Union City Bd. of Zoning Appeals v. Justice Outdoor Displays, Inc.

• Decision Date: 11 March 1996
• Docket Number: Nos. S95A1976,S95A1978 and S95X1979,S95X1977,s. S95A1976
• Parties: UNION CITY BOARD OF ZONING APPEALS et al. v. JUSTICE OUTDOOR DISPLAYS, INC. JUSTICE OUTDOOR DISPLAYS, INC. v. UNION CITY BOARD OF ZONING APPEALS et al.
• Court: Georgia Supreme Court

Page 875

467 S.E.2d 875

266 Ga. 393

UNION CITY BOARD OF ZONING APPEALS et al. v. JUSTICE OUTDOOR DISPLAYS, INC.

JUSTICE OUTDOOR DISPLAYS, INC. v. UNION CITY BOARD OF ZONING APPEALS et al.

Nos. S95A1976, S95X1977, S95A1978 and S95X1979.

Supreme Court of Georgia.

March 11, 1996.

Sign ordinance; constitutional question. Appeal from the Fulton County Superior Court; Frank M. Eldridge, Judge.

Philip P. Grant, McNally, Fox & Cameron, Fayetteville, for Union City Bd. of Zoning Appeals.

David H. Flint, Schreeder, Wheeler & Flint, Atlanta, Mark W. Forsling, Schreeder, Wheeler & Flint, Atlanta, for Justice Outdoor Displays, Inc.

HINES, Justice.

Justice Outdoor Displays (Justice) leases real property in Union City for the purpose of erecting and maintaining outdoor advertising signs. In September of 1994, Justice requested a variance from the Union City Sign Ordinance's 70-foot height limitation for signs along an interstate highway. Specifically, Justice sought the variance to preserve two signs already violating the height restriction by fourteen feet. The Union City Zoning Board of Appeals (Zoning Board) denied the application for a variance on October 17, 1994. Justice then appealed the denial of its variance request to the Superior Court of Fulton County, and moved for summary judgment, contending that the Union City Sign Ordinance violates both the United States Constitution and the Georgia Constitution.

On appeal, the trial court affirmed the Zoning Board's denial of Justice's application for a variance. However, the court also determined that certain provisions of the Union City Sign Ordinance are unconstitutional, granted Justice's motion for summary judgment as to the offending portions, and enjoined Union City from enforcing those sections of the ordinance. In particular, the trial court found that the ordinance's classification scheme favors some signs based on the content of their message in violation of the First Amendment to the United States Constitution and Article I, Section I, Paragraph V of the Georgia Constitution. The court also determined that specific sections of the ordinance are unconstitutional for the following reasons: Section VI(B)(1) impermissibly restricts the content of messages on signs in residential zoning districts; Section VI(A)(1)(e) discriminates in favor of libraries, schools, and other quasi-public institutions; Section VI(D)(1) limits the placement of political signs to certain zoning districts for a limited period of time; and Section VI(A)(5)(e) is overbroad and vague. Union City and the Zoning Board (collectively Union City) appeal the superior court's grant of summary judgment determining that these provisions of the ordinance are unconstitutional.

In upholding the Zoning Board's denial of Justice's application for a variance, the trial court severed the offending provisions and found that the ordinance's size, height, and distance requirements and limitations should remain intact. Accordingly, the court denied Justice's motion for summary judgment to strike the Union City Sign Ordinance in its entirety. Additionally, the court denied Justice's request for summary judgment based on its challenge to exceptions to permitting and fee requirements as set forth in the ordinance, and its request for attorney's fees. Justice appeals the trial court's denial of summary judgment as to these issues, and its denial of the request for attorney's fees.

Case Nos. S95A1976,

S95X1977

1. The Union City Sign Ordinance distinguishes between "off-premise signs" and "on-premise signs." The ordinance defines an "off-premise sign" as

[a] sign, other than a special sign or a temporary sign, which identifies, advertises, or promotes a product, service, person, place, activity, event, idea, or any other thing located or obtainable elsewhere other than the lot where such sign is located and not principally sold on the lot on which it is located.

"On-premise sign" is defined as

[a] sign, other than a special sign or temporary sign, which identifies, advertises, or promotes a product, service, person, place, activity, event, idea, or any other thing located or obtainable on or at the lot where such sign is located.

