1 From: Patterson, Alisha <[email protected]>
Sent: Monday, September 23, 2024 12:02 PM
To: City Council
Cc: Jarad Hildenbrand; Jennifer Lee; Chris Macon
Subject: Public Comment for September 24, 2024 Special City Council Meeting - Agenda Item 2 (Digital Freeway Billboard)
Attachments: Comment Letter for Sept 24_ 2024 Laguna Hills Special City Council Meeting.pdf *** City Councilmembers Blind-Copied for Brown Act Purposes *** Good aŌernoon Mayor Wheeler and Honorable Members of the City Council, Please find aƩached a comment leƩer on Agenda Item 2 for tomorrow’s Special City Council meeƟng. 2 Exploring the use of City-owned property at the Former Globe parcel (APN: 616-022-04) as a possible locaƟon for a Digital Freeway Billboard
RecommendaƟon: That the City Council receive the presentaƟon regarding digital freeway billboards and provide direcƟon to staff.
Please do not hesitate to reach out directly if you have any difficulty opening this aƩachment.
Alisha Patterson
18575 Jamboree Road, 9th Floor | Irvine, CA 92612
O. (714) 641-5100 | D. (714) 662-4663
[email protected] | www.rutan.com
_____________________________________________________
Privileged And Confidential Communication.
This electronic transmission, and any documents attached hereto, (a) are protected by the Electronic Communications Privacy Act (18 USC §§ 2510-2521), (b) may contain confidential and/or legally privileged information, and (c) are for the sole use of the intended recipient named above. If you have received this electronic message in error, please notify the sender and delete the electronic message. Any disclosure, copying, distribution, or use of the contents of the information received in error is strictly prohibited.
Public Comments
September 24, 2024
5:00p.m. CC Workshop
Item No. 2
Alisha Patterson
Direct Dial: (714) 662-4663
E-mail: [email protected]
September 23, 2024
Rutan & Tucker, LLP | 18575 Jamboree Road, 9 th Floor
Irvine, CA 92612 | 714-641-5100 | Fax 714-546-9035
Orange County | Palo Alto | San Fr ancisco | Scottsdale | www.rutan.com 2499/028509-0003
21148423.4 a09/23/24
VIA E-MAIL
Mayor Wheeler and Honorable Members of the
City Council for the City of Laguna Hills
Re: Digital Billboard at Former Globe Property (APN: 616-022-04) PUBLIC COMMENT FOR THE SEPTEMBER 24, 2024 CITY COUNCIL
SPECIAL MEETING
Dear Mayor Wheeler and Honorable Members of the City Council:
I have the privilege of serving as the contract City Attorney for the City of Laguna Woods.
As you are aware, on July 9, 2024, the City of Laguna Hills (the “City” or “Laguna Hills”) City Council heard an item titled “Council Members Heft and Caskey recommend that the City Council direct staff to explore the potential of a digital billboard at the former Globe Property (APN: 616- 022-04).” At this meeting, the City Council directed staff to return to the City Council by September 10, 2024, with analysis and review of multiple solutions and options for a digital billboard on the Globe Property (“Site”) or another location within the City. This letter outlines a number of concerns the City of Laguna Woods has regarding this proposal, including location restrictions, inconsistency with signage restrictions in the Laguna Hills Municipal Code (“LHMC”), and constitutional constraints of which the City Council should be aware before considering future action.
We ask that you treat this letter as a public comment for Item 2 on the September 24, 2024 City Council special meeting agenda.
Violation of the Outdoor Advertising Act
The Outdoor Advertising Act (“ODA”) regulates the use of advertising displays adjacent to any interstate highway or primary highway “to promote the public safety, health, welfare, convenience and enjoyment of travel, to protect the public investment in such highways, to preserve the scenic beauty of lands bordering on such highways, and to insure that information in the specific interest of the traveling public is presented safely and effectively.” (Business and Professions [“Bus & Prof”] Code § 5226.) As the Site is located adjacent to Interstate-5 (“I-5 Freeway”), any billboard on the Site is required to comply with the ODA.
