Schloss v. Jamison, 247

• Decision Date: 12 June 1964
• Docket Number: No. 247,247
• Citation: 262 N.C. 108,136 S.E.2d 691
• Court: North Carolina Supreme Court
• Parties: S. A. SCHLOSS, Jr., Florette Schloss Wile and Mary Jane Silverman, Partners, Trading as Schloss Poster Advertising Company, v. W. H. JAMISON, Superintendent of Building Inspection for the City of Charlotte, and the City of Charlotte, a municipal corporation.

Page 691

136 S.E.2d 691

262 N.C. 108

S. A. SCHLOSS, Jr., Florette Schloss Wile and Mary Jane Silverman, Partners, Trading as Schloss Poster Advertising Company, v. W. H. JAMISON, Superintendent of Building Inspection for the City of Charlotte, and the City of Charlotte, a municipal corporation.

No. 247

Supreme Court of North Carolina.

June 12, 1964

Hunter M. Jones and James O. Cobb, Charlotte, for plaintiff appellees.

John T. Morrisey, Sr., Charlotte, for defendant appellants.

BOBBITT, Justice.

Evidence was offered by plaintiffs and by defendants. The court's findings of fact cover sixteen pages of the record. Facts established by unchallenged findings may be summarized as follows:

On January 29, 1962, the City Council of Charlotte adopted a new and comprehensive zoning ordinance. This ordinance, which became effective January 30, 1962, is now identified as Chapter 23 of the Code of the City of Charlotte. It establishes within the corporate limits of the City of Charlotte and its 'Perimeter Area' three 'Residential Districts,' two 'Office Districts,' three 'Business Districts,' and three 'Industrial Districts.'

The ordinance states the plan or purpose with reference to each district and defines the permitted uses therein. It provides that no building, structure or land shall be used 'unless in conformity with all the regulations of this Ordinance for the District in which it is located, except as otherwise provided herein.' It makes a violation of any of its terms a misdemeanor.

The ordinance prescribes the classes of signs permitted on premises in the various residential, office, business and industrial districts. Identification signs are permitted in all districts. Business signs are permitted in all (three) business and in all (three) industrial districts. Advertising signs are permitted in all (three) industrial districts and in 'B-2 General Business District.' Advertising signs are not permitted in 'B-1 Neighborhood Business District' or in 'B-3 Central Business District.'

The 'B-3 Central Business District,' directly involved in this action, will be referred to hereafter as district B-3. It is defined in the ordinance (in part) as follows: 'This District is located at the area of convergence of the main arterial thoroughfares and lines of public transportation. This District is primarily for retail and wholesale trade, and for business, professional and financial services for the metropolitan area and the outlying trade area of Charlotte.'

Section 23-2(22) of the ordinance defines and classifies signs, insofar as pertinent to this action, as follows:

'(22) Sign--Any surface, fabric or device bearing lettered, pictorial or sculptured matter designed to convey information visually and exposed to public view; or any structure (including billboard or poster panel) designed to carry the above visual information.

'(a) Advertising Sign. A sign which directs attention to a business, commodity, service or entertainment conducted, sold or offered:

'(1) Only elsewhere than upon the premises where the sign is displayed, or

'(2) As a minor and incidental activity upon the premises where the sign is displayed.

'(b) Business Sign. A sign which directs attention to a business, profession or industry located upon the premises where the sign is displayed, to type of products sold, manufactured or assembled, and/or to service or entertainment offered on said premises, but not a sign pertaining to the preceding if such activity is only minor and incidental to the principal use of the premises.

'(c) Identification Sign. A sign, used to identify only: the name of the individual, family, organization or enterprise occupying the premises; the profession of the occupant; the name of the building on which the sign is displayed.'

Charlotte is a city of more than 200,000 in population. It is the business and commercial center of Mecklenburg County and of ten or more adjoining counties in North or South Carolina.

District B-3 extends in all directions from 'The Square,' the intersection of Trade and Tryon Streets. It is the heart of the downtown business and commercial district. It has 28.5 miles of street frontage. This is 5.5% of the total street frontage (514.8 miles) in the six business and industrial districts. It has an area of .529 square miles (339.09 acres). The business and industrial districts in which advertising signs are permitted comprise an aggregate area of 29.9 square miles or 91.8% of the total area of the six business and industrial districts. '* * * much of the I-1, I-2, and I-3 area includes forests, farms, open fields with few roads * * *.'

