Metromedia, Inc. v. City of Pasadena

• Decision Date: 16 May 1963
• Court: California Court of Appeals Court of Appeals
• Parties: METROMEDIA, INC. (substituted for the name of Metropolitan Broadcasting Corporation) and Pacific Outdoor Advertising Company, a California corporation, Plaintiffs and Respondents, v. CITY OF PASADENA, a California municipal corporation, Don C. McMillan, as City Manager of said City, Robert McCue, as Superintendent of Building of said City, Byron B. Gentry, as City Prosecutor of said City, Paul Shaffer, as Planning Director of said City, Defendants and Appellants. Civ. 26575.

Page 731

30 Cal.Rptr. 731

216 Cal.App.2d 270

METROMEDIA, INC. (substituted for the name of Metropolitan Broadcasting Corporation) and Pacific Outdoor Advertising Company, a California corporation, Plaintiffs and Respondents, v. CITY OF PASADENA, a California municipal corporation, Don C. McMillan, as City Manager of said City, Robert McCue, as Superintendent of Building of said City, Byron B. Gentry, as City Prosecutor of said City, Paul Shaffer, as Planning Director of said City, Defendants and Appellants.

Civ. 26575.

District Court of Appeal, Second District, Division 2, California.

May 16, 1963.

Rehearing Denied June 14, 1963.

Hearing Denied July 10, 1963.

Wendell R. Thompson, City Atty., Fred R. Metheny, Asst. City Atty., Donald B. Hagler, Evelynn M. Finn, Deputy City Attys., Pasadena, for appellants.

Gibson, Dunn & Crutcher, William French Smith, Los Angeles, for respondent Metromedia, Inc.

Iverson & Hogoboom, Wm.P.Hogoboom, Los Angeles, for respondent Pacific Outdoor Advertising Co.

HERNOOD, Justice.

This appeal by the City of Pasadena and other named defendants, hereinafter generally referred to as 'appellants', is taken from a judgment which declares that certain ordinances of appellant city regulating billboards are unconstitutional and enjoins their enforcement.

Ordinance No. 4487, hereinafter referred to as the 'billboard ordinance,' provides, in part, that effective May 17, 1959, 'No roof sign shall be erected, constructed, relocated or maintained upon any building excepting those which (1) bear the name of the building whereon the sign is located; (2) bear the name of the person, firm or corporation occupying the building or portion thereof and the type of business conducted by said person, firm or corporation. All said signs must be an integral part of the building. No more than one roof sign shall be permitted for each exterior facing of a building.' This ordinance defined 'roof sign' as 'a sign erected upon or above a roof or parapet of a building.' Existing signs were exempted from this ordinance except insofar as their removal might be required by the zoning ordinance applicable to such signs or uses.

Ordinance No. 4495, effective July 19, 1959, hereinafter referred to as the 'zoning ordinance,' amended 'The Zoning Plan and Code of the City of Pasadena' by providing in part that all roof signs, except those relating to the ownership or business conducted on the premises, would have to be removed prior to July 1, 1961.

On July 15, 1954, appellant city had amended its then effective zoning ordinance so as to prohibit the future construction of outdoor advertising structures in Zone C-2 (Retail-commercial), but permitted the continued maintenance of such signs then extant. The above-mentioned zoning ordinance of July 19, 1959, also provided that existing 'ground signs' which did not meet the requirements of the 1954 amendment, would have to be removed by July 1, 1961. However, the continued construction and use of 'ground signs' still remained permissible in all other commercial and industrial zones.

Respondents herein are two firms 'engaged in the outdoor advertising business, including the erection and maintenance of outdoor advertising structures on leased property, and the sale of advertising space on such outdoor advertising structures. * * *' Prior to the enactment of the ordinances in question, respondent Metromedia, Inc., had erected thirteen roof signs in the City of Pasadena and respondent Pacific Outdoor Advertising Company, hereinafter referred to as 'Pacific', had erected twenty such signs.

The sole question presented by this appeal is whether or not the trial court erred in its judgment, holding, in effect, that the distinction made in these ordinances between 'point-of-sale' and non-point-of-sale' signs rendered them unconstitutional as being 'unreasonable, arbitrary, confiscatory and discriminatory in classification * * *.' (Emphasis added.) Although respondents have urged many other considerations in the brief filed by them in this court, it is apparent from the judgment, the findings of fact, and the stipulations entered into by the parties during the trial, that no other basis for a holding of unconstitutionality either was urged by respondents during the trial or was passed upon by the trial court. ¹

These stipulations by respondents indicating the limits of the issues being presented were virtually mandatory in any event, because their expert on zoning plans and ordinances had testified earlier that he considered it established beyond question that sound planning and zoning practice required the total elimination of billboards in certain districts and their regulation in all districts. However, he expressed his opinion that 'non-point-of-sale' signs still should be considered proper in industrial areas and, further, that there was, in his opinion, 'no objective basis for discriminating in regulation between standard poster panels and point-of-sale signs.'

