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9 ELR 20437 | Environmental Law Reporter | copyright © 1979 | All rights reserved Metromedia, Inc. v. City of San DiegoNo. L.A. 30782 (592 P.2d 728, 23 Cal. 3d 762, 12 ERC 2089) (Cal. March 21, 1979)The Supreme Court of California reverses a lower court's grant of summary judgment for plaintiffs in a suit by billboard owners challenging the constitutionality of a municipal ordinance with bans all off-site billboards and requires that existing billboards be removed after an amortization period. The court holds that the ordinance represents a proper exercise of the municipal power over zoning and land use. The purposes recited by the ordinance, i.e., the elimination of traffic hazards and the improvement of the city's appearance, are both proper and sufficient police power objectives, and plaintiffs have failed to show that the measure is not reasonably related to the achievement of these goals. The court rejects as anachronistic and unrealistic plaintiffs' further contention that cities may not completely prohibit a business not found to be a public nuisance, noting that there is no clear line between "prohibition" and "regulation." After examining the relevant case law, the court concludes further that the ordinance does not on its face abridge plaintiffs' rights under the First Amendment to the United States Constitution or the free speech clause of the California Constitution. Noting that cases concerning print media are not controlling because billboards are permanent structures subject to a municipality's zoning power, the court determines that the measure is a lawful regulation of the time, place, and manner of speech. In this regard, the court emphasizes that the ordinance does not seek to suppress the content of the advertiser's message and leaves open adequate alternative methods of communication. The court likewise holds that the municipal ordinance is not preempted by the state Outdoor Advertising Act and does not deny plaintiffs equal protection of the laws. Finally, the court holds erroneous the lower court's finding that the one- to four-year amortization period established by the ordinance is unreasonably short on its face but notes that plaintiffs may still show that it is unreasonable as applied to specific signs. The court also rules that the city's alleged noncompliance with the requirements of the California Environmental Quality Act in enacting the ordinance cannot be asserted as a ground for sustaining the summary judgment because it was not properly raised before the trial court. A dissent disputes the majority's conclusion that the ordinance does not unconstitutionally abridge freedom of speech. Counsel for Plaintiffs-Respondents Oscar F. Irwin John J. Bouma, Guy G. Gelbron Joe N. Turner Counsel for Defendants-Appellants BIRD, C.J., and MOSK and MANUEL, JJ., concur. NEWMAN, J., concurs in the result. TOBRINER, Justice. The City of San Diego enacted an ordinance which bans all off-site advertising billboards and requires the removal of existing billboards following expiration of an amortization period. Plaintiffs, owners of billboards affected by the ordinance, sued to enjoin its enforcement. Upon motion for summary judgment, the superior court adjudged the ordinance unconstitutional, and issued the injunction as prayed. We reject the superior court's conclusion that the ordinance exceeded the city's authority under the police power. We hold that the achievement of the purposes recited in the ordinance — eliminating traffic hazards and improving the appearance of the city — represent proper objectives for the exercise of the city's police power, and that the present ordinance bears a reasonable relationship to those objectives. We reject also the lower court's alternative holding that the ordinance violates the First [9 ELR 20438] Amendment; judicial decisions demonstrate that a ban on commercial off-site billboards, enacted under the city's authority to regulate the commercial use of real property, does not abridge freedom of speech or press. Plaintiffs urge that we sustain the summary judgment on a variety of other grounds: they contend that the ordinance is preempted by the Outdoor Advertising Act (Bus. & Prof.Code, § 5200 et seq.); that it will endanger the state's share of federal highway funds; that it denies them the equal protection of the law; that its amortization provisions are facially unreasonable; and that the city failed to comply with the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.). For the reasons we shall set forth in the body of this opinion, we conclude that none of these grounds will suffice to sustain the judgment below. We conclude that the judgment of the superior court should be reversed, and the case remanded to that court for further proceedings. 1. Summary of proceedings in the trial court. The present case concerns the constitutionality of San Diego Ordinance No. 10795 (New Series), enacted March 14, 1972. With limited exceptions specified in the footnote,1 the ordinance as subsequently amended prohibits all off-site "outdoor advertising display signs."2 Off-site signs are defined as those which do not identify a use, facility or service located on the premises or a product which is produced, sold or manufactured on the premises. All existing signs which do not conform to the requirements of the ordinance must be removed following expiration of an amortization period, ranging from 90 days to 4 years depending upon the location and depreciated value of the sign. Plaintiffs, Metromedia, Inc., and Pacific Outdoor Advertising Co., Inc., are engaged in the outdoor advertising business and own a substantial number of off-site billboards subject to removal under Ordinance No. 10795. Plaintiffs filed separate actions against the city, attacking the validity of the ordinance. The actions were consolidated by stipulation.3 After extensive inter-rogatories and requests for admission had been answered all parties moved for summary judgment. To facilitate the determination of the motion for summary judgment the parties entered into a stipulation of facts. The following portions of that stipulation are particularly pertinent to the present appeal: "2. If enforced as written Ordinance No. 10795 will eliminate the outdoor advertising business in the City of San Diego. . . . 13. Each of the plaintiffs are the owners of a substantial number of outdoor advertising displays (approximately 500 to 800) in the City of San Diego. . . . 17. The displays have varying values depending upon their size, nature and location. 18. Each of the displays has a fair market value as a part of an income-producing system of between $2,500 and $25,000. 19. Each display has a remaining useful income-producing life in excess of 25 years. 20. All of the signs owned by plaintiffs in the City of San Diego are located in areas zoned for commercial and industrial purposes. . . . 28. Outdoor advertising increases the sales of products and produces numerous direct and indirect benefits to the public. Valuable commercial, political and social information is communicated to the public through the use of outdoor advertising.Many businesses and politicians and other persons rely upon outdoor advertising because other forms of advertising are insufficient, inappropriate and prohibitively expensive. . . 31. Many of plaintiffs' signs are within 660 feet and others are within 500 feet of interstate or federal primary highways. . . 34. The amortization provisions of Ordinance No. 10795 have no reasonable relationship to the fair market value, useful life or income generated by the signs and were not designed to have such a relationship."4 The trial court filed a memorandum opinion stating that the ordinance was invalid as an unreasonable exercise of police power and an abridgment of First Amendment guarantees of freedom of speech and press. The court then entered judgment enjoining enforcement of the ordinance. The city appeals from that judgment. 2. The summary judgment cannot be sustained on the ground that the San Diego ordinance exceeds the city's authority under the police power. The San Diego ordinance, as we shall explain, represents a proper application of municipal authority over zoning and land use for the purpose of promoting the public safety and welfare.5 The ordinance recites the purposes for which it was enacted,6 including the elimination of traffic hazards [9 ELR 20439] brought about by distracting advertising displays and the improvement of the appearance of the city. Since these goals are proper objectives for the exercise of the city's police power, the city council, asserting its legislative judgment, could reasonably believe the instant ordinance would further those objectives. Plaintiffs cannot question that a city may enact ordinances under the police power to eliminate traffic hazards. They maintain, however, that the city failed to prove in opposition to plaintiffs' motion for summary judgment that the ordinance reasonably relates to that objective. We could reject plaintiffs' argument on the simple ground that plaintiffs, as the parties asserting the unconstitutionality of the ordinance, bear the burden of proof (see Associated Home Builders etc., Inc. v. City of Livermore, supra, 18 Cla.3d 582, 609, 135 Cal. Rptr. 41, 557 P.2d 473), and cannot rely upon the city's failure of proof. To avoid unnecessary litigation upon remand of this cause, however, we have probed plaintiffs' broader argument: We hold as a matter of law that an ordinance which eliminates billboards designed to be viewed from streets and highways reasonably relates to traffic safety. Billboards are intended to, and undoubtedly do, divert a driver's attention from the roadway. Whether this distracting effect contributes to traffic accidents invokes an issue of continuing controversy.7 But as the New York Court of Appeals pointed out, "mere disagreement" as to "whether billboards or other advertising devices . . . constitute a traffic hazard . . . may not cast doubt on the statute's validity. Matters such as these are reserved for legislative judgment, and the legislative determination, here expressly announced, will not be disturbed unless manifestly unreasonable." (New York State Thruway Auth. v. Ashley Motor Ct. (1961) 10 N.Y.2d 151, 218 N.Y.S.2d 640, 643, 176 N.E.2d 566, 568.) Many other decision have upheld billboard ordinances on the ground that such ordinances reasonably relate to traffic safety;8 we cannot find it manifestly unreasonable for the San Diego City Council to reach the same conclusion. As the Kentucky Supreme Court said in Moore v. Ward (1964) 377 S.W.2d 881, 884: "Even assuming [plaintifs] could produce substantial evidence that billboard signs do not adversely affect traffic safety, . . the question involves so many intangible factors as to make debatable the issue of what the facts establish. Where this is so, it is not within the province of courts to hold a statute invalid by reaching a conclusion contrary to that of the legislature." We further hold that even if, as plaintiffs maintain, the principal purpose of the ordinance is not to promote traffic safety but to improve the appearance of the community, such a purpose falls within the city's authority under the police power. In contending that aesthetic considerations