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Metromedia, Inc. v. San Diego, City of

ELR Citation: 10 ELR 20862
Nos. No. L.A. 30782, 610 P.2d 407/14 ERC 1865/26 Cal. 3d 848, (Cal., 05/14/1980) On reh'g

The court upholds en banc the constitutionality of a San Diego ordinance which prohibits all off-site billboards and requires the removal of certain existing billboards following expiration of an amortization period. The court holds that the purposes recited in the ordinance—eliminating traffic hazards and improving the appearance of the city—are proper objectives for the exercise of the city's police power, and that the ordinance bears a reasonable relationship to those objectives. The court also finds that aesthetic considerations alone may justify the ordinance. The court further concludes that the ordinance does not, on its face, infringe the freedom of speech of commercial billboard owners under either the United States or the California Constitution. The ordinance validly regulated only the time, place, and manner of commercial speech because (1) it does not seek to suppress the content of the advertiser's message, (2) it serves significant governmental interests unrelated to the suppression of free speech, and (3) it leaves open adequate alternative means of communication. The court agrees with plaintiffs that the ordinance is preempted by the California Outdoor Advertising Act to the extent that it permits the removal without compensation of billboards within 660 feet of federal interstate and primary highways because compensation is required under the federal Highway Beautification Act. However, the court finds no denial of equal protection where the city requires removal of billboards greater than 660 feet from a federal highway after an amortization period and without payment of just compensation. Although the amortization schedule is not unreasonable on its face plaintiffs retain the right to prove that the amortization period is unreasonably short as applied to their structures. Finally, the court rules the city's alleged noncompliance with the California Environmental Quality Act was not properly before the trial court on the motion for summary judgment and thus cannot be asserted on appeal.

Justice Richardson concurs separately; although agreeing with the dissent that total prohibition raises serious constitutional issues, he is persuaded that the ordinance meets minimum First Amendment standards. Justice Newman disagrees that aesthetic considerations alone are sufficient to prohibit off-site billboards but concurs with the majority that other varieties of speech may merit more protection than is accorded commercial speech. Justice Clark dissents, contending that the ordinance unconstitutionally prohibits expression of noncommercial as well as commercial speech because (1) billboards are entitled to the same First Amendment protection as other forms of speech, (2) the government interests do not outweigh the First Amendment rights of plaintiffs, and (3) there exists no adequate alternative means to communicate noncommercial messages effectively.

Counsel for Appellants
John W. Witt, City Attorney; C. Alan Sumption, Deputy City Attorney
City Concourse, 202 C St., San Diego CA 92101
(714) 236-6220

Counsel for Respondents
Theodore B. Olson, Wayne W. Smith
Gibson, Dunn & Crutcher
515 S. Flower St., Los Angeles CA 90071
(213) 488-7000

Oscar F. Irwin
Hillyer & Irwin
14th Floor, Cal. First Bank Bldg., 530 B St., San Diego CA 92101
(714) 234-6121

Counsel for Amici Curiae
Mahlon F. Perkins Jr.
Donovan, Leisure, Newton & Irvine
30 Rockefeller Plaza, New York NY 10020
(212) 489-4100

Michael M. Berger
Fadem, Berger & Norton
Suite 600, 501 Santa Monica Blvd., Santa Monica CA 90406
(213) 451-9951

Walter Wencke
P.O. Box 1090, Del Mar CA 92014
(714) 756-1664

Carter J. Stroud, City Attorney
City Hall, Alameda CA 94501
(415) 522-4100

BIRD, C.J., and MOSK and MANUEL, JJ., concur.