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3) The regulation reaches no further than necessary to ac- NONCONFORMING E SPECIAL SE GNOS complish the public purposes. Obviously,a community cannot obliterate nonconform- Communities defending sign regulations have justified ing signs through the simple enactment of a new set of sign them on the basis of the two public purposes identified regulations. To do so without full compensation to the above—traffic safety and aesthetics.Traffic safety is broadly owners is clearly a violation of the Fifth Amendment pro- accepted as a reasonable ground for sign regulation by scription on government taking of private property for courts. Some require proof of the traffic issues involved; public use without just compensation.At the same time,it others, including the U.S. Supreme Court, have basically is doubtful that the objectives of the new regulation can ever taken judicial notice of the traffic safety concerns of sign con- be achieved if nonconforming signs are allowed to remain. trots. The technique most often used to address this problem is Although some courts reject aesthetics as grounds for sign amortization.Amortization,as described in more depth at regulation,most,including the U.S.Supreme Court,also ac- the end of Chapter 1, is the process of permitting the non- cept these grounds for sign regulation.The aesthetic grounds conforming sign to remain for a specified period of time at for regulation have some advantage in proof because,with the end of which the sign must either be modified to conform any kind of reasonable study and findings,a community can with the ordinance or removed. urge that"beauty is in the eye of the beholder"and run lit- A significant majority of courts have found amortization tle risk of a court second-guessing the aesthetic findings. to be a constitutional means of addressing the problem of Certainly,the design and structural classifications of signs nonconformance. However, in some states, state statutes can be justified on both safety and aesthetic grounds.How- prohibit amortization of nonconforming uses, or noncon- ever, justifying content-based classifications on aesthetic forming signs in particular. and safety grounds is considerably more difficult and, in The basic legal issue is whether the amortization provi- most cases,probably impossible.The issue that most plan- sions of a particular regulation strike the proper balance be- ners and others drafting local sign regulations miss is that a tween public gain and private loss such that the purple-and-orange-striped.political sign is every bit as governmental action either does not amount to a taking or distracting to a driver and every bit as ugly to those who do the amortization period that allows the owner to recoup a not like purple and orange as a purple-and-orange-striped portion(or all)of his investment amounts to just compen- business sign at the same location. sation.The courts generally try to determine the reasonable- The aspects of signs that affect traffic safety and aesthetics ness of amortization provisions—whether they are are sign size,scale,height,location,material,lighting,color, constitutional,no matter how applied,and whether they are and motion, or lack thereof—not content. Thus, any ra- constitutional as applied in a particular situation.In deter- tional examination of the legal authority for sign regulations mining whether a provision is reasonable, courts look at suggests that any distinctions among sign types based on several factors, including the type or nature of the sign,its content are highly suspect on simple factual grounds.For ex- location,the extent to which the owner's business is affected, ample,in City of Lakewood v. Colfax Unlimited Associa- the cost of the sign,its salvage value and depreciated value, Lion, 634 P.2d 52 (1981), the Colorado Supreme Court its fair-market value, and its remaining useful life. struck down the Lakewood sign code as unconstitutional There is no rule of law that dictates how long the amor- because it found that the city had attempted to distinguish tization period must be.Periods ranging from three to five between signs that allowed listing of identification,location, years have generally been upheld. In Major Media of the product,and price information for a business,which were Southeast, Inc. v. City of Raleigh, 621 F.Supp. 1446 permitted in certain zones,and signs such as Help Wanted, (E.D.N.C.1985),Aff'd 792 F.2d 1269(4th Cir.1986),cert. which were prohibited in those zones.The court said: denied,107 S.Ct.1334(1987),the court upheld a five-and- We conclude that the relationship between the content regula- one-half-year amortization period. It rejected the owner's tions imposed on commercial advertising . . . and claim that the regulation would destroy the company,noting Lakewood's safety and aesthetic purposes is too attenuated to the extensive business the company had outside of the city justify the resulting infringement of First Amendment of Raleigh.It also considered the fact that the owner's leases freedoms.(634 P2d at 64) allowed for termination,without further obligation,in the event that governmental action forced removal of the sign. It is hazardous(if not fatal),in a legal sense,for a planner Using the exact same analysis,the court in Georgia Out- or public official defending sign regulations to testify that the door Advertising,Inc.,v. City of Waynesville,690 F.Supp. regulations were adopted to maintain traffic safety and com- 452(W.D.N.C.1988),ruled that a four-and-one-half-year munity appearance when this witness is unable to relate amortization period was insufficient.It ruled that the amor- those public'purposes to sign prohibitions that are based on tization period allowed for in the ordinance, which pro- sign content. hibited all billboards, did not prevent a taking of the sign In short,-in a well-litigated case,an attorney for the owner owner's property requiring just compensation.Another fact of a sign that falls into one of the less preferred,more heavily leading to the ruling was that the sign owner's lease did not regulated classes of signs can challenge local sign regulations allow termination and, in fact, required payment of rent by showing that the classifications in the regulations bear lit- beyond the amortization period.The court also decided that tle or no rational relationship to the stated purposes of the the sign owner's business might be destroyed by the regula- regulations. For totally separate reasons, the multiple tion.It was significant that the city offered no evidence that classifications of signs based on content complicates the en- the ban on billboards would further its interest in protecting forcement and administration of sign regulations as well. the health, safety, and welfare of its citizens. 22