cannot justify the exercise of the police power to prohibit billboards, plaintiffs rely on Varney & Green v. Williams (1909) 155 Cal. 318, 100 P. 867, which held unconstitutional an ordinance of the City of East San Jose prohibiting all advertising billboards. Asserting that the ordinance rested solely on the "promotion of aesthetic or artistic considerations," we stated that "it has never been held that these considerations alone will justify, as an exercise of the police power, a radical restriction of the right of an owner of property." (Id. at p. 320, 100 P. at p. 868, quoting City of Passaic v. Patterson Bill Posting Co. (1905) 72 N.J.L. 285, 287, 62 A. 267.) Constrained by this precedent, subsequent California Court of Appeal decisions have stated that aesthetic considerations cannot justify an ordinance prohibiting billboards. (See Desert Outdoor Advertising, Inc. v. County of San Bernardino (1967) 255 Cal.App.2d 765, 769, 63 Cal. Rptr. 543; County of Santa Barbara v. Purcell, Inc. (1967) 251 Cal.App.2d 169, 173, 59 Cal. Rptr. 345; National Advertising Co. v. County of Monterey (1962), 211 Cal.App.2d 375, 379, 27 Cal. Rptr. 136.) Only one decision, however, has actually invalidated a city ordinance on this ground. (City of Santa Barbara v. Modern Neon Sign Co. (1961) 189 Cal.App.2d 188, 191-194, 11 Cal. Rptr. 57.) In all other cases the courts have found some additional ground for the ordinance, such as elimination of driving hazards or promotion of tourist traffic. Relying on such additional grounds, the cases conclude that the ordinance did not become unconstitutional merely because aesthetic considerations may have played some part in motivating its enactment.9 Thus we could distinguish the present case from Varney & Green v. Williams, supra, 155 Cal. 318, 100 P. 867, on the ground that the present ordinance was not enacted exclusively for aesthetic purposes. We believe, however, that the holding of Varney & Green v. Williams, that aesthetic purposes alone cannot justify assertion of the police power to ban billboards, is unworkable, discordant with modern thought as to the scope of the police power, and therefore compels forthright repudiation. Because this state relies on its scenery to attract tourists and commerce, aesthetic considerations assume economic value. Consequently any distinction between aesthetic and economic grounds as a justification for billboard regulation must fail. "Today, economic and aesthetic considerations together constitute the nearly inseparable warp and woof of the fabric upon which the modern city must design its future." (Metromedia, Inc. v. City of Pasadena, supra, 216 Cal.App.2d 270, 273, 30 Cal. Rptr. 731, 733; Burk v. Municipal Court, supra, 229 Cal.App.2d 696, 702, 40 Cal. Rptr. 425.) The holding of Varney & Green v. Williams also conflicts with present concepts of the police power. Most jurisdiction now concur with the broad declaration of Justice Douglas in Berman v. Parker (1954) 348 U.S. 26, 75 S. Ct. 98, 99 L.Ed. 27: "The concept of the public welfare is broad and inclusive. [Citation.] The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled." (Id., at p. 33, 75 S. Ct. at pp. 102-103.) Although Justice Douglas tendered this description in a case upholding the exercise of [9 ELR 20440] the power of eminent domain for community redevelopment, it has since been recognized as a correct description of the authority of a state or city to enact legislation under the police power. (Village of Belle Terre v. Boraas (1974) 416 U.S. 1, 5-6, 94 S. Ct. 1536, 39 L. Ed. 2d 797; City of Phoenix v. Fehlner (1961) 90 Ariz. 13, 17, 363 P.2d 607; People v. Stover (1963) 12 N.Y.2d 462, 467-468, 240 N.Y.S.2d 734, 191 N.E.2d 272; Oregon City v. Hartke (1965) 240 Or. 35, 48, 400 P.2d 255; Markham Advertising Co. v. State, supra, 73 Wash. 2d 405, 424, 439 P.2d 248.) As the Hawaii Supreme Court succinctly stated: "We accept beauty as a proper community objective, attainable through the use of the police power." (State v. Diamond Motors, Inc. (1967) 50 Haw. 33, 36, 429 P.2d 825, 827.)10 Present day city planning would be virtually impossible under a doctrine which denied a city authority to legislate for aesthetic purposes under the police power. Virtually every city in this state has enacted zoning ordinances for the purpose of improving the appearance of the urban environment and the quality of metropolitan life. Many municipalities engage in projects of one type or another designed to beautify their communities. Indeed, Varney & Green v. Williams itself asserted "That the promotion of aesthetic or artistic considerations is a proper object of governmental care will probably not be disputed." (155 Cal. 318, 320, 100 P. 867, 868.) But as the New York Court of Appeals pointed out," Once it be conceded that aesthetics is a valid subject of legislative concern the conclusion seems inescapable that reasonable legislation designed to promote that end is a valid and permissible exercise of the police power. . . . [W]hether such a statute or ordinance should be voided should depend upon whether the restriction was 'an arbitrary and irrational method of achieving an attractive . . . community — and not upon whether the objectives were primarily aesthetic.'" (People v. Stover, supra, 12 N.Y.2d 462, 240 N.Y.S.2d 734, 738, 191 N.E.2d 272, 275.) In a subsequent and very recent decision, the New York Court of Appeals confirmed that aesthetic considerations may justify the exercise of the police power to ban all off-site billboards in a community. (Suffolk Outdoor Adv. Co., Inc. v. Hulse (1977) 43 N.Y.2d 483, 402 N.Y.S.2d 368, 373 N.E.2d 263.) "It cannot be seriously argued," the New York court said, "that a prohibition of thisnature is not reasonably related to improving the aesthetics of the community." (Id., at p. 490, 402 N.Y.S.2d at p. 371, 373 N.E.2d at p. 266.)11 The fact that the ordinance bans billboards in commercial and industrial areas, and that it permits on-site signs, does not demonstrate that the ordinance as a whole lacks a reasonable relationship to improving community appearance. (E.B. Elliott Adv. Co. v. Metropolitan Dade County, supra, 425 F.2d 1141, 1152.) "[T]he notion that an extensively commercial or industrial area will be made more attractive by the absence of billboards is open to debate. Since the issue is debatable, however, the modern judicial presumption in favor of legislation [requires the court] to uphold the ordinance as a rational means of enforcing the legislative purpose of preserving aesthetics." (Lucking, The Regulation of Outdoor Advertising: Past, Present and Future (1977) 6 Environmental Aff. 179, 188.) If the San Diego ordinance reasonably relates to the public safety and welfare, it should logically follow that the ordinance represents a valid exercise of the police power. Plaintiffs contend, however, that the police power is subject to an additional limiting doctrine: That regardless of the reasonableness of the act in relation to the public health, safety, morals and welfare the police power can never be employed to prohibit completely a business not found to be a public nuisance. This argument also rests on our decision in Varney & Green v. Williams, supra, 155 Cal. 318, 100 P. 867. There the court, as an alternative ground for its decision, held the East San Jose ordinance unconstitutional on the grounds that it did "not attempt . . regulation, but undertakes to absolutely forbid the erection or maintenance of any bill-board for advertising purposes." (P. 321, 100 P. p. 868.) No California decision since Varney & Green has invalidated a billboard ordinance as prohibitory, but a few decisions of other states have struck down billboard ordinances on this ground. (See Combined Communications Corp. v. Denver (Colo.1975) 542 P.2d 79, 82-83; Metromedia, Inc. v. City of Des Plaines (1975) 26 Ill.App.3d 942, 326 N.E.2d 59, 61-62; Stoner McCray System v. City of Des Moines (1956) 247 Iowa 1313, 1319-1320, 78 N.W.2d 843; Norate Corp., Inc. v. Zoning Board of Adjustment (1965) 417 Pa. 397, 407, 207 A.2d 890.) For the reasons we shall offer, however, we believe that this doctrine, too, conflicts with reality and with current views of the police power. The distinction between prohibition and regulation is one of words and not substance. In the present case, for example, plaintiffs describe the ordinance as a prohibition of off-site advertising, while the city describes it as a regulation of advertising, one which limits advertising to on-site signs. Surely the validity of the ordinance does not depend on the court's choice between such verbal formulas. Rather than strive to develop a logical distinction between "regulation" and "prohibition," and to find themselves embroiled in language rather than fact, courts of other jurisdictions in recent decisions have held that a community can entirely prohibit off-site advertising. (John Donnelly & Sons v. Mallar, supra, 453 F. Supp. 1272; Murphy, Inc. v. Westport (1944) 131 Conn. 292, 40 A.2d 177; John Donnelly & Sons, Inc. v. Outdoor Advertising Bd., supra, 339 N.E.2d 709; Suffolk Outdoor Adv. Co., Inc. v. Hulse, supra, 43 N.Y.2d 483, 402 N.Y.S.2d 368, 373 N.E.2d 263; Matter of Cromwell v. Ferrier, supra, 19 N.Y.2d 263, 276 N.Y.S.2d 22, 225 N.E.2d 749.) These decisions fall within the general principle that a community may exclude any or all commercial uses if such exclusion reasonably relates to the public health, safety, morals or general welfare. (Town of Los Altos Hills v. Adobe Creek Properties, Inc. (1973) 32 Cal. App. 3d 488, 502-504, 108 Cal. Rptr. 271, and cases there cited; see Associated Home Builders etc., Inc. v. City of Livermore, supra, 18 Cal. 3d 582, 606, fn. 23, 234 P. 381.) As the Oregon Supreme Court [9 ELR 20441] explained in Oregon City v. Hartke, supra, 240 Or. 35, 400 P.2d 255, "[I]t is within the police power of the city wholly to exclude a particular use if there is a rational basis for the exclusion. . . . It is not irrational for those who must live in a community from day to day to plan their physical surroundings in such a way that unsightliness is minimized. The provention of unsightliness by wholly precluding a particular use within the city may inhibit the economic growth of the city or frustrate the desire of someone who wishes to make the proscribed use, but the inhabitants of the city have the right to forego the economic gain and the person whose business plans are frustrated is not entitled to have his interest weighed more heavily than the predominant interest of others in the community." (Pp. 49-50, 400 P. p. 263.) Plaintiffs stress that most of the cases upholding a community ban on billboards or other commercial uses have involved small, predominantly residential, towns or rural localities. Recently, however, the Massachusetts Supreme Judicial Court upheld an ordinance similar to the one at issue here involving a total prohibition of billboards in a densely populated town with a sizable business and industrial district. (John Donnelly & Sons, Inc. v. Outdoor Advertising Bd., supra, 339 N.E.2d 709.) The court there stated that "We believe that it is within the scope of the police power for the town to decide that its total living area should be improved so as to be more attractive to both its residents and [its] visitors. Whether an area is urban, suburban