Donnelly Advertising Corp. of Maryland v. City of Baltimore

• Decision Date: 21 March 1977
• Docket Number: No. 138,138
• Citation: 279 Md. 660,370 A.2d 1127
• Parties: , 7 Envtl. L. Rep. 20,397 DONNELLY ADVERTISING CORPORATION OF MARYLAND et al. v. Mayor and CITY Council OF BALTIMORE et al.
• Court: Maryland Court of Appeals

Page 660

279 Md. 660

370 A.2d 1127, 7 Envtl. L. Rep. 20,397

DONNELLY ADVERTISING CORPORATION OF MARYLAND et al. v. Mayor and CITY Council OF BALTIMORE et al.

No. 138.

Court of Appeals of Maryland.

March 21, 1977.

Jerald J. Oppel and William L. Balfour, Baltimore (Michael H. Davis and Ober, Grimes & Shriver, Baltimore, on the brief), for appellants.

Richard M. Hartman, Chief City Sol., Baltimore (Benjamin L. Brown, City Sol., and C. Laurence Jenkins, Jr., Asst. City Sol., Baltimore, on the brief), for appellees.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, JJ.

MURPHY, Chief Judge.

The primary question presented in this case is whether § 5(g) of the Oldtown Urban Renewal Ordinance No. 760 of the Mayor and City Council of Baltimore (the City), approved April 7, 1970, requiring removal of all signs in the renewal area covered by the ordinance other than those identifying the premises on which they are located, is valid and constitutional. Appellants-Donnelly Advertising Corporation of Maryland, owner of advertising structures throughout the city on land leased or owned by it, and the Flaccomios, owners of Oldtown property leased to Donnelly-sought a declaration that the ordinance was unconstitutional, illegal, null, and void, and an injunction restraining its enforcement. The Circuit Court of Baltimore City (Cole, J.), after a hearing, concluded that the ordinance was constitutional and valid and dismissed the action. Donnelly and the Flaccomios appealed. We granted certiorari prior to decision in the case by the Court of Special Appeals.

The Oldtown Urban Renewal Plan has multiple objectives. These include development of a good residential neighborhood, removal of substandard buildings, elimination of blighting influences, revitalization of the shopping area, maximization of employment opportunities, and protection of the neighborhood from future blighting influences. The ordinance authorizes the City to acquire properties within the area for urban renewal purposes and sets rehabilitation standards for the residential, retail, commercial, wholesale/service commercial, and industrial uses within the project area.

Section 5(g) of the ordinance prohibits all 'signs other than those identifying the property where they are installed or identifying the use conducted therein . . ..' It applies to all land uses within the project area except for residential; signs in residential areas are prohibited by other ordinances. The ordinance mandates that all outdoor advertising billboards larger than 60 square feet be removed within 5 years, i.e., by April 7, 1975, without compensation for their removal.

Donnelly owns four billboards within the Oldtown renewal area covered by the ordinance. One of them is located on land owned by the Flaccomios. All of the signs are within the commercial quadrant of the project area, and are claimed by the City to be in violation of the ordinance. Each sign is larger than 60 square feet. One poster panel, located at 420 Ensor Street was erected in 1955; two panels at 1059 Hillen Street were erected in 1960. The panel located on the Flaccomio property, 405 North Exeter Street, was erected in 1972, after passage of the ordinance. Donnelly claims that all were constructed pursuant to permits and thus did not constitute a detriment to public health, safety, welfare, or morals.

Appellants challenge the ordinance on five grounds. First, they claim that the City failed to comply with the proper notice procedures in enacting the ordinance. Second, they claim that monetary compensation must be paid for removal of the two panels located with 660 feet of U. S. Route 40, pursuant to the Federal Highway Beautification Act, 23 U.S.C. § 131 (1966, 1976 Cum.Supp.). Third, it is claimed that the ordinance violates the First Amendment rights of appellants, as well as those of Donnelly's clients and of Oldtown residents and visitors, because it eliminates from the area a prime medium of communication. Fourth, it is contended that the sign removal requirement arbitrarily and unreasonably denies equal protection of the law to appellants in that on-premises billboards are allowed in the Oldtown renewal area while off-premises panels are not, and billboards are allowed in other commercial sections of the city but not in Oldtown. Finally, appellants contend that the prohibition of billboards from Oldtown is an abuse of the police power because it has no relation to the public health, security, general welfare, and morals in the project area.

A.

