Last night I attended a City Council meeting in Porterville, California. A very long city council meeting. Item 21 on the agenda was listed as:
“21. City Billboard Regulations
Re: Reviewing City signage regulations pertaining to billboards within the City of Porterville.”
This all came to be because Pastor Brent Whitley of Living Word Fellowship Church didn’t like the sign above, which he complained could be seen from his son’s high school (Butterfield Charter School) He spoke up about it at the City Council meeting October 5.
“It features two young men naked from the waist up in a sexually-suggestive pose,” Whitley said. (Porterville Recorder, 10/07/21)
“So, I am asking the City Council, as duly-elective representatives of the City of Porterville, to sign letters affirming that sexually graphic advertising for any purpose is not appropriate for the billboards in our community. They aren’t going to listen to one man’s opinion. We have to speak with a unified voice.”
The letters, he said, won’t cast any aspersions on The Source nor makes any kind of statement about the LGBTQ Plus community.
“We are simply saying to Lamar Advertising and to any of their clients that the citizens of Porterville prefer not to have any sexually-explicit, suggestive or graphic content posted on billboards in our city because we have no way to filter this content from our children.”
Following his complaint, the Council had staff put the subject on the agenda for the next meeting (October 19, 2021) for discussion.
Porterville, in 2017, enacted an ordinance* which was designed to eventually remove “off-site” billboards from within the city limits. Since the 1st amendment to the Constitution of the United States severely limits what restrictions can be placed on content of signs, the only option is to prohibit them altogether.
The city attorney has informed the council** that they can speed up the timeline for removing the billboards. The current ordinance requires that when they are “abandoned”, they can no longer exist under the grandfathering clause that allowed them to continue to be used after the ordinance was enacted. The city attorney has advised the Council that they can set a timeline, based on past court cases of what has been adjudicated as reasonable, of 5-7 years for removal. That may be problematical, however.
San Diego apparently tried something very similar in the 70’s, and was sued. The suit went all the way to the Supreme Court of the United States.*** They lost.
The SCOTUS case transcript can be found here. A summary of the court’s findings can be found here.
I’m not a lawyer, of course, but it looks like Porterville will run afoul of the same situation if it tries to remove billboards from the city. Perhaps someone can check these out and let me know if the city can follow through with it’s apparent plan to “amortize” these billboards out of existence.
The City Council directed staff to bring them a proposed action to address the issue (setting a timeline that results in removal of remaining signs in the city) at a future meeting.
The city ordinance, city attorney’s advice, and SCOTUS ruling can be found after the jump.
*
305.06: PROHIBITED SIGNS:
The following types of signs and devices are specifically prohibited:
A. Animated, Flashing or Moving Signs. Signs that incorporate, flashing, moving, rotating, pulsating or intermittent lighting, with
the exception of changeable copy message center display signs and barber poles, except as allowed elsewhere in this chapter. Any
sign that, because of brilliant lighting, interferes with the enjoyment of surrounding residential property or interferes with traffic,
vehicular or pedestrian, is prohibited.
B. Balloons, Banners, Streamers and Pennants. Signs, balloons, banners, pennants, or any other advertising display constructed
of cloth, canvas, light fabric, paper, cardboard, wallboard or other light materials, except awnings or as allowed for
Automobile/Vehicle Sales and Leasing establishments, or in Section 305.11, Temporary Signs.
C. Billboards. Any sign directing attention to a business, service, or product that is not conducted, sold, produced, or offered by
any use on the same lot, or which identifies by brand name a product which, although sold on the premises, does not constitute one
(1) of the principal items for sale on the premises unless otherwise provided by the California Outdoor Advertising Act (Business and
Professions Code Sections 5200 – 5486, inclusive).
D. Emissions. Signs that produce noise in excess of forty (40) decibels, excluding voice units at drive-through facilities, and signs
that emit odor or visible smoke, vapor or particles.
E. Fence Signs. Signs attached or painted on fences or freestanding walls that are not part of a building, except for subdivision
entry signs as allowed in Section 305.08 (b).
F. Obscenities. Signs that depict, describe or relate to “specified sexual activities” or “specified anatomical areas” as defined in
Chapter 700, Terms and Definitions.
G. Obstructions to Exits. Signs erected, constructed or maintained which obstruct any firefighting equipment, fire escape, required
exit or door opening intended as a means of egress, unless approved by the Fire Marshal.