As it relates here, under the ODA “no advertising display may be placed or maintained on property adjacent to a 1,000-foot or greater section of freeways that has been landscaped.” (Bus & Prof Code § 5440.) The California Department of Transportation (the “Department” or Mayor Wheeler and Honorable Members
of the City Council for the City of Laguna
Hills
September 23, 2024
2499/028509-0003
21148423.4 a09/23/24
“Caltrans”) determines what freeways are considered “landscaped freeways” under this section.
As shown on the Caltrans Active Permitted displays Map Viewer, the section of freeway adjacent to the Site is designated a landscaped freeway. City of Laguna Woods staff separately confirmed the same with Caltrans’ Classified Landscape Freeway Coordinator. Thus, pursuant to Bus & Prof Code § 5440 no advertising display is permitted on the Site.
Even if this stretch of the I-5 Freeway was not considered a landscaped freeway, or otherwise went through the lengthy process to decommission the landscaped designation, the Site location would still not be suitable for a billboard. The ODA prohibits an owner, or anyone acting on the owner’s behalf, to remove, cut, cut down, injure, or destroy a “tree shrub, plant, or flower growing on property owned by the [D]epartment that is visible from the highway without a permit issued pursuant to Section 670 of the Streets and Highways Code.” (Bus & Prof § 5403.) Here, there is a sizable tree on Caltrans-owned land that would directly block the sign for cars travelling southbound. This tree would block motorists from seeing the billboard until they were almost perpendicular with the freeway exit for El Toro Road. Thus, Caltrans would likely have to issue a permit to cut or remove the tree, which the Department is often reluctant to give, just so the sign could be viewed from a reasonable distance.
Ultimately, unless Caltrans decides to change the landscaped designation for this section of the I-5 Freeway, erecting a billboard at the Site would be a violation of State law and outside the purview and jurisdiction of Laguna Hills.
Laguna Hills Municipal Code/General Plan Restrictions
Not only is a billboard located on the Site1 prohibited by Caltrans and State law, it is also prohibited by Laguna Hills’ own municipal code and long range planning documents. For example, LHMC Section 9-42.030 and Table 9-42.030 provides a list of permitted and prohibited signs by City zoning district. Billboards,2
off-site signs,3 and pole signs4 are prohibited in all zones within the City. Additionally, LHMC section 9-42.260 prohibits several types of signs, including:
1 Or practically anywhere else in the City, as the landscaped designation runs the entire length of the I-5 Freeway adjacent to the City except for a small—approximately 1,000 foot—stretch immediately south of Lake Forest Drive.
2 “Billboard” is defined as a sign that directs attention to a business, commodity, service, or entertainment conducted, sold, or offered at a location other than the premises on which the sign is located.
3 “Off-site sign” is defined as: (1) any sign which is not located on the business or activity site it identifies or advertises; or (2) any billboard or off-premises sign. 4 “Pole sign” is defined as a sign that is mounted on a freestanding pole or other support so that the bottom edge of the sign face is six feet or more above grade.
Mayor Wheeler and Honorable Members
of the City Council for the City of Laguna
Hills
September 23, 2024
2499/028509-0003
21148423.4 a09/23/24
Flashing, moving, animated, and intermittently lighted signs and advertising devices including animals and human beings, excluding public service signs such as time and temperature signs and traditional barber shop poles. (9-42.260(A).) Off-site signs and other similar signs installed for the purpose of advertising a project, subject, or business unrelated to the premises upon which the sign is located, inclusive of billboards, but exclusive of garage/yard sale, open house signs, and noncommercial signs as permitted by this chapter. (9-42.260(F).) Pole signs exceeding six feet in height. (9-42.260(I).) Any sign or sign structure which is structurally unsafe or constitutes a hazard to the health, safety, or welfare of persons by reason of design, inadequate maintenance, or dilapidation. (9-42.260(O).)
