Police Power Gives Cities Wide Discretion in Enforcing Billboard Bans

By Katherine J. Hart

The City of Los Angeles generally prohibits freeway, supergraphic and off-site billboards, but has adopted a few exceptions to the rule. For instance, it permits freeway signs and supergraphic and off-site signs in areas where specific plans are adopted to govern such signs or pursuant to development agreements, in accordance with its police power (the power to control local land use). Numerous billboard companies erected freeway and supergraphic signs all over the city. In 2008, the city adopted a moratorium on new supergraphic and off-site signs.

In World Wide Rush, LLC, et al. v. City of Los Angeles (2010) 606 F.3d 676; the plaintiffs sued the city to enjoin enforcement of the freeway facing sign ban and the supergraphic and off-site sign bans. They argued that the freeway facing ban was unconstitutional because it restricted commercial speech since the city had permitted some freeway facing signs despite the ban (e.g., next to Staples Center). They argued the supergraphic and off-site sign bans were unconstitutional on their face because the exceptions to the bans gave the city council direction to favor certain speech, depending upon the content of the proposed signage.

Freeway Billboard Ban

The Ninth Circuit first addressed the freeway facing sign ban. The Court held that the city’s exception to permit freeway facing billboards at the Staples Center and in the Fifteenth Street special use district did not undermine the city’s interests in aesthetics and safety. Instead it reasoned the city’s exception was reasonable in light of the benefits of redevelopment of blighted areas in downtown Los Angeles, and a reduction of overall billboards in the special use district.

Because this case revolves around restrictions on commercial speech, the Central Hudson Gas & Electric Corporation v. Public Service Utilities Commission (1980) 447 U.S. 557 case applies. There, the Supreme Court applied a four-part test to determine the constitutionality of a restriction on commercial speech. In applying the test, the Ninth Circuit court framed the question as follows: do the ban exemptions granted by the city defeat the city’s argument that it has a substantial interest in regulating billboards for the safety of its citizens and the beauty of the city? Holding the ban exemptions did not undermine the city’s substantial interests in safety and aesthetics, the Court reasoned that allowing the freeway signs near the Staples Center was a key part of eliminating blight in the area, and that permitting the sign district on Fifteenth Street in Santa Monica actually resulted in the elimination of multiple existing billboards in the area.

Supergraphic and Off-Site Sign Ban

In addressing the second issue – whether the city could employ various exceptions in the ordinance to the ban of supergraphic and off-site billboards - the Ninth Circuit held that the city was well within its discretion to grant exemptions to its ordinance as the prior restraint doctrine did not apply. The Court reasoned that since the city council’s power to authorize the exceptions to the sign bans arises out of the police power as opposed to the bans themselves, the city council had the authority to exercise discretion.

Katherine J. Hart is a senior associate at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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