Pallco Enterprises v. City of West Hollywood

Filed 3/28/07 Pallco Enterprises v. City of West Hollywood CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment and order of the Superior Court of Los Angeles County, Norman P. Tarle, Judge, and Jacqueline A. Connor, Judge. Affirmed.

Law Office of John David Pereira and John David Pereira for Plaintiffs and Appellants.

Dapeer, Rosenblit, & Litvak, William Litvak and Lisa A. Vidra for Defendant and Respondent.

________________________

INTRODUCTION

Plaintiffs Pallco Enterprises, Inc. (dba Orion Outdoor Media), Pallco Outdoor LLC (both individually and collectively, Pallco), and David Shane (Shane) appeal from a judgment for a permanent injunction against them prohibiting the placement of off-site advertising[1]on a pole sign on Shanes commercial real property located within the boundaries of defendant City of West Hollywood. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In or about 1962, Shane obtained a permit for and constructed a sign in front of a commercial office building he owned at 8752 Sunset Boulevard. The sign was two-sided, with dimensions of 20 feet by 20 feet, erected on a pole that is 14 feet high. At the time of sign construction, the office building and sign were in an area of Los Angeles County zoned C-2, Neighborhood Business, pursuant to section 257 of the Los Angeles County Zoning Ordinance (LAC ordinance). Section 257, subdivision (e), authorized outdoor advertising in a C-2 zone, subject to a specific exception not applicable to the Shane sign. The notation of legislative history following subdivision (e) read as follows: Add. by Ord. 5812 . . . to permit outdoor advertising (i.e. billboards) in Zone C-2. In the LAC ordinance, there was no differentiation of or express reference to on-site or off-site advertising or signs.

In 1984, the City of West Hollywood (City) incorporated. Shanes office building and sign were within the boundaries of the City. About 1986, the City adopted its first municipal code and zoning ordinance. The Citys first zoning ordinance did not allow off-site signs except in limited circumstances with a permit. The ordinance also did not allow pole signs.

Beginning in 1975 until sometime in 1990, Thrifty Rent a Car (Thrifty) leased storefront space in Shanes office building. The lease included use of the pole sign. Thrifty used the pole sign to identify and otherwise advertise its car rental business at the location. From the time of the signs construction until Thrifty leased the space and sign, Shane owned and operated Hav-a-Kar, an automobile renting and leasing business, in the building and used the pole sign to identify and otherwise advertise Hav-a-Kar. After Thrifty vacated the building space about 1990, Shane leased the space, with the sign, to Laurent & Daniel, a realty company. Laurent & Daniel applied for a sign permit from the City, and used the sign to identify and otherwise advertise its business. After Laurent & Daniel vacated the building space in 1993, Shane leased the space, with the sign, to Kenneth Cole-New York. Kenneth Cole applied for and was granted creative sign permit #93-07 to utilize the sign for its unique advertising campaign and identify its business at the location.

During the time of the Kenneth Cole tenancy, in July 1996, the City inventoried the off-site advertising billboards on Sunset Boulevard and adopted the Sunset Specific Plan (SSP) to regulate them. Goals of the SSP were to encourage maintenance of the existing billboards on Sunset Boulevard, to regulate placement of future billboards, and to prevent the use of billboards that detracted from the aesthetic appearance of the Sunset Strip. Shanes sign was not included in the approved billboard inventory under the 1996 SSP.

Kenneth Cole vacated the building space at the expiration of its lease at the end of 2003. No new tenant has occupied the building space since that time. Shane testified in his deposition that from the time of the signs construction in 1962 until December 2003, the advertising on the sign pertained to the business operating out of the building space, and never displayed off-site billboard-type advertising.

After Kenneth Cole vacated, Shane leased only the sign to Pallco. On February 20, 2004, Pallco installed an off-site advertisement for a new film, Secret Window. Soon thereafter, on or about March 2, 2004, a City code compliance officer issued a citation to plaintiffs for displaying off-site advertising without a permit. Subsequently, the City cited plaintiffs two additional times. Plaintiffs then filed an administrative appeal with the City, but refused to pay the deposit that was required under the Citys code. Plaintiffs filed a complaint for declaratory relief against the City on March 29, 2004.[2] The City filed its cross-complaint for declaratory and injunctive relief on May 4, 2004. On July 15, 2004, the trial court granted the Citys motion for a preliminary injunction, and enjoined off-site advertising on the sign during the pendency of this action. As a result, the sign has had no advertising on it, and has been blank, since late July 2004.

The case was tried before the court on March 8-9, 2005. At the close of the trial, the court took the matter under submission. On June 24, 2005, the court issued its statement of decision, finding that City was entitled to injunctive relief, in that plaintiffs did not have the necessary permit that allowed them to display off-site advertising. Judgment was entered on July 21, 2005, permanently enjoining plaintiffs from using the sign for off-site advertising. Plaintiffs subsequent motion for a new trial or to set aside the judgment was denied by order issued September 7, 2005. On September 23, 2005, plaintiffs filed a notice of appeal from the judgment and the order denying plaintiffs motion for a new trial.

