Posted by: Patricia Salkin | November 13, 2007

Ninth Circuit Upholds Most of City’s Billboard Ordinances but Remands For Determination on Noncommercial Speech Content Issue

Following a challenge to a denial of a permit to erect four billboards at a highway intersection on the grounds that the signs “would result in excessive, undue and adverse visual intrusion…by adding unrelated advertising to a future new commercial facility” and because the billboards would “have a detrimental effect on the general public, health, safety and welfare by adversely affecting existing views of open space and visual relief and future views of new commercial development,” the City of Beaumont (California) repealed their sign ordinance and replaced it with a new one that specifically bans new billboards. The original ordinance was challenged on the grounds that it granted discretion to the planning commission without standards for review, that it regulated more commercial speech than was necessary to advance a substantial governmental interest, and that it impermissibly burdened non-commercial speech greater than commercial speech and favored some non-commercial messages over others.  

The City first sought dismissal of the challenge that the billboard company failed to exhaust its state administrative remedies, but the Court explained that different from a takings case, such action is not a prerequisite to a proceeding under 42 U.S.C. §1983.   

The Circuit Court did uphold the District Court’s determination that the repeal of the complained of sign ordinance moots the claims for declaratory and injunctive relief since there is no longer any risk that the billboard company will be subject to the challenged ordinance. The Court found no merit to the argument that the City would simply re-enact the old ordinance at a later date, noting, “The new ordinance, forbidding all billboards, accomplishes the city’s states goals of limiting visual clutter and preserving commercial viability of future developments, meaning the city has no motive to re-enact a constitutionally suspect ordinance to accomplish the same objective.”  

The Circuit Court found that the new ordinance cures the constitutional deficiencies complained of with respect to the original ordinance since: the ban on new billboards now only requires the planning commission to make a determination as to whether the proposed sign is an off-site sign, and this does not constitute unbridled discretion; the rationale for the new ordinance is based on aesthetic harm which is a substantial governmental interest; and the new ordinance contains a message substitution clause that permits the substitution of noncommercial content for existing copy on any otherwise permissible sign, curing any potentially impermissible burdens on noncommercial speech caused by the off-site ban.  With respect to the billboard company’s due process claim, the Circuit Court upheld the District Court’s dismissal finding that there was no vested property right in an unapproved billboard permit application. However, the Circuit Court determined that the District Court erred in dismissing the First Amendment and Equal Protection claims on this ground since the establishment of a vested property right is irrelevant to such a challenge.

With respect to the First Amendment claims, the court found that the old sign ordinance did not impermissibly grant unbridled discretion to the permitting authority, that it was not an unconstitutional regulation of commercial speech, and that the ordinance was not in violation of the overbreadth doctrine. The Court also upheld the dismissal of the Equal Protection claim, since billboards are not in a protected class and the regulation was rationally related to a legitimate governmental interest.   

The Circuit Court did find, however, that the old ordinance’s off-site ban was a broad prohibition that seemed to reach beyond off-site commercial copy and could include noncommercial messages, and that it lacked the safeguard of the substitution clause contained in the new ordinance.   Furthermore, the Court noted that the old ordinance may have impermissibly regulated noncommercial speech on the basis of content since it exempted certain noncommercial off-site signs from the permit requirement (e.g., political signs and certain directional signs).  Since the case was before the court on a motion to dismiss, the Court said that record was not yet ripe to fully consider these claims.  

 Outdoor Media Group, Inc. v. City of Beaumont, 2007 WL 3197112, C.A.9 (Cal.) (11/01/2007).  

The opinion can also be accessed at:$file/0556620.pdf?openelement

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