Eller Media Co. v. City of Tucson

• Decision Date: 20 June 2000
• Docket Number: No. 2 CA-CV 99-0221.,2 CA-CV 99-0221.
• 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.
• Court: Arizona Court of Appeals

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.

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. ¶ 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 below with broken glass.

¶ 5 Because the provision at issue here does not affect the advertising message Eller displays on its billboards, it does not affect an aspect of communicative speech; consequently, it does not affect or burden any fundamental right, including those granted by the First Amendment. See Ruiz v. Hull, 191 Ariz. 441, 957 P.2d 984 (1998)

(laws directed at speech and communication subject to heightened scrutiny), cert. denied, 525 U.S. 1093, 119 S.Ct. 850, 142 L.Ed.2d 703 (1999); see also Asselin v. Town of Conway, 137 N.H. 368, 628 A.2d 247 (1993) (municipality's ordinance restricting internally lighted signs, but otherwise allowing business owners to erect signs that could be effectively illuminated, did not impair owners' freedom of expression). And, because Eller is also clearly not a member of a suspect class, we agree with the trial court that the correct standard for reviewing both constitutional claims is the rational basis test. See Church v. Rawson Drug & Sundry Co., 173 Ariz. 342, 842 P.2d 1355 (App.1992) (law or regulation that does not involve fundamental right or suspect classification subject only to rational basis review); see also Rent-A-Sign v. City of Rockford, 85 Ill.App.3d 453, 40 Ill.Dec. 740, 406 N.E.2d 943 (1980) (court reviewed under rational basis test constitutionality of city's ordinance prohibiting flashing and certain colored lights on mobile signs); Asselin (court reviewed under rational basis test constitutionality of ordinance restricting internally lighted signs).

a. Substantive due process

¶ 6 Under the rational basis test, we must uphold a law or regulation against a claim that it violates substantive due process if it does not transgress "`some basic and fundamental principle,'" Wallace v. Casa Grande Union High School Dist. No. 82, 184 Ariz. 419, 430, 909 P.2d 486, 497 (App.1995),

quoting Santiago de Castro v. Morales Medina, 943 F.2d 129, 131 (1st Cir.1991), or if it is not arbitrary, capricious, or unreasonable and if the means selected have a real and substantial relation to the goals sought to be obtained. Bryant v. Continental Conveyor & Equip. Co., 156 Ariz. 193, 751 P.2d 509 (1988),

overruled on other grounds, Hazine v. Montgomery Elevator Co., 176 Ariz. 340, 861 P.2d 625 (1993); American Fed'n of Labor v. American S. & D. Co., 67 Ariz. 20, 189 P.2d 912 (1948). We note also that Martin v. Reinstein, 195 Ariz. 293, 987 P.2d 779 (App. 1999), suggests that substantive due process precludes government conduct that shocks the conscience or interferes with rights implicit in the concept of ordered liberty. The stated purpose of the City's OLC is "to provide standards for outdoor lighting so that its use does not unreasonably interfere with astronomical observations." The City insists that the OLC provision furthers this goal, explaining that top-mounted lights emit fewer rays into the night sky than do bottom-mounted ones because, shining downward, their rays are reflected off at least one surface before radiating upward. In contrast, bottom-mounted lights shine directly into the night sky.

¶ 7 Although Eller seems to challenge both the principle that upward-shining lights emit more rays into the night sky than do those that shine downward and the City's claim that requiring top-mounted lights will reduce skyward emissions, the record does not appear to support those claims. Further, in an apparent abandonment of those positions, Eller argues simply that the City can achieve a similar or greater emission reduction by requiring that bottom-mounted...