The area now zoned as B-3 includes a highly developed business district, with fine office buildings, stores, etc., where the market value of property ranges from five thousand dollars to six thousand dollars per front foot. It also includes large areas in which are located 'such land uses as slum dwellings, cheap beer joints, used car lots, vacant lots, light manufacturing plants, and many businesses in dilapidated buildings.' At specified locations, the market value of property does not exceed fifty to seventy-five dollars per front foot.

Plaintiffs are, and have been for many years, engaged in the outdoor advertising business. The greater part (75%-85%) of their business consists of providing advertising by means of poster panels or billboards. They lease land and construct thereon structures of two standard sizes in general use in the outdoor advertising business throughout the United States. They sell space on these structures to their customers, including national and regional advertisers, and post and maintain thereon the customer's copy or advertising message. These structures are built and maintained in compliance with all safety requirements prescribed by the building codes. Plaintiffs comply with all legal requirements in respect of obtaining licenses and posting bonds. In all respects, plaintiffs conduct their business in a first-class manner.

When the 1962 ordinance became effective plaintiffs, within the area covered by its terms, had built and owned 'approximately 500 outdoor advertising signs * * * affixed to land and buildings on locations leased by the plaintiffs from the owners of the real estate.' Approximately 83 of these signs were located in the area now zoned as district B-3. '* * * although some few of the plaintiffs' signs advertise a business located upon the premises, 90% to 95% of them do not.'

The distinction between advertising signs and business signs is based solely upon the advertising message or copy placed thereon.

Ultimate findings of fact, to which defendants excepted, are to the effect that the challenged ordinance provisions, which prohibit advertising signs in district B-3 but permit business signs therein without any limitation as to number, size or location, (1) have no reasonable relation to the public safety, public health, public morals, general welfare, or 'even to appearances or other aesthetic values,' and (2) arbitrarily discriminate against plaintiffs and their business without any reasonable basis therefor.

The court's conclusions of law were as follows: (1) that G.S. § 160-173 does not authorize or permit the challenged ordinance provisions; (2) that, if authorized by G.S. § 160-173, the prohibition of plaintiffs' advertising signs in district B-3 'is arbitrary and capricious and violates the Constitution of North Carolina, Article I, Sections 1 and 17, and the Constitution of the United States, Amendments I and XIV'; and (3) that plaintiffs have no adequate remedy at law and are entitled to a permanent injunction.

There is no controversy with reference to the 83 sign structures in use in district B-3 prior to January 30, 1962. Defendants concede the ordinance provisions relating to 'Nonconforming Signs' permit plaintiffs to continue to post advertising signs on these structures. As to nonconforming use provisions, see Stoner McCray System v. City of Des Moines, 247 Iowa 1313, 78 N.W. 2d 843, 58 A.L.R.2d 1304; Grant v. Mayor and City Council of Baltimore, 212 Md. 301, 129 A.2d 363.

The challenged ordinance provisions do not prohibit or restrict plaintiffs in district B-3 with reference to business signs. However, the evidence and findings indicate plaintiffs would not be called upon to provide a significant number of such signs. (Note: There was evidence to the effect that only twelve of the business signs in district B-3 were poster panel signs and that two of these were provided by plaintiffs.)

Plaintiffs own no real property in district B-3.

Unchallenged findings include the following: Plaintiffs, since January 30, 1962, have lost a number of their locations in district B-3 on account of lease cancellations due to change of use, new construction and urban renewal. In the area now zoned as district B-3, plaintiffs lose an average of 20% of their locations each year. If new sites cannot be leased for relocation of their sign structures, plaintiffs, with reference to advertising signs, will be completely out of district B-3 within four or five years.

Defendants except to findings of fact summarized as follows: (1) Plaintiffs' locations in district B-3 approximate only 20% of all their locations in Charlotte but provide greatly in excess of 20% of exposure to motor vehicle traffic. (2) Full coverage of the Charlotte market in competition with other advertising media, to wit, newspapers, radio, television, requires the location of advertising signs within district B-3. Plaintiffs' customers, particularly national and regional advertisers, want full coverage. Plaintiffs' business will be seriously impaired unless it can provide such full coverage. (3) On account of their inability to lease and build sign structures on other sites in district B-3, plaintiffs, in order to retain their present locations, must accede to the demands of landlords for increased rent.

Defendants contend there is...