Environmental Aesthetics: New Horizons for Billboard Controls

Several cases recently decided by or pending before courts in New York,¹ California,² and Maine³ signal the reemergence of a difficult legal issue which is of major significance to state and local governments: the regulation and/or elimination of billboards. Although superficially not subject which stirs the emotions, outdoor advertising clearly possesses and frequently realizes the potential to degrade the visual quality of the human environment. All too common are the images of a rural highway marred by a string of two-dimensional eyesores, or a street scene consisting of little more than a mass of neon and flashing lights. Many localities view the "invasion of the billboards" as not only a threat to personal privacy and the quality of the environment but as a deterrent to tourism posing indirect but substantial impact upon local economies as well.⁴ The outdoor advertising industry, on the other hand, sees itself as a purveyor of valuable information, an essential link between business and the consumer, and a low-cost communications medium of crucial importance to small businesses and public service organizations.

For reasons as obvious as the subject matter, outdoor advertising has proven a particularly appealing target of attempts by state and local governments to enhance the visual character of their landscape. This is not a new development; since the turn of the century, billboard controls have been adopted, enforced, and upheld in the courts to varying degrees.⁵ In recent years, however, such measures have tended to be far more Draconian than their predecessors and have predictably precipitated a wave of legal challenges by the outdoor advertising industry. Because of the breadth and severity of many of these enactments, the case law that has developed over the last 80 years provides little guidance in sorting out the novel issues which have arisen. Litigation which in the past would have turned on the limits of the state's regulatory (police) power is now centered around questions of the state's taking (eminent domain) power and substantive due process. In cases where substantial or complete elimination of a significant medium of communication is threatened, courts now find themselves confronted with intricate First Amendment problems. Moreover, a trend toward liberalized judicial interpretations of state authority to control land use as well as an evolving public stance in favor of environmental protection and against all forms of visual blight have mandated reevaluation of the balancing tests traditionally relied [8 ELR 10067] upon to reconcile these competing public and private interests. As a result, there are few aspects of the law on this subject which can be considered well settled.

The Issues

Aesthetic Controls vs. Private Property

The power of the states to regulate reasonably the ownership and use of private property to promote the public health, safety, and welfare derives from the Tenth Amendment to the Constitution⁶ and includes the power to designate geographical areas in which the erection of certain structures, the conduct of particular or all businesses, and other land uses are prohibited.⁷ Behind the seemingly innocuous requirement of reasonableness lurks a highly charged tension between the interests of society and those of the individual as well as between the preservation of environmental sanctity and vigorous economic growth.

The earliest case law held that legislative enactments which were motivated even partially by considerations of aesthetics were an invalid exercise of the police power and void.⁸ This principle is largely attributable to a Jeffersonian fear that the cultural standards of the community would be dictated at the whim of a select few. As the billboard industry naturally thrived behind this judicial shield and as the growing state of the technology permitted the construction of sturdier and larger signs, placement in more inaccessible locations, nighttime illumination, and other "advances," the public became increasingly offended and state legislatures increasingly frustrated by their inability to impose sensible controls. The judiciary could not ignore the public mood but was reluctant to overrule the by then well entrenched principle that aesthetic objectives were impermissible. To feign harmony between the two pressures, some courts chose to uphold aesthetically-based statutes on nonaesthetic grounds, commonly attributing to such laws a dubious range of benefits to the public health, safety, and welfare which were surely unforeseen by the legislatures.⁹

Perhaps out of unease with this legalistic sleight of hand, the courts gradually began to accept aesthetics as a valid legislative pursuit, though one fallling outside the public welfare. Thus, while courts would not uphold statutes unless directed principally at the more traditional police power objectives, statutes would not be struck down because of subsidiary aesthetic purposes.¹⁰

Eventually, all residual doubts over the propriety of aesthetic regulation were extinguished by the United States Supreme Court in Berman v. Parker.¹¹ Writing for the majority, Justice Douglas announced that henceforth aesthetic justifications would be viewed as independently sufficient bases for police power regulation: "It is within the power of the legislature to determine that the community should be beautiful as well as healthy."¹² Thus, from its former status as a second-class relative to the overriding objectives of governmental regulation, aesthetic enhancement was elevated to full-fledged membership in that elite group. Nevertheless, the courts in several states continue to refuse to accept this subtle shift in philosophy.¹³

