Santa Barbara County v. Purcell, Inc.

• Court: California Court of Appeals
• Writing for the Court: FILES
• Citation: Santa Barbara County v. Purcell, Inc., 59 Cal.Rptr. 345, 251 Cal.App.2d 169 (Cal. App. 1967)
• Decision Date: 19 May 1967
• Parties: COUNTY OF SANTA BARBARA, Plaintiff and Appellant, v. PURCELL, INC., Defendant and Appellant, United Outdoor Advertising Co., Inc., Intervenor and Appellant. Civ. 29148.

Page 345

59 Cal.Rptr. 345

251 Cal.App.2d 169

COUNTY OF SANTA BARBARA, Plaintiff and Appellant, v. PURCELL, INC., Defendant and Appellant United Outdoor Advertising Co., Inc., Intervenor and Appellant.

Civ. 29148.

Court of Appeal, Second District, Division 4, California.

May 19, 1967.

Rehearing Denied June 7, 1967.

Hearing Denied July 12, 1967.

Robert K. Cutler, County Counsel, Stanley C. Hatch, Sp. Counsel, Dana D. Smith and Robert D. Curiel, Asst. County Counsel, Santa Barbara, for plaintiff and appellant.

J. F. Goux and Kenneth R. Nuss, Santa Barbara, for defendant and appellant.

Belan M. Wagner, Santa Monica, for intervener and appellant.

FILES, Presiding Justice.

On November 16, 1962, the County of Santa Barbara filed a complaint in the Santa Barbara County Superior Court against Purcell, Inc., a company engaged in the outdoor advertising business, to compel removal of various billboards in the vicinity of Carpinteria, Summerland and Santa Maria maintained in violation of county ordinances. Subsequently, United Outdoor Advertising Co., Inc. intervened and became a codefendant with Purcell. A permanent injunction was entered on October 6, 1964, requiring the removal of all billboards involved in the litigation except those made illegal under county ordinance 1042 covering the Santa Maria area. Defendant and intervener (who will be referred to hereafter as defendants) have appealed from the portion of the judgment which is adverse to them and plaintiff has appealed from the portion which denies relief in the Santa Maria area.

Background

On January 29, 1951, the Santa Barbara County Board of Supervisors adopted ordinance 661, containing land use regulations and definitions of terms, creating zones and establishing permit procedures and penalties for violation. That ordinance as originally enacted applied only to the unincorporated Town of Goleta.

Article VII section 3 of this ordinance limits the size and character of signs and advertising structures which are permitted in each kind of district. Article VIII section 4 provides that a nonconforming outdoor advertising sign or structure may remain for five years from the date of the adoption of the ordinance.

On May 26, 1952, ordinance 696 was adopted, amending ordinance 661 in a number of respects not material here. This amendment further declared in substance that the plan and regulations as set forth in ordinance 661 would become applicable to other territory shown upon maps adopted in the future.

Ordinance 825, enacted May 7, 1956, adopted maps of the Summerland area as an amendment to ordinance 661, thereby making the provisions of that ordinance applicable to the area shown on those maps.

On May 28, 1956, ordinance 833 was adopted for the purpose of correcting an error in the publication of ordinance 825.

On April 1, 1957, ordinance 888 was adopted, containing maps of the Carpinteria area, as a further amendment to ordinance 661.

On August 26, 1957, ordinance 909 adopted maps of additional portions of the Carpinteria area.

On July 27, 1959, ordinance 1042 adopted maps of the Santa Maria area.

The parties have stipulated that each of the billboards involved in this action was erected prior to the enactment of the applicable ordinance, and that each sign is a prohibited use of the property where it is located.

Constitutionality

The zoning ordinances here in question do not prohibit advertising signs and structures altogether. The effect is to exclude defendants' billboards from the localities where defendants prefer to maintain them. The signs here involved are all located along Highway 101, which has been designated on the state's master plan as a 'scenic highway,' requiring 'special scenic conservation treatment.' (Sts. & Hy.Code, §§ 260--263.)

The contention of the defendants is that the county has abused and exceeded its powers in applying these ordinances to defendants. The standard by which the reasonableness of a zoning ordinance is tested is stated in Consolidated Rock Products Co. v. City of Los Angeles (1962) 57 Cal.2d 515, 522, 20 Cal.Rptr. 638, 642, 370, P.2d 342, 346:

'As a corollary to this recognized principle of the capacity of the police power to meet the reasonable current requirements of time and place and period in history is the equally well settled rule that the determination of the necessity and form of such regulations, as is true with all exercises of the police power, is primarily a legislative and not a judicial function, and is to be tested in the courts not by what the judges individually or collectively may think of the wisdom or necessity of a particular regulation, but solely by the answer to the question is there any reasonable basis in fact to support the legislative determination of the regulation's wisdom and necessity?'

