Metromedia, Inc. v. City of San Diego

• Citation: 154 Cal.Rptr. 212,23 Cal.3d 762,592 P.2d 728
• Court: California Supreme Court
• Decision Date: 21 March 1979
• Parties: , 592 P.2d 728, 12 ERC 2089, 9 Envtl. L. Rep. [PG20,437 METROMEDIA, INCORPORATED, et al., Plaintiffs and Respondents, v. CITY OF SAN DIEGO et al., Defendants and Appellants. L.A. 30782.

Page 212

154 Cal.Rptr. 212

23 Cal.3d 762, 592 P.2d 728, 12 ERC 2089, 9 Envtl. L. Rep. [PG20,437

METROMEDIA, INCORPORATED, et al., Plaintiffs and Respondents, v. CITY OF SAN DIEGO et al., Defendants and Appellants.

L.A. 30782.

Supreme Court of California, In Bank.

March 21, 1979.

For Opinion on Rehearing, see 164 Cal.Rptr. 510, 610 P.2d 407. John W. Witt, City Atty. and C. Alan Sumption, Deputy City Atty., for defendants and appellants.

Walter Wencke, Carter J. Stroud, City Atty., Alameda, John W. Scanlon, City Atty., Hayward, Dan J. Curtin, Jr., City Atty., Walnut Creek, Roy E. June and R. R. Campagna, City Attys., Costa Mesa, Harry S. Fenton, Emerson Rhyner and Ronald W. Beals, Sacramento, as amici curiae on behalf of defendants and appellants.

Gibson, Dunn & Crutcher, Theodore B. Olson, Los Angeles, Hillyer & Irwin, Oscar F. Irwin, San Diego, Snell & Wilmer, John J. Bouma, Guy G. Gelbron, Phoenix, Ariz., Higgs, Fletcher & Mack and Joe N. Turner, San Diego, for plaintiffs and respondents.

Donovan, Leisure, Newton & Irvine, Mahlon F. Perkins, Jr., Weil, Guttman & Davis, Gilbert H. Weil, New York City, Phillip Tocker, Richman & Garrett, Lionel Richman, Fadem, Berger & Norton, Michael M. Berger, Brundage, Beeson & Pappy, Los Angeles, and Joseph J. Kaplan, Louisville, Ky., as amici curiae on behalf of plaintiffs and respondents.

TOBRINER, Justice.

The City of San Diego enacted an ordinance which bans all off-site advertising billboards and requires the removal of existing billboards following expiration of an amortization period. Plaintiffs, owners of billboards affected by the ordinance, sued to enjoin its enforcement. Upon motion for summary judgment, the superior court adjudged the ordinance unconstitutional, and issued the injunction as prayed.

We reject the superior court's conclusion that the ordinance exceeded the city's authority under the police power. We hold that the achievement of the purposes recited in the ordinance eliminating traffic hazards and improving the appearance of the city represent proper objectives for the exercise of the city's police power, and that the present ordinance bears a reasonable relationship to those objectives. We reject also the lower court's alternative holding that the ordinance violates the First Amendment; judicial decisions demonstrate that a ban on commercial off-site billboards, enacted under the city's authority to regulate the commercial use of real property, does not abridge freedom of speech or press.

Plaintiffs urge that we sustain the summary judgment on a variety of other grounds: they contend that the ordinance is preempted by the Outdoor Advertising Act (Bus. & Prof.Code, § 5200 et seq.); that it will endanger the state's share of federal highway funds; that it denies them the equal protection of the law; that its amortization provisions are facially unreasonable; and that the city failed to comply with the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.). For the reasons we shall set forth in the body of this opinion, we conclude that none of these grounds will suffice to sustain the judgment below. We conclude that the judgment of the superior court should be reversed, and the case remanded to that court for further proceedings.

1. Summary of proceedings in the trial court.

The present case concerns the constitutionality of San Diego Ordinance No. 10795 (New Series), enacted March 14, 1972. With limited exceptions specified in the footnote, ¹ the ordinance as subsequently amended prohibits all off-site "outdoor advertising display signs." ² Off-site signs are defined as those which do not identify a use, facility or service located on the premises or a product which is produced, sold or manufactured on the premises. All existing signs which do not conform to the requirements of the ordinance must be removed following expiration of an amortization period, ranging from 90 days to 4 years depending upon the location and depreciated value of the sign.

Plaintiffs, Metromedia, Inc., and Pacific Outdoor Advertising Co., Inc., are engaged in the outdoor advertising business and own a substantial number of off-site billboards subject to removal under Ordinance No. 10795. Plaintiffs filed separate actions against the city, attacking the validity of the ordinance. The actions were consolidated by stipulation. ³ After extensive interrogatories and requests for admission had been answered all parties moved for summary judgment.