The Requirement of Reasonableness

When weighing the constitutionality of a challenged statute, the question whether it pursues a legitimate end is but one aspect of a fuller inquiry. The law must also appear reasonably likely to achieve that end to some degree, an easy hurdle for the typical billboard ordinance, and it must do so reasonably. One line of cases from New York holds that police power regulation unaccompanied by a compensation scheme will be deemed reasonable unless the property owner can show that he has been deprived of substantially all productive use of the property.¹⁴ The case law from other jurisdictions, however, generally suggests a more qualitative analysis. Typically, the claimed benefits of the regulation will be compared with the adverse impacts. The legislation will be presumed valid,¹⁵ but where the balance struck clearly displays an insensitivity to or disregard for private investment, the statute will be overturned.¹⁶

For example, the validity of billboard legislation may depend upon the precision of its effect. Statutes directed [8 ELR 10068] at specific evils, such as billboards adjacent to major highways, or which make exceptions for certain classes of signs, such as those below a minimum size, are viewed much the same as zoning regulations and are universally upheld.¹⁷ Undifferentiated prohibitions, on the other hand, are more likely to be found unreasonable.¹⁸ Similarly, geographic scope is a relevant factor. Total bans within small or rural communities have proven more durable than similar bans when applied to major metropolitan areas.¹⁹ The upshot of these holdings is that the requirement of reasonableness will usually be satisfied where there is evidence that a careful weighing of costs and benefits has taken place or where the legislation provides a means of mitigating its economic impact.

The Concept of Amortization

To alleviate extreme effects, many statutes imposing across-the-board bans establish what has been arbitrarily designated an "amortization period" during which nonconforming signs in existence on the date of enactment may be maintained without penalty. The underlying theory is two-fold. First, the validity of any police power regulation, which inevitably involves some degree of "taking" of the regulated property, is measured against the severity, or the reasonableness, of the statutory effects. The amortization concept permits the advertiser to recoup to some extent the value of his investment in the property. Second, the combined effect of the amortization period with the prospective ban on new competition enhances the value of the existing advertising space by giving it monopoly status. The increased short-term value is intended to accelerate the time period in which the value of the investment may be recovered.

While some courts have held the amortization concept invalid per se,²⁰ the general rule is that such provisions will be presumed valid²¹ but disallowed on a case-by-case basis if found excessively harsh.²² In Modjeska Sign Studios Co. v. Berle, the New York Court of Appeals recently set out the favored approach:

If the owner can show that the loss he suffers as a result of the removal of a non-conforming use at the expiration of an amortization period is so substantial that it outweighs the public benefit gained by the legislation, then the amortization period must be held unreasonable.²³

To meet this burden the plaintiff must introduce evidence at trial relating to such factors as the original cost of the billboards, the expected useful life, the return on that investment, and whether the advertising is receiving benefits from public property.²⁴

First Amendment Conflicts

Whether billboard statutes conflict with the free speech protections of the First Amendment is a substantial question that has received a paucity of judicial attention to date. This gap in the case law is due in part to the relatively recent appearance of billboard legislation sweeping broadly enough to suggest a serious threat to free communication. An even more important reason is the changing relationship between the First Amendment and commercial speech.

In Valentine v. Chrestensen²⁵ the Supreme Court held that purely commercial speech is not entitled to protection from governmental interference. That position has been continuously eroded, however, most notably by the opinion in Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (hereafter Virginia Board),²⁶ to the point where it appears that the "time, place, and manner" of commercial expression may now be regulated in pursuit of the police power objectives as long as the regulation does not go to content and there remain alternative channeles of communication.

On its face, Virginia Board seems only indirectly applicable to the context of billboards; the opinion concerns not the power of the state to impose substantial restrictions on commercial speech but whether such restrictions may be so onerous that the consumer is left crippled in the jungle of the marketplace. Phrased differently, it held that the public may not be rendered totally uninformed concerning a material aspect (price) of a given product. The Supreme Court took pains to narrow this holding even further by limiting it specifically to the distribution of commercial information by pharmacists.²⁷ Billboard prohibitions do not cut as deeply into First Amendment rights as did the statute in question in Virginia Board because they leave untouched the vast array of alternative advertising media. Virginia Board concerned a multimedia blackout of all advertising for one class of products, whereas billboard regulations place a much lesser burden upon all products equally.