DISCUSSION

Plaintiffs contend that construction of section 257 of the LAC ordinance as either permitting or prohibiting off-site advertising in the C-2 zone is the threshold issue, and if this court determines section 257 prohibits off-site advertising, the remainder of the appeal is moot. As our discussion below will show, we conclude that the construction of LAC ordinance section 257 is not determinative as to the judgment or our decision on appeal. The central question is whether plaintiffs were in violation of the Citys requirement for a permit for use of the sign for off-site advertising. At the time the City issued the zoning violation citations to plaintiffs, the WHMC specified that off-site advertising signs were prohibited unless they met specific requirements, one of which was a sign permit.[3] (WHMC,  19.34.090, subd. (A)(4);  19.34.080 and subd. (C).) Pursuant to WHMC section 1.08.010, subdivision (h), violation of the off-site sign provisions of the WHMC constituted a public nuisance subject to abatement. The parties did not dispute that the sign was being used at that time for off-site advertising and that plaintiffs had not obtained a permit from the City for such use.

Plaintiffs contend, however, that they had a sufficient permit, specifically, Shanes permit for the pole sign in a C-2 zone issued in 1962 pursuant to the LAC ordinance (LAC permit). Whether the LAC permit authorized off-site advertising does not affect the outcome of the instant case. The issue is whether the trial court properly found that plaintiffs use of the sign for off-site advertising did not qualify as a nonconforming use. As explained more fully below, the factors key to resolving the issue are the type of use being made of the sign when the WHMC zoning ordinance became effective and whether that type of use was authorized by the LAC permit, that is, was a lawful use. (Hill v. City of Manhattan Beach (1971) 6 Cal.3d 279, 285.)

Pursuant to applicable zoning law, if plaintiffs use of an off-site sign constituted a nonconforming use, the sign would have qualified for exemption from the WHMC permit requirement for off-site signs. The constitutionality of the principle of zoning and nondiscriminatory reasonable enforcement of a restrictive zoning ordinance is well settled. (Hill v. City of Manhattan Beach, supra, 6 Cal.3d at p. 285.) It is also well established that a legal use already being made of property prior to the effective date of a new zoning ordinance may continue thereafter as a nonconforming use. (See Morris v. City of Los Angeles (1953) 116 Cal.App.2d 856.) The California Supreme Court stated that [a] nonconforming use is a lawful use existing on the effective date of the zoning restriction and continuing since that time in nonconformance to the ordinance. (Hill, supra, at p. 285.) Based upon the hardship and doubtful constitutionality of compelling the immediate discontinuance of nonconforming uses, zoning ordinances ordinarily include a provision permitting the continuance of a nonconforming use until a specified expiration date.[4] (City of Los Angeles v. Gage (1954) 127 Cal.App.2d 442, 454-455.)

In the instant case, therefore, the determinative factor is the lawful use being made of the sign at the time the WHMC zoning ordinance became effective. (Hill v. City of Manhattan Beach, supra, 6 Cal.3d at p. 285.) Substantial evidence supports the trial courts finding that plaintiff Shane used the sign only as an on-site sign, and not as an off-site sign, from the time he obtained the LAC permit in 1962 and continuing for years after the WHMC zoning ordinance became effective.

The WHMC zoning ordinance differentiates between an on-site sign and an off-site sign. In Metromedia, Inc. v. City of Pasadena (1963) 216 Cal.App.2d 270, outdoor advertising businesses challenged the constitutionality of a similar zoning ordinance that classified sign advertising as point-of-sale (i.e., on-site) and non-point-of-sale (i.e., off-site). Based upon the classification, the City of Pasadena had required the businesses to remove their nonconforming signs. Upholding the ordinance as constitutional, the appellate court noted the significant difference between on-site signs and off-site signs: [T]he on-site sign is but a part of, and wholly incidental to, the business conducted upon the site and which [business] the ordinance has properly determined to be permissible in that district. Off-site signs, on the contrary constitute a wholly distinct business . . . , itself subject to district zoning. (Id. at p. 275, quoting National Advertising Co. v. County of Monterey (1962) 211 Cal.App.2d 375, 379-380.) A change in use that is similar to the use at the time the zoning ordinance was adopted may qualify as a continuing nonconforming use. (Hansen Brothers Enterprises, Inc. v. Board of Supervisors (1996) 12 Cal.4th 533, 552.) Plaintiffs change of the signs use from an on-site sign to an off-site sign was more than a minor change in an existing nonconforming use, and the new use did not constitute a continuing nonconforming use. (Hill v. City of Manhattan Beach, supra, 6 Cal.3d at p. 285.) Nonuse also does not qualify as a nonconforming use. (Id. at p. 286.) Plaintiffs nonuse of the sign for off-site advertising at the time the WHMC zoning ordinance became effective precludes its subsequent use for off-site advertising from being deemed a permissible nonconforming use.

