NATIONAL ADVERTISING COMPANY v. COUNTY OF MONTEREY

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Court of Appeal, First District, Division 2, California.

NATIONAL ADVERTISING COMPANY, Plaintiff and Respondent, v. COUNTY OF MONTEREY et al., Defendants and Appellants.

Civ. 25094.

Decided: February 17, 1969

William H. Stoffers, County Counsel, Monterey County, John O. Thornberry, Asst. County Counsel, Monterey County, Salinas, for appellants. Hoge, Fenton, Jones & Appel, Monterey, for respondent.

For Opinion on Hearing, see 83 Cal.Rptr. 577, 464 P.2d 33.

Plaintiff is in the outdoor advertising business.   It owns and maintains the 42 billboards involved herein, all of which are on private property leased by plaintiff and were constructed and erected during the years 1933 to 1950.   This action seeks to prevent their removal.

Under the country-wide comprehensive zoning ordinance, as adopted by defendant county on April 18, 1955, all of said billboards were located in U (unclassified) districts.

Section 12 of the ordinance prohibited future construction or erection of billboards in a U district and section 34 provided that billboards which became non-conforming uses under the ordinance must be removed after five years.   Section 34 applied not only to existing billboards in U districts but also to those in districts which specified the permitted uses in greater detail.   (These were H, F, O, K, L, R, Y and T districts.)

On a prior appeal in an action between the same parties (National Advertising Co. v. County of Monterey (1962) 211 Cal.App.2d 375, 27 Cal.Rptr. 136) section 12 was held to be valid.

As to section 34, the court stated:  “Obviously, there is a real distinction between legislation which merely prohibits future uses [section 12] and that which compels discontinuance of existing uses [section 34].”  (P. 380, 27 Cal.Rptr. p. 139.)

The court pointed out that the discontinuance of a use may be permitted if a reasonable period of tolerance or amortization is provided.   Following a discussion of the authorities, the court stated:  “We hold that section 34 is valid insofar as it requires removal of signs [within 5 years] in H, F, O, K, L, R, Y and T districts, as to all of which the ordinance specifies in detail the character of the [particular] district and the uses permitted therein.

“Our conclusion differs as to the ‘U’ districts.   As we have pointed out, these districts are designed as holding areas, whose rural character is to be maintained only until some definite trend toward particular uses begins to develop.   The ordinance recognizes that these areas have not reached a point of development warranting more specific regulation.   While some may develop as districts in which off-site signs are barred, it is the very essence of this concept that some may develop as commercial or industrial zones, in which off-site signs are permitted.   We have held that it is reasonable to prevent hindrance of such development by barring the mushrooming of easily installed off-sit signs and by limiting a number of offensive uses through requiring use permits therefor.   It is quite another thing, however, to require removal of such signs in areas whose ultimate use is not now determinable.   Upholding that portion of the removal requirement could well result in destruction today of a sign which could be rebuilt in the near future.

“When a particular ‘U’ district has developed sufficiently to warrant placing it in a specific district, it will be time enough to resort to the remedy of removal.”  (Pp. 381–382, 27 Cal.Rptr. p. 140.)

Paragraph (3) of subdivision a of section 34 was added to the ordinance by an amendment enacted on April 20, 1964.   It provides that all billboards in a U district “shall be removed entirely within one year from the date said property is reclassified into some other zoning district, unless the reclassification is to a ‘C–1’, ‘C–2’, or ‘M’ District * * *.”  (Italics added.)

On April 5, 1965 the ordinance again was amended in various particulars, including the establishment of a new type of zoning district designated as N (rural).   The allowed uses in N are, in general, one-family dwellings and all agricultural uses.   Other specified uses are permitted, subject to first obtaining a use permit.   These uses do not include billboards.

As a result of this rezoning, 41 of the subject billboards were placed in an N district and the other was placed in a PC (planned commercial) district.   In the latter district, no use is allowed except as part of a comprehensive, all-over development plan which has been approved by the county's zoning authorities.