Defendants assert that these ordinances 'bottom solely upon aesthetics.' Their argument, based upon their interpretation of Varney & Green v. Williams (1909) 155 Cal. 318, 100 P. 867, 21 L.R.A.,N.S., 741, is that zoning laws may only be used to protect the economic interests of a property owner and not to preserve the priceless beauty of a countryside for all men. It is unnecessary to meet that argument directly, for the trial court has found that in Santa Barbara County scenic environment is commercial. ¹ The trial court found that people come to the county because of its natural beauty, and that the maintenance of billboards along the highway may reasonably be believed to have an adverse effect upon the economy.

Defendants' arguments as to the constitutionality of these ordinances are answered by what has been said in National Advertising Co. v. County of Monterey (1962) 211 Cal.App.2d 375, 27 Cal.Rptr. 136; Metromedia, Inc. v. City of Pasadena (1963) 216 Cal.App.2d 270, 30 Cal.Rptr. 731; and Burk v. Municipal Court (1964) 229 Cal.App.2d 696, 40 Cal.Rptr. 425.

Effect of the Outdoor Advertising Act

The Outdoor Advertising Act, as enacted by the state Legislature in 1939 (Bus. & Prof.Code, § 5200 et seq.), contained the following language:

'It is the intention of the Legislature to occupy the whole field of regulation by the provisions of this chapter except that nothing in this chapter prohibits enforcement of any or all of its provisions by persons designated so to act by appropriate ordinances duly adopted by any county of this State nor does anything prohibit the passage by any county of reasonable land use or zoning regulations affecting the placing of advertising displays in accordance with provisions of Chapter 838 of the Statutes of 1929, relating to zoning.' (Bus. & Prof.Code, § 5227.)

As of the time section 5227 was enacted, chapter 838 of the Statutes of 1929, called 'The Planning Act,' governed the procedure by which a county was authorized to adopt a zoning ordinance.

In 1947 the Legislature repealed The Planning Act of 1929 and replaced it with 'The Conservation and Planning Act.' (Stats.1947, ch. 807, p. 1909.)

In 1951 the Legislature enacted as a part of the Government Code (§ 65000 et seq.) 'The Conservation and Planning Law.' The 1947 Act was concurrently repealed. (Stats.1951, ch. 334, p. 675.)

The Government Code provisions have been continued in force, subject to amendment, addition and repeal of specific sections from time to time. The name of the Act was changed in 1956 to the 'Planning Law' (Stats.1956, 1st Ex.Sess., ch. 33, § 4, p. 359) and changed again in 1965 to the 'Planning and Zoning Law.' (Stats.1965, ch. 1880, § 1, p. 4334.)

Defendants point out that Business and Professions Code section 5227, quoted above, was not amended until 1957, when the words 'chapter 838 of the Statutes of 1929' were deleted and replaced with the words 'the Planning Law, Chapter 1 (commencing with Section 65000) of Title 7 of the Government Code.'

Although each of the successive planning statutes provided a comprehensive system for the adoption of local zoning ordinances, the prescribed procedure varied somewhat. One important change was that a 1953 amendment reduced the number of hearings required before the Planning Commission from two to one.

Defendants argue that since section 5227, as enacted in 1939, said that counties could not regulate billboards except by a zoning ordinance adopted under the 1929 Act, and since that language in section 5227 was not changed until 1957, therefore no zoning ordinance enacted prior to 1957 could affect billboards unless it was enacted in accordance with the 1929 Act.

Such an interpretation would produce anomalous and absurd results which we cannot regard as the legislative intent. It is apparent that all of the planning statutes listed above are intended to be a continuation of the 1929 Act, with the modifications indicated by the differences between the earlier acts and their successors. (See Perkins Mfg. Co. v. Clinton Const. Co., 211 Cal. 228, 237, 295 P. 1, 75 A.L.R. 439.)

It is also apparent that it was the intent of the Legislature, as expressed in the Outdoor Advertising Act (Bus. & Prof.Code, § 5227) that local governments might regulate billboards under zoning laws. After 1947, any zoning law could be adopted only under the provisions of the 1947 Act, or one of its successors. The Legislature could not have intended that after 1947 a zoning ordinance should be adopted under the 1929 Act insofar as it affected billboards and under the 1947 Act insofar as it affected every other land use. Nor is it reasonable to suppose that the Legislature intended to exempt outdoor advertising from all zoning ordinances adopted between 1947 and 1957. We are satisfied that the language of section 5227 refering to zoning regulations in accordance with the 1929 Act means also zoning regulations enacted in accordance with any currently applicable successor statute.

The Attorney General has expressed the same opinion. (21 Ops.Cal.Atty.Gen. 43, 44 (1953).)

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