City of Fayetteville v. S & H, INC.

547 S.W.2d 94, 261 Ark. 148, 1977 Ark. LEXIS 2052

• Court: Supreme Court of Arkansas
• Decided: February 28, 1977
• Docket: 76-82
• Status: Published

Opinions

Conley Byrd, Justice.

By this appeal the City of Fayetteville raises two issues — i.e. (1) can a sign ordinance prohibiting flashing or blinking signs be applied to existing signs at the time the ordinance becomes effective and (2) can a non-conforming “on-site” sign be constitutionally amortized by the City over a period of seven years? These issues were submitted to the trial court upon a stipulated record and from a judgment holding that such interests were vested and that the sign ordinance could not constitutionally be applied to such vested interests, the City appeals.

Ordinance No. 1893 of the City of Fayetteville states its purposes and the City’s Findings in this language:

“WHEREAS, the Board of Directors of the City of Fayetteville, Arkansas, believes that the construction, repair, alteration, location and maintenance of signs should be controlled within the city limits of the City of Fayetteville, Arkansas, in order to protect the public investment in the streets and highways, to promote the safety and recreational value of public travel and to preserve natural beauty, and

WHEREAS, the purpose of this Ordinance is to promote the reasonable, orderly, and effective display of signs while remaining consistent with the city policy to protect the public investment in the streets and highways, to promote the safety and recreational value of public travel and to preserve natural beauty, and

WHEREAS, the Board of Directors has made the following findings of fact:

(1) That the uncontrolled proliferation of signs is hazardous to the users of streets and highways within the limits of the City of Fayetteville, Arkansas.

(2) That a large and increasing number of tourists have been visiting the City of Fayetteville, Arkansas, and as a result the tourist industry is a direct source of income for citizens of said city, with an increasing number of persons directly or indirectly dependent upon the tourist industry for their livelihood.

(3) Scenic resources are distributed throughout the city, and have contributed greatly to its economic development, by attracting tourists, permanent and part-time residents, and new industries and cultural facilities.

(4) The scattering of signs throughout the city is detrimental to the preservation of those scenic resources, and so to the economic base of the city, and is also not an effective method of providing information to tourists about available facilities.

THEREFORE, BE IT ORDAINED BY THE BOARD OF DIRECTORS OF THE CITY OF FAYETTEVILLE, ARKANSAS:”

The specific provisions of the ordinance as amended states:

17B-7(f) “. . . It shall be unlawful for any person to . . . continue in operation an attraction device or sign which flashes, blinks or is animated.”

17B-5(a) “Non-conforming signs. For the purpose of this section, a non-conforming sign shall be defined as a sign which does not conform with the provisions of this chapter. All on-site non-conforming signs not otherwise prohibited by the provisions of this chapter shall be removed or shall be altered so as to conform with the provisions of this chapter within 7 years from the effective date of Ordinance 1983 (1-19-73).”

The ordinance does not prohibit all signs. The signs in question are non-conforming because of the size, height and set-back requirements.

The record, as abstracted, shows that the signs involved are constructed of structural steel imbedded in concrete. The Holiday Inn sign has been in continuous use for more than 13 years. It had an original cost of more than $10,000 and the replacement cost would be in excess of $20,000. The “Minute Man” sign originally cost $5,811 and has a replacement value in excess of $9,000. The original cost of the Whit Chevrolet sign was in excess of $10,000 and its replacement cost would exceed SI 5,000. The Chief Motel sign originally cost in excess of S6,000 and the replacement cost would exceed S12,000. The cost of eliminating the blinking characteristics of the Holiday Inn sign is SI,000, the Minute Man sign SI,500, the Whit Chevrolet sign S3,000 and the Chief Motel sign SI ,000.

In the trial court the City contended that the flashing and blinking signs were inimical to the safety of the traveling public and furnished proof to that effect. No such contention has been made with respect to the restrictions on size, height and set-back requirements.

