Desert Outdoor Advertising v. San Bernardino County

• Court: California Court of Appeals
• Writing for the Court: THOMPSON; McCABE, P.J., and KERRIGAN
• Citation: Desert Outdoor Advertising v. San Bernardino County, 63 Cal.Rptr. 543, 255 Cal.App.2d 765 (Cal. App. 1967)
• Decision Date: 07 November 1967
• Parties: DESERT OUTDOOR ADVERTISING, Plaintiff and Appellant, v. COUNTY OF SAN BERNARDINO, Defendant and Respondent. COUNTY OF SAN BERNARDINO, Plaintiff and Respondent, v. DESERT OUTDOOR ADVERTISING, Defendant and Appellant. Civ. 8340, 8341.

Page 543

63 Cal.Rptr. 543

255 Cal.App.2d 765

DESERT OUTDOOR ADVERTISING, Plaintiff and Appellant, v. COUNTY OF SAN BERNARDINO, Defendant and Respondent.

COUNTY OF SAN BERNARDINO, Plaintiff and Respondent, v. DESERT OUTDOOR ADVERTISING, Defendant and Appellant.

Civ. 8340, 8341.

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

Nov. 7, 1967.

Hearing Denied Jan. 3, 1968.

[255 Cal.App.2d 766] Daniel N. Fox, Pomona, for appellant.

Stanford D. Herlick, County Counsel, and Paul A. Grube, Jr., Deputy County Counsel, for respondent.

OPINION

THOMPSON, Associate Justice pro tem. ^*

This appeal involves two consolidated cases: No. 8340--Desert Outdoor Advertising, Inc. versus the County of San Bernardino, and No. 8341--County of San Bernardino versus Desert Outdoor Advertising, Inc. The legal problems involved are identical. For sake of convenience, Desert Outdoor Advertising, Inc., will be referred to as 'plaintiff,' and County of San Bernardino will be referred to as 'defendant' or 'County.' Case No. 8340 was an action by plaintiff against defendant to restrain it from enforcing the provisions of its zoning ordinance relating to two of the billboards along freeways listed below. Case No. 8341 was an action by the county against Desert Outdoor Advertising, Inc., to abate as nuisances the other two billboards involved herein, also along freeways, allegedly in contravention of the same ordinance. The respective locations and zones in which the signs are located are as follows:

                    Location                             Zone
                                    --------                             ----
                 1.   San Bernardino Freeway near Etiwanda  M--2 General Manufacturing
                      Avenue                                District
                 2.   San Bernardino Freeway near Live Oak  R--3 Multiple Family Residence
                      Avenue--Fontana Area                  District
                 3.   Redlands Freeway near Yucaipa-San     M--1 Limited Manufacturing
                      Gorgonio Pass                         District
                 4.   Barstow Freeway near Cajon Summit     M--1 Limited Manufacturing
                                                            District
                

The text of the portion of the ordinance involved is as follows:

'15.10 SIGNS ADJACENT TO FREEWAYS:

'a. * * *

'b. Advertising structures shall not be erected, constructed or maintained within 500 feet of any County or State freeway so that the advertising matter thereon shall be visible to the operators of vehicles being driven on said freeway while approaching such structures, except that this subsection shall not apply under the following conditions: '(1) In Valley-mountain areas in C--2 or M--1 zones if such structures are on the same side of the freeway as, and within 500 feet of a business or industrial structure (other than an advertising structure) located in a C--2 or M--1 zone and within 150 feet of the freeway.

'(2) In desert areas and that portion of the valley-mountain area along the Barstow Freeway, Legislative Route 31 north of the Main Street Over-crossing (Devore), Bridge No. 54--525, in C--2 or M--1 zones if such structures are on the same side of the freeway as, and within 500 feet of a business or industrial structure (other than an advertising structure) located in a C--2 or M--1 zone and within 150 feet of the freeway. Provided further that a maximum of two advertising structures shall be permitted within an additional 500 feet of the exterior boundaries described above and as illustrated on the drawing designated Figure 1. Provided further that subject to approval of location and development as provided in Sec. 15.6, advertising structures shall be permitted on the opposite side of the freeway within an area directly opposite and bounded by the exterior boundaries described above and illustrated on the drawing designated Figure 1. Business or industrial structure as used herein shall mean an occupied permanent building attached to a permanent foundation wherein one or more persons are regularly employed. * * *'

The ordinance has customary provisions relating to penal consequences of its violation, and also provides that any structure contrary to its terms is unlawful, is a public nuisance, and may be abated by action in the superior court.