or rural should not be determinative whether the residents are entitled to preserve and enhance their environment. Urban residents are not immune to ugliness." (P. 720.) Relying on the cited Massachusetts decision, the United States District Court for the District of Maine recently upheld a statewide ban on off-site commercial billboards, including urban regions within the state. Its decision observes that it "can find no rational basis for concluding . . that residents of and visitors to urban, commercial or industrial districts are not entitled to the benefit of an aesthetically pleasing environment, while those living or visiting suburban, residential or rural regions are." (John Donnelly & Sons v. Mallar, supra, 453 F. Supp. 1272, 1281.) Nor do we perceive how we could rationally establish a rule that a city's police power diminishes as its population grows, and that once it reaches some unspecified size it no longer has the power to prohibit billboards. San Diego, for example, has already prohibited billboards within 97 percent of its limits — a region which in area and population far surpasses most California cities. Plaintiffs claim that a ban covering 97 percent of the city is a "regulation," while the extension of that ban to the remaining 3 percent of the city is a "prohibition," but such sophistry is a mere play upon words. Thus the validity of Ordinance No. 10795 under the police power does not turn on its regulatory or prohibitory character, nor upon the size of the city which enacted it, but solely on whether it reasonably relates to the public safety and welfare. As we have explained, the ordinance recites that it was enacted to eliminate traffic hazards, improve the appearance of the community, and thereby protect property values. The asserted goals are proper objectives under the police power, and plaintiffs have failed to prove that the ordinance lacks a reasonable relationship to the achievement of those goals. We conclude that the summary judgment cannot be sustained on the ground that the ordinance exceeds the city's authority under the police power.12 3. The summary judgment cannot be sustained on the ground that the San Diego ordinance on its face abridges freedom of speech. Although the trial court held that the San Diego ordinance unconstitutionally invaded the First Amendment rights of billboard advertisers, controlling precedent invalidates that conclusion. On almost every occasion in which a law which prohibited off-site commercial billboards has been challenged as an abridgment of freedom of speech, the courts have rejected that challenge and sustained the law.13 (See Howard v. State Dept. of Hwys. of Colorado (10th Cir. 1973) 478 F.2d 581; John Donnelly & Sons v. Mallar, supra, 453 F. Supp. 1272; John Donnelly & Sons, Inc. v. Outdoor Advertising Bd., supra, 339 N.E.2d 709; Donnelly Advertising Corp. v. City of Baltimore, supra, 370 A.2d 1127, 1132; United Advertising Corp. v. Borough of Raritan, (1952) 11 N.J. 144, 93 A.2d 362; Suffolk Outdoor Advertising Co., Inc. v. Hulse, supra, 43 N.Y.2d 483, 402 N.Y.S.2d 368, 373 N.E.2d 263; Markham Advertising Co. v. State, supra, 73 Wash. 2d 405, 439 P.2d 248.) Plaintiffs note that some of the decisions in point relied heavily on Valentine v. Chrestensen (1942) 316 U.S. 52, 62 S. Ct. 920, 86 L.Ed. 1262, in which the Supreme Court declared that "the Constitution imposes no . . . restraint on government as respects purely commercial advertising." (Id., at p.54, 62 S. Ct. at p. 921.) Within the last three years, a series of that court's decisions have repudiated Valentine v. Chrestensen and held that commercial speech may command First Amendment protection. (Bigelow v. Virginia (1975) 421 U.S. 809, 95 S. Ct. 2222, 44 L. Ed. 2d 600; Virginia Pharmacy Board v. Virginia Consumer Council (1976) 425 U.S. 748, 96 S. Ct. 1817, 48 L. Ed. 2d 346; Linmark Associates v. Township of Willingboro (1977) 431 U.S. 85, 97 S. Ct. 1614, 52 L. Ed. 2d 155; Bates v. State Bar of Arizona (1977) 433 U.S. 350, 97 S. Ct. 2691, 53 L. Ed. 2d 810.) Plaintiffs contend that as a result of these decisions, a law prohibiting commercial billboards can no longer be sustained. When first presented to us, plaintiffs' First Amendment contention presented an arguable issue. While this case was pending before us, however, the New York Court of Appeals, in Suffolk Outdoor Advertising Co. v. Hulse, supra, 43 N.Y.2d 483, 402 N.Y.S.2d 368, 373 N.E.2d 263, upheld a community wide ban on off-site billboards. The advertising company appealed to the United States Supreme Court, which dismissed the appeal for want of a substantial federal question. ( U.S. , 99 S. Ct. 66, 58 L. Ed. 2d 101.) Since the Supreme Court regards such a dismissal as a decision on the merits (Hicks v. Miranda (1975) 422 U.S. 332, 95 S. Ct. 2281, 45 L. Ed. 2d 225), we conclude that the high court has resolved that its commercial speech cases are not inconsistent with ordinances prohibiting off-site billboards. The dismissal of the appeal in Suffolk Outdoor Advertising authoritatively establishes that such ordinances do not violate the First Amendment. An issue remains as to whether the San Diego ordinance violates the free speech clause of the California Constitution. (Art. 1, § 2.) We therefore set forth our reasons for concluding that the San Diego ordinance is a permissible regulation of the time, place, and manner of speech, and thus does not abridge freedom of speech under the California Constitution. Four important decisions of other jurisdictions, filed after the United States Supreme Court first ruled that commercial [9 ELR 20442] speech is protected under the First Amendment, have each held that laws prohibiting off-site billboards do not impair freedom of speech. (John Donnelly & Sons v. Outdoor Advertising Bd., supra, 339 N.E.2d 709; Suffolk Outdoor Advertising Co., Inc. v. Hulse, supra, 43 N.Y.2d 483, 402 N.Y.S.2d 368, 373 N.E.2d 263; Donnelly Advertising Corp. v. City of Baltimore, supra, 370 A.2d 1127, 1132; John Donnelly & Sons v. Mallar, supra, 453 F. Supp. 1272.) The opinion of Judge Gignoux in John Donnelly & Sons v. Mallar, the most recent of these decisions, presents a comprehensive exposition of the validity of such laws as regulations of the time, place, and manner of speech.That opinion points out that an ordinance which regulates commercial speech will pass constitutional inspection as a lawful regulation of the time, place, and manner of speech if it satisfies three criteria: "the restriction on speech must be 'justified without reference to the content of the regulated speech,' (2) the restriction must 'serve a significant governmental interest,' and (3) in so doing, the restriction must 'leave open ample alternative channels for communication of the information.'" (John Donnelly & Sons v. Mallar, supra, 453 F. Supp. 1272, 1277, citing Linmark Associates v. Township of Willingboro, supra, 431 U.S. 85, 97 S. Ct. 1614, 52 L. Ed. 2d 155, and Virginia Pharmacy Board v. Virginia Consumer Council, supra, 425 U.S. 748, 96 S. Ct. 1817, 48 L. Ed. 2d 346.) The San Diego ordinance complies with these requirements. First, the instant ordinance does not seek to suppress the content of the advertiser's message. Each of the high court decisions on which plaintiffs rely struck down laws aimed at the suppression of a particular message based on the content of that message. Bigelow invalidated a law prohibiting advertising which explained how to obtain an abortion; Virginia Pharmacy Board invalidated a law banning advertisement of drug prices; Linmark invalidated an ordinance banning residential "for sale" and "sold" signs; Bates invalidated a state bar rule against attorney advertising. Ordinance No. 10795, by way of contrast, was not enacted to prevent an advertiser from communicating his message to the public, but only to bar him from using a particularly unsightly and intrusive mode of communication. Second, as we have already explained, the ordinance serves significant governmental interests — promoting traffic safety and improving the appearance of the community — unrelated to the suppression of free expression. (Cf. United States v. O'Brien (1968) 391 U.S. 367, 377, 88 S. Ct. 1673, 20 L. Ed. 2d 672.) Finally, the ordinance leaves open adequate alternative means of communication. In upholding a Maine statute which imposed a statewide ban on off-site commercial billboards, the federal district court observed that the act "leaves open ample alternative channels for communication of the information now carried by off-premises outdoor advertising. . . . Many, if not all, of the commercial messages displayed on off-premises signs can be conveyed to the traveling public through on-premises advertising, official business directional signs, and tourist information centers and publications, all of which are sanctioned by the Act. . . . Other forms of print media, which, like outdoor advertising, enjoy the advantage of being relatively low in cost, such as pamphleting and leafleting, lie beyond the scope of the Act altogether. . . ." (John Donnelly & Sons v. Mallar, supra, 453 F. Supp. 1272, 1279-1280.) The New York Court of Appeals, sustaining a community ordinance which prohibited all off-site billboards, reached the same conclusion: "Although prohibiting nonaccessory billboards, the ordinance permits the maintenance of accessory or on-premise billboards, thus providing an operative means of advertising. . . . Since the challenged ordinance . . . regulates only the place and manner in which billboards may be maintained, we conclude that [it] does not infringe the right to free speech guaranteed by the First Amendment." (Suffolk Outdoor Advertising Co. v. Hulse, supra, 43 N.Y.2d 483, 402 N.Y.S.2d 368, 370-371, 373 N.E.2d 263, 265, 266, app. dism., U.S. , 99 S. Ct. 66, 58 L. Ed. 2d 101.) The foregoing decisions properly hold that a community ordinance prohibiting off-site commercial billboards leaves open adequate alternative means of communication. Advertisers of consumer products and services can communicate through newspapers, magazines, radio, and television. Local business can in addition employ on-site billboards. The relatively few noncommercial advertisers who would be restricted by the San Diego ordinance also possess a great variety of alternative means of communication, including some methods, such as leafleting, which are no more expensive than billboards.14 The San Diego ordinance is not unique; over 100 cities and towns in California and the entire States of Hawaii and Maine have banned off-site billboards; advertisers in such areas make use of other means of communicating with the public. In arguing that the San Diego ordinance cannot be sustained as a regulation of time, place, and manner, plaintiffs cite to cases involving leaflets, soundtrucks, newspapers, maps, and other forms of communication which courts have held can be subjected only to narrowly drawn regulations serving a compelling governmental interest.15 We do not find those cases controlling here. Unlike leaflets, newspapers, and the like, a billboard is a large, immobile, and permanent structure which like other structures is subject to zoning regulation. The city's right to regulate the commercial use of property, and to ban uses which imperil traffic safety or denigrate the appearance of the community justifies