Plaintiff contends the trial court incorrectly interpreted and applied Hill v. City of Manhattan Beach, supra, 6 Cal.3d 279 to conclude that Shanes failure to use the sign for off-site advertising prior to the Citys zoning ordinance becoming effective is fatal to plaintiffs claim of a right to a lawful nonconforming use of the sign for off-site advertising years later. We agree with the trial courts interpretation and application. The difference in Hill from the instant case is factual as to the type of property involved and its use, but the legal principles are unchanged. In Hill, the court held that a zoning ordinance properly limited the use the owner could make of a parcel of real property and that the City did not abuse its discretion in applying the ordinance to deny the owner a zoning variance. (Hill, supra, at p. 285.) The court indicated that the obstacle was that the owner made no legal nonconforming use of the parcel, such as separately improving it or recording it as a lot, prior to the effective date of the zoning ordinance, and therefore, no nonconforming use existed on that date. (Ibid.) In the instant case, as in Hill, the applicable principle is that nonuse is not a nonconforming use. (Id. at p. 286.)

We conclude that the trial courts finding that plaintiff did not have a permit, based on either a nonconforming use under plaintiffs LAC permit or on any record of plaintiff obtaining a permit from the City, is supported by substantial evidence. (Shapiro v. Board of Directors (2005) 134 Cal.App.4th 170, 178-179.) Thus, the use of the sign was in violation of the WHMC, and pursuant to section 1.08.010, subdivision (h), the sign constituted a public nuisance requiring abatement by permanent injunction.

Plaintiffs also challenged a discovery order granting defendants motion to quash notice in lieu of subpoena dated February 28, 2005. In their opening brief on appeal, plaintiffs explain that they sought discovery of the billboard permits for the billboards that were legal within the SSP in order to show that most, if not all, of the signs on the Citys billboard inventory had the same type of permit issued to Mr. Shane [by the County of Los Angeles] in the C-2 zone without reference to ad copy which supported an inference that County of Los Angeles did not restrict ad copy content prior to Citys incorporation. We have determined that the judgment is to be affirmed on the basis discussed above unrelated to whether LAC ordinance section 257 and permits issued thereunder authorize not only on-site signs, but also off-site signs. Accordingly, plaintiffs challenge of the discovery order is moot, and we decline to consider the issue. (City of Lodi v. Randtron (2004) 118 Cal.App.4th 337, 363.)[5]

The judgment is affirmed.

NOT TO BE PUBLISHED

SPENCER, P. J.

We concur:

MALLANO, J.

ROTHSCHILD, J.

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[1] West Hollywood Municipal Code (WHMC) section 19.90.020, subdivision A, defines an off-site sign as [a] sign identifying a use, facility, service or product that is not located, sold, or manufactured on the same premises as the sign or which identifies a use, service, or product by a brand name which, although sold or manufactured on the premises, does not constitute the principal item for sale or manufactured on the premises. There is no express definition for on-site sign. It may be reasonably inferred, however, that an on-site sign is a sign identifying a use, facility, service or product that is located, sold, or manufactured on the same premises as the sign and not otherwise within the definition of off-site sign.

[2] In count I, plaintiffs sought a declaration that the LAC permit did not prevent off-site advertising and did not, as city contended, restrict off-site advertising. The trial courts judgment for the City on count I is the subject of this appeal. Plaintiffs also requested a declaration in count II that Citys requirement that plaintiffs pay the amount of the fine on the citations, that is, $10,050.00, as a condition of obtaining an administrative hearing on the citations was unconstitutional. The trial court granted relief under count II. City did not appeal from the judgment.

[3] We note that billboards in the SSP inventory are not included in the list of exemptions from sign permit requirements in WHMC section 19.34.110, and that the SSP includes procedures for obtaining permits for legalization as well as enlargement and replacement of existing billboards. Thus, they are contrary to plaintiffs contention that billboards on Sunset Boulevard were made legal in 1996 through the enactment of the SSP, implying that no WHMC off-site sign permits were required for billboards on the SSP inventory.

[4] In the instant case, WHMC section 19.72.040, subdivision D, required that a nonconforming sign be removed by May 2, 2004.

[5] Plaintiffs raised no issues on appeal regarding the September 7, 2005 post-judgment order denying plaintiffs motion for a new trial, and thus, all issues regarding the order are deemed waived. (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6; Tiernan v. Trustees of Cal. State Univ. & Colleges (1982) 33 Cal.3d 211, 216, fn. 4.)