We, therefore, are not called upon to consider whether or not certain early decisions in this state (which were written prior to the need for, or the adoption of, comprehensive zoning plans) would require us to destroy the patterns sought to be created by local legislative bodies acting upon reports and studies laboriously compiled by their planning commissions. Today, economic and aesthetic considerations together constitute the nearly inseparable warp and woof of the fabric upon which the modern city must design its future. Respondents, having spared the trial court the task of attempting to distinguish and weigh these threads, may not now urge such considerations upon this court in support of a judgment rendered after a trial which was limited to more restricted issues.

Further, although the trial court found that the ordinances in question created an unconstitutional 'classification', it expressly struck from the proposed judgment as submitted by respondents, a determination that said ordinances also operated as an unconstitutional 'prohibition' of respondents' businesses. This was entirely proper, because said ordinances do not even purport to 'prohibit' outdoor advertising by means of non-point-of-sale billboards in those industrial and commercial zones in which respondents claim any right to operate, but merely regulated their use of rooftops and required the elimination of the non-conforming use formerly permitted in C-2 zones.

Therefore we are not called upon to decide whether or not respondents' billboards might be eliminated entirely from the City of Pasadena by appropriate legislation directed to that purpose. The only evidence submitted by respondent in support of this secondary issue was offered for the purpose of showing that as the city expands it becomes increasingly difficult for them to find ground sites that are visible to a sufficiently large surrounding area, and that, as the values of such properties increase, it becomes more difficult for them to compete economically in obtaining such sites from other potential commercial users. This problem, however, would face respondents regardless of the regulations placed upon roof signs. Certainly the inexorable pressures of supply and demand cannot reasonably be urged as grounds for declaring unconstitutional otherwise valid regulations.

Finally, by reason of the stipulations which are set forth in footnote 1, appended hereto, no issue was tendered to the court below with respect to the reasonableness of the peroid allowed respondents for the removal of their non-conforming signs; hence, this potential basis for arguing the unconstitutionality of the ordinances is not before us. (Cf. City of Santa Barbara v. Modern Neon Sign Co., 189 Cal.App.2d 188, 195-196, 11 Cal.Rptr. 57.)

As indicated, then, we are faced with this single question: Is an ordinance which, for regulatory purposes, separately classifies point-of-sale and non-point-of-sale signs 'unreasonable, arbitrary, confiscatory and discriminatory' in such classification? We believe that common sense, logic, precedent and the public interest combine to dicate a definite and positive answer in the negative.

At the time this case was tried, no appellate court in California had decided the precise issues then presented, and respondents, in their points and authorities filed below, relied upon a memorandum opinion of the Superior Court of Monterey County filed June 26, 1961. On December 27, 1962, Division Three of the First District Court of Appeal, reversed the trial court on this point in National Advertising Co. v. County of Monterey, 211 A.C.A. 463, 467-468, 27 Cal.Rptr. 136, 138-139, stating:

'It is true that signs 'relating only to goods sold or services rendered upon the building site on which * * * erected or maintained,' as permitted by the ordinance, may, although strictly limited as to size and number, have much the same appearance as off-site signs. A significant difference, but a part of, and wholly incidental to, the business conducted upon the site and which business conducted upon the site and which the ordinance has properly determined to be permissible in that district. Off-site signs, on the contrary, constitute a wholly distinct business, that of outdoor advertising (see opinion of Brennan, J., in United Advertising Corp. v. Borough of Raritan, 11 N.J. 144, 93 A.2d 362). The ordinance before us merely limits the business of outdoor advertising, as it limits other businesses, to specified districts. An early (1909) case cited by plaintiffs (Varney & Green v. Williams, supra, 155 Cal. 318, 100 P. 867) is not in point because it did not involve a comprehensive zoning ordinance.

'From other jurisdictions, plaintiffs cite only a trial court opinion (Central Outdoor Adv. Co. v. Village of Evandale, Ohio [Ct.] Com. Pl., 124 N.E.2d 189). The great weight of authority supports the propriety of the classification (United Adv. Corp. v. Borough of Raritan, supra; Kelbro,...