restrictions which go beyond those imposed upon more transitory or less obtrusive media. We find support for our conclusion that the city's interest in regulating the commercial use of property justifies the instant ordinance in the decision of the United States Supreme Court in Young v. American Mini Theaters (1976) 427 U.S. 50, 96 S. Ct. 2440, 49 L. Ed. 2d 310. Upholding a zoning ordinance which prohibited adult theaters within 500 feet of residential areas or 1,000 feet of other adult establishments, the court held that the city's interest in regulating commercial use of real property outweighed the incidental effect of the ordinance upon First Amendment values. (See 427 U.S. at p. 63, 96 S. Ct. 2440; id., at pp. 76, 84, 96 S. Ct. 2440 (Powell, J., conc.).) Rejecting the contention that the challenged ordinance abridged freedom of speech, Young reiterated the principle that commercial speech acquires only a lesser degree of constitutional protection.16 Significantly [9 ELR 20443] the court, to illustrate that principle, cited several examples of valid regulation of commercial speech, among which was the proposition that "A state statute may permit highway billboards to advertise businesses located in the neighborhood but not elsewhere." (427 U.S. at p. 68, 96 S. Ct. at p. 2451, citing the court's dismissal of the appeal in Markham Advertising Co. v. State, supra, 73 Wash. 2d 405, 439 P.2d 248, app. dismissed, 393 U.S. 316, 89 S. Ct. 553, 21 L. Ed. 2d 512.)17 The New York Court of Appeals also supports our distinction between billboards and other media. In 1976 that court held unconstitutional an ordinance which prohibited all commercial handbills. (People v. Remeny (1976) 40 N.Y.2d 527, 387 N.Y.S.2d 415, 355 N.E.2d 375.) One year later, however, the court upheld an ordinance which prohibited all off-site billboards as a permissible regulation of the time, place, and manner of speech. (Suffolk Outdoor Advertising Co., Inc. v. Hulse, supra, 43 N.Y.2d 483, 402 N.Y.S.2d 368, 373 N.E.2d 263.) In summary, San Diego asserts a strong interest in removing commercial off-site billboards to enhance the appearance of the community and to improve traffic safety. To further those ends, the city enacted a zoning ordinance which does not seek to suppress the content of the advertising messages, but only to prohibit one means by which such messages are placed before the public. A unanimity of published decisions supports the proposition that such an ordinance does not abridge freedom of speech. Finding that the recent commercial speech cases of the United States Supreme Court do not undermine those decisions, and that billboards, as permanent intrusive uses of land, may reasonably be distinguished from other media, we conclude that the San Diego ordinance does not on its face abridge freedom of speech under either the United States or California Constitutions. 4. The San Diego ordinance is not preempted by the Outdoor Advertising Act. Plaintiffs contend that the summary judgment below should be sustained on the ground that Ordinance No. 10795 is preempted by provisions of the Outdoor Advertising Act (Bus. & Prof.Code, § 5200 et seq.). Plaintiffs rely on two provisions: Section 5226, which states generally the legislative policy and findings underlying the Outdoor Advertising Act, and section 5412, which requires payment of just compensation to owners of billboards removed pursuant to the act. Section 5226 reads as follows: "The regulation of advertising displays adjacent to any interstate highway or primary highway . . . is hereby declared to be necessary to promote the public safety, health, welfare, convenience and enjoyment of public travel, to protect the public investment in such highways, to preserve the scenic beauty of lands bordering on such highways, and to insure that information in the specific interest of the traveling public is presented safely and effectively, recognizing that a reasonable freedom to advertise is necessary to attain such objectives. The Legislature finds: "(a) Outdoor advertising is a legitimate commercial use of property adjacent to roads and highways. "(b) Outdoor advertising is an integral part of the business and marketing function, and an established segment of the national economy, and should be allowed to exist in business areas, subject to reasonable controls in the public interest." The significance of section 5226 is not clear; the section states broad policy objectives; it neither explicitly authorizes billboards in business areas nor explicitly limits the authority of municipalities to prohibit billboards in such areas. Although the findings of section 5226 could be read literally to authorize maintenance of billboards in commercial areas despite any contrary local prohibition18 such an interpretation seems contrary to section 5229, which provides that "The provisions of this chapter shall not be construed to permit a person to place or maintain in existence . . . any outdoor advertising prohibited by . . . any ordinance of any city . . . ." Section 5230 further confirms the authority of a city under the police power; it states that "The governing body of any city, county, or city and county may enact ordinances, including, but not limited to, land use or zoning ordinances, imposing restrictions on advertising displays adjacent to any street, road, or highway equal to or greater than those imposed by this chapter."19 Viewed in context, section 5226 appears to be a statement of policy, adopted to explain why the Legislature enacted a statute providing for the eventual elimination of outdoor advertising displays adjacent to state and interstate highways in noncommercial areas, but not for the elimination of such displays within business areas. The section does not constitute a substantive limitation on the police power of the municipality, and thus should not be construed to preempt municipal authority. Section 5412, the other provision on which plaintiffs rest their preemption argument, states that: "If federal law requires the states to pay just compensation with regard to the removal of any advertising display, the owner or owners of such advertising display and the owner or owners of the land upon which such display is located, [shall] be paid just compensation. The sole intent of the Legislature in enacting this section is to comply with federal law, and it is otherwise not the intent of the Legislature to in any manner relinquish any of its powers relating to the removal of advertising displays under the police power."20 As the language of the section demonstrates, it requires payment of compensation only when such payment is necessary to comply with federal law. Analysis of the alleged preemptive effect of section 5412, consequently, requires a review of the provisions of the relevant federal statute, the Highway Beautification Act of 1965 (23 U.S.C. § 131). The Highway Beautification Act requires removal, following a grace period of 5 years, of all off-site billboards within 660 feet of federal interstate and primary highways, except for billboards located in commercial or industrial areas. Billboards adjacent to federal highways within commercial and industrial areas may also be removed by agreement between the states and the Secretary of Transportation. Subdivision (g) of section 131 provides that "Just compensation shall be paid upon the removal of . . . outdoor advertising signs . . . lawfully in existence on the date of the enactment of this subsection [or] lawfully erected on or after January 1, [9 ELR 20444] 1968." The federal government provides 75 percent of such compensation. Under subdivision (b) of section 131, noncomplying states lose 10 percent of their share of federal highway funds; failure to pay just compensation upon removal of signs within the scope of the act constitutes noncompliance requiring imposition of that penalty. (State of Vermont v. Brinegar (D.Vt.1974) 379 F. Supp. 606.) Finally, subdivision (k) qualifies the foregoing provisions, stating that "Nothing in this section shall prohibit a State from establishing standards imposing stricter limitations with respect to signs, displays, and devices on the Federalaid highway systems than those established under this section." In order to avoid the loss of federal highway funds, the California Legislature amended the Outdoor Advertising Act to require payment of just compensation upon removal of off-site billboards located within 660 feet of interstate and primary highways outside of commercial and industrial area when required by federal law.(See Bus. & Prof.Code, §§ 5405, 5408, 5412.) We perceive no direct conflict between the San Diego ordinance and state law. If the ordinance required the removal of certain billboards without payment of compensation, and the Outdoor Advertising Act required removal of the same billboards with payment or compensation, such a conflict might arise. In fact, however, the city's ordinance and the state act are concerned with different billboards. The Outdoor Advertising Act requires removal of billboards outside of commercial and industrial areas, but does not relate to removal of billboards within such commercial and industrial areas unless such removal is provided for in an agreement between the state and the Secretary of Transportation. The parties do not allege that any such agreement applies to billboards in San Diego. Ordinance No. 10795, although city-wide in scope, adds to an existing ban on billboards in residential areas only an additional ban covering commercial or industrial areas. All of plaintiffs' billboards are in fact located within commercial or industrial areas. In sum, no case appears in which state law mandates the payment of compensation for any billboard which the ordinance proposes to remove without compensation. Plaintiffs contend, however, that the Outdoor Advertising Act was intended to deny cities the power to enact ordinances which might subject the state to a 10 percent penalty under the Highway Beautification Act; they argue that the San Diego ordinance, if found to endanger the state's receipt of its full allotment of federal highway funds, would be preempted by state law. (See 55 Ops. Cal.Atty.Gen. (1972) p. 1.) We explain, however, that a city's enactment of a zoning ordinance prohibiting off-site billboards does not imperil the state's share of its highway allotment. The City of Alameda in its amicus curiae brief has furnished us with the opinion, dated March 11, 1976, of the chief counsel of the Federal Highway Administration, which states that, "The federal act requires payment of just compensation only for removal of signs lawfully erected and that when a sign becomes a nonconforming use under a local zoning ordinance it ceases to be lawfully erected within the meaning of the law." Since the Federal Highway Administration is the agency charged with the enforcement of the Highway Beautification Act of 1965, its interpretation of the act is entitled to great weight and, if reasonable, should be sustained. (See, e.g., Northern Ind. Pub. Serv. Co. v. Walton League (1975) 423 U.S. 12, 15, 96 S. Ct. 172, 46 L. Ed. 2d 156; Los Angeles v. Public Utilities Com. (1975) 15 Cal. 3d 680, 696, 125 Cal. Rptr. 779, 542 P.2d 1371.) In the present case, the interpretation of the Federal Highway Administration is entitled to special