To reverse the trial court’s holding that the seven year amortization for non-conforming uses was constitutionally invalid as applied to appellees’ signs, the City relies upon the following cases from other jurisdictions: Art Neon Company v. City & County of Denver, 488 F. 2d 118 (10th Cir. 1973); E. B. Elliott Advertising Company v. Metropolitan Dade County, 425 F. 2d 1141 (5th Cir. 1970); Grant v. Mayor and Council of Baltimore, 212 Md. 301, 129 A. 2d 363 (1957); National Advertising Company v. County of Monterey, 83 Cal. Rptr. 577, 464 P. 2d 33 (1970); City of Escondido v. Desert Outdoor Advertising Co., Inc., 106 Cal. Rptr. 172, 505 P. 2d 1012 (1973); Village of Larchmont v. Sutton, 217 N.Y.S. 2d 929 (1961); Rochester Poster Advertising Co. v. Town of Brighton, 357 N.Y.S. 2d 346 (1974); and Naegele Outdoor Advertising Company v. Village of Minnetonka, 281 Minn. 492, 162 N.W. 2d 206 (1968). In relying upon these cases, appellant argues and quotes from Grant v. Mayor & City Council of Baltimore, supra, as follows:

“The court in Grant v. Baltimore, 212 Md. 301, 129 A. 2d 363 (1957), upheld the constitutionality of a five year amortization period for non-conforming signs. In what is one of the leading opinions on the point, the court reviewed the problem of non-conforming uses as it has developed since the inception of zoning and pointed out that early optimism about the spontaneous withering away of non-conforming uses has proved erroneous. Describing the inability to eliminate non-conforming uses as ‘the fundamental problem facing zoning,’ the court concluded that ‘the only positive method yet devised of eliminating non-conforming uses is to determine the normal useful remaining economic life of the structure devoted to the use and prohibit the owner from using it for the offending use after the expiration of that time.’ In its opinion, the court states:

‘The distinction between an ordinance that restricts future use and one that requires existing uses to stop after a reasonable time, is not a difference in kind but one of degree, and, in each case, constitutionality depends on overall reasonableness, on the importance of the public gain in relation to the private loss.

* # * *

There is no difference in kind, either, between limitations that prevent the adding to or extension of a non-conforming use, or provisions that the right to use is lost if abandoned or if the structure devoted to the use is destroyed, or the denial of a right to substitute a new use for the old, all of which are common if not universal in zoning laws and all of which are established as constitutional and valid, on the one hand, and a requirement on the other, that an existing non-conformance must cease after a reasonable time. The significance and effect of difference in degrees in any given case depends on circumstances, environment, and length of the period allowed for amortization.”

The authorities upon which the City relies approach their conclusions upon this reasoning — i.e. the regulation of non-conforming signs fall within the zoning authority of cities and since the right of a city to zone is constitutionally permissible under the police power, the regulation of nonconforming signs is constitutionally permissible under the police power. If we should take the City’s argument that nonconforming signs can be lawfully amortized even though they are not inimical to the health, safety or morals, then it would follow that the City could lawfully amortize the buildings in any area declared to be an urban renewal area upon the same basis — i.e. it would enhance the economic base of the city. The City in relying upon these authorities does not attempt to grapple with the pragmatical result of such rulings when applied to the facts before us — i.e. that the appellees’ property rights are being taken purely for the economic benefit of the public without payment of just compensation to the property owner. However, in reviewing our own authorities on the subject, we find that our Constitution, Art. 2 § 22, provides:

“The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation therefor.”

In cases involving vested interests that were not inimicable to the health, safety or morals of the community under Art. 2 § 22, supra, we have held differently to the authorities relied on by appellants. For instance, in Ark. State Hwy. Commission v. Turk’s Auto Corp., Inc., 254 Ark. 67, 491 S.W. 2d 387 (1972), the issue was whether the Highway Commission by constructing a new highway within 1000 feet of an automobile salvage yard could force the salvage yard to expend approximately $7,000 to screen the salvage yard from the view of the highway. In holding that the Highway Commission’s demand on the property owner amounted to a taking of private property without just compensation we said:

“It is undisputed that at the time of the enactment of the Act in question the appellee was conducting a lawful business. Article Two, Section 22, of the Constitution of our State provides:

‘The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation.’

