City of Santa Barbara v. Modern Neon Sign Co.

• Decision Date: 16 February 1961
• Docket Number: No. 24850,24850
• Citation: 11 Cal.Rptr. 57,189 Cal. App. 2d 188
• Court: California Court of Appeals
• Parties: CITY OF SANTA BARBARA, a municipal corporation, Plaintiff and Appellant, v. MODERN NEON SIGN CO., a corporation, et al., Defendants and Respondents.

Page 57

11 Cal.Rptr. 57

189 Cal.App.2d 188

CITY OF SANTA BARBARA, a municipal corporation, Plaintiff and Appellant, v.MODERN NEON SIGN CO., a corporation, et al., Defendants and Respondents.

No. 24850.

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

Feb. 16, 1961.

Stanley T. Tomlinson, City Atty., by Ardy V. Barton, Asst. City Atty., Santa Barbara, for appellant.

Price, Postel & Parma, Santa Barbara, by Robert M. Jones, San Francisco, for respondentsModern Neon Sign Co. and Lino Castangola.

Trevey, Schwartz & Wood, by Edward J. Trevey, Santa Barbara, for respondentReginald Kerry.

ASHBURN, Justice.

The City of Santa Barbara appeals from a judgment denying it any relief in an action brought to compel compliance with its Sign Ordinance, No. 2598, effective April 7, 1957.The specific objective of the action was to compel alteration of certain moving signs belonging to defendants, alteration which would eliminate all motion.Three of them are located in the commercial zone of the city and the fourth in a commercial-manufacturing zone.All had been built pursuant to permits issued by the city in accordance with an existing ordinance and were placed in operation before adoption of said OrdinanceNo. 2598.

The pertinent terms of the ordinance are as follows:

'Section 2: Purpose: Whereas the City of Santa Barbara is a community of fine homes and buildings, and has, over a period of years, attempted through general civic efforts, the Plans and Planting Committee, and other citizen's committees, and the Architectural Board of Review, to make this one of the most beautiful cities on the Pacific Coast with a distinctive architecture; and

'Whereas, unless properly regulated, signs can be a hazard to the community, particularly with regard to fire protection of certain buildings and structures and to the vision of those in vehicular traffic; and

'Whereas, the Council of the City of Santa Barbara has found that unless restrictive and adequate sign legislation is adopted, the safety and welfare of the citizens and residents may be seriously effected to the detriment of the entire community; * * *'

'Section 4: Definitions: As used in this Ordinance, unless the context otherwise indicates, words and phrases not defined are to be construed according to the approved usage of the English language. * * *

'(21) Moving Signs: Any sign or advertising structure which has any visible moving parts, visible revolving parts or visible mechanical movement of any description (excepting clocks). * * *

'(14) Flashing Sign: Shall mean any sign or advertising structure which has any flashing device, intermittent, illumination or revolving lighting device, thereon or in connection therewith.'

'Section 8: Signs Prohibited: The following signs are prohibited within the City limits of Santa Barbara:

'(1) Horizontal Wing Type signs.

'(2) Wind signs.

'(3) Horizontal 'V' Type signs except upon approval by the City Council after recommendation by the Architectural Board of Review.

'(4) Moving signs.

'(5) Outline Tubing.'

'Section 38: Non-Conforming Signs:

'(a) Amortization period:

'1.Every sign or other advertising structure in existence on adoption of this Ordinance, and which violates or does not conform to the provisions hereof, shall be removed or altered or replaced so as to conform with the provisions of this Ordinance within five (5) years of adoption of date hereof.

'2.Every moving sign visible from any public way or thoroughfare shall be altered to prevent such movement within one (1) year from date of adoption hereof.'

'Section 13: Traffic Hazard Signs: No sign or other advertising structure shall be erected so as to obstruct free and clear vision of vehicular traffic or at any location where it may interfere with, or be confused with any authorized traffic sign, signal or device.'

Defendants contended below, and the court found, that the ordinance as applied to them is unconstitutional in that (a) it reflects an arbitrary and unreasonable classification with respect to moving and flashing signs, proscribing the former and permitting continued use of the latter, and (b) the ordinance prescribes an unreasonably short amortization period for the respective signs, provides no compensation and amounts to a taking or damaging of defendants' property without compensation, and without due process of law.The respondents' proof clearly shows that the signs in question do not constitute traffic hazards and are not within section 13 of the ordinance.