weight for the state act requires payment of just compensation only when necessary to avoid a federal penalty. The state has no interest in contruing its statutes to require payment of compensation in any case in which the federal agency charged with administration of the federal program would not institute action to impose a penalty. Moreover, the opinion of the Federal Highway Administration demonstrates that the Highway Beautification Act does not require the state to pay just compensation when billboards adjoining interstate or primary highways must be removed to comply with local zoning ordinances. The legislative history of that act indicates that the Congress intended to require payment of compensation only for billboards removed pursuant to the Highway Beautification Act or state statutes enacted to conform to that act.21 Courts have uniformly held that local zoning ordinances which ban billboards located on interstate and primary highways are not preempted by state laws enacted to conform to the Highway Beautification Act. (Art Neon Co. v. City and County of Denver (10th Cir. 1973) 488 F.2d 118, 123; Desert Outdoor Advertising, Inc. v. County of San Bernardino, supra, 255 Cal.App.2d 765, 772, 63 Cal. Rptr. 543; City of Doraville v. Turner Communications (1976) 236 Ga. 385, 223 S.E.2d 798, 801; Donnelly Advertising Corp. v. City of Baltimore, supra, 370 A.2d 1127, 1131; Modjeska Sign Studios, Inc. v. Berle (N.Y.Ct.App.1977) 43 N.Y.2d 468, 402 N.Y.S.2d 359, 373 N.E.2d 255,22 app. dismissed, U.S. , 99 S. Ct. 66, 58 L. Ed. 2d 101.) In sum, California's Outdoor Advertising Act preempts local ordinances only when those ordinances threaten to subject the state to a penalty under the federal Highway Beautification Act. The federal act, however, does not penalize a state merely because a subdivision of the state, acting pursuant to valid zoning ordinances, requires the removal of billboards without compensation. 5. The San Diego ordinance does not deny plaintiffs the equal protection of the laws. We reject plaintiffs' contention that the city's failure to pay compensation for the removal of their billboards, in light of the state's payment of compensation to owners of billboards removed under the Outdoor Advertising Act, denies them the equal protection of the laws. Since the distinction involves purely economic regulation it may be sustained if the classification bears a rational relationship to a legitimate state purpose. (People ex rel. Dept. of Transportation v. Desert Outdoor Advertising, Inc. (1977) 68 Cal. App. 3d 440, 450, 137 Cal. Rptr. 221.) California decisions establish that a city seeking to eliminate nonconforming uses may pursue two constitutionally equivalent alternatives: It can eliminate the use immediately by payment of just compensation, or it can require removal of the use without compensation following a reasonable [9 ELR 20445] amortization period. (See Livingston Rock etc. Co. v. County of L.A. (1954) 43 Cal.2d 121, 127, 272 P.2d 4.) The choice between the alternatives largely involves budgetary consideration. In the present instance the state, its funds augmented by a 75 percent federal contribution, reasonably chose to pay compensation and thus eliminate billboards without concern for any amortization period; the city, lacking such federal funds, reasonably chose the more economical alternative of requiring abatement only after expiration of an amortization period. We find no denial of equal protection in that decision. 6. The summary judgment cannot be sustained on the ground that the amortization period prescribed by the ordinance as applied to all or any of plaintiffs' signs is unreasonably short. The San Diego ordinance requires abatement of all off-site billboards following expiration of an amortization period. That period is computed in the following manner: First, the owner determines the original cost of the sign, including the cost of installation. Second, he deducts 10 percent of that cost for each year the sign has been standing prior to the effective date of the ordinance, arriving at a figure which the ordinance refers to as "the adjusted market value." The ordinance then provides an abatement schedule ranging from one year for signs with an "adjusted market value" of less than $500 to four years for signs with an "adjusted market value" in excess of $20,000.23 Finally, the ordinance states that notwithstanding the abatement schedule in the ordinance, any signs located within 500 feet of freeways or scenic highways must be removed within 90 days. This provision is based on the fact that such signs were rendered nonconforming uses by prior city zoning ordinances. Since those prior ordinances had been in force for about 3 years before the effective date of Ordinance No. 10795, the signs in question received an actual amortization period of at least 3 years and 90 days. Thus the amortization period under the ordinance depends upon the conformity of the signs under prior ordinances, the original cost of the signs, and the time elapsed since erection of the signs. As the parties stipulated, the abatement schedule is not computed on the basis of current fair market value, useful life, or income generated by the signs. Relying on that stipulation, plaintiffs contend that the amortization period is unreasonable on its face and hence that the ordinance, to the extent that it requires removal of billboards without compensation or a reasonable amortization period, denies due process of law. The trial court in its memorandum opinion granting the motion for summary judgment found that plaintiffs had not provided sufficient proof that the abatement schedule was unreasonable as applied to their billboards. The California cases have firmly declared that zoning legislation may validly provide for the eventual termination of nonconforming uses without compensation if it provides a reasonable amortization period commensurate with the investment involved. (National Advertising Co. v. County of Monterey (1970) 1 Cal. 3d 875, 878, 83 Cal. Rptr. 577, 464 P.2d 33; Livingston Rock etc. Co. v. County of Los Angeles, supra, 43 Cal.2d 121, 127, 272 P.2d 4; City of Los Angeles v. Gage (1954) 127 Cal. ApP.2d 442, 454-460, 274 P.2d 34.) The determination of the length of a reasonable period of amortization is not merely a matter of accounting. "It is not required that the nonconforming property concerned have no value at the termination date." (Art Neon Co. v. City and County of Denver, supra, 488 F.2d 118, 121.) The determination instead involves a process of weighing the public gain to be derived from a speedy removal of the nonconforming use against the private loss which removal of the use would entail. (Hadacheck v. Sebastian (1915) 239 U.S. 394, 36 S. Ct. 143, 60 L. Ed. 348; Art Neon Co. v. City and County of Denver, supra, at p. 121; National Advertising Co. v. County of Monterey, supra, 1 Cal. 3d at p. 886, 83 Cal. Rptr. 577, 464 P.2d 33 (dis. opn. of Sullivan, J.); City of La Mesa v. Tweed & Gambrell Planning Mill (1956) 146 Cal. ApP.2d 762, 770, 304 P.2d 803; City of Los Angeles v. Gage, supra, 127 Cal. ApP.2d at p. 461, 274 P.2d 34; Modjeska Sign Studios, Inc. v. Berle, supra, 43 N.Y.2d 468, 402 N.Y.S.2d 359, 373 N.E.2d 255.)24 In reviewing the constitutionality of an ordinance providing for amortization of nonconforming billboards we held in National Advertising Co. v. County of Monterey, supra, 1 Cal. 3d 875, 83 Cal. Rptr. 577, 464 P.2d 33, that a one-year amortization period was unreasonable except as to signs which had been fully depreciated for federal income tax purposes. (Id., at p. 880, 83 Cal. Rptr. 577, 464 P.2d 33.) Other decisions have also stated that a one-year amortization period is generally unreasonable (National Advertising Co. v. County of Monterey, supra, 211 Cal.App.2d 375, 381, 27 Cal. Rptr. 136; City of Santa Barbara v. Modern Neon Sign Co. (1961) 189 Cal.App.2d 188, 195-196, 11 Cal. Rptr. 57), but have upheld amortization periods ranging from two years and eight months (People ex rel. Dept. Pub. Wks. v. Adco Advertisers (1973) 35 Cal. App. 3d 507, 513, 110 Cal. Rptr. 849), to three years (City of Escondido v. Desert Outdoor Advertising, Inc., supra, 8 Cal. 3d 784, 106 Cal. Rptr. 172, 505 P.2d 1012; Naegle Outdoor Adv. Co. v. Village of Minnetonka (1968) 281 Minn. 492, 162 N.W.2d 206), to five years (Art Neon Co. v. City and County of Denver, supra, 488 F.2d 118, 122; County of Santa Barbara v. Purcell, Inc., supra, 251 Cal.App.2d 169, 59 Cal. Rptr. 345; E.B. Elliott Adv. Co. v. Metropolitan Dade County, supra, 425 F.2d 1141, 1154). In light of those decisions we conclude that the amortization period provided in the instant ordinance which ranges from one to four years, depending upon the depreciated value of the sign, is not unreasonable on its face. Our conclusion that the amortization schedule established in the San Diego ordinance is not facially unreasonable does not demonstrate its validity as applied to each of plaintiffs' signs. The reasonableness of an amortization period as applied to each billboard depends in part upon facts peculiar to that structure (see National Advertising Co. v. County of Monterey, supra, 1 Cal. 3d 875, 879, 83 Cal. Rptr. 577, 464 P.2d 33, and cases there cited; Bohannan v. City of San Diego (1973) 30 Cal. App. 3d 416, 426, 106 Cal. Rptr. 333) such facts include the cost of the billboard, its depreciated value, remaining useful life, the length and remaining term of the lease under which it is maintained, and the harm to the public if the structure remains standing beyond the prescribed amortization period. Plaintiffs have the burden of proving the invalidity of the amortization period as applied to each of plaintiffs' structures. (See Art Neon Co. v. City and County of Denver, supra, 488 F.2d 118, 121; National Advertising Co. v. County of Monterey, supra, 1 Cal. 3d 875, 879, 83 Cal. Rptr. 577, [9 ELR 20446] 464 P.2d 33.) On motion for summary judgment plaintiffs did not attempt to meet this burden as to each structure, but limited their argument to the claim that the abatement schedule was facially unconstitutional because it was not based upon the fair market value or remaining useful life of the billboard. But even though the fair market value and remaining useful life are relevant considerations — they are among the factors which must be evaluated in defining the private loss which is balanced against the public benefit in order to determine the reasonable period of amortization — the failure of the city to base its abatement schedule upon such considerations does not necessarily render that schedule unconstitutional. If the amortization period prescribed by the ordinance is a reasonable one, the fact that the city arrived at that period by a formula which did not include every one of the relevant considerations does not render its ordinance unconstitutional.25 As we have stated, on their motion for summary judgment plaintiffs did not attempt to prove the amortization period was unreasonable as applied to specific signs, except for those signs located within 500 feet of freeways and scenic highways for which this ordinance prescribed an amortization period of only 90 days. The city explains, however, that such signs were already nonconforming uses pursuant to an ordinance enacted more than three years earlier and consequently that plaintiffs had already enjoyed an amortization period of three years with respect to such signs. Plaintiffs' evidence fails to demonstrate that an amortization period of three years and ninety days is unreasonably short as applied to any of the signs in question. We therefore conclude that the summary judgment in favor of plaintiffs cannot be sustained on the ground that the amortization period of the ordinance is unreasonable as to all or any of plaintiffs' billboards. 