H. Obstructions to Driver Visibility. Signs in corner cut-offs and lines of sight in accordance with the provisions of Section300.16,
Visibility at Driveways and Intersections.
I. Obstructions to Ventilation. Signs that interfere with any opening required for ventilation.
J. Portable Signs. Signs not permanently attached to, mounted upon or affixed to a building, structure or the ground, except as
otherwise provided herein.
K. Posters. Posters of a temporary character that are tacked, painted, pasted or otherwise placed or affixed and made visible from
a public way, on the walls of buildings, on barns, sheds, trees, fences, utility poles or other structures, sidewalks or patios, except as
otherwise provided in this chapter. This section excludes signs placed in windows per Section 305.10 (e).
L. Roof Signs. Signs erected or painted upon, over or above the roof of a building or structure, or any sign affixed to the wall of a
building so that it projects above the ridge line or top of parapet, except as allowed in this chapter.
FIGURE 305.06L: ROOF SIGNS
M. Signs Creating Traffic Hazards. Signs that simulate in color, size or design any traffic control sign, signal or device, or that
make use of words, symbols or characters in a manner that interferes with, misleads or confuses pedestrian or vehicular traffic. No
sign, light or advertising structure shall be located in such a manner as to constitute a hazard to pedestrian or vehicular traffic, or in
such a manner as to obstruct free and clear vision, at any location where, by reason of the position, shape, color or movement may
interfere with, obstruct the view of, or be confused with any authorized traffic sign, signal or device.
N. Signs of public property. Signs located on public lands, including but not limited to public rights of way, parks, public buildings,
storm drainage basins, and facilities are prohibited. When associated with rental or reservation of such facility, signs may be placed
during the event for which the reservation was made; however, such signs must be removed at the end of the reservation period.
(Ord. 1866, 11-19-2019)
**
SUBJECT: City Billboard Regulations
SOURCE: City Attorney
COMMENT: At its meeting on October 5, 2021, the City Council directed that an item be
scheduled concerning the City’s billboard regulations, in response to a citizen’s
complaint about a specific billboard’s content and its proximity to a local
school.
The City is severely restricted from enacting content-based regulations, pursuant
to the First Amendment. For example, content-based restrictions on tobacco
advertising have been invalidated under the First Amendment, even when
challenged due to its close proximity to a school. [See Lorillard Tobacco Co. v.
Reilly (2001) 533 US 525, 558.] A sign ordinance that creates exemptions for
certain types of noncommercial speech and regulates each type differently is
generally considered content-based and therefore is subject to strict scrutiny, per
Reed v. Town of Gilbert (2015)576 US 155. To avoid First Amendment
violations, a governmental restriction on commercial speech must concern
lawful activity and must not be misleading, must seek to implement a
substantial governmental interest, must directly advance that interest, and must
reach no further than necessary to accomplish its objective [Central Hudson Gas
& Elec. Corp. v. Public Serv. Comm’n (1980) 447 US 557, 564].
That stated, cities can allow on-site commercial signage and prohibit off-site
advertising billboards. A content-neutral ordinance banning (or otherwise
regulating) all off-site billboards is not subject to strict scrutiny and does not
violate the First Amendment, or the free speech clause of the California
Constitution. [See Metromedia, Inc. v. City of San Diego (1981) 453 US 490,
and Lamar Cent. Outdoor, LLC v. City of Los Angeles (2016) 245 Cal.App.4th
610.]
Cities that opt to enact such prohibitions or restrictions can provide for
amortization of nonconforming signs after a certain period of time, and courts
will uphold an amortization provision if the amortization period is
“reasonable.” Courts have upheld 5 and 7 year amortization clauses, and the
reasonableness is evaluated by considering the cost of the sign, its depreciated
value, remaining useful life, remaining length of leases, and harm to the public
if the signs remain. To the extent there are any “onsite” billboards, California
law may also require that fair and just compensation must be paid when removal
of on-premises advertising is required.
Item No. 21.
The City of Porterville, per Municipal Code Section 305.06 currently prohibits
ALL off-site billboard advertising, which would include off-site billboards.
However, the billboards that were in place at the time of the enactment the
regulation have been treated as non-conforming uses and are currently permitted
until the uses are stopped/abandoned for a specific period of time. The Council
can consider directing staff to analyze what might be potential specific
“reasonable” amortization periods, in order to propose including a specific
amortization period in the City’s sign regulations. This would effectively set a
deadline and end the uses for the “grandfathered” billboards.