The language of sections 4(21)and4(14), quoted above, is so obscure in some respects as to render difficult, if not impossible, a determination whether a given sign falls in the one category or the other.Respondents' evidence clearly established that a flashing sign gives the appearance of movement and has the same effect upon the eye as does the moving sign.The court found: 'That 'flashing signs' as defined in said Sign Ordinance can be and have been validly designed, fabricated, constructed, erected, placed and located under the pursuant to said Sign Ordinance so as to produce an optical illusion of movement, which illusion of movement has the same visual effect upon the public and those driving on and using the public streets as the 'moving signs' which are the subject of this action and which latter signs are prohibited under the same Sign Ordinance.'Also, by way of conclusion: 'That the allowance of 'flashing signs' under said Sign Ordinance, and the prohibition of 'moving signs' under the circumstances and in the manner set forth in the Findings of Fact, under said ordinance, is unconstitutional in its operation and effect upon defendants in that said allowance on one hand and prohibition on the other is based upon an arbitrary and unreasonable classification having no reasonable relation to the public health, safety, welfare and morals.'That this is a sound ruling is well sustained by the authorities.

'A statute is not general or uniform, but makes an improper classification, if it confers particular privileges or imposes peculiar restrictions or disabilities upon a class arbitrarily selected from a larger number of persons, all of whom stand in the same relation to the privileges granted or burdens imposed, and between whom and the persons not so favored or burdened no reasonable distinction or substantial difference can be found to warrant the inclusion of the one and the exclusion of the other.'(11 Cal.Jur.2d § 272, p. 719.)City of Pasadena v. Stimson, 91 Cal. 238, 251, 27 P. 604, 607: 'The conclusion is that, although a law is general and constitutional when it applies equally to all persons embraced in a class founded upon some natural or intrinsic or constitutional distinction, it is not general or constitutional if it confers particular privileges, or imposes peculiar disabilities or burdensome conditions in the exercise of a common right, upon a class of persons arbitrarily selected from the general body of those who stand in precisely the same relation to the subject of the law.'Martin v. Superior Court, 194 Cal. 93, 100, 227 P. 762, 765: 'The classification, however, must not be arbitrarily made for the mere purpose of classification, but must be based upon some distinction, natural, intrinsic, or constitutional, which suggests a reason for and justifies the particular legislation.That is to say, not only must the class itself be germane to the purpose of the law, but the individual components of the class must be characterized by some substantial qualities or attributes which suggest the need for and the propriety of the legislation.'There is no natural, intrinsic, or constitutional distinction which furnishes a reason for or justifies the classification of moving and flashing signs in the manner found in the sign ordinance in question.

Respondents' contention that the ordinance operates to take their property without compensation and without due process of law, that it exceeds legitimate exercise of the police power, must be sustained also.

These signs were constructed pursuant to permits issued by the city based upon plans and specifications furnished by each applicant, all as authorized by an ordinance existing before the Sign Ordinance of April 7, 1957, was passed.Defendant Kerry's sign was completed on November 28, 1956, and is leased by him from defendantModern Neon Sign Co., its owner.Kerry's total rent obligation to Modern for the sixty-month term of the lease is $5,733.Roche's sign was completed on August 13, 1956, is leased from Modern Neon Sign Co., and carries total rental of $6,696; Arca's sign was completed March 18, 1957, less than a month before enactment of the new ordinance.He bought it on monthly payments aggregating $1,882.46.Castagnola's sign is owned by him, was finished on February 22, 1957, and cost $1,519.44.The reasonable economic life of each sign is at least ten years.

On May 20, 1958, the Director of the city's Building Department notified respondents-defendants that their resective signs were 'in violation of OrdinanceNo. 2598.As per Section 38 of the above Ordinance, the rotation or motion of a sign is not allowed,' and requested immediate compliance with the ordinance.No other claim of violation of the law was asserted, nor is any found in plaintiff's complaint.The court found: 'That the functional design of each of said signs is suitable only as a moving sign, and for that reason if said signs, or any of them, were altered so as to prevent movement, each sign would thereupon become valueless as an advertising media for defendants' respective businesses.

'That because of the design or [sic] each of said signs as a moving sign, if said signs, or any of them, were altered so as to prevent movement, each sign would thereupon become valueless to each defendant concerned.

'That the entire value of each of said signs to the respective defendant concerned depends wholly and...