7. The summary judgment cannot be sustained on the ground that the City Council of San Diego failed to comply with the California Environmental Quality Act. Plaintiffs contend that Ordinance No. 10795 is invalid because the city council failed before enacting that ordinance to prepare an environmental impact report as required by Public Resources Code section 21151. Plaintiffs' complaints, however, do not allege the city's noncompliance with the requirements of the California Environmental Quality Act, and although over three years elapsed between the filing of those complaints and plaintiffs' motion for summary judgment, plaintiffs offered no amendment to assert such noncompliance. On motion for summary judgment the pleadings define the issues; thus "In the absence of some request for amendment there is no occasion to inquire about possible issues not raised by the pleadings." (Krupp v. Mullen (1953) 120 Cal.App.2d 53, 57, 260 P.2d 629, 632; Gardenswartz v. Equitableetc. Soc. (1937) 23 Cal.App.2d Supp. 745, 752, 68 P.2d 322; see Dawson v. Rash (1958) 160 Cal.App.2d 154, 161, 324 P.2d 959.) The issue of the city's alleged noncompliance with the California Environmental Quality Act therefore was not properly before the trial court on the motion for summary judgment, and thus cannot be asserted here as a ground for sustaining that judgment. In summary, we conclude that neither the federal nor state Constitutions nor the state's Outdoor Advertising Act bar a municipality from enacting a zoning ordinance which prohibits off-site billboards and requires removal of existing billboards after expiration of reasonable amortization period. Plaintiffs retain the right to show that the amortization period prescribed by the San Diego ordinance is unreasonably short as applied to some or all of their structures. Because plaintiffs have failed to demonstrate the invalidity of the ordinance on its face, however, the trial court erred in granting their motion for summary judgment. To hold that a city cannot prohibit off-site commercial billboards for the purpose of protecting and preserving the beauty of the environment is to succumb to a bleak materialism. We conclude with the pungent words of Ogden Nash: "I think that I shall never see "A billboard lovely as a tree. "Indeed, unless the billboards fall, "I'll never see a tree at all." 1. The original ordinance permitted the following off-site signs: Signs maintained in the discharge of a governmental function; bench advertising signs; commemorative plaques, religious symbols, holiday decorations and similar such signs; signs located within shopping malls not visible from any point on the boundary of the premises; signs designating premises for sale, rent or lease; public service signs depicting time, temperature or news; signs on vehicles conforming to city regulations; and temporary off-premises subdivision directional signs. As originally enacted, the ordinance contained no exception for political signs. On October 19, 1977, the city council amended the ordinance to permit "Temporary political campaign signs, including their supporting structures, which are erected or maintained for no longer than 90 days and which are removed within 10 days after the election to which they pertain." (Ord. No. 12189 (New Series).) This amendment may have been prompted by the decision of the Ninth Circuit in Baldwin v. Redwood City (1976) 540 F.2d 1360, in which that court held an ordinance regulating temporary signs to be an unconstitutional restriction upon political speech. 2. The ordinance does not define the term "outdoor advertising display signs." The history of the ordinance and the arguments of the parties demonstrate that the purpose of the ordinance is the prohibition of commercial billboards. But although the amended ordinance excludes signs which fall within 12 specific exceptions, it fails to exclude many varieties of less obtrusive, noncommercial signs that present no significant aesthetic blight or traffic hazard. That failure, in light of the absence of a definition of the class of signs prohibited, suggests a danger that the ordinance might be construed to apply to signs of a character very different from commercial billboards — for example, to a picket sign announcing a labor dispute or a small sign placed in one's front yard proclaiming a political or religious message. To avert that danger, and to avoid the risk of unconstitutional overbreadth which a broad construction of the ordinance might entail, we adopt a narrow construction limiting its proscription to those signs which clearly fall within the intendment of the enactment. (Cf.Welton v. City of Los Angeles (1976) 18 Cal. 3d 497, 506-507, 134 Cal. Rptr. 668, 556 P.2d 1119; Braxton v. Municipal Court (1973) 10 Cal. 3d 138, 144-145, 109 Cal. Rptr. 897, 514 P.2d 697.) We find such a construction in the definition of the term "outdoor advertising display" in Revenue and Taxation Code section 18090.2: "a rigidly assembled sign, display, or device permanently affixed to the ground or permanently attached to a building or other inherently permanent structure constituting, or used for the display of, a commercial or other advertisement to the public." Although that specific definition was not before the San Diego City Council when it adopted Ordinance 10795, incorporation of that definition into the ordinance will fulfill the city's purpose of banning permanent structures used predominantly for commercial advertising, while avoiding the constitutional issues raised by a less certain or more expansive reading of the ordinance. 3. Defendants in the consolidated action are the city, the members of the city council, and the city planning director. 4. Plaintiffs filed no declaration to support the motion for summary judgment, but relied solely upon the pleadings, the city's response to inter-rogatories, and the agreed stipulation of facts. 5. An ordinance restricting land use is valid under the police power if it has a real or substantial relation to the public health, safety, morals or general welfare. (Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal. 3d 582, 604, 135 Cal. Rptr. 41, 557 P.2d 473; Miller v. Board of Public Works (1925) 195 Cal. 477, 490, 234 P. 381.) 6. Part A of the ordinance declares: "It is the purpose of these regulations to eliminate excessive and confusing sign displays which do not relate to the premises on which they are located; to eliminate hazards to pedestrians and motorists brought about by distracting sign displays; to ensure that signing is used as identification and not as advertisement; and to preserve and improve the appearance of the City as a place in which to live and work. "It is the intent of these regulations to protect an important aspect of the economic base of the City by preventing the destruction of the natural beauty and environment of the City, which is instrumental in attracting nonresidents who come to visit, trade, vacation or attend conventions; to safeguard and enhance property values; to protect public and private investment in buildings and open spaces; and to protect the public health, safety and general welfare." 7. "No matter what one's position on the sign and safety issue one can find the study to support it. . . . [D]espite the insights provided by statistical analyses, the case for the hazards of private signs rests largely upon common sense and the informed judgments of traffic engineers and other experts. The arguments are complex and sometimes highly technical, but on the whole, the courts are increasingly likely to conclude that regulation of private signs may be reasonably expected to enhance highway safety." (Dowds, Private Signs and Public Interests, in 1974 Institute on Planning, Zoning and Eminent Domain, p. 231.) 8. See City of Escondido v. Desert Outdoor Advertising, Inc. (1973) 8 Cal. 3d 785, 790, 106 Cal. Rptr. 172, 505 P.2d 1012; E.B. Elliott Adv. Co. v. Metropolitan Dade County (1970) 425 F.2d 1141, 1152; General Outdoor Adv. Co. v. Department Pub. Works (1935) 289 Mass. 149, 171, 193 N.E. 799; Opinion of the Justices (1961) 103 N.H. 268, 169 A.2d 762; United Advertising Corp. v. Metuchen (1964) 42 N.J. 1, 4, 198 A.2d 447; Markham Advertising Co. v. State (1968) 73 Wash. 2d 405, 416, 439 P.2d 248. 9. See Desert Outdoor Advertising, Inc. v. County of San Bernardino, supra, 255 Cal.App.2d 765, 769, 63 Cal. Rptr. 543; County of Santa Barbara v. Purcell, Inc., supra, 251 Cal.App.2d 169, 173, 59 Cal. Rptr. 345; Burk v. Municipal Court (1964) 229 Cal.App.2d 696, 701-702, 40 Cal. Rptr. 425; Metromedia, Inc. v.City of Pasadena (1963) 216 Cal.App.2d 270, 273, 30 Cal. Rptr. 731; National Advertising Co. v. County of Monterey, supra, 211 Cal.App.2d 375, 378-379, 27 Cal. Rptr. 136; see also City of Escondido v. Desert Outdoor Advertising, Inc., supra, 8 Cal. 3d 785, 790, 106 Cal. Rptr. 172, 505 P.2d 1012. 10. Among other decisions holding that a state or city pursuant to the police power may ban billboards on the basis of aesthetic considerations alone are: Meritt v. Peters (Fla.1953) 65 So. 2d 861; John Donnelly & Sons v. Mallar (D.Me.1978) 453 F. Supp. 1272; Donnelly Advertising Corp. v. City of Baltimore (1977) 279 Md. 660, 370 A.2d 1127, 1133; E.B. Elliott Adv. Co. v. Metropolitan Dade County, supra, 425 F.2d 1141, 1151; Matter of Cromwell v. Ferrier (1967) 19 N.Y.2d 263, 276 N.Y.S.2d 22, 225 N.E.2d 749; Opn. of the Justices, supra, 103 N.H. 268, 169 A.2d 762; Markham Advertising Co. v. State, supra, 73 Wash. 2d 405, 424, 439 P.2d 248; John Donnelly & Sons v. Outdoor Advertising Bd. (1975), 369 Mass. 206, 339 N.E.2d 709. Indeed, the four cases cited in Varney & Green v. Williams to support the proposition that aesthetic considerations will not uphold a prohibition on billboards are no longer law in their respective jurisdictions. City of Passaic v. Patterson Bill Posting Co., supra, 72 N.J.L. 285, 62 A.2d 267, was repudiated by the New Jersey Constitution in 1947. Commonwealth v. Boston (1905) 188 Mass. 348, 74 N.E. 601, was overruled in General Outdoor Advertising Co. v. Dept. of Public Works (1935) 289 Mass. 149, 159-161, 193 N.E. 799; Bryan v. City of Chester (1905) 212 Pa. 259, 61 A. 894, was distinguished as antedating enactment of zoning enabling legislation by the court in Silver v. Zoning Board (1955) 381 Pa. 41, 112 A.2d 84. People v. Green (1903) 85 App.Div. 400, 83 N.Y.S. 460 was rejected in People v. Stover, supra, 12 N.Y.2d 462, 466-467, 240 N.Y.S.2d 734, 191 N.E.2d 272, and Matter of Cromwell v. Ferrier, supra, 19 N.Y.2d 263, 270, 276 N.Y.S.2d 22, 225 N.E.2d 749. 11. Numerous cases have commented on the unaesthetic impact of highway billboards. (See, e.g., State v. Diamond Motors, supra, 50 Haw. 33, 36, 429 P.2d 825; United Advertising Corp. v. Metuchen, supra, 42 N.J. 1, 6, 198 A.2d 447; Markham Advertising Co. v. State, supra, 73 Wash. 2d 405, 417, 439 P.2d 248.) Public opinion surveys sponsored by the Federal Highway Beautification Commission indicate that the general public agrees that billboards are unsightly. (See Dowds, Private Signs and Public Interests, op. cit. supra, p. 233.) 