Montana Media, Inc. v. Flathead County

• Decision Date: 13 February 2003
• Docket Number: No. 01-694.,01-694.
• Citation: Montana Media, Inc. v. Flathead County, 2003 MT 23, 63 P.3d 1129, 314 Mont. 121 (Mont. 2003)
• Parties: MONTANA MEDIA, INC., Petitioner and Appellant, v. FLATHEAD COUNTY, City of Whitefish, Respondents and Respondents.
• Court: Montana Supreme Court

63 P.3d 1129

2003 MT 23

314 Mont. 121

MONTANA MEDIA, INC., Petitioner and Appellant, v.FLATHEAD COUNTY, City of Whitefish, Respondents and Respondents.

No. 01-694.

Supreme Court of Montana.

Submitted on Briefs August 8, 2002.

Decided February 13, 2003.

Alisa Labut Wright, Roetzel & Andress, Akron, Ohio, Chad M. Wold, Wold Law Firm, P.C. Kalispell, Montana, for Appellant.

John M. Phelps, Hedman, Hileman & Lacosta, Whitefish, Montana, for Respondent City of Whitefish.

Jonathon B. Smith, Office of the Flathead County Attorney, Kalispell, Montana, for Respondent Flathead County.

Justice TERRY N. TRIEWEILERdelivered the Opinion of the Court.

¶ 1The Appellant, Montana Media, Inc., filed a complaint for declaratory judgement in the District Court for the Eleventh Judicial District in Flathead County, and requested that the District Court declare that the City of Whitefish and Flathead County zoning regulations, which regulate off-premise signs and billboards, violated Montana's Outdoor Advertising Act and the Montana and United States Constitutions.The City and the County filed counterclaims for injunctive relief which sought to enforce their zoning regulations.The District Court denied Montana Media's petition for declaratory relief against the City, and permanently enjoined Montana Media from operating its signs that violated the City ordinance.The District Court denied Montana Media's petition for declaratory relief against the County in part and postponed action on the County's motion for injunctive relief until issues of fact underlying Montana Media's equal protection allegations could be resolved.Montana Media appeals the District Court's denial of its declaratory judgment action and the issuance of the permanent injunction.We affirm the judgment and injunction of the District Court.

¶ 2We restate the issues on appeal as follows:

¶ 3 1.Did the District Court err when it concluded that the City and County ordinances do not impose an unconstitutional restriction on commercial speech?

¶ 4 2.Did the District Court err when it concluded that the City and County ordinances do not create an unconstitutional prior restraint on commercial speech?

¶ 5 3.Did the District Court err when it concluded that the City and County ordinances are not unconstitutionally vague?

¶ 6 4.Did the District Court err when it concluded that the City and County ordinances do not violate the procedural due process clause?

¶ 7 5.Did the District Court err when it concluded that the City ordinance does not violate Montana Media's right to equal protection?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 8 Montana Media, Inc. (Montana Media), is a marketing company, located in Flathead County, that offers billboard space to those businesses that wish to advertise a service or product available at another location.¹Montana Media owns and operates a number of billboards which are located within the jurisdictions of Flathead County and the City of Whitefish.Two of Montana Media's billboards are subject to regulation pursuant to the Whitefish Zoning Jurisdiction Regulation (WZJR) sign ordinance which was adopted in 1990.The other billboards owned by Montana Media that are located within the County are subject to regulation pursuant to the Flathead County Zoning Regulation(FCZR) sign ordinance.

¶ 9 The City ordinance provides:

The regulation of signs involves concern both of aesthetics and visual communication.Some signs give necessary and useful information to those who use the public rights-of-way.Others serve no useful public purpose, may even be safety hazards, and create unnecessary visual discord.The emphasis of these regulations shall be to strike a balance between the needs of the business to identify their places of business, products and services offered, and the aesthetic needs of the community as a whole.

WZJR § 17.100.010.

¶ 10 Signs are defined as:

Any device, structure, fixture, or placard using graphics, symbols, pictures, emblems, lighting schemes and/or written copy, or any other medium for visual communication, including its supporting structure and source of light, which is intended to be used to attract attention to a location or subject matter, for advertising, instruction, or information purposes, and is viewable from a public right of-way.

WZJR § 17.120.040.

