Lamar Advertising of South Georgia, Inc. v. City of Albany, S89A0604
| Decision Date | 01 March 1990 |
| Docket Number | No. S89A0604,S89A0604 |
| Citation | 389 S.E.2d 216,260 Ga. 46 |
| Parties | LAMAR ADVERTISING OF SOUTH GEORGIA, INC. et al. v. CITY OF ALBANY. |
| Court | Georgia Supreme Court |
David H. Flint, Mark W. Forsling, Schreeder, Wheeler & Flint, Atlanta, Jerry W. Brimberry, Brimberry, Kaplan, Campbell & Donaldson, Albany, for Lamar Advertising of South Georgia, Inc. et al.
James V. Davis, Landau, Davis & Farkas, P.C., Albany, for City of albany.
Rubin, Winston & Diercks, Eric M. Rubin, Steven J. Stone, Hull, Torvill, Norman & Barrett, David E. Hudson, amici curiae.
The City of Albany adopted a comprehensive sign ordinance that purports to govern commercial and noncommercial signs, on-site and off-site signs, and imposes upon the owners of such signs annual charges. Additionally, the ordinance specifies that signs in existence at the time of its promulgation that do not conform to its specifications must be removed within stated periods of time. The ordinance provides no compensation for owners of signs that are required to be removed.
Before the effective date of the ordinance, Lamar Advertising owned or maintained within the city approximately 200 "sign faces." Many of these would be nonconforming under the terms of the new ordinance. Additionally, it applied for and received permits to erect two new signs, which had not been built on the effective date of the new ordinance. Although the location and construction of these two proposed signs would have been in compliance with the prior sign ordinance, they would not conform to the new requirements.
Relying upon the new ordinance, the city sought and obtained an injunction against Lamar Advertising that prohibited erecting the two signs.
Lamar Advertising's appeal raises a flurry of constitutional claims. We address one issue only: whether the ordinance effects a taking or damaging of private property (i.e., Lamar Advertising's existing signs) without just and adequate compensation.
1. Art. I, Sec. I, Para. I of the Constitution of Georgia declares: "No person shall be deprived of life, liberty, or property except by due process of law." Art. I, Sec. 3, Para. I(a) of our Constitution declares:
Except as otherwise provided in the Paragraph, private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid.
2. There is no doubt that the enforcement of the removal requirements of the ordinance will work a destruction of the private property of Lamar Advertising.
3. (a) This case is governed by our holding in State Hwy. Dept. v. Branch, 222 Ga. 770, 152 S.E.2d 372 (1966), as follows:
The Outdoor Advertising Control Act (Ga.L.1964, p. 128) is unconstitutional because it fails to require payment for taking private property for public purposes, and it was not error to overrule the general demurrers of the State Highway Department to the petition of property owners seeking to prevent enforcement of that Act and alleging its unconstitutionality.
(b) Because the enforcement of the removal provision of the ordinance will result in the destruction of a substantial part of a lawful enterprise, it effects a taking of private property without just and adequate compensation. Hence, it is void under our Constitution. The removal provision is the core of the ordinance's general purpose of preventing the proliferation of signs within the city, and eliminating those that, under the prior ordinances, were lawful. Unlike the factual circumstance of City of Newnan v. Atlanta Laundries, Inc., 174 Ga. 99(8), 162 S.E. 497 (1931), "[t]he portions of the ordinance which are declared unconstitutional are ... so vital and connected with the general scheme of the ordinance that the whole ordinance must fall." (Emphasis supplied.)
4. The city insists that its regulation of signs is a valid exercise of the police power. We do not quarrel with the proposition that a lawful regulation of signs is within the police power. That, however, cannot cancel the constitutional protection of citizens in the enjoyment of their property. See Agins v. Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980) (...
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