12. Varney & Green v. Williams, supra, 155 Cal.318, 100 P. 867, is hereby overruled. Language in the following cases contrary to the views expressed herein is disapproved: City of Escondido v. Desert Outdoor Advertising, Inc., supra, 8 Cal. 3d 785, 106 Cal. Rptr. 172, 505 P.2d 1012; Desert Outdoor Advertising, Inc. v. County of San Bernardino, supra, 255 Cal.App.2d 765, 63 Cal. Rptr. 543; County of Santa Barbara v. Purcell, Inc., supra, 251 Cal.App.2d 169, 59 Cal. Rptr. 345; National Advertising Co. v. County of Monterey, supra, 211 Cal.App.2d 375, 27 Cal. Rptr. 136; City of Santa Barbara v. Modern Neon Sign Co., supra, 189 Cal.App.2d 188, 11 Cal. Rptr. 57. 13. The only exception is an unreported decision of a Colorado district court in Combined Communications Corporation v. City and County of Denver, cited in the trial court's memorandum opinion. The Colorado Supreme Court subsequently affirmed the decision without discussion of the First Amendment issue. (Combined Communications Corp. v. Denver (1975) 542 P.2d 79.) 14. Plaintiffs call attention to stipulation No. 28, which states in part that "Many businesses, politicians, and other persons rely upon outdoor advertising because other forms of advertising are insufficient, inappropriate and prohibitively expensive." The possibility that the ordinance may impede an occasional advertiser from communicating his message to the public, however, is not sufficient to invalidate the ordinance on its face. In the present litigation, which pits only the owners of the billboards against the city, individual advertisers are not parties; such an advertiser retains the ability to assert that, owing to the absence of reasonable alternative means of communication, the ordinance cannot constitutionally be applied to prevent him from using a billboard to proclaim his message. 15. See Schneider v. State (1939) 308 U.S. 147, 60 S. Ct. 146, 84 L. Ed. 155 (leaflets); Welton v. City of Los Angeles (1976) 18 Cal. 3d 497, 134 Cal. Rptr. 668, 556 P.2d 1119 (roadside sale of maps); Woolam v. City of Palm Springs (1963) 59 Cal.2d 276, 29 Cal. Rptr. 1, 379 P.2d 481 (soundtrucks); Kash Enterprises, Inc. v. City of Los Angeles (1977) 19 Cal. 3d 294, 138 Cal. Rptr. 53, 562 P.2d 1302 (newsracks). 16. In Ohralik v. Ohio State Bar Assn. (1978) 436 U.S. 447, 98 S. Ct. 1912, 56 L. Ed. 2d 444, the Supreme Court summarized the limited constitutional protection given commercial speech: "We have not discarded the 'commonsense' distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech. . . . [W]e instead have afforded commercial speech a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, while allowing modes of regulation that might be impermissible in the realm of non-commercial expression." (436 U.S. at pp. 455, 456, 98 S. Ct. at p. 1918.) 17. The Maryland Court of Appeals, sustaining a ban on billboards in the Oldtown urban renewal district of Baltimore, relied squarely on the Supreme Court decision in Young v. American Mini Theaters. (Donnelly Advertising Corp. v. City of Baltimore, supra, 370 A.2d 1127, 1132.) 18. If section 5226 were construed to authorize billboards in commercial areas of cities, including locations not adjacent to state or interstate highways, it might be invalid as a regulation of a municipal affair. (See Bishop v. City of San Jose (1969) 1 Cal. 3d 56, 63, 81 Cal. Rptr. 465, 460 P.2d 137.) 19. Further lack of clarity arises from the language of section 5227, which states that "It is the intention of the Legislature to occupy the whole field of regulation by the provisions of this chapter except that nothing in this chapter prohibits . . . the passage by any county of reasonable land use or zoning regulations affecting the placing of advertising displays . . . ." If this language is intended to grant only counties, and not cities, authority to regulate advertising by zoning, it is inconsistent with section 5230. 20. The quoted language is the text of section 5412 as enacted in 1975. The language of prior section 5412 (enacted in 1970), and of prior section 5288.3a (enacted in 1967 and repealed by the enactment of § 5412) does not differ from the present section in any respect material to the instant case. 21. The House Report on the Highway Beautification Act stated that "[A]dvertising companies will suffer economic distress as a result of the control this legislation imposes. As a result, the committee feels strongly that . . . compensation must be paid to those individuals who will lose their signs." (H.R. Rep. No. 1084, 89th Cong., 1st Sess. (1965); U.S.Code Cong. & Admin.News 1965, pp. 3710, 3716.) The Senate Report similarly asserted that "subsection (g) provides just compensation for the owners or leaseholders of advertising structures which must be removed under the provisions of this section." (Sen. Rep. No. 709, 89th Cong., 1st Sess., pp. 6-7 (1965).) In response to questions from other representatives, Representative Edmondson, one of the floor managers of the bill, stated that the bill did not jeopardize the authority of the state to require the removal of billboards without compensation under the police power, and stated specifically that in the absence of an agreement between the federal government and the state for removal of billboards pursuant to the act, the act did not limit the authority of the state with respect to billboards in commercial or industrial zones. 22. In numerous other cases involving billboards, such as our own decision in City of Escondido v. Desert Outdoor Advertising, Inc., supra, 8 Cal. 3d 785, 106 Cal. Rptr. 172, 505 P.2d 1012, the billboard company did not present the preemption argument raised by plaintiffs here. Although the decisions in such cases upholding the ban on billboards may not constitute precedent on issues not raised, it is nonetheless significant that the enactment of the ordinances sustained in those cases did not trigger federal action to withdraw federal highway funds from the states. 23. The ordinance was enacted March 14, 1972. It provides the following abatement schedule:
25. Even if the amortization period were found to be unreasonable as to a particular property, that finding would "not invalidate its application to other property or invalidate the ordinance of which it is a part." (Bohannan v. City of San Diego, supra, 30 Cal. App. 3d 416, 426, 106 Cal. Rptr. 333, 339.) RICHARDSON, Justice, concurring. I concur in the judgment. I share some of the substantial doubts raised by the dissent of Justice Clark, who discerns serious constitutional difficulties with any governmental scheme calling for the total prohibition of any legitimate business enterprise. Nonetheless, I am persuaded by the majority's analysis that the present ban on off-site billboards meets the minimum constitutional standards perceived by the United States Supreme Court and that, accordingly, the challenged ordinance must be upheld. The high court has recently dismissed for want of a substantial federal question an appeal which raised identical issues. In Suffolk Outdoor Adv. Co., Inc. v. Hulse (1977) 43 N.Y.2d 483, 402 N.Y.S.2d 368, 373 N.E.2d 263, the New York Court of Appeals upheld a local ordinance totally banning all off-site billboards as a rational method of improving community aesthetics. The majority herein correctly observes that the subsequent dismissal of the appeal to the United States Supreme Court must be regarded as a dispositive decision on the merits (Hicks v. Miranda (1975) 422 U.S. 332, 343-344, 95 S. Ct. 2281, 45 L. Ed. 2d 223.) No basis appears for distinguishing Suffolk nor has any attempt been made to do so. I concur in the judgment of reversal. CLARK, Justice, dissenting. The outdoor sign or symbol is a venerable medium for expressing political, social and commercial ideas. From the poster or "broadside" to the billboard, the medium has played a prominent role throughout American history rallying support for causes ranging from the Revolution to seatbelts and the 55 mph speed limit. (See, Davidson, Propaganda and The American Revolution (1941) University of North Carolina Press; Houck, Outdoor Advertising: History and Regulation (1969) University of Notre Dame Press.) The majority today call for the absolute prohibition of this medium of expression which, while frequently commercial in nature, is clearly within the ambit of First Amendment protection. (Bates v. State Bar of Arizona (1977) 433 U.S. 350, 97 S. Ct. 2691, 53 L. Ed. 2d 810; Linmark Associates, Inc. v. Township of Willingboro (1977) 431 U.S. 85, 97 S. Ct. 1614, 52 L. Ed. 2d 155; Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976) 425 U.S. 748, 96 S. Ct. 1817, 48 L. Ed. 2d 346; Bigelow v. Virginia (1975) 421 U.S. 809, 95 S. Ct. 2222, 44 L. Ed. 2d 600; Welton v. City of Los Angeles (1976) 18 Cal. 3d 497, 134 Cal. Rptr. 668, 556 P.2d 1119.)1 First Amendment protection extends to virtually all media utilized to disseminate ideas. (Police Department of Chicago v. Mosley (1972) 408 U.S. 92, 92 S. Ct. 2286, 33 [9 ELR 20447] L.Ed.2d 212 [picketing]; Schneider v. State (1939) 308 U.S. 147, 60 S. Ct. 146, 84 L. Ed. 155 [leafletting]; Welton v. City of Los Angeles, supra, 18 Cal. 3d 497, 134 Cal. Rptr. 668, 556 P.2d 1119 [roadside sale of maps]; Dulaney v. Municipal Court (1974) 11 Cal. 3d 77, 112 Cal. Rptr. 777, 520 P.2d 1 [posting signs on public utility poles]; Dillon v. Municipal Court (1971) 4 Cal. 3d 860, 94 Cal. Rptr. 777, 484 P.2d 945 [demonstrations and parades]; Wollam v. City of Palm Springs (1963) 59 Cal.2d 276, 29 Cal. Rptr. 1, 379 P.2d 481 [sound trucks]; California Newspaper Publishers Assn., Inc. v. City of Burbank (1975) 51 Cal. App. 3d 50, 123 Cal. Rptr. 880 [newspaper racks].) "The right of free speech necessarily embodies the means used for its dissemination because the right is worthless in the absence of a meaningful method of its expression. To take the position that the right of free speech consists merely of the right to be free from censorship of the content rather than any protection of the means used, would, if carried to its logical conclusion, eliminate the right entirely." (Wollam v. City of Palm Springs, supra, 59 Cal.2d 276, 284, 29 Cal. Rptr. 1, 379 P.2d 481.) Relying on cases generally predating Supreme Court decisions protecting commercial speech,2 the majority purport to justify the ordinance's blanket prohibition, claiming (1) outdoor signs are not entitled to the same protection as other speech, (2) governmental interests here involved weigh heavily in the balance, and (3) there are "probable" alternative means for plaintiffs to communicate their public messages. The messages communicated by outdoor signs are entitled to the same protection as other speech. The majority ignore our recent case of Welton v. City of Los Angeles, supra, 18 Cal. 3d 497, 134 Cal. Rptr. 668, 556 P.2d 1119, where in dealing with an ordinance prohibiting the sidewalk sale of maps to the homes of movie stars, we noted "[t]he fact that some may view the map as lacking opinion, newsworthiness or information of social worth, is constitutionally irrelevant . . . Mrs. Welton and her maps