The trial court in the instant action held that the 1965 rezoning was valid but that the 1964 amendment to section 34 was invalid and unconstitutional “in that the amortization period provided therein [one year] is unreasonableand arbitrary and represents the taking of property without due process of law.”   (Italics added.)

From the judgment thereupon entered, the defendant county and its offers who were joined as defendants have appealed.   The sole issue before us is the reasonableness of the one-year tolerance or amortization period.

 The opinion on the prior appeal, written for the court by Presiding Justice Draper, emphasizes that zoning legislation which looks to the eventual liquidation of nonconforming uses within a prescribed period is valid “only if the period of amortization be reasonable.”  (211 Cal.App.2d, at 381, 27 Cal.Rptr. at 139.)

In City of Santa Barbara v. Modern Neon Sign Co. (1961) 189 Cal.App.2d 188, 11 Cal.Rptr. 57, the four signs in question were erected shortly prior to the enactment of an ordinance which required that they be altered within one year after such enactment so as to eliminate all movement or rotation of the respective signs.

Two of the signs cost $1,882.46 and $1,519.44, respectively, the third was rented for approximately $95 a month, and the fourth carried a total rental of $6,696 for the lease period, the length of which is not stated in the opinion.   The economic life of each sign was at least 10 years.

The court found that because of the design of the signs, if they were altered so as to prevent movement or rotation, they would become valueless.   It was held that the amortization period of one year was unreasonably short and the ordinance was therefore declared to be invalid.

In City of Los Angeles v. Gage (1954) 127 Cal.App.2d 442, 460, 274 P.2d 34, 44, in approving a five-year period of amortization, the court said:  “Use of a reasonable amortization scheme provides an equitable means of reconciliation of the conflicting interests in satisfaction of due process requirements.   As a method of eliminating existing nonconforming uses it allows the owner of the nonconforming use, by affording an opportunity to make new plans, at least partially to offset any loss he might suffer.   The loss he suffers, if any, is spread out over a period of years * * *.”

The subject 42 billboards cost a total of $34,155 to construct and erect.   They range in age from 16 to 33 years.   Plaintiff has placed a book value on them of forty percent of their original cost, or $13,662.   The trial court found:  “These signs have been carefully maintained and through repair, have been rebuilt in many instances and have accordingly many years of useful life remaining.”   The court also found that it would cost respondent $5,850 to take down and remove the billboards at the end of the amortization period, whenever that may be.

 The Outdoor Advertising Act (Bus. & Prof. Code, § 5200 et seq.) indicates that our State Legislature is presently of the opinion that a period of three (3) years is a reasonable period to be allowed within which to require the removal of an advertising sign which does not comply with existing law.

We base this statement upon the ground that, prior to May 15, 1965, section 5292 of the Business and Professions Code provided in part as follows:  “Any advertising structure or sign which is now, or hereafter shall be, in violation of the provisions of Section 5291, shall be removed within one (1) year * * *.”

Operative May 15, 1965, this one-year period of amortization was changed to three years.  (Stats.1964, 1st Ex.Sess., ch. 128, p. 396, § 8.)

The federal government's “Highway Beautification Act of 1965,” 23 United States Code, section 131, subdivision (e), provides as follows:  “Any sign, display, or device lawfully in existence along the Interstate System or the Federal-aid primary system on September 1, 1965, which does not conform to this section shall not be required to be removed until July 1, 1970.   Any other sign, display, or device lawfully erected which does not conform to this section shall not be required to be removed until the end of the fifth year after it becomes nonconforming.”

We realize, of course, that the foregoing federal and state legislation have no direct effect upon the validity of the county legislation involved herein.   However, we believe that they throw light on what is considered to be a fair and reasonable period of amortization for nonconforming billboards which are required to be eliminated at the expense of the owner.

For the reasons stated above, we have concluded that the judgment should be and it is affirmed.