National Advertising Co. v. Monterey County

• Decision Date: 27 December 1962
• Citation: 211 Cal.App.2d 375,27 Cal.Rptr. 136
• Parties: NATIONAL ADVERTISING COMPANY, a California corporation; Metropolitan Broadcasting Corp., a Delaware corporation; Carlton Peirce; Keefers, Inc., a California corporation; Holman's Department Store, Inc., a California corporation, Plaintiffs and Respondents, v. COUNTY OF MONTEREY, a political subdivision of the State of California; Edward De Mars, as Planning Director of said County; Edward K. Burns, as District Attorney; Victor V. Tibbs, as Sheriff, etc., et al., Defendants and Appellants. Civ. 20366.
• Court: California Court of Appeals Court of Appeals

Page 136

27 Cal.Rptr. 136

211 Cal.App.2d 375

NATIONAL ADVERTISING COMPANY, a California corporation; Metropolitan Broadcasting Corp., a Delaware corporation; Carlton Peirce; Keefers, Inc., a California corporation; Holman's Department Store, Inc., a California corporation, Plaintiffs and Respondents, v. COUNTY OF MONTEREY, a political subdivision of the State of California; Edward De Mars, as Planning Director of said County; Edward K. Burns, as District Attorney; Victor V. Tibbs, as Sheriff, etc., et al., Defendants and Appellants.

Civ. 20366.

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

Dec. 27, 1962.

Rehearing Denied Jan. 23, 1963.

William H. Stoffers, County Counsel, Monterey County, John O. Thornberry, Chief Deputy County Counsel, Monterey County, Salinas, for appellants.

Noland, Hamerly & Etienne, Salinas, for National Advertising Co.

Wallace, Garrison, Norton & Ray and George F. Barry, Jr., San Francisco, for Metropolitan Broadcasting Corp.

Hoge, Fenton, Jones & Appel, Monterey, for Carlton Peirce and Keefers, Inc.

DRAPER, Presiding Justice.

Defendant county and its officers appeal from decree enjoining enforcement of those provisions of a comprehensive zoning ordinance which prohibit construction and maintenance of billboards in certain districts.

The ordinance was adopted April 18, 1955. It distinguishes between 'appurtenant' signs, those which 'relate only to goods sold or services rendered upon the building site on which said sign is erected', and all others, which we shall refer to as off-site signs. Appurtenant signs are permitted in most zones but are restricted as to size and number. Off-site signs are permitted only in retail business, general commercial, and industrial zones. Section 12 establishes a 'U', or unclassified district, in which the only restrictions prohibit off-site signs and require a use permit for each of some 22 uses. The greater part of the county's unincorporated area is placed in the 'U' zone. Enforcement of section 12 against off-site signs was enjoined.

Section 34 provides that nonconforming uses existing at the date of the ordinance may continue, subject to the usual restrictions against enlargement and against replacement after abandonment or destruction. As to off-site signs, however, the section requires removal by July 1, 1960 from districts in which they are not permitted. Enforcement of this section against off-site signs also was enjoined.

The briefs, on both sides, take the all or nothing approach, and in doing so tend to lump together the arguments on sections 12 and 34. There are, however, substantial differences between prospective prohibition and removal of nonconforming uses. For clarity of treatment, and because we have concluded that the judgment must be affirmed in part and reversed in part, we discuss separately the validity of sections 12 and 34.

Section 12 prohibits only new construction of off-site billboards in 'U' districts. It does not require removal of any existing sign. Plaintiffs' argument against it, accepted by the trial court, is that it discriminates arbitrarily against off-site boards in 'U' districts, since such boards are the only flatly prohibited use in such areas. The question is whether the regulation reasonably tends to promote the public health, safety, morals or general welfare.