are entitled to the same First Amendment protection as the political candidate and his political pamphlet." (Id. at p. 504, 134 Cal. Rptr. p. 671, 556 P.2d p. 1122.) The majority attempt to distinguish outdoor signs from "other forms of communication which courts have held can be subjected only to narrowly drawn regulations serving a compelling governmental interest" (e.g., leafletting, sound trucks, etc.) because an outdoor sign is a "large, immobile and permanent structure" as opposed to "more transitory or less obtrusive media." (Ante, p. 225 of 154 Cal.Rptr., p. 741 of 592 P.2d) Such distinction suffers from the same overbreadth as the ordinance itself. While the ordinance seeks to prohibit small, unobtrusive off-site signs, it allows obtrusive and perhaps even offensive on-site billboards. Being equally inconsistent, the majority sustain the prohibition of offensive billboards but support the use of sound trucks, picketing leafletting and demonstrations as constituting "more transitory or less obtrusive media." Obtrusiveness does not justify total prohibition of protected expression. In Erznoznick v. City of Jacksonville (1975) 422 U.S. 205, 95 S. Ct. 2268, 45 L. Ed. 2d 125, the Supreme Court struck down a city ordinance prohibiting the exhibition of a motion picture displaying the bare female body by a drive-in theater whose screen was visible from a public street. Off-site advertising hardly commends the same attention as the "unique type of eye-catching display" of an animated drive-in movie (id. at p. 222, 95 S. Ct. 2268; Burger, C.J., dissenting), yet the court noted "the screen of a drive-in theater is not 'so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it.'" (Id. at p. 212, 95 S. Ct. at p. 2274.) Obtrusiveness is thus concerned not only with the quality or degree of offensive intrusion, but also with the ability of the offended to avoid it. Is it not fair to assume that a display of animated nudes on a screen constitutes an intrusion of greater degree than a still sign or symbol advertising some product? Yet the Supreme Court did not find that nude display so offensive that its effect could not be kept within permissible limits. Because off-site displays are also not so offensive that they cannot be kept within reasonable limits, San Diego's absolute prohibition is an impermissible infringement on First Amendment protection, and it must fail for overbreadth. The majority's claim the ordinance may be justified by tilting the balance in favor of the government interests involved is unpersuasive. Recognizing that aesthetic beauty and traffic safety are legitimate police power objectives, the majority fail to show these interests overcome First Amendment rights of plaintiffs, advertisers and the viewing public.3 The traditional conflict between police powers on the one hand and First Amendment rights on the other must seek compromise, allowing government to reasonably regulate the time, place and manner in which First Amendment rights may be exercised. (Grayned v. City of Rockford (1972) 408 U.S. 104, 92 S. Ct. 2294, 33 L. Ed. 2d 222; Healy v. James (1972) 408 U.S. 169, 92 S. Ct. 2338, 33 L. Ed. 2d 266; Welton v. City of Los Angeles, supra, 18 Cal. 3d 497, 134 Cal. Rptr. 668, 556 P.2d 1119; Burton v. Municipal Court (1968) 68 Cal.2d 684, 68 Cal. Rptr. 721, 441 P.2d 281; Wollam v. City of Palm Springs, supra, 59 Cal.2d 276, 29 Cal. Rptr. 1, 379 P.2d 481.) Thus, it has been held government may validly regulate the use of newsracks (Kash Enterprises, Inc. v. City of Los Angeles (1977) 19 Cal. 3d 294, 138 Cal. Rptr. 53, 562 P.2d 1302), sound trucks (Kovacs v. Cooper (1949) 336 U.S. 77, 69 S. Ct. 448, 93 L. Ed. 513), street sales of goods or merchandise (Welton v. City of Los Angeles, supra, 18 Cal. 3d 497, 134 Cal. Rptr. 668, 556 P.2d 1119), and the operation of "adult" movie theaters (Young v. American Mini Theaters (1976) 427 U.S. 50, 96 S. Ct. 2440, 49 L. Ed. 2d 310). Likewise, off-site advertising signs may be reasonably regulated. Notwithstanding the state's power to regulate, such power "does not necessarily sanction the outright prohibition." (Wollam v. City of Palm Springs, supra, 59 Cal.2d 276, 284, 29 Cal. Rptr. 1, 6, 379 P.2d 481, 486.)4 To be constitutionally reasonable, a time, place or manner regulation must be written narrowly and explicitly, in furtherance of a legitimate police power [9 ELR 20448] purpose. (Welton v. City of Los Angeles, supra, 18 Cal. 3d 497, 134 Cal. Rptr. 668, 556 P.2d 1119.) But here the majority thumbpush police power objectives so far from center balance as to abolish protected speech. The absolute prohibition of off-site signs is justified by neither community appearance nor traffic improvement. Furthermore, the ordinance — written in terms of total prohibition — is not susceptible to interpretation avoiding constitutional infirmity. (See Welton v. City of Los Angeles, supra, 18 Cal. 3d 497, 134 Cal. Rptr. 668, 556 P.2d 1119.) The third purported justification urged by the majority in support of the ordinance — existing "adequate alternative means" for advertisers to communicate their messages — is likewise without merit. The stipulations of the parties establish that in numerous situations traditional off-site advertising is the only practical means of communicating ideas. (See Joint Stipulation of Facts No. 28, ante, p. 217 of 154 Cal.Rptr., p. 733 of 592 P.2d.) Alternative methods may be prohibitively expensive or ineffective. Enforcement of the ordinance as written will eliminate this means. (See Joint Stipulation of Facts No. 2, ante, p. 217 of 154 Cal.Rptr., p. 733 of 592 P.2d.) Recognizing freedom of speech entails not only communication, but effective communication, courts have refused to uphold absolute prohibition of a medium when there exists no practical alternative.In our recent case of Welton v. City of Los Angeles, supra, 18 Cal. 3d 497, 134 Cal. Rptr. 668, 556 P.2d 1119, we unanimously invalidated on First Amendment grounds an ordinance banning sidewalk and parkway sales of commercial books, magazines, maps, and other constitutionally protected material despite readily apparent alternative methods of distribution. We noted the "city has failed to demonstrate that such a broad prohibition is necessary to the attainment of a legitimate police power purpose. Its interest in abating public nuisance cannot be pursued by means infringing personal libertise when less restrictive alternatives are available." (Id. at pp. 507-508, 134 Cal. Rptr. p. 674, 556 P.2d p. 1125.) In Wollam v. City of Palm Springs, supra, 59 Cal.2d 276, 29 Cal. Rptr. 1, 379 P.2d 481, we held unconstitutional an ordinance prohibiting use of stationary sound trucks where other methods including moving sound trucks were available.Similarly, in Linmark Associates, Inc. v. Township of Willingboro, supra, 431 U.S. 85, 97 S. Ct. 1614, 52 L. Ed. 2d 155, the Supreme Court rejected a contention that because of ample alternative methods of communication, an ordinance prohibiting the posting of real estate "For Sale" and "Sold" signs should be sustained.5 There being no basis upon which the absolute prohibition of outdoor advertising can be justified against First Amendment speech, the judgment should be affirmed. 1. The Supreme Court has reaffirmed its position that commercial interests are entitled to essentially the same constitutional protections as are personal interests. (See Marshall v. Barlow's, Inc. (1978) 436 U.S. 307, 98 S. Ct. 1816, 56 L. Ed. 2d 305 [38 CCH Supreme Court Bulletin, p. B2275].) In the Marshall case the court held the inspection, of commercial premises for the purpose of ascertaining compliance with the Occupational Safety and Health Act of 1970 was impermissible when Fourth Amendment prohibitions were not observed. 2. Only four of the cases cited by the majority —Suffolk Outdoor Advertising Co., Inc. v. Hulse (1977) 43 N.Y.2d 483, 402 N.Y.S.2d 368, 373 N.E.2d 263, John Donnelly & Sons v. Mallar (1978) 453 F. Supp. 1272, Donnelly Advertising Corp. v. City of Baltimore (1977) 279 Md. 660, 370 A.2d 1127 and John Donnelly & Sons, Inc. v. Outdoor Advertising Bd. (1975) 369 Mass. 206, 339 N.E.2d 709 — have been decided since Bigelow v. Virginia, supra, 421 U.S. 809, 95 S. Ct. 2222, 44 L. Ed. 2d 600. Of these, John Donnelly & Sons, Inc. is distinguishable. There the court specifically noted "the Donnelly signs were found by the board to 'contain purely commercial copy.'" (John Donnelly & Sons, Inc. v. Outdoor Advertising Bd., supra, 339 N.E.2d 709, 721.) The signs prohibited by the instant ordinance communicate "valuable . . . political and social information" as well as commercial messages. (Joint Stipulation of Facts No. 28, ante, p. 217 of 154 Cal.Rptr., p. 733 of 592 P.2d.) John Donnelly & Sons is also distinguishable as the Maine statute there involved exempts political advertising from its prohibitions. (John Donnelly & Sons v. Mallar, supra, 453 F. Supp. 1272, 1280.) Finally, Donnelly Advertising Corp. is also distinguishable as the Baltimore ordinance there involved prohibited billboards only in an "Oldtown" renewal area — billboards remained permissible in other parts of the city. (Donnelly Advertising Corp. v. City of Baltimore, supra, 370 A.2d 1127, 1132.) 3. It is well-settled that the right to receive "information of potential interest and value" is protected by the First Amendment. (Bigelow v. Virginia, supra, 421 U.S. 809, 822, 95 S. Ct. 2222, 2232, 44 L. Ed. 2d 600; see also Stanley v. Georgia (1969) 394 U.S. 557, 564, 89 S. Ct. 1243, 22 L. Ed. 2d 542.) 4. See also, Young v. American Mini Theaters, supra, 427 U.S. 50, 96 S. Ct. 2240, 49 L. Ed. 2d 310, where the court, while upholding a zoning ordinance restricting the location of "adult" theaters, was careful to observe the First Amendment protected such communication from total suppression. 5. The majority's statement that the "possibility that the ordinance may impede an occasional advertiser from communicating his message to the public, however, is not sufficient to invalidate the ordinance on its face" (ante, p. 224 n. 14 of 154 Cal.Rptr., p. 740 n. 14 of 592 P.2d), ignores both the joint stipulation of facts by which we are bound and traditional First Amendment overbreadth analysis. The parties' stipulation that many advertisers rely exclusively on outdoor advertising provides more than mere "possibility" that communication will be impeded. Furthermore, while the overbreadth doctrine may not apply with the same force in situations involving commercial speech (see Bates v. State Bar, supra, 433 U.S. 350, 380, 97 S. Ct. 2691, 53 L. Ed. 2d 810), the instant ordinance affects social and political expressions as well as commercial speech. It is apparent, for instance, that political expression will be significantly curtailed although political campaign posters are authorized. The restriction to temporary signs, less efficient in terms of cost and effectiveness than the prohibited large and permanent display structures whose costs can be depreciated over long periods, will work to the detriment of "the poorly financed causes of little people" (Martin v. Struthers (1943) 319 U.S. 141, 146, 63 S. Ct. 862, 865, 87 L.Ed. 1313), whose proponents are unable to afford other more costly mass media advertising. 9 ELR 20437 | Environmental Law Reporter | copyright © 1979 | All rights reserved |