Plaintiff makes a number of contentions, of which we will discuss the following: (1) That neither zoning ordinances nor anti-billboard ordinances may be based on aesthetic considerations alone, and that any ordinance so based violates the due process and equal protection clauses of the Fourteenth Amendment to the U.S. Constitution and cognate provisions of the California Constitution; (2) that the case of National Advertising Co. v. County of Monterey, 211 Cal.App.2d 375, 27 Cal.Rptr. 136, does not support the validity of the questioned parts of this ordinance, but suggests invalidity as applied to plaintiff; (3) that the supervisors' stated purposes support plaintiff's position; (4) that the State of California by virtue of its Outdoor Advertising Act has preempted the field as to all aspects of outdoor advertising in unincorporated county areas; and (5) that the enactment is contrary to section 65852 of the Government Code requiring uniformity of regulations within zones.

Concerning the first point, plaintiff's contention that such an ordinance may not be based on aesthetic considerations alone, we are referred to the case of Varney & Green v. Williams, 155 Cal. 318, 100 P. 867, 21 L.R.A.,N.S., 741. This case, decided in 1909, holds that an ordinance of the town of East San Jose, which absolutely prohibited all advertising signs within its corporate limits, could not be sustained on the ground of aesthetic considerations. The following quote gives the essence of the case (p. 320, 100 P. p. 868):

'That the promotion of aesthetic or artistic considerations is a proper object of governmental care will probably not be disputed. But, so far as we are advised, it has never been held that these considerations alone will justify, as an exercise of the police power, a radical restriction of the right of an owner of property to use his property in an ordinary and beneficial way. Such restriction is, if not a taking, Pro tanto of the property, a dammaging thereof, for which, under article 1, § 14, Const., the owner is entitled to compensation. To this extent the authorities are all in accord. 'No case has been cited,' says the Court of Errors and Appeals of New Jersey in City of Passaic v. Paterson, etc., Co., 72 N.J.Law, 285, 62 Atl. 267, 111 Am.St.Rep. 676, 'nor are we aware of any case, which holds that a man may be deprived of his property because his tastes are not those of his neighbors. Aesthetic considerations are a matter of luxury and indulgence rather than of necessity, and it is necessity alone which justifies the exercise of the police power to take private property without compensation."

The holdings of recent cases in California are that, although the doctrine of Varney & Green v. Williams, supra, 155 Cal. 318, may still apply, if there is in addition some other justification such as economic advantage to the area an ordinance such as the one under consideration must be sustained. This may be summed up by the following quotation from the very recent case, County of Santa Barbara v. Purcell, Inc., 251 Cal.App.2d ---, --- ¹, 59 Cal.Rptr. 345, 348:

'Defendants assert that these ordinances 'bottom solely upon aesthetics.' Their argument, based upon their interpretation of Varney & Green v. Williams (1909) 155 Cal. 318, 100 P. 867, 21 L.R.A.,N.S., 741 (132 Am.St.Rep. 88), is that zoning laws may only be used to protect the economic interests of a property owner and not to preserve the priceless beauty of a countryside for all men. It is unnecessary to meet that argument directly, for the trial court has found that in Santa Barbara County scenic environment is commercial. The trial court found that people come to the county because of its natural beauty, and that the maintenance of billboards along the highway may reasonably be believed to have an adverse effect upon the economy.

'Defendants' arguments as to the constitutionality of these ordinances are answered by what has been said in National Advertising Co. v. County of Monterey (1962) 211 Cal.App.2d 375, 27 Cal.Rptr. 136; Metromedia, Inc. v. City of Pasadena (1963) 216 Cal.App.2d 270, 30 Cal.Rptr. 731; and Burk v. Municipal Court (1964) 229 Cal.App.2d 696, 40 Cal.Rptr. 425.'

In the case at bench, testimony was taken and several witnesses testified that the absence of billboards along freeways would constitute a beautification which, in turn, would tend to attract tourists, settlers and industries to the county, thus establishing economic benefit as an additional base to sustain the provisions of the zoning ordinance under question. The trial court made a finding as follows: 'Said provision operates to help provide a favorable environment for private industries, in particular the tourist industry, by the regulation of land use.' On the basis of the foregoing authorities, we must hold that the questioned portion of the ordinance is a proper exercise of the police power.

We...