It was aptly said in Ark. State Highway Comm’n v. Union Planters National Bank, 231 Ark. 907, 333 S.W. 2d 904 (1960):

‘The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. . . We are in danger of forgetting that a strong public desire to improve the public condition is not enough to.warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.’ ”

Likewise in Blundell v. City of West Helena, 258 Ark. 123, 522 S.W. 2d 661 (1975), we had before us a non-conforming use of a mobile home park. In stating the issue and in discussing the rights of a pre-existing business operation we stated:

“This appeal brings into sharp focus the conflict between private property rights and the right of municipal government to control the owner’s use of property. . . .

In construing the city ordinances and their effect, we must remember that zoning ordinances, being in derogation of the common law, must be strictly construed in favor of the property owner and that, under our constitution, the right of private property is regarded as before and higher than constitutional sanction. See City of Little Rock v. Williams, 206 Ark. 861, 177 S.W. 2d 924; Poole v. State, 244 Ark. 1222, 428 S.W. 2d 628; Art. 2, § 22, Constitution of Arkansas. Attempts to deprive the owner of a pre-existing use have been regarded as unconstitutional as a taking of property without compensation or in violation of due process of law. Silver v. Zoning Board of Adjustment, 435 Pa. 99, 255 A. 2d 506; Hoffmann v. Kinealy, 389 S.W. 2d 745 (Mo., 1965); McCaslin v. City of Monterey Park, 163 Cal. App. 2d 399, 329 P. 2d 522 (1958); City of Corpus Christi v. Allen, 152 Tex. 137, 254 S.W. 2d 759 (1953); O’Connor v. City of Moscow, 69 Idaho 37, 202 P. 2d 401, 9 ALR 2d 103 (1949). See City of Little Rock v. Sun Building & Development Co., 199 Ark. 333, 134 S.W. 2d 582. See also, Amereihn v. Kotras, 194 Md. 591, 71 A. -2d 865 (1950); People v. Miller, 304 N.Y. 105, 106 N.E. 2d 34 (1952).

It is widely recognized that a property owner has vested rights in a non-conforming use of his property. An apt articulation of the rule governing the vesting of such rights, as we apply it to the facts of this case, is found in the following language of the Kentucky Court of Appeals in Darlington v. Board of Councilmen, 282 Ky. 778, 140 S.W. 2d 392 (1940):

. . . The mere ownership of property which could be utilized for the conduct of a lawful business does not constitute a right to so utilize it (Cayce v. City of Hopkinsville. 217 Ky. 135, 289 S.W. 223) which cannot be terminated by the enactment of a valid zoning ordinance, as such a concept involves an irreconcilable contradiction of terms. It would seem, therefore, that the right to utilize one’s property for the conduct of a lawful business not inimicable to the health, safety, or morals of the community, becomes entitled to constitutional protection against otherwise valid legislative restrictions as to locality, or, in other words, becomes ‘vested’ within the full meaning of that term, when, prior to the enactment of such restrictions, the owner has in good faith substantially entered upon the performance of the series of acts necessary to the accomplishment of the end intended.”

When our prior decisions are considered in connection with the City’s finding that the existence of signs throughout the City were detrimental to its scenic resources and therefore to its economic base, we must conclude that the seven year provisions of the ordinance amortizing non-conforming on-site signs used in connection with a going business, that are not inimical to the health, safety or morals of the City, amounts to a taking of the appellees’ properties without just compensation therefor in violation of Art. 2 § 22, supra.

However, the prohibition against flashing or blinking signs falls within that area of police regulation that is exercised for the protection of the health and morals of the people, Thompson v. Wiseman. 189 Ark. 852, 75 S.W. 2d 393 (1934). On its face the portion of the ordinance prohibiting the use of flashing and blinking signs would appear to be a matter that could affect the safety or health of the City. To that extent we hold that the trial court erred in holding that the appellees had a vested right that was protected by Art. 2 § 22 supra.

Reversed in part.

George Rosf. Smith, Fogleman and Roy, JJ., dissent. Hickman, }., concurs.