Despite being prohibited, during the July 9, 2024 City Council meeting, several of these prohibited signs were discussed by the Council Members as potential options for the Site.
Even if such signs were permitted on the Site (or the City in general), they would create an unsafe hazard to the health, safety, or welfare of persons travelling the I-5 Freeway and Avenida De La Carlota, as well as those living or working in the surrounding area, in violation of LHMC section 9-42.260(O). First, billboards lead to unsafe travel conditions and distracted motorists.
This distraction is exacerbated when the sign has flashing images, changes color, or has rotating advertisements. Furthermore, as would be the case here, when a billboard cannot be viewed until extremely close up, due to being blocked by a tree and being located behind a large overhead freeway sign announcing the next off-ramp, motorists will be more inclined to take their eyes off the road and turn their head once they finally can see the billboard. It goes without saying, this is an extremely unsafe proposition and would cause significant traffic safety issues.
In addition to safety issues, billboards (and similar signs) result in diminished property values for the surrounding area as well as aesthetic concerns.5 This particular Site is located
adjacent to multiple residential uses and a church (APN 616-022-03). Seniors, children, and residential zones in general, are particularly sensitive to light, pollution, distracted motorists, and other negative effects created by the erection of a billboard in the area. Every precaution should be taken to avoid negative effects to these high risk or sensitive groups of people. 5 Several cases, including Metromedia, Inc. v. San Diego decided by the California Supreme Court, have held that traffic safety and aesthetic concerns are valid reasons for a city to ban billboards through the police power. (Metromedia, Inc. v. San Diego (1980) 26 Cal.3d 848, 860; see also Disney v. City of Concord (2011) 194 Cal.App.4th 1410, 1415-1416.) Mayor Wheeler and Honorable Members
of the City Council for the City of Laguna
Hills
September 23, 2024
2499/028509-0003
21148423.4 a09/23/24
Constitutional Restrictions
Underinclusive Zoning
Even if the City was able to remedy the above issues and rezone the Site to allow for billboards (or similar signs) on this one parcel, the City would likely face constitutional challenges, while also wholly undermining its justification for prohibiting billboards and off-site signs within other areas or zones of the City.
Restrictions on speech can violate the First Amendment on the basis that they are fatally “underinclusive.” (Metro Lights, L.L.C. v. City of Los Angeles (9th Cir. 2009) 551 F.3d 898, 904.) Restrictions are “unconstitutionally underinclusive when they contain exceptions that bar one source of a given harm [e.g., billboards generally] while specifically exempting another [e.g., a specific type of billboards or billboards in a particular location] in at least two situations”:
1. The restriction does not “materially advance its aim” if it contains an exception that ensures the restriction will “fail to achieve [its] end”; and
2. The restriction makes distinctions among different kinds of speech without explaining how the distinctions relate to the “substantial governmental interest” the governmental entity seeks to advance.
(Metro Lights, L.L.C. v. City of Los Angeles (9th Cir. 2009) 551 F.3d 898, 906; see also City of Ladue v. Gilleo (1994) 512 U.S. 43, 52 [a regulation can be unconstitutional if it “diminish[es] the credibility of the government’s rationale for restricting speech in the first place.”].) The City’s interest in increasing sales tax revenues (or any other purely economic interest) does not amount to the “substantial governmental interest” that justifies an exception to the prohibition against off-site signs and billboards. Such justification would effectively put a price on the ability to exercise one’s First Amendment rights, which is strongly disfavored by the courts. (See Metro Lights, L.L.C. v. City of Los Angeles (9th Cir. 2009) 551 F.3d 898, 913-914 [“Certainly the government cannot silence one speaker but not another because the latter has paid a tax, even though it could constitutionally silence both.”].) Ultimately, the City should expect constitutional challenges to the extent it plans to permit billboards on the Site, while still prohibiting them elsewhere in the City.
