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Prohibitions of portable signs as a
<br /> solution to the problem of"visual
<br /> -�jj D AI R blight"in a community have been
<br /> L7 V i P1 upheld by the courts.This sign,
<br /> i ;COLLARED C ON TA C_TS_F-OR like many portable signs, is more
<br /> -- I than just ugly—its-message is
<br /> f "lost"due to missing letters, a
<br /> missing decimal point, colliding
<br /> C1BA VI����NTS
<br /> ---FREE-- - i letters,and confusing terns.
<br /> The courts in many states follow the same reasoning and 844 F2d 172(4th Cir.1988),a challenge to a Durham,North
<br /> consider the same factors mentioned in this and previous Carolina, regulation prohibiting all commercial, off-
<br /> paragraphs.An ordinance using an amortization period of premises advertising signs and containing a five-and-one-
<br /> from three to five years,depending upon replacement cost of half-year amortization period was remanded by the Fourth
<br /> the sign,was attacked in Art Neon Co.v. City&County of Circuit Court of Appeals(the same court that upheld the Ra-
<br /> Denver,488 F.2d 118(10th Cir.1973),cert.denied,417 U.S. leigh provision in Major Media) for findings of fact con-
<br /> 932(1974).The court ruled that replacement cost was an un- cerning every aspect of the challenger s business—especially
<br /> reasonable basis upon which to give differing treatment to how each aspect would be affected by the ordinance.The
<br /> nonconforming signs. The court left intact the five-year district court had granted summary judgment approving the
<br /> period for all nonconforming signs and upheld the or- amortization period.The appellate court reminded the par-
<br /> dinance,except for the provisions requiring different amor- ties that the compensation required by the Fifth Amendment
<br /> tization periods based upon replacement costs. need not be paid in advance of or even contemporaneously
<br /> In Modjeska Sign Studios,Inc.,v.Berle,373 N.E.2d 255 with the taking, but only that a reasonable provision for
<br /> (NY 1977),the court viewed two issues as being paramount compensation exist.
<br /> in considering amortization provisions.The first concerns It is unclear at the time of publication what the ultimate
<br /> the length of the period in relation to the owners investment position of the Fourth Circuit,which has been friendly to
<br /> j in the sign.The second is whether the loss to the sign owner sign regulation, will be on this issue. The city won in the
<br /> is outweighed by the public gain to be achieved.In consider- lower court on a motion for summary judgment.The Court
<br /> ing loss to the owner,the court considered the amount of the of Appeals was clearly more sympathetic to the sign com-
<br /> owner's investment,whether or not the owner had realized pany's position than to toss it out of court without a trial(the
<br /> the investment, and the extent and nature, if any, of lease effect of a grant of summary judgment).It is also clear,how-
<br /> 1 commitments,including the existence of an escape clause for ever, that the appellate court viewed the takings claim as
<br /> the sign owner.7 premature. However, the court considered the case, par-
<br /> ' The objective of the courts is to strike a reasonable balance tially on its merits; apparently, the court perceived (un-
<br /> between the public and the private interest by preventing doubtedly correctly)that it would ultimately have to rule on
<br /> substantial losses to the owner but not requiring that the en- the issue anyway.
<br /> tire investment be recovered.A regulation containing amor- The critical factor in an amortization provision is clearly
<br /> tization provisions that are aimed at this balance and that its reasonableness in striking a balance between the interest
<br /> do, in fact, strike within its range will usually be upheld. of the general public and the interest of the affected owner.
<br /> Planners and public officials preparing or reviewing new An ordinance that prescribes a specific time period,contains
<br /> sign regulations should consider a provision that allows the an enumeration of the factors to be considered,and allows
<br /> local governing body to vary from the express amortization for some exception in cases of extreme hardship or substan-
<br /> iprovisions in cases in which strict application would result tial loss to the owner will most likely pass muster in the
<br /> in a substantial loss to the owner.Such a provision may pre- courts and still effectively further the interest of the public
<br /> j vent needless litigation or at least prepare each side to frame expressed in the new regulation.
<br /> the issue and fully set forth the pertinent facts.
<br /> ! In Naegele Outdoor Advertising,Inc.v. City of Durham, THE COURTS AND GENERAL SIGN REGULATIONS
<br /> I 7.See also Metromedia.Inc., v. City of San Diego 610 P.2d 407(Cal. Sign regulations addressing matters such as size,setback,
<br /> i 1980),rev'd,on other grounds;453 U.S.490(1981),upholding an amor-
<br /> structure, height, and number of signs are almost always
<br /> tization period of one to four years based upon the cost of the sign,less to upheld in the courts as being well within the police power of
<br /> jpercent for each year it stood prior to the enactment of the ordinance. local governments. Such regulations are content–neutral
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