Georgia Outdoor Advertising, Inc. v. City of Waynesville

900 F.2d 783, 1990 WL 41082
CourtCourt of Appeals for the Fourth Circuit
DecidedApril 11, 1990
DocketNo. 89-1005
StatusPublished
Cited by6 cases

This text of 900 F.2d 783 (Georgia Outdoor Advertising, Inc. v. City of Waynesville) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Georgia Outdoor Advertising, Inc. v. City of Waynesville, 900 F.2d 783, 1990 WL 41082 (4th Cir. 1990).

Opinion

WIDENER, Circuit Judge:

We address for the second time the constitutionality of a Waynesville, North Carolina, ordinance that could effectively prohibit all off-premise outdoor advertising signs in the city.

The district court initially granted summary judgment for Waynesville, determining that the ordinance was a proper exercise of the city’s police power that did not violate the first amendment or deny plaintiff due process of law. The district court declined, however, to address plaintiffs claim that the ordinance constituted a taking of property without just compensation in violation of the fifth and fourteenth amendments. We affirmed the district court’s decision in part and remanded for consideration of the takings claim. Georgia Outdoor Advertising, Inc. v. City of Waynesville, 833 F.2d 43 (4th Cir.1987) (Waynesville I). On remand, the district court concluded that the ordinance was unconstitutional on its face because it effected a taking of property without just compensation. Accordingly, the district court entered summary judgment for plaintiff and enjoined enforcement of the ordinance. Georgia Outdoor Advertising, Inc. v. City of Waynesville, 690 F.Supp. 452 (W.D.N.C.1988) (Waynesville II). We vacate the district court’s orders holding the ordinance invalid on its face and enjoining its enforcement, and remand for consideration of whether the ordinance accomplishes an unconstitutional taking as applied to Georgia Outdoor Advertising.

Because the facts are set forth fully in our earlier opinion, we repeat them here only as necessary to add clarity to our decision.

I.

Plaintiff asserted here, both at oral argument and in its brief, that it did not ask the district court to declare the Waynesville ordinance invalid on its face and that it does not read the district court’s opinion as doing so. Nevertheless, the complaint is reasonably read to ask for such a finding, and an examination of its opinion and orders reveals that the district court so held.

Although the district court discussed the impact of the ordinance on this particular plaintiff, it concluded that the ordinance “violates the Fifth Amendment as applied to the States by the Fourteenth Amendment in that it takes all of Plaintiff’s property without just compensation and is therefore unconstitutional as written.” Waynesville II, 690 F.Supp. at 458 (emphasis added). Consequently, in its Motion for a New Trial and for Amendment of Judgment, defendant urged the district court “that the Court should amend its judgment invalidating the ordinance and make its order applicable only to Plaintiff.” Instead, in its Amended Judgment the district court stated, "Defendant is enjoined from enforcing any part Section 116.10 or Section 116.-12 of Defendant’s Ordinance No. 24-85 as to off-premises signs within the Waynes-ville zoning jurisdiction.” Moreover, in the [785]*785Order filed simultaneously with its Amended Judgment, the district court reiterated that the ordinance “is therefore unconstitutional as written” (emphasis in original order in the district court). Finally, in an apparent attempt to provide some sort of guidance to the city, the district court enumerated five variations of sign ordinances, all of which would be somewhat less intrusive toward companies with existing signs, that the city “constitutionally, probably could [enact].” 690 F.Supp. at 458. It is apparent, therefore, that the district court determined that the “ ‘mere enactment’ ” of the ordinance unconstitutionally affected plaintiffs property rights. See Hodel v. Virginia Surface Mining & Reclamation Ass’n, 452 U.S. 264, 295, 101 S.Ct. 2352, 2370, 69 L.Ed.2d 1 (1981).

Before the provisions of a land use ordinance may be declared facially unconstitutional, “it must be said ... that such provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.” Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed. 303 (1926); see also Beacon Hill Farm Associates II Limited Partnership v. Loudoun County Bd. of Supervisors, 875 F.2d 1081, 1083-85 (4th Cir.1989) (recognizing Supreme Court’s reluctance to adjudicate constitutionality of land use ordinance as applied prior to its application to specific piece of land and noting heavy burden of persuasion that facial challenges to land use ordinances must carry). Therefore, if one seeks an injunction against the enforcement of a land use ordinance in general, to deny relief a court need only determine “that the ordinance in its general scope and dominant features ... is a valid exercise of authority, leaving other provisions to be dealt with as cases arise directly involving them.” Village of Euclid, 272 U.S. at 397, 47 S.Ct. at 121.

As this court already has determined, the enactment of the ordinance in question was a valid exercise of the city’s police power, even if the sole purpose of the ordinance was aesthetics. Waynesville I, 833 F.2d at 46. The district court’s orders granting summary judgment and enjoining enforcement on the ground that the ordinance is unconstitutional as written are therefore vacated.

II.

On two previous occasions this court has considered whether a city ordinance that restricted billboards effected an unconstitutional taking of private property without just compensation. In both cases a central issue was the existence in the ordinance of an amortization period. Simply stated, an amortization provision provides a period of time in which a new land use ordinance will not be enforced, during which time a property user either can make a use conform to the ordinance, or, if a user cannot or chooses not to conform, during which a user can recover all or a part of his investment before the use must be discontinued. The Waynesville ordinance here in issue contains an amortization provision of four years.

In Major Media of the Southeast, Inc. v. City of Raleigh, 792 F.2d 1269, 1270 (4th Cir.1986), cert. denied, 479 U.S. 1102, 107 S.Ct. 1334, 94 L.Ed.2d 185 (1987), we considered a Raleigh ordinance that severely restricted the size of off-premise signs and confined their location to certain industrial zones. The Raleigh ordinance contained a five and one-half year amortization period, after which any existing nonconforming signs had to be removed. Because the plaintiff had not presented sufficient evidence to create a triable issue of fact as to whether the ordinance constituted a taking of its property without just compensation, we affirmed a summary judgment for the city. 792 F.2d at 1274.

In Naegele Outdoor Advertising, Inc. v. City of Durham, 844 F.2d 172

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Bluebook (online)
900 F.2d 783, 1990 WL 41082, Counsel Stack Legal Research, https://law.counselstack.com/opinion/georgia-outdoor-advertising-inc-v-city-of-waynesville-ca4-1990.