Each sign encompassed by the ordinance is classified as either an on-premise sign, an off-premise sign, or a temporary or special sign, and is restricted to designated zoning districts. The trial court determined that one effect of this scheme was to restrict on-premise signs and certain special signs to commercial messages concerning goods and services available on the property or which specifically pertain to the type of activity being advertised. Relying on Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981), the court found that the ordinance's prohibition against the display of noncommercial messages in places where commercial signs are permitted violates the First Amendment to the United States Constitution and the Free Speech Clause of the Georgia Constitution. Subsequently, the court enjoined Union City from limiting the content of messages on on-premise signs and seven specific categories of special signs enumerated in the ordinance. ¹

Metromedia concerned the validity of San Diego's sign ordinance which prohibited all "off-premise outdoor advertising display signs." Metromedia, 453 U.S. at 493, n. 1, 101 S.Ct. at 2885, n. 1. Only "on-site" signs and signs falling within twelve specific categories were exempted from the general prohibition. Metromedia, 453 U.S. at 495, n. 3, 101 S.Ct. at 2886, n. 3. ² The Supreme Court explained that such a scheme permitted all on-site commercial advertising, but forbade all other commercial and noncommercial communications using fixed-structure signs unless otherwise permitted by a specific exception. Id. at 495-496, 101 S.Ct. at 2886-2887. Essentially, the ordinance would permit a property owner to advertise his or her own goods or services, but would prohibit him or her from advertising the goods or services of others or displaying most noncommercial messages. Id. at 503, 101 S.Ct. at 2890.

In determining San Diego's ordinance to be unconstitutional on its face, the Supreme Court recognized that the ordinance favored on-site commercial advertising over aesthetics and traffic safety interests, while banning noncommercial billboards in the same locations. Id. at 513, 101 S.Ct. at 2895. The Court noted that noncommercial speech has historically been accorded greater protection than commercial speech. Id. See also Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). Accordingly, the plurality in Metromedia held:

Insofar as the city tolerates billboards at all, it cannot choose to limit their content to commercial messages; the city may not conclude that the communication of commercial information concerning goods and services connected with a particular site is of greater value than the communication of noncommercial messages.

Metromedia, 453 U.S. at 513, 101 S.Ct. at 2895. The First Circuit Court of Appeals understood this conclusion to follow "logically from the First Amendment's value structure," and interpreted the rationale employed in Metromedia as follows:

if a commercial message overrides the city's aesthetics and safety interests, any message that is at least as important in the First Amendment hierarchy also must override those interests. Because noncommercial speech is entitled to a higher degree of protection than commercial speech, San Diego could not decide that its aesthetic and safety interests were outweighed by the need to express commercial messages but not by the need to express noncommercial messages.

Ackerley Communications of Massachusetts, Inc. v. City of Somerville, 878 F.2d 513, 517 (1st Cir.1989). Simply put, San Diego could not prohibit the display of noncommercial speech in locations where commercial billboards were permitted. See National Advertising Co. v. Town of Babylon, 900 F.2d 551 (2nd Cir.1990), cert. denied, 498 U.S. 852, 111 S.Ct. 146, 112 L.Ed.2d 112 (1990) (city ordinance permitting only signs identifying the person, establishment, product or service available on the premises was found to impermissibly discriminate against noncommercial speech in favor of commercial speech).

Likewise, the municipality of Union City made a value judgment, determining that its interest in permitting on-premise signs outweighed its stated purpose of, among other things, protecting public safety and maintaining the tranquil environment of residential areas. Subsequently, Union City cannot now restrict the content of on-premise signs to commercial messages. Metromedia, 453 U.S. at 513, 101 S.Ct. at 2895. Since the ordinance limits on-premise signs to messages advertising a product, person, service, place, activity, event, or idea directly connected with the property, it effectively bans signs bearing noncommercial messages in zoning districts where a sign of the same size and structure may display commercial advertisements. For instance, under the Union City ordinance the proprietor of a dining establishment could erect a sign identifying "Joe's Famous Pizza," but could not post a sign, identical in size, color, lettering, structure, and placement, proclaiming his view that "abortion is murder." National Advertising Co. v. Town of Babylon, 703 F.Supp. 228, 240 (E.D.N.Y.1989).

Accordingly, because the Union City Sign Ordinance prohibits the display of noncommercial messages at locations where commercial messages are permitted, we find that the trial court did not err in finding that such a restriction violates the First Amendment to the United States Constitution and Article I, Section I, Paragraph V of the Georgia Constitution. Likewise, the court did not err in determining that other provisions of the ordinance which limit the message of certain special signs to commercial communication directly...