Eller Media Co. v. City of Tucson, No. 2 CA-CV 99-0221.

• Court: Court of Appeals of Arizona
• Writing for the Court: BRAMMER, Presiding.
• Citation: 198 Ariz. 127,7 P.3d 136
• Parties: ELLER MEDIA COMPANY, a corporation, Plaintiff/Appellant, v. CITY OF TUCSON, an Arizona municipal corporation, Defendant/Appellee.
• Docket Number: No. 2 CA-CV 99-0221.
• Decision Date: 20 June 2000

7 P.3d 136
198 Ariz. 127

ELLER MEDIA COMPANY, a corporation, Plaintiff/Appellant,
v.
CITY OF TUCSON, an Arizona municipal corporation, Defendant/Appellee

No. -0221.

Court of Appeals of Arizona, Division 2, Department B.

June 20, 2000.

Redesignated as Opinion and Publication Ordered August 2, 2000.

7 P.3d 138

Lewis and Roca, L.L.P. By John N. Iurino, Tucson, Attorneys for Plaintiff/Appellant

Thomas J. Berning, Tucson City Attorney By Frank William Kern III, Tucson, Attorneys for Defendant/Appellee.

OPINION

BRAMMER, Presiding Judge.

¶ 1 Appellant Eller Media Co. (Eller)¹ brought this action to enjoin appellee City of Tucson from enforcing a provision in its Outdoor Lighting Code (OLC) that prohibits bottom-mounted lights on billboards. Eller appeals the trial court's order granting summary judgment in favor of the City on its claims that the prohibition violates its substantive due process and equal protection rights. Because we find that Eller's constitutional claims fail as a matter of law, we affirm the trial court's order.

Facts and Procedural History

¶ 2 A detailed history of this case is set forth in our decision in Whiteco Outdoor Advertising v. City of Tucson, 193 Ariz. 314, 972 P.2d 647 (App.1998). Briefly, Eller owns and maintains in Tucson several outdoor billboards used to display advertising copy, the face of many of which are illuminated by lights mounted at the bottom of each billboard. In 1987 and again in 1994, the City amended its OLC to require that all lighting fixtures used to illuminate outdoor advertising signs be mounted on the top of the sign structure. The City's Development Services Director notified Eller in 1995 that a number of its billboards were in violation of the OLC and directed it to abate the violations. Eller appealed to the City Board of Appeals, contending that the OLC was a regulatory scheme included within the City's zoning power and therefore limited by state zoning laws, including the nonconforming use statute, A.R.S. § 9-462.02(A), and that its use of bottom-mounted lighting was protected as a nonconforming use. After a hearing, the Board denied Eller's appeal, finding that its use of bottom-mounted lighting was not a nonconforming use and that the OLC provision neither discriminated against Eller nor violated its property rights.

7 P.3d 139

¶ 3 Eller then filed this action in superior court, requesting that the court enjoin the City from enforcing the OLC provision and seeking a declaratory judgment that the provision violates its substantive due process and equal protection rights. After the parties filed cross motions for summary judgment, the trial court granted Eller's motion for partial summary judgment, concluding that the OLC was a zoning ordinance, that Eller's use of bottom-mounted lighting on its billboards was a protected nonconforming use, and that the prohibition against the use was therefore unenforceable. Having found in favor of Eller on this ground, the trial court did not address the constitutional claims. On appeal, we vacated the trial court's order, concluding it erred in ruling that the City's OLC was a zoning ordinance and that the nonconforming use statute precluded it from prohibiting Eller's use of bottom-mounted lights. See Whiteco Outdoor Advertising. On remand, the trial court found that, under the rational basis test, Eller had failed, as a matter of law, to establish that the OLC provision violated either its substantive due process or equal protection rights. Accordingly, the court granted the City's motion for summary judgment on Eller's constitutional claims and this appeal followed

Discussion

¶ 4 On appeal from the trial court's grant of summary judgment, we review de novo whether there are any genuine issues of material fact and whether the trial court erred in applying the law. Prince v. City of Apache Junction, 185 Ariz. 43, 912 P.2d 47 (App.1996). Eller first argues that the trial court should have analyzed its constitutional claims under the strict scrutiny test, asserting that that test applies when a government regulation burdens or impinges upon a fundamental right, such as the exercise of speech, and that the City's "bottom-mounted lighting prohibition affects [its] ability to transmit commercial and non-commercial messages on outdoor advertising structures." See Kenyon v. Hammer, 142 Ariz. 69, 688 P.2d 961 (1984) (law or regulation burdening fundamental right reviewed under strict scrutiny test). Some OLC provisions clearly place content-neutral time, place, and manner restrictions on outdoor advertisers' ability to display their advertising copy. Eller does not argue, nor does the record reflect, however, that billboards are more effectively illuminated from the bottom than from the top. Rather, Eller contends that top-mounted light fixtures are potentially less safe than bottom-mounted ones because, when the display copy panels are lifted vertically from the billboard face, the top-mounted lights could be struck and broken in the process, showering employees or others...