Eller Media Co. v. City of Houston

• Decision Date: 06 March 2003
• Docket Number: No. 01-00-00588-CV.,01-00-00588-CV.
• Citation: 101 S.W.3d 668
• Parties: ELLER MEDIA COMPANY, Appellant, v. CITY OF HOUSTON, Texas, Appellee.
• Court: Texas Court of Appeals

101 S.W.3d 668

ELLER MEDIA COMPANY, Appellant, v.CITY OF HOUSTON, Texas, Appellee.

No. 01-00-00588-CV.

Court of Appeals of Texas, Houston (1st Dist.).

March 6, 2003.

Rehearing Overruled March 6, 2003.

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Kenneth S. Marks, Susman, Godfrey L.L.P., Houston, for Appellant.

Elizabeth L. Pool, Assistant City Attorney, Houston, for Appellee.

Panel consists of Justices HEDGES, NUCHIA, and HANKS.

OPINION ON REHEARING

SAM NUCHIA, Justice.

The opinion issued on October 25, 2001 is withdrawn, and this opinion is issued in its place.

Appellant, Eller Media Company, and several other outdoor advertising plaintiffs sued appellee, the City of Houston, challenging the validity of the amended Houston Sign Code and alleging, among other things, a taking without compensation in violation of the Texas and United States Constitutions, a violation of the right of free speech under the First Amendment, and a violation of state law governing the regulation of billboards.The trial court entered judgment declaring that the amended Sign Code does not violate the First Amendment and does not constitute an unlawful taking of property under the United States Constitution or the Texas Constitution.The judgment declared that signs designated "Permit Nonconforming" are free from local amortization,¹ signs designated as "Bring Into Conformance" are to be removed according to the amortization schedule, and signs designated as "Useful Life" are subject to immediate removal on the order of the City of Houston.We affirm.

BACKGROUND

In 1980, the City of Houston, for the stated interests of traffic safety, property values, and aesthetics, passed a Sign Code regulating, among other things, the size, placement, and spacing of signs, including off-premise signs, which were defined as "any sign advertising a business, person, activity, goods, products or services not usually located on the premises where the sign is installed and maintained, or which directs persons to any location not on the premises."Houston, Tex., Ordinance 80-351 (March 26, 1980).The Sign Code provided for a six-year amortization period, after which the signs must either conform to Code regulations or be removed.Id.The Sign Code also contained a provision prohibiting the construction of any new off-premise signs.Id.

In 1985, the Texas Legislature passed House Bill 1330 ("HB 1330"),² which authorized municipalities to require the relocation, reconstruction, or removal of any sign and extended a city's authority over signs into its extraterritorial jurisdiction.Generally, HB 1330 required municipalities to compensate sign owners for such required activities exclusively by cash payment or abatement of municipal property taxes.However, special provisions were made for cities that had in effect on June 1, 1985 an ordinance providing for compensating a sign owner, under an amortization plan, for a sign's relocation, reconstruction, or removal.The amortization provisions of HB 1330 superseded the six-year amortization of the Houston Sign Code.Under the provisions of HB 1330, the sign owner was to file records with the municipal board on sign control indicating those signs that could be brought into conformance at a cost of 15% or less of the sign's value and those signs that could not be brought into conformance at that cost.One-half of the signs that could be brought into conformance for 15% or less of value were to be designated as "bring into conformance"("BIC").The other half were to be designated as "permit nonconforming"("PNC").BIC signs were to be brought into conformance on a three-year schedule, one-third in each year, at no cost to the city.Sign owners were permitted to keep PNC signs as nonconforming uses with no time limitation.

Signs that could not be brought into conformance for 15% or less of value were designated as "useful life"(UL) signs.The board was to determine the useful life of these signs by type or category and permit the sign to remain in place as a nonconforming use for a period of time, generally 65% of the useful life, under the city's amortization plan.As an alternative, the city could pay the sign owner, in cash or by tax abatement, 65% of the costs of relocation, reconstruction, or removal of the sign.

As a last-minute floor amendment to HB 1330, subsection (k) was added to article 1, section 6.This amendment provided:

For a sign erected after the effective date of this Act and as to any sign currently in place that is made nonconforming by an extension of or strengthening of an ordinance that was in effect on June 1, 1985, and contained an amortization plan, then the amortization period shall equal useful life as determined by the board in subsection (h)....

