McMahan's Furniture Co. v. City of Pacific Grove

• Citation: 219 Cal.App.2d 732,33 Cal.Rptr. 476
• Court: California Court of Appeals Court of Appeals
• Decision Date: 04 September 1963
• Parties: McMAHAN'S FURNITURE CO., a corporation, et al., Plaintiffs and Respondents, v. CITY OF PACIFIC GROVE, a municipal corporation, et al., Defendants and Appellants. Civ. 20627.

Page 476

33 Cal.Rptr. 476

219 Cal.App.2d 732

McMAHAN'S FURNITURE CO., a corporation, et al., Plaintiffs and Respondents, v. CITY OF PACIFIC GROVE, a municipal corporation, et al., Defendants and Appellants.

Civ. 20627.

District Court of Appeal, First District, Division 3, California.

Sept. 4, 1963.

Henry I. Jorgensen, City Atty., City of Pacific Grove, Pacific Grove, for appellants.

Gill & Morris, Pacific Grove, for respondents.

William C. Marsh, City Atty., Monterey, John W. Morse, City Atty., City of Carmel-by-the-Sea, Carmel, amicus curiae in support of contentions of appellants.

DRAPER, Presiding Justice.

Defendants, a charter city and its officials, appeal from decree permanently enjoining enforcement of those portions of an ordinance which prohibit erection and maintenance of any sign which projects more than 24 inches from the building to which it is attached or extends more than 14 inches over a public way. Plaintiffs are merchants whose businesses have overhanging signs exceeding these limits, all but one erected before adoption of the ordinance in 1955. All have exhausted their administrative remedies by applying for variances. It is stipulated that the city has denied all applications for variance, whether by plaintiffs or others.

The trial court found that the ordinance has no reasonable relation to the public health, safety or welfare. As to such findings, we do not look to the substantial evidence rule (Skyline Materials, Inc. v. City of Belmont, 198 Cal.App.2d 449, 455, 18 Cal.Rptr. 95). Rather, we are bound by the rule that determination of the wisdom and necessity for use of the police power is for the legislative body if the reasonableness of the ordinance is debatable (Lockard v. City of Los Angeles, 33 Cal.2d 453, 461, 202 P.2d 38, 7 A.L.R.2d 990), or if reasonable minds might differ on the question (Justesen's Food Stores, Inc. v. City of Tulare, 43 Cal.App.2d 616, 621, 111 P.2d 424). Moreover, the Legislature has authorized city councils to regulate exhibition and suspension of signs (Gov.Code § 38774), and the charter of Pacific Grove has reserved to the city, as it may (Cal.Const. Art. 11, Sec. 6), the powers granted by general law. We need not discuss this contention in greater detail, since plaintiffs-respondents now concede that the council has power to regulate overhanging signs.

Plaintiffs' essential reliance is upon the trial court's determination that the ordinance is arbitrary, unreasonable and discriminatory in classifying as permissible those signs which do not project more than 14 and 24 inches, and prohibiting those of greater overhang.

Preliminarily, we must note plaintiffs' argument that the safety feature cannot be considered because of the stipulation at pretrial that 'the ordinance will be enforced not because the signs are unsafe or have any unusual characteristics except that they deviate from those permitted by the ordinance.' In the context of the pretrial order, it is apparent that 'the signs' refers to the signs of plaintiffs, rather than to all possible overhanging signs, and that the stipulation was only to eliminate any issue that these existing signs are abatable as nuisances (Gov.Code § 38773) because of faulty construction, inadequate mooring, or other existing defect. It is apparent that the stipulation did not unduly restrict trial of issues relating to safety factors of overhanging signs in general. Plaintiffs' counsel himself brought out from the city building inspector that wind had snapped a guy wire of one overhanging sign. The trial judge, in his memorandum opinion, stated that signs would be as hazardous if within the ordinance limits. The court found that overhanging signs are not unsafe and are a lesser traffic hazard than flat signs. Thus we do not give the stipulation the broad sweep for which plaintiffs contend, and are free to consider safety factors generally in determining the issue of discrimination.

The classification made by the ordinance is valid if it is 'based upon some distinction, natural, intrinsic, or constitutional, which suggests a reason for and justifies the particular legislation,' and is unconstitutional only if it imposes peculiar restrictions upon a class arbitrarily selected (City of Santa Barbara v. Modern Neon Sign Co., 189 Cal.App.2d 188, 193, 11 Cal.Rptr. 57, and cases there cited). The presumptions are in favor of the legislative determination (Lockard v. City of Los Angeles, supra, 33 Cal.2d 453, 202 P.2d 38, 7 A.L.R.2d 990...