Posted by: Patricia Salkin | December 22, 2007

Ninth Circuit Upholds City of Oakland Ban on Advertising Signs Visible from Freeways

In the third of a trilogy of sign cases handed down from the Ninth Circuit Court of Appeals at the end of October, the Court upheld the District Court’s determination that the sign regulations adopted by the City of Oakland, Ca. were constitutional as amended during the pendency of the District Court proceedings.   

Desert Outdoor Advertising erected three signs in the City of Oakland, two which were visible from the freeway and contained commercial advertising unrelated to the premises, and one visible from the highway that said “Volunteer to Be a Big Brother,” and “Pray at First Baptist Church.” The City ordered the signs removed as they were in violation of their sign regulations.  The City also denied a variance request for the noncommercial signs for failure to meet the criteria set forth in the local regulations. Desert Outdoor brought both a facial and an as applied challenge to the sign regulations. 

The Municipal Code prohibits signs adjacent to freeways by providing that, “[n]o sign shall be erected, constructed, relocated or maintained in the City of Oakland if such sign is designed to have or has the advertising thereon maintained primarily to be viewed from a freeway.”  The regulation provided for four exceptions that include: signs that identify the name of the person, firm, or business occupying the premises and the type of business conducted thereon; signs that identify the product manufactured on the premises; signs limited to a certain size relating to the sale, lease, hire or display of the building premises, and time and temperature units.  No variances are permitted under the freeway sign ordinance. The City Planning Code banned the construction of new “advertising signs” anywhere within the City, but prior to the amendment, the Code allowed for variances only if four conditions were met: 1) strict compliance would result in practical difficulty or unnecessary hardship inconsistent with the zoning regulations, due to unique physical or topographic circumstances or conditions of design; 2) strict compliance would deprive the applicant of the privileges enjoyed by owners of similarly zoned property; 3) a variance could not adversely affect of character, livability, or appropriate development of abutting properties or the surrounding area, or be detrimental to the public welfare; and 4) a variance cannot constitute a grant of special privilege.  The third condition was repealed during the pendency of the lawsuit.  

With respect to the facial challenge to the sign provisions in the Municipal Code, the Court noted that the regulations ban only signs that are visible from the highway and that contain advertising, or commercial speech. The Court said that “advertising” does not imply noncommercial speech. The regulation the municipality relied on to deny the noncommercial signs were regulations contained in the Oakland Planning Code, and not the Oakland Municipal Code, the regulation that Desert challenged.  Although Desert argued that the Municipal Code provision contained unconstitutional content-based exceptions, the Court found that of all of the exemptions, the only one that was problematic was the exception for time and temperature units (because this is noncommercial speech), and the Court concluded that this particular exception was not enough to demonstrate that the City intended for the regulation to apply to noncommercial speech (in any event, the City did not appeal the District Court’s decision to sever this provision from the regulation).  The Court held that the regulation does not impermissibly favor commercial speech over noncommercial speech and that it does not regulate speech based upon content.    

With respect to Desert’s as applied challenge, the Court noted that the Municipal Code provides a flat ban on such advertising and does not allow for variances.  Therefore, City officials had no discretion when applying the law to Desert’s signs.  Turning to the amendment adopted by the City which was extended to be effective for 90 days after the Court of Appeals decision at which time the City will adopted permanent amendments to the Code, the Court noted that the provision was adopted to eliminate one of the four conditions required before a variance could be granted (see above).  Desert argued that even with the elimination of this criteria, City officials were still left with undue discretion to permit or deny variances.  The Court disagreed, finding that the remaining criteria, while not necessarily exact or explicit, they were not too abstract, and they were significantly concrete enough to restrict subjectivity. As a result, the Court was satisfied that the amended regulation “contains appropriate standards cabining the [City’s] discretion.”  

The Ninth Circuit concluded that the two sign ordinances challenged, as amended, are both constitutional, facially and as applied to Desert.   

Desert Outdoor Advertising v. Oakland, 506 F.3d 798 (C.A. 9th 10/30/2007). 

The opinion can also be accessed at:  http://www.ca9.uscourts.gov/ca9/newopinions.nsf/185A83584D47AC3D882573830079F938/$file/0515501.pdf?openelement


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