In Bigelow v. Virginia²⁸ the Supreme Court reversed a conviction for violation of a state statute prohibiting the publication of any material promoting the availability of abortion services. Once again, the issue was whether the public may be left totally in the dark with respect to a particular product or service. Bigelow put an end to the [8 ELR 10069] notion that under Chrestensen commercial speech is entirely unprotected, but it confirmed the continuing vitality of Chrestensen as support for reasonable controls upon the manner in which commercial advertising is distributed.²⁹

The drift of the high court's recent decisions unmistakably favors an enhanced regard for commercial speech. Nevertheless, it seems fair to predict that as the contours of the protections due commercial speech are fleshed out, it will achieve a lesser status than the "preferred position" traditionally reserved for noncommercial expression. If this is so, then in light of the established tenet that noncommercial speech may be regulated in the interest of controlling media which are offensive to the senses,³⁰ a strong argument may be made that states may justify incidental or partial restrictions on commercial speech when attempting to protect themselves against environmental and economic harms.

Furthermore, advertising via billboards is arguably entitled to a lesser degree of constitutional protection because of its uniquely intrusive character. The first Supreme Court suggestion of a separate "billboard standard" was voiced by Justice Brandeis in Packer Corp. v. Utah, in which the court held that certain advertising could be restricted from billboards even though not regulated when broadcast in other forms:

The radio can be turned off, but not so the billboard or street car placard. These distinctions clearly place this kind of advertisement in a position to be classified so that regulations or prohibitions may be imposed upon all within the class.³¹

The notion that advertising presented to captive audiences should be subject to greater scrutiny was amplified by Justice Douglas in Lehman v. City of Shaker Heights, in which he suggested that there is a constitutional right to be free from such intrusions.³² Although Lehman involved an ordinance applicable to the interior of city buses, viewers of billboards are arguably even greater captives.Whereas bus riders have at least the limited alternatives of turning to a book, gazing through the window, or even closing their eyes, automobile drivers have no choice but to constantly scan the approaching roadway and environs.

Foreseeable Developments

Currently pending are two lawsuits which will likely play a large role in shaping many facets of these questions. In Metromedia, Inc. v. City of San Diego,³³ plaintiffs challenged a city ordinance banning all off-premise billboards within the city limits. The trial court struck down the ordinance and was affirmed by the California Court of Appeals, which ruled it an unreasonable use of the police power to eliminate entirely a business from an area the size of San Diego.³⁴ The California Supreme Court has heard argument in the case, and a decision is expected this spring. Metromedia will be the court's first opportunity to consider a billboard ordinance of such proportions, and from plaintiff's point of view it is an ideal test case. The statute imposes a total prohibition against billboards in a large city and unnecessarily singles out political advertising for inclusion within the ban, instead of making an exception for it, as might be expected.

Briefs are now due in what appears to be the first significant challenge to a comprehensive statewide billboard law. In John Donnelly & Sons v. Mallar,³⁵ two major outdoor advertising companies have attacked a Maine statute outlawing all such advertising "within view of the public way." Given the unlikely existence of billboards which are not visible from the public way, there is a facial appeal to plaintiffs' claim that the law "will ultimately have the effect of destroying entirely the business of outdoor advertising in Maine."³⁶

In light of the existing case law, the future bodes ill for the San Diego ordinance. It sgeographical scope is very broad, the singling out of political advertising adds a particularly harsh ring, and its effectupon the outdoor advertising industry would prove devastating. For example, it might have achieved a nicer fit with its intended objectives if it had allowed certain exceptions for advertising within areas zoned for commercial or industrial uses where the benefit of highly visible signs could conceivably justify the deleterious aesthetic impacts. The ordinance establishes a graduated amortization scheme which scales the period during which the nonconforming use will be permitted according to the original cost of the sign. Original cost, however, is only one of several factors which should be included in this calculation; when considered out of context of age and expected useful life, it must surely lead to inequitable and arbitrary results. In a jurisdiction which has yet to recognize aesthetic objectives as a valid basis of police power regulation,³⁷ these limitations may well prove fatal.