Appellants' claim that the City did not follow proper procedures in enacting the ordinance rests on their contention that the prohibition of off-premises advertising in Oldtown is a zoning change; therefore, they claim the procedures for enacting zoning laws should have been followed. These procedures differ from those that were followed in enacting the ordinance primarily with respect to notice requirements. Prior to the required public hearing on the Oldtown Renewal Plan, notice of such hearing was given, pursuant to the statutory scheme for approval of urban renewal plans, by posting signs in the area involved 'at least ten (10) days prior to the hearing and by publication once a week for two consecutive weeks in a newspaper of general circulation . . ..' See Ordinance No. 152, § 25(d), approved June 28, 1968. A zoning change requires a public hearing and 'at least fifteen days' notice of the time and place of such hearing . . . published in an official paper, or a paper of general circulation . . ..' Maryland Code (1957, 1970 Repl. Vol.), Art. 66B, § 2.04. Appellants argue that failure to follow the latter procedure renders the sign prohibition provision of the ordinance invalid.

The Oldtown Urban Renewal Plan, as approved by the Oldtown Urban Renewal Ordinance, is first and foremost, as its name indicates, an urban renewal plan. It was properly enacted, according to statutory requirements. That zoning changes are contemplated in the renewal area does not convert the ordinance into a zoning ordinance. The statutory scheme for enacting urban renewal ordinances recognizes the distinction between urban renewal and zoning by providing that 'Any change in the Zoning Ordinance embodied in a Renewal Plan . . . shall be approved by ordinance in accordance with the procedural requirements of Article 66-B of the Annotated Code of Maryland (1957 Edition) . . ..' Ordinance No. 152, § 25(d). This two-step process, enactment of an urban renewal plan pursuant to notice requirements of Ordinance No. 152 and amendment of the Zoning Ordinance, if necessary, pursuant to Art. 66B, assures that the urban renewal scheme will not be utilized to enact zoning changes.

'The very essence of zoning is territorial division according to the character of the land and the buildings, their peculiar suitability for particular uses, and uniformity of use within the zone.' Heath v. Mayor & City Council of Baltimore, 187 Md. 296, 305, 49 A.2d 799, 804 (1946). Although it is within the scope of the zoning power to regulate signs, see Art. 66B, § 2.01; City of Baltimore v. Mano Swartz, 268 Md. 79, 299 A.2d 828 (1973), not every sign regulation is a zoning change. The Oldtown ordinance sets sign standards for the Oldtown renewal area, one which encompasses a variety of zones. Its standards apply only in Oldtown, not uniformly throughout similarly zoned areas elsewhere in the city. This regulation is keyed to the project area, not to a zone. It is a rehabilitation standard applicable to the renewal community and not a zoning change. Adherence to the procedures mandated by Art. 66B was not required for its validity.

B.

The Highway Beautification Act, 23 U.S.C. § 131, provides that each State shall develop 'effective control' of billboards located within 660 feet of the right-of-way of federal system highways and that '(j)ust compensation . . . be paid upon the removal of any outdoor advertising sign, display, or device lawfully erected under State law.' Section 131(g). As part of its plan of 'effective control,' Maryland limits outdoor advertising along the interstate and primary system to, inter alia, on-premises advertising and to billboards located within commercial and industrial areas. Code (1957, 1976 Cum.Supp.), Art. 89B, § 250 et seq.

Two of Donnelly's signs, those located at 405 N. Exeter Street and at 420 Ensor Street, are within 660 feet and visible from Orleans Street, also known as U.S. Route 40. Appellants contend that they should be compensated for the removal of these signs because that portion of Route 40 is a part of the federal primary system. ¹ The City seeks removal of the two signs pursuant to the Oldtown ordinance and not because the billboards are within 660 feet of Route 40. Their proximity to a part of the federal highway system is coincidental and does not prohibit the City from ordering the uncompensated removal of the signs under its police power. See Markham Advertising Co. v. State, 73 Wash.2d 405, 439 P.2d 248 (1968), appeal dismissed for want of a substantial federal question, 393 U.S. 316, 89 S.Ct. 553, 21 L.Ed.2d 512 (1969). The Highway Beautification Act does not preempt the municipality's police power. Art Neon Co. v. City and County of Denver, 488 F.2d 118 (10th Cir. 1973), cert. denied, 417 U.S. 932, 94 S.Ct. 2644, 41 L.Ed.2d 236 (1974); Markham Advertising Co. v. State, supra.

The Highway Beautification Act does not require removal of these signs for other reasons. The Act permits billboards within 660 feet of the highway system in areas 'which are zoned industrial or commercial under authority of State law . . ..' Section 131(d). The state statute prohibits outdoor advertising along the federal highway system 'except in zoned . . . commercial and industrial areas within this State . . ..' Art. 89B, § 252. It is undisputed that the billboards located at 405 N. Exeter Street and at 420 Ensor Street are within...