RECOMMENDATION: That the City Council provide direction to staff concerning
whether the Council wishes to consider setting an amortization
period for all billboards.
Review By:
Department Director:
Julia Lew, City Attorney
Final Approver: John Lollis, City Manager
***
United States Supreme Court
METROMEDIA, INC. v. SAN DIEGO(1981)
No. 80-195
Argued: February 25, 1981
Decided: July 2, 1981
Appellee city of San Diego enacted an ordinance which imposes substantial
prohibitions on the erection of outdoor advertising displays’ within the city.
The stated purpose of the ordinance is “to eliminate hazards to pedestrians
and motorists brought about by distracting sign displays” and “to preserve
and improve the appearance of the City.” The ordinance permits onsite
commercial advertising (a sign advertising goods or services available on
the property where the sign is located), but forbids other commercial
advertising and noncommercial advertising using �xed-structure signs,
unless permitted by 1 of the ordinance’s 12 speci�ed exceptions, such as
temporary political campaign signs. Appellants, companies that were
engaged in the outdoor advertising business in the city when the ordinance
was passed, brought suit in state court to enjoin enforcement of the
ordinance. The trial court held that the ordinance was an unconstitutional
exercise of the city’s police power and an abridgment of appellants’ First
Amendment rights. The California Court of Appeal a�rmed on the �rst
ground alone, but the California Supreme Court reversed, holding, inter alia,
that the ordinance was not facially invalid under the First Amendment.
Search FindLaw
/ /
/
/
Cases & Codes (https://caselaw.�ndlaw.com/) Practice Management (https://practice.�ndlaw.com
METROMEDIA, INC. v. SAN DIEGO | FindLaw https://caselaw.findlaw.com/us-supreme-court/453/490.html
1 of 72 10/16/2021, 11:36 AM
Held:
The judgment is reversed and the case is remanded. Pp. 498-521; 527-540.
26 Cal. 3d 848, 610 P.2d 407, reversed and remanded.
Like this:
Like Loading...
Related
JimmieJoe 
A sign of the times. Someone in Porterville doesn’t like it.
October 20, 2021
Jim Reeves commentary, Gay, News billboard, LGBT, porterville, STI, The Source LGBT Center Leave a comment
Last night I attended a City Council meeting in Porterville, California. A very long city council meeting. Item 21 on the agenda was listed as:
“21. City Billboard Regulations
Re: Reviewing City signage regulations pertaining to billboards within the City of Porterville.”
This all came to be because Pastor Brent Whitley of Living Word Fellowship Church didn’t like the sign above, which he complained could be seen from his son’s high school (Butterfield Charter School) He spoke up about it at the City Council meeting October 5.
“It features two young men naked from the waist up in a sexually-suggestive pose,” Whitley said. (Porterville Recorder, 10/07/21)
“So, I am asking the City Council, as duly-elective representatives of the City of Porterville, to sign letters affirming that sexually graphic advertising for any purpose is not appropriate for the billboards in our community. They aren’t going to listen to one man’s opinion. We have to speak with a unified voice.”
The letters, he said, won’t cast any aspersions on The Source nor makes any kind of statement about the LGBTQ Plus community.
“We are simply saying to Lamar Advertising and to any of their clients that the citizens of Porterville prefer not to have any sexually-explicit, suggestive or graphic content posted on billboards in our city because we have no way to filter this content from our children.”
Following his complaint, the Council had staff put the subject on the agenda for the next meeting (October 19, 2021) for discussion.
Porterville, in 2017, enacted an ordinance* which was designed to eventually remove “off-site” billboards from within the city limits. Since the 1st amendment to the Constitution of the United States severely limits what restrictions can be placed on content of signs, the only option is to prohibit them altogether.
The city attorney has informed the council** that they can speed up the timeline for removing the billboards. The current ordinance requires that when they are “abandoned”, they can no longer exist under the grandfathering clause that allowed them to continue to be used after the ordinance was enacted. The city attorney has advised the Council that they can set a timeline, based on past court cases of what has been adjudicated as reasonable, of 5-7 years for removal. That may be problematical, however.
San Diego apparently tried something very similar in the 70’s, and was sued. The suit went all the way to the Supreme Court of the United States.*** They lost.
The SCOTUS case transcript can be found here. A summary of the court’s findings can be found here.