At this point, speculation as to the outcome of the Maine litigation would be premature, but there is little reason to believe that the prospects of sustaining that state's statute are any more sanguine. This is a prime case, however, in which to look for further expansion of traditional dogma. Each of the tests applied by the courts when examining billboard legislation have measured the adverse imports of the legislation against the advantages flowing to the state. In Maine, as in the Adirondack Park,³⁸ where wildness is likely the dmost salient characteristic of the area, advantages accruing to the [8 ELR 10070] environment should be given greater emphasis in this calculus, and environmental preservation should be recognized as an important objective of the police power. It is certainly this sentiment which explains why the country's most comprehensive billboard statutes are in force in Hawaii, Oregon, and Vermont.³⁹ Not only are these regions highly vulnerable to the aesthetic impacts of outdoor advertising, the symbiotic relationship between these environments and the tourism-based local economies means that aesthetic injuries are directly translated into economic injuries. In the more pristine areas of the nation where state and loca governments have recognized this phenomenon and acted on it, there should be room within a considered judicial analysis for sustaining the will of the populace without disregarding constitutional limitations.

1. Modjeska Sign Studios, Inc. v. Berle, 8 ELR 20183 (N.Y. Ct. App. 1977); Suffolk Outdoor Advertising Co., Inc. v. Hulse, 8 ELR 20185 (N.Y. Ct. App. 1977).

2. Metromedia, Inc. v. City of San Diego, 136 Cal. Rptr. 453 (Cal. Ct. App. 1977), appeal docketed, No. L.A. 30787 (Cal. Sup. Ct. 1977).

3. John Donnelly & Sons v. Mallar, Civ. No. 77-284 (S.D. Maine 1977).

4. Cases recognizing the deleterious impacts of billboards upon the community include National Advertising Co. v. City of Monterey, 211 Cal. App. 2d 375, 379, 27 Cal. Rptr. 136, 138 (1962); City of Santa Barbara v. Purcell, Inc., 251 Cal. App. 2d 169, 173, 59 Cal. Rptr. 345, 348 (1967).

5. See, e.g., In re Williams, 103 F. 620 (S.D. Cal. 1900).

6. Berman v. Parker, 348 U.S. 26 (1954).

7. Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).

8. People ex rel. Wineburgh Advertising Co. v. Murphy, 195 N.Y. 126, 88 N.E. 17 (1909); Varney and Green v. Williams, 155 Cal. 318, 100 P. 867 (1909); City of Passaic v. Patterson Bill Posting, Advertising & Sign Painting Co., 72 N.J.L. 285, 287 (Ct. Err. & App. 1905).

9. The lengths to which some courts have gone to find traditional police power purposes have at times approached the comical:

The signboards upon which this class of advertisements are displayed are constant menaces to the public health, safety, and welfare of the city; they endanger the public health, promote immorality, constitute hiding places and retreats for criminals and all classes of miscreants…. The evidence also shows and common observation teaches us that the ground in the rear thereof is constantly used as privies and dumping ground for all kinds of wastes and deleterious matter, and thereby creating public nuisances and jeopardizing the public health; the evidence also shows that behind these obstructions the lowest forms of prostitution and other acts of immorality are frequently carried on, almost under public gaze; they offer shelter and concealment for the criminal while lying in wait for his victim; and last, but not least, they obstruct the light, sunshine, and air, which are so conducive to health and comfort. (Emphasis added.) St. Louis Gunning Advertisement Co. v. City of St. Louis, 235 Mo. 99, 144-45, 137 S.W. 929, 942 (1911), appeal dismissed per stipulation, 231 U.S. 761 (1913); see also Welch v. Swasey, 214 U.S. 91, 107 (1909).

10. General Outdoor Advertising v. Department of Public Works, 289 Mass. 149, 193 N.E. 799 (1935); Murphy v. Town of Westport, 131 Conn. 292, 40 A.2d 177 (1944).

11. 348 U.S. 26 (1954).

12. Id. at 33.

13. City of Baltimore v. Mano G. Swartz, 268 Md. 79, 299 A.2d 828, 3 ELR 20232 (1973); Naegele Outdoor Advertising Co. v. Minnetonka, 281 Minn. 492, 162 N.W.2d 206 (1968); Metromedia v. City of Des Plaines, 26 Ill. App. 2d 942, 326 N.E.2d 59 (1975).