Act of May 31, 1985, 69th Leg., R.S., ch. 221, art. 1, § 6,1985 Tex. Gen. Laws 1085, repealed byAct of May 21, 1987, 70th Leg., R.S., ch. 149, § 49,1987 Tex. Gen. Laws 1306.HB 1330 is now codified as chapter 216 of the Texas Local Government Code.Former subsection 6(k) now reads:

For a nonconforming sign erected after September 1, 1985, or for a sign in place on that date that later is made nonconforming by an extension of or strengthening of an ordinance that was in effect on June 1, 1985, and that provided an amortization plan, the amortization period is the entire useful life of the sign.If it has not already done so, the board shall determine the entire useful life of signs by type or category, such as mono-pole signs, metal signs, and wood signs.The useful life may not be solely determined by the natural life expectancy of a sign.

TEX. LOC. GOV'T CODE ANN. § 216.012(Vernon 1999).Houston's board on sign control determined that the useful life of signs was 17 years for wood structures and 21½ years for steel structures.

In 1987, Patrick Media Group of Houston, Inc.(Eller Media's predecessor in interest) and other members of Harris County Outdoor Advertising Association filed this lawsuit against Houston, alleging that Houston's Sign Code violated the state and federal constitutions and state law.In 1992, Houston amended its Sign Code to declare that all off-premise signs within the city and its extraterritorial jurisdiction were nonconforming and unauthorized.SeeCITY OF HOUSTON BUILDING CODE — GENERAL PROVISIONS§ 4619(b)(1994).³The amended Sign Code further provided, "The subject signs shall be removed following amortization as provided in Article 1, Section 6(k) of Chapter 221, Acts of the 69th Legislature, Regular Session, 1985."CITY OF HOUSTON BUILDING CODE — GENERAL PROVISIONS§ 4619(b).The Sign Code excluded structures "used exclusively ... for messages that do not constitute advertising ... including messages and other copy of a nature that is not commercial advertising because such a structure is not a `sign'" as defined in the Sign Code.Id.,§ 4619(c).In addition, the abatement and amortization provisions did not apply to any off-premise sign if those provisions would contravene state or federal law.Id.,§ 4619(d).Specifically, billboards along the interstate and freeway primary system within the city or its extraterritorial jurisdiction could not be abated by amortization because federal law requires that owners be compensated in cash.The Sign Code also provided as follows:

The provisions of this section shall not be construed to excuse or delay the removal of any off-premise sign that [is] nonconforming under any other provision of this chapter; and it has been the intent of the City Council in adopting this section that each and every off-premise sign within the sign code application area be removed by amortization as soon as permitted by state and federal law.

Id.,§ 4619(e).

In 1995, Eller Media Company bought the assets of Patrick Media Group of Houston and joined this lawsuit as a plaintiff.⁴The case was tried to the court, which made findings of fact and conclusions of law.Among other things, the trial court concluded (1) the BIC signs were to be brought into compliance and were to be removed after the applicable amortization period; (2) the amortization period for the UL signs had expired and Houston could order their immediate removal; and (3) the PNC signs, under HB 1330, were free from amortization, were not subject to removal, and could exist as nonconforming signs.Judgment was entered in accordance with these conclusions, and Eller Media appealed.

STANDARD OF REVIEW

In an appeal of a judgment rendered after a trial to the court, the court's findings of fact have the same weight as a jury's verdict.Amador v. Berrospe,961 S.W.2d 205, 207(Tex.App.-Houston [1st Dist.]1996, writ denied).If findings of fact are not challenged, they are binding on the parties and on this Court.Cushnie v. State Bar of Texas,845 S.W.2d 358, 360(Tex.App.-Houston [1st Dist.]1992, writ denied).When challenged, findings of fact are not conclusive if there is a complete reporter's record.Amador,961 S.W.2d at 207.When there is a reporter's record, the trial court's findings of fact are binding only if supported by the evidence.Id.If the findings are challenged, the court of appeals will review the legal and factual sufficiency of the evidence supporting the findings.State Bar of Texas v. Roberts,723 S.W.2d 233, 235(Tex.App.-Houston[1st Dist.]1986, no writ).In reviewing a no-evidence point, we consider only the evidence and inferences that tend to support the finding, disregarding all evidence and inferences to the contrary.Vannerson v. Vannerson,857 S.W.2d 659, 666(Tex.App.-Houston [1st Dist.]1993, writ denied).If there is any evidence of probative force to support the finding, i.e., more than a mere scintilla, we will overrule the point.Id.In reviewing factual sufficiency points of error, we must examine all of the evidence in the record, including any evidence contrary to the judgment, to determine if the challenged finding is so against the great weight...