I’m not a lawyer, of course, but it looks like Porterville will run afoul of the same situation if it tries to remove billboards from the city. Perhaps someone can check these out and let me know if the city can follow through with it’s apparent plan to “amortize” these billboards out of existence.
The City Council directed staff to bring them a proposed action to address the issue (setting a timeline that results in removal of remaining signs in the city) at a future meeting.
The city ordinance, city attorney’s advice, and SCOTUS ruling can be found after the jump.
*
305.06: PROHIBITED SIGNS:
The following types of signs and devices are specifically prohibited:
A. Animated, Flashing or Moving Signs. Signs that incorporate, flashing, moving, rotating, pulsating or intermittent lighting, with
the exception of changeable copy message center display signs and barber poles, except as allowed elsewhere in this chapter. Any
sign that, because of brilliant lighting, interferes with the enjoyment of surrounding residential property or interferes with traffic,
vehicular or pedestrian, is prohibited.
B. Balloons, Banners, Streamers and Pennants. Signs, balloons, banners, pennants, or any other advertising display constructed
of cloth, canvas, light fabric, paper, cardboard, wallboard or other light materials, except awnings or as allowed for
Automobile/Vehicle Sales and Leasing establishments, or in Section 305.11, Temporary Signs.
C. Billboards. Any sign directing attention to a business, service, or product that is not conducted, sold, produced, or offered by
any use on the same lot, or which identifies by brand name a product which, although sold on the premises, does not constitute one
(1) of the principal items for sale on the premises unless otherwise provided by the California Outdoor Advertising Act (Business and
Professions Code Sections 5200 – 5486, inclusive).
D. Emissions. Signs that produce noise in excess of forty (40) decibels, excluding voice units at drive-through facilities, and signs
that emit odor or visible smoke, vapor or particles.
E. Fence Signs. Signs attached or painted on fences or freestanding walls that are not part of a building, except for subdivision
entry signs as allowed in Section 305.08 (b).
F. Obscenities. Signs that depict, describe or relate to “specified sexual activities” or “specified anatomical areas” as defined in
Chapter 700, Terms and Definitions.
G. Obstructions to Exits. Signs erected, constructed or maintained which obstruct any firefighting equipment, fire escape, required
exit or door opening intended as a means of egress, unless approved by the Fire Marshal.
H. Obstructions to Driver Visibility. Signs in corner cut-offs and lines of sight in accordance with the provisions of Section300.16,
Visibility at Driveways and Intersections.
I. Obstructions to Ventilation. Signs that interfere with any opening required for ventilation.
J. Portable Signs. Signs not permanently attached to, mounted upon or affixed to a building, structure or the ground, except as
otherwise provided herein.
K. Posters. Posters of a temporary character that are tacked, painted, pasted or otherwise placed or affixed and made visible from
a public way, on the walls of buildings, on barns, sheds, trees, fences, utility poles or other structures, sidewalks or patios, except as
otherwise provided in this chapter. This section excludes signs placed in windows per Section 305.10 (e).
L. Roof Signs. Signs erected or painted upon, over or above the roof of a building or structure, or any sign affixed to the wall of a
building so that it projects above the ridge line or top of parapet, except as allowed in this chapter.
FIGURE 305.06L: ROOF SIGNS
M. Signs Creating Traffic Hazards. Signs that simulate in color, size or design any traffic control sign, signal or device, or that
make use of words, symbols or characters in a manner that interferes with, misleads or confuses pedestrian or vehicular traffic. No
sign, light or advertising structure shall be located in such a manner as to constitute a hazard to pedestrian or vehicular traffic, or in
such a manner as to obstruct free and clear vision, at any location where, by reason of the position, shape, color or movement may
interfere with, obstruct the view of, or be confused with any authorized traffic sign, signal or device.
N. Signs of public property. Signs located on public lands, including but not limited to public rights of way, parks, public buildings,
storm drainage basins, and facilities are prohibited. When associated with rental or reservation of such facility, signs may be placed
during the event for which the reservation was made; however, such signs must be removed at the end of the reservation period.
(Ord. 1866, 11-19-2019)
**
SUBJECT: City Billboard Regulations
SOURCE: City Attorney
COMMENT: At its meeting on October 5, 2021, the City Council directed that an item be
scheduled concerning the City’s billboard regulations, in response to a citizen’s
complaint about a specific billboard’s content and its proximity to a local
school.