14. Modjeska Sign Studios, Inc. v. Berle, 8 ELR 20183 (N.Y. Ct. App. 1977); Arverne Bay Construction Co. v. Thatcher, 278 N.Y. 222, 226 (1938).

15. John Donnelly & Sons, Inc. v. Outdoor Advertising Bd., Mass. Adv. Sh. 3450, 3465, 339 N.E.2d 709, 716, 6 ELR 20123, 20125 (1975).

16. Combined Communications Corp. v. City & County of Denver, 524 P.2d 79, 82 (Colo. 1974).

17. City of Escondido v. Desert Advertising, Inc., 8 Cal. 3d 875, 106 Cal. Rptr. 172, 505 P.2d 1012, 3 ELR 20293 (1973).

18. Metromedia v. San Diego, 136 Cal. Rptr. 453 (Cal. Ct. App. 1977).

19. Compare Suffolk Outdoor Advertising Co. v. Hulse, 8 ELR 20185 (N.Y. Ct. App. 1977) and Cromwell v. Ferrier, 19 N.Y.2d 263, 225 N.E.2d 749 (1967) with Combined Communications Corp. v. City & County of Denver, 524 P.2d 79 (Colo. 1974).

20. See, e.g., Hoffman v. Kinnealy, 389 S.W.2d 745 (Mo. 1965); City of Akron v. Chapman, 160 Ohio St. 382, 116 N.E.2d 697 (1953).

21. Art Neon Co. v. City & County of Denver, 488 F.2d 118, 121 (10th Cir.), cert. denied, 417 U.S. 972 (1973).

22. National Advertising Co. v. City of Monterey, 1 Cal. 3d 875, 880, 83 Cal. Rptr. 577, 580, 464 P.3d 33 (1970).

23. 8 ELR at 20185.

24. New York has adopted a method of analyzing police power regulation which disregards the economic impact upon the private property owner to the extent that the value of the property is enhanced by legislative act or by location within a prominent public area. See generally, Comment, A New, New Takings Analysis Blooms in New York, 7 ELR 10166 (1977).

25. 316 U.S. 52 (1942); see also Breard v. Alexandria, 314 U.S. 622, 641-42 (1951).

26. 425 U.S. 728 (1976).

27. Id. at 773 n. 25. Implicit in the Court's express reservation of the question whether such a blanket prohibition might be justified in the context of advertising for other professional services is the notion that a different result may await legislation shown to substantially further important state objectives.

28. 421 U.S. 809 (1975).

29. Id. at 819.

30. Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976) (sustaining restraints on location of adult bookstores to prevent aesthetic and economic deterioration of community); Kovacs v. Cooper, 336 U.S. 77 (1949) (upholding ordinance limiting use of sound trucks and loudspeakers).

31. 285 U.S. 105, 110 (1932).

32. 418 U.S. 298, 307 (1974) (Douglas, J., concurring). Cf. Public Utilities Comm'n v. Pollak, 343 U.S. 451, 467 (1952) (Douglas, J., dissenting) (right of transit passenger to be free from piped-in music).

33. Civ. No. 332881 (Cal. Super. Ct., San Diego Cty. 1976).

34. 136 Cal. Rptr. 453 (Cal. Ct. App. 1977); appeal docketed, No. L.A. 30787 (Cal. Sup. Ct. 1977).

35. Civ. No. 77-284 (S.D. Maine Dec. 27, 1977).

36. Complaint, ELR PEND. LIT. 65535, ELR DOC. [610].

37. The California Supreme Court has yet to overrule Varney and Green v. Williams, 155 Cal. 318, 100 P. 867 (1909) (aesthetics are not a proper objective of the police power).

38. See Modjeska Sign Studios, Inc. v. Berle, 8 ELR 20183 (N.Y. Ct. App. Dec. 21, 1977) (upholding comprehensive billboard prohibition in natural area the size of the State of Vermont).

39. For a dated but fairly comporehensive list of state billboard legislation, see Cunningham, Billboard Control Under the Highway Beautification Act of 1965, 71 MICH. L. REV. 1295, 1328 n. 129 (1973).