¶ 11 Noncommercial signs are permitted throughout the city subject to size, density and placement restrictions.Signs that advertise a place of business found at that location — onsite signs — are permitted subject to size restrictions.The City ordinance provides that an off-premise sign is a "sign structure advertising an establishment, merchandise, service, or entertainment, which is not sold, produced, manufactured, or furnished at the property on which the sign is located."WZJR § 17.120.340.Off-premise signs within the City are only permitted in commercial and industrial zones, are subject to size and setback restrictions, and require a permit under certain circumstances.WZJR §§ 17.100.060(7), 17.100.090, 17.100.100.The ordinance strictly prohibits off-premise signs, other than directional signs, in residential zones.Permits are required when a new sign is erected, or when the copy, design, illumination or size of an existing sign is changed.WZJR § 17.100.100(1).

¶ 12 A grandfather clause required that non-conforming signs which were erected before 1990, be brought into compliance with the City ordinance as soon as any of the following events occurred: 1) the sign was relocated or replaced; 2) the structure or size of the sign was altered; 3) the sign was damaged or taken out of service; or 4) by September 30, 1996, for off-premise signs located in the public right-of-way.WZJR § 17.100.100(2)(b).

¶ 13 Montana Media owns two off-premise signs, or billboards, that are subject to the City ordinance.Montana Media purchased billboard 03696, which is located on the west side of Highway 93 South, on July 9, 1999.When billboard 03696 was purchased by Montana Media it had no signage or lighting fixtures.In July of 1999, an apron, new copy and two advertising faces were installed.In December of 1999, new lighting fixtures were installed without a permit.Billboard 03696 violates the ordinance size and setback restrictions.Montana Media purchased billboard 05897, which is located on the east side of Highway 93 South, on September 13, 2000.Later, Montana Media installed an apron, a new advertising face and new lighting fixtures without a permit.Billboard 05897 also violates the ordinance size and setback restrictions.

¶ 14 On May 2, 2000, the City informed Montana Media that billboard 03696 violated ordinance size restrictions, public right-of-way setback restrictions, neighboring lot setback restriction, and was modified without a permit.The City explained that because there was no feasible manner to bring the billboard into compliance, it would have to be removed.It is undisputed that both billboards violate the City ordinance.

¶ 15 The County adopted a sign ordinance as part of the Flathead County Zoning Regulations in 1993.The County defines a sign as "[a]ny medium or visual communication including its supporting structure and source of light which is used or intended to be used to attract attention to a location or subject matter for advertising, instruction, or informational purposes."FCZR § 7.18.060.The County ordinance defines and regulates billboards and offsite signs differently.

¶ 16 The County ordinance provides two definitions for billboards.First, a billboard is defined as:

[A] standard outdoor advertising sign larger than 250 square feet or [sic] total structural surface area which is designed to convey a message or to advertise products services or businesses not located on the premises on which the sign is located.A sign shall not be considered a billboard unless it is built with a surface on which poster panels or painted bulletins are mounted for the purpose of conveying visual messages or advertisements.

FCZR § 7.03.030.

¶ 17 The second definition of billboard provides:

Billboard/painted bulletin sign means a standard outdoor advertising sign which is designed to advertise products, services or businesses not located on the premises on which the sign is located.A sign shall not be considered a billboard unless the sign is designed with a surface on which temporary poster panels or painted bulletins are mounted for the purpose of conveying a visual advertising message.

FCZR § 7.18.060(2).

¶ 18 The different definitions of the term billboard have significant legal implications in reviewing the ordinance for constitutional validity.Billboards are only permitted in specific zones within the county.Any proposed construction, reconstruction, replacement or major alteration of a billboard conducted subsequent to the enactment of the ordinance requires the issuance of a conformance permit prior to commencement.FCZR § 5.11.030(10).All signs must be brought into compliance by July 1, 2003.FCZR § 5.11.030(9).

¶ 19 An offsite sign is a sign that advertises "an establishment, merchandise, service or entertainment" located elsewhere.The definition explicitly excludes billboards.FCZR § 7.18.060(8).Offsite signs are not designed to display temporary messages and are restricted to 64 square feet per face.FCZR § 5.11.020(3).

¶ 20 Due to a Montana Department of Transportation road widening project, State law required that Montana Media move a number of billboards that were within the County's jurisdiction.Consequently, the billboards would have to comply with the County ordinance when they were moved.Montana Media did not apply for a permit before making alterations to one of its billboards outside of Hungry Horse.Furthermore, its billboards were not brought into compliance.The County notified Montana Media of the infractions and requested its signs be brought into compliance.

¶ 21 On May 25, 2000...