The City is severely restricted from enacting content-based regulations, pursuant
to the First Amendment. For example, content-based restrictions on tobacco
advertising have been invalidated under the First Amendment, even when
challenged due to its close proximity to a school. [See Lorillard Tobacco Co. v.
Reilly (2001) 533 US 525, 558.] A sign ordinance that creates exemptions for
certain types of noncommercial speech and regulates each type differently is
generally considered content-based and therefore is subject to strict scrutiny, per
Reed v. Town of Gilbert (2015)576 US 155. To avoid First Amendment
violations, a governmental restriction on commercial speech must concern
lawful activity and must not be misleading, must seek to implement a
substantial governmental interest, must directly advance that interest, and must
reach no further than necessary to accomplish its objective [Central Hudson Gas
& Elec. Corp. v. Public Serv. Comm’n (1980) 447 US 557, 564].
That stated, cities can allow on-site commercial signage and prohibit off-site
advertising billboards. A content-neutral ordinance banning (or otherwise
regulating) all off-site billboards is not subject to strict scrutiny and does not
violate the First Amendment, or the free speech clause of the California
Constitution. [See Metromedia, Inc. v. City of San Diego (1981) 453 US 490,
and Lamar Cent. Outdoor, LLC v. City of Los Angeles (2016) 245 Cal.App.4th
610.]
Cities that opt to enact such prohibitions or restrictions can provide for
amortization of nonconforming signs after a certain period of time, and courts
will uphold an amortization provision if the amortization period is
“reasonable.” Courts have upheld 5 and 7 year amortization clauses, and the
reasonableness is evaluated by considering the cost of the sign, its depreciated
value, remaining useful life, remaining length of leases, and harm to the public
if the signs remain. To the extent there are any “onsite” billboards, California
law may also require that fair and just compensation must be paid when removal
of on-premises advertising is required.
Item No. 21.
The City of Porterville, per Municipal Code Section 305.06 currently prohibits
ALL off-site billboard advertising, which would include off-site billboards.
However, the billboards that were in place at the time of the enactment the
regulation have been treated as non-conforming uses and are currently permitted
until the uses are stopped/abandoned for a specific period of time. The Council
can consider directing staff to analyze what might be potential specific
“reasonable” amortization periods, in order to propose including a specific
amortization period in the City’s sign regulations. This would effectively set a
deadline and end the uses for the “grandfathered” billboards.
RECOMMENDATION: That the City Council provide direction to staff concerning
whether the Council wishes to consider setting an amortization
period for all billboards.
Review By:
Department Director:
Julia Lew, City Attorney
Final Approver: John Lollis, City Manager
***
United States Supreme Court
METROMEDIA, INC. v. SAN DIEGO(1981)
No. 80-195
Argued: February 25, 1981
Decided: July 2, 1981
Appellee city of San Diego enacted an ordinance which imposes substantial
prohibitions on the erection of outdoor advertising displays’ within the city.
The stated purpose of the ordinance is “to eliminate hazards to pedestrians
and motorists brought about by distracting sign displays” and “to preserve
and improve the appearance of the City.” The ordinance permits onsite
commercial advertising (a sign advertising goods or services available on
the property where the sign is located), but forbids other commercial
advertising and noncommercial advertising using �xed-structure signs,
unless permitted by 1 of the ordinance’s 12 speci�ed exceptions, such as
temporary political campaign signs. Appellants, companies that were
engaged in the outdoor advertising business in the city when the ordinance
was passed, brought suit in state court to enjoin enforcement of the
ordinance. The trial court held that the ordinance was an unconstitutional
exercise of the city’s police power and an abridgment of appellants’ First
Amendment rights. The California Court of Appeal a�rmed on the �rst
ground alone, but the California Supreme Court reversed, holding, inter alia,
that the ordinance was not facially invalid under the First Amendment.
Search FindLaw
/ /
/
/
Cases & Codes (https://caselaw.�ndlaw.com/) Practice Management (https://practice.�ndlaw.com
METROMEDIA, INC. v. SAN DIEGO | FindLaw https://caselaw.findlaw.com/us-supreme-court/453/490.html
1 of 72 10/16/2021, 11:36 AM
Held:
The judgment is reversed and the case is remanded. Pp. 498-521; 527-540.
26 Cal. 3d 848, 610 P.2d 407, reversed and remanded.
Share this:
Like this:
Related