Content-Based Restrictions
In addition to challenges that would prohibit the City from erecting the billboard entirely, there are also content restrictions in which the City would have very limited discretion to control what advertisements are placed on any future billboard. The Supreme Court has held that content- Mayor Wheeler and Honorable Members
of the City Council for the City of Laguna
Hills
September 23, 2024
2499/028509-0003
21148423.4 a09/23/24
based restrictions are presumptively invalid. (Reed v. Town of Gilbert, Ariz. (2015) 135 S.Ct. 2218, 2226.) This is because they are subject to the “strict scrutiny” standard of constitutional review, which places the burden on the governmental entity to establish the restriction is “narrowly tailored” to serve a “compelling governmental interest.” (Ibid.) The “strict scrutiny” standard also applies to content-based exceptions to an otherwise content-neutral restriction. (Metromedia, Inc. v. City of San Diego (1981) 453 U.S. 490, 512-517) (opinion of White, J.); City of Ladue v. Gilleo (1994) 512 U.S. 43, 51.) Two general rules are that: (1) a regulation may distinguish between commercial and noncommercial speech, provided noncommercial speech is afforded more protection than commercial speech, and (2) a regulation may distinguish between onsite and offsite advertising. (Metromedia, supra, 453 U.S. at 506, 511.) Otherwise, a governmental entity may not “restrict expression because of its message, its ideas, its subject matter, or its content.” (Reed, supra, 135 S.Ct. at 2226.)
Content-based regulations generally fall into two categories: (1) regulations that “on their face” draw distinctions based on the topic discussed (i.e., subject matter) or the idea or message expressed (i.e., viewpoint); and (2) regulations that cannot be justified without reference to the content of speech or that were adopted because of disagreement with the message being conveyed. (Id., at 2226-2227.) Both categories are presumptively invalid.
At your July 9, 2024 meeting, some Council Members questioned what the City could control in terms of content of the off-premises advertisements on the billboard. The answer is: not very much.6
If the City chose to allow commercial advertising, it would be required to allow such advertising irrespective of whether the City or individual Council Members disagreed with the particulars thereof (e.g., although the City does not allow cannabis retail businesses to operate from fixed locations within its jurisdiction, there would be no statutory basis to disallow their advertising on billboards; there are also a myriad of ways that adult businesses might lawfully advertise their products and services without rising to a level of impermissible obscenity).
Speaker-Based Restrictions
Like content-based regulations, restrictions that “disfavor[] specific speakers” are presumptively invalid. (Sorrell v. IMS Health Inc. (2011) 131 S.Ct. 2653, 2663, 2664 [“The law on its face burdens disfavored speech by disfavored speakers”].) Restricting (or allowing) speech based on who is speaking is a form of viewpoint discrimination. Any provision that purports to restrict rights based on which speaker seeks to exercise them are likely unenforceable. 6 There is a narrow exception to this general rule, where the City is not required to permit advertising that is untruthful/misleading, obscene, or intended to incite violence.
Mayor Wheeler and Honorable Members
of the City Council for the City of Laguna
Hills
September 23, 2024
2499/028509-0003
21148423.4 a09/23/24
Conclusion
There are several difficult barriers that would need to be navigated for a billboard (or related sign) to be placed on the Site or elsewhere in the City. Additionally, even if the City can navigate these barriers and decides to move forward with a billboard on the Site, challenges by third parties are likely. We respectfully request the City Council consider these concerns carefully as it deliberates whether to proceed with this proposal.
Very truly yours,
RUTAN & TUCKER, LLP
Alisha Patterson
City Attorney for the City of Laguna Woods
AP
cc: Via email:
Jennifer Lee, City Clerk for the City of Laguna Hills
Jarad Hildenbrand, City Manager for the City of Laguna Hills Christopher Macon, City Manager for the City of Laguna Woods Mayor Hatch and Honorable Members of the City Council for the City of Laguna Woods