To facilitate the determination of the motion for summary judgment the parties entered into a stipulation of facts. The following portions of that stipulation are particularly pertinent to the present appeal: "2. If enforced as written Ordinance No. 10795 will eliminate the outdoor advertising business in the City of San Diego. . . . 13. Each of the plaintiffs are the owners of a substantial number of outdoor advertising displays (approximately 500 to 800) in the City of San Diego. . . . 17. The displays have varying values depending upon their size, nature and location. 18. Each of the displays has a fair market value as a part of an income-producing system of between $2,500 and $25,000. 19. Each display has a remaining useful income-producing life in excess of 25 years. 20. All of the signs owned by plaintiffs in the City of San Diego are located in areas zoned for commercial and industrial purposes. . . . 28. Outdoor advertising increases the sales of products and produces numerous direct and indirect benefits to the public. Valuable commercial, political and social information is communicated to the public through the use of outdoor advertising. Many businesses and politicians and other persons rely upon outdoor advertising because other forms of advertising are insufficient, inappropriate and prohibitively expensive. . . . 31. Many of plaintiffs' signs are within 660 feet and others are within 500 feet of interstate or federal primary highways. . . . 34. The amortization provisions of Ordinance No. 10795 have no reasonable relationship to the fair market value, useful life or income generated by the signs and were not designed to have such a relationship." ⁴

The trial court filed a memorandum opinion stating that the ordinance was invalid as an unreasonable exercise of police power and an abridgment of First Amendment guarantees of freedom of speech and press. The court then entered judgment enjoining enforcement of the ordinance. The city appeals from that judgment.

2. The summary judgment cannot be sustained on the ground that the San Diego ordinance exceeds the city's authority under the police power.

The San Diego ordinance, as we shall explain, represents a proper application of municipal authority over zoning and land use for the purpose of promoting the public safety and welfare. ⁵ The ordinance recites the purposes for which it was enacted, ⁶ including the elimination of traffic hazards brought about by distracting advertising displays and the improvement of the appearance of the city. Since these goals are proper objectives for the exercise of the city's police power, the city council, asserting its legislative judgment, could reasonably believe the instant ordinance would further those objectives.

Plaintiffs cannot question that a city may enact ordinances under the police power to eliminate traffic hazards. They maintain, however, that the city failed to prove in opposition to plaintiffs' motion for summary judgment that the ordinance reasonably relates to that objective. We could reject plaintiffs' argument on the simple ground that plaintiffs, as the parties asserting the unconstitutionality of the ordinance, bear the burden of proof (see Associated Home Builders etc., Inc. v. City of Livermore, supra, 18 Cal.3d 582, 609, 135 Cal.Rptr. 41, 557 P.2d 473), and cannot rely upon the city's failure of proof. To avoid unnecessary litigation upon remand of this cause, however, we have probed plaintiffs' broader argument: We hold as a matter of law that an ordinance which eliminates billboards designed to be viewed from streets and highways reasonably relates to traffic safety.

Billboards are intended to, and undoubtedly do, divert a driver's attention from the roadway. Whether this distracting effect contributes to traffic accidents invokes an issue of continuing controversy. ⁷ But as the New York Court of Appeals pointed out, "mere disagreement" as to "whether billboards or other advertising devices . . . constitute a traffic hazard . . . may not cast doubt on the statute's validity. Matters such as these are reserved for legislative judgment, and the legislative determination, here expressly announced, will not be disturbed unless manifestly unreasonable." (New York State Thruway Auth. v. Ashley Motor Ct. (1961) 10 N.Y.2d 151, 218 N.Y.S.2d 640, 643, 176 N.E.2d 566, 568.) Many other decisions have upheld billboard ordinances on the ground that such ordinances reasonably relate to traffic safety; ⁸ we cannot find it manifestly unreasonable for the San Diego City Council to reach the same conclusion. As the Kentucky Supreme Court said in Moore v. Ward (1964) 377 S.W.2d 881, 884: "Even assuming (plaintiffs) could produce substantial evidence that billboard signs do not adversely affect traffic safety, . . . the question involves so many intangible factors as to make debatable the issue of what the facts establish. Where this is so, it is not within the province of courts to hold a statute invalid by reaching a conclusion contrary to that of the legislature."

We further hold that even if, as plaintiffs maintain, the principal purpose of the ordinance is not to promote traffic safety but to improve the appearance of the community, such a purpose falls within the city's authority under the police power. In contending that aesthetic considerations cannot justify the exercise of the police power to prohibit billboards, plaintiffs rely on Varney & Green v. Williams (1909) 155 Cal....