Whether the regulation is arbitrary or unreasonable must be determined under the established rules governing judicial review of exercises of the police power. That power is elastic, and capable of expansion to meet existing conditions of modern life (Consolidated Rock etc. Co. v. City of Los Angeles, 57 Cal.2d 515, 522, 20 Cal.Rptr. 638, 370 P.2d 342). '[D]etermination of the necessity and form of such regulations * * * is primarily a legislative and not a judicial function' (id. 522, 20 Cal.Rptr. p. 642, 370 P.2d p. 346). If the necessity or propriety of a zoning regulation is a question upon which reasonable minds might differ (Miller v. Board of Public Works, 195 Cal. 477, 490, 234 P. 381, 38 A.L.R. 1479) or is fairly debatable (Lockard v. City of Los Angeles, 33 Cal.2d 453, 462, 202 P.2d 38, 7 A.L.R.2d 990), the legislative determination will not be disturbed. Thus we must determine whether the board of supervisors, in adopting Section 12, may have had in mind considerations supporting the legislation which are fairly debatable or upon which reasonable minds may differ.

Preliminarily, we note that plaintiffs do not attack the prohibition by this ordinance of off-site billboards in residential, agricultural, and similar districts, thus impliedly conceding some basis for distinction between such signs and the many uses permitted in such districts. The concession is required. As long ago as 1916, the United States Supreme Court recognized that there is no constitutional bar to 'putting billboards, as distinguished from buildings and fences, in a class by themselves' (Cusack v. City of Chicago, 242 U.S. 526, 529, 37 S.Ct. 190, 191, 61 L.Ed. 472, L.R.A. 1918A, 136). The often-recognized bases in the police power for billboard regulation (see Murphy v. Town of Westport, 131 Conn. 292, 295-298, 40 A.2d 177, 178-180, 156 A.L.R. 568) exist here. Moreover, the 'U' districts provided by the zoning ordinance are essentially rural areas, in which no definite trend toward residential, commercial, industrial or other use has yet developed. The board may well have felt it advised to maintain such areas in their rural state until such time as a trend to one of the more specialized districts--residential, commercial, industrial or agricultural--develops. An extended zoning plan cannot be made in a day, and its purpose could be frustrated by unrestricted construction which would defeat its ultimate execution (Miller v. Board of Public Works, 195 Cal. 477, 496, 246 P. 384, 38 A.L.R. 1479). In this sense, the 'U' zone appears designed to keep the rural areas free for development into such districts in the normal course of growth of the county.

Cost of site preparation, construction, and maintenance will restrict development of specific uses until demand makes the projects economically feasible. Meantime, the obnoxious uses are limited by the requirement of use permits. Billboards, which may be constructed quickly and at comparatively little cost, are not subject to the economic restrictions inherent in the more permanent development of a trend toward specific use. There is evidence that installation of billboards in rura areas tends to restrict development for both residential and agricultural uses.

The supervisors may also have felt that billboards are considered unattractive by tourists generally, and that thus their unrestricted proliferation would adversely affect the substantial tourist industry of Monterey County. We recognize that esthetic considerations alone cannot justify a zoning regulation (Varney & Green v. Williams, 155 Cal. 318, 320, 100 P. 867, 21 L.R.A.,N.S., 741); although departure from that view has been suggested (27 So. Cal.L.R. 149). Here, however, the supervisors are not asserting their own view of what is attractive or artistic, but rather are concerned with the economic question of what will repel or attract customers of a substantial business of the county. Considerations of the comfort and safety of the travelling public, in light of the fact that billboards in their nature must be visible and conspicuous whereas other uses are not necessarily so; the comparative ease of installation of billboards and the difficulty, as exemplified by this case, of compelling their removal; the fact that billboards may be erected anywhere along highway frontage, but do not establish a trend to development of definite uses of the district; the fear of 'billboard alleys'; all are factors which may have been considered by the legislative body, and which the courts cannot say are palpably unreasonable as grounds for distinguishing between billboards and other land uses.

Plaintiffs argue, however, that the ordinance is not general or uniform, but makes an arbitrary classification in its attempt to distinguish between on-site and off-site signs. The decision principally relied upon by plaintiffs (City of Santa Barbara v. Modern Neon Sign Co., 189 Cal.App.2d 188, 11 Cal.Rptr. 57) states well the established rule that there must be a reasonable basis for exclusion of one class and inclusion of another. On its facts, however, it has no application here.

It is true that signs 'relating only to goods sold or services rendered upon the building...