic quality of the environment and incompatible with the surroundings. ⁴

Section 609.10 initially provided for an amortization period of three years during which all off-site signs were to be removed. In 1971, this section was amended to extend the amortization period to five years from the enactment of the MSSSD ordinance or 30 days following substantial completion of the Market Street development project, whichever was later. ⁶ On

February 18, [192 Cal.App.3d 652] 1977, the Board amended section 609.10(a) to add a declaration that as of May 18, 1976, (six years after the enactment of the MSSSD ordinance), the Market Street improvements were deemed substantially complete and the amortization period for removal of general advertising signs had expired.

PROCEDURAL HIGHLIGHTS

When respondents refused to remove certain of their advertising billboards following the February 1977 amendment declaring the end of the amortization period, the City commenced the present actions for injunctive relief. The sole ground of the City's claim for relief was that eight billboards maintained by Eller and 25 by F & K were a public nuisance, to wit, that they were in violation of the prohibition against such structures set forth in the San Francisco Planning Code.

Respondents answered and cross-complained for declaratory and injunctive relief, seeking a declaration to the effect that the ordinances which the City relied upon to compel removal of the signs were "unconstitutional and void" as applied to them.

The actions were filed in 1977, but the City did not file an at-issue memorandum until May 10, 1983. Respondents countered with a motion to dismiss for failure to bring the cause to trial within five years. The City successfully opposed the motion on the ground that the court's jurisdiction was stayed for two years by a legislatively imposed statewide moratorium on local actions seeking the removal of advertising displays. (See former Bus. & Prof.Code, § 5412.5.)

In February 1984, the City brought a motion to advance the case for trial, representing that the mandatory dismissal period prescribed by former Code of Civil Procedure section 583 would expire on May 8, 1984. The trial court denied the motion. The City brought a motion for summary judgment soon afterwards. The motion was exhaustively briefed; voluminous declarations were filed in support of and in opposition to the motion.

The court denied summary judgment, but summarily adjudicated all issues in the City's favor, except for those pertaining to the constitutionality of the Market Street Special Sign Ordinance. Although respondents tendered other purported controverted issues, it is clear from the court's order that it deemed the only triable controversy to be "[t]he application of the ... Sign District Ordinance to the expression guaranteed by the First Amendment of the United States Constitution...."

Because of the court's earlier denial of the motion to advance, the injunction actions could not be brought to trial within the mandatory dismissal period, and were accordingly dismissed on respondents' motion in August 1984. The City timely appealed from the judgments of dismissal.

APPEAL

I.

Respondents imply, without expressly stating, that the City cannot attack the trial court's order denying summary judgment because its only appeal is from the judgment of dismissal. It is, of course, axiomatic that an order granting only partial summary judgment is nonappealable. (9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, § 76, pp. 100-101; Code Civ.Proc., § 437c, subds. (f), (j).) However, if as the City contends, the trial court should have granted full...