Sign Amortization Laws: Insight into Precedent, Property, and Public Policy

• Author: Stephen Durden
• Position: Professor, Florida Coastal School of Law
• Pages: 891-922

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Introduction

When cities or counties enact zoning regulations, they seek to create a better city by regulating the use of property. Often, these regulations change the permitted use of property, making illegal a use of property that preexisted the regulation. Sometimes these regulations permit these preexisting uses to continue. These grandfathered uses may continue for many years. Some communities, impatient for change, require that preexisting signs be terminated immediately or at some date certain in the future. Governments often use this termination approach when the preexisting use is a sign. The effect of these ordinances is to require removal of preexisting signs.¹ Rather than require the immediate removal of signs, these laws usually amortize the signs,² permitting them to remain standing for a fixed period of time until they are required to be removed.³

For decades these ordinances and laws have been challenged as a violation of the First Amendment,⁴ and they are also challenged as a violation of the Takings Clause⁵ of the Fifth Amendment.⁶ Most courts reject these Takings Clause challenges. This Article investigates the current validity of these cases.

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The Supreme Court's 2004-2005 term ended with a trio of Takings Clause cases,⁷ Kelo v. City of New London being the most talked about. To oversimplify, the Court in Kelo held that the "public use" phrase of the Takings Clause meant "public purpose" and that "public purpose" included taking land from one person to transfer the land to another, as long as the transfer promoted the public good.⁸ This holding virtually eliminated the argument that the Takings Clause created a limitation on the purposes for which property may be taken. Similarly, in Lingle v. Chevron U.S.A., Inc.,⁹ the Court rejected an argument that the Takings Clause inherently restricts the purposes for which property may be regulated.¹⁰ In other words, a regulatory takings claim cannot be based solely on the lack of proper purpose. Each case can be cited for the proposition that the Court expanded government power, or at least made challenges to the use of that power more difficult. Certainly, each case apparently helped assure victory for the government.¹¹

The question raised by this Article is whether Lingle may provide the argument base for overruling decades of cases, ironically, in favor of the government. The question will be raised whether Lingle, sub silentio, overruled cases upholding the validity of sign amortization laws, in particular, and amortization laws in general.

This Article will (1) briefly overview Takings Clause jurisprudence; (2) state a paradigmatic fact pattern; (3) review how the Takings Clause has been applied to sign amortization codes by the United States Supreme Court; (4) review paradigmatic cases from Florida courts and federal courts with Florida jurisdiction; (5) discuss the precedential value of these cases; (6) discuss Lingle and whether it requires an overturning of this precedent; and (7) discuss whether failure to overturn these cases serves the purpose of precedential jurisprudence.

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I Takings clause summary

The Fifth Amendment provides that private property shall not "be taken for public use, without just compensation."¹² The guarantee provided by the Fifth Amendment is "designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole."¹³ This provision limits governmental power to take private property for public use; it conditions the use of that power.¹⁴ An important purpose of the Takings Clause is to ensure compensation for excessive governmental interference with private property rights.¹⁵

As with many provisions of the Constitution, the Supreme Court has declined to use the plain language of the Takings Clause as the sole basis for understanding the Clause.¹⁶ If the government takes actual or constructive physical possession¹⁷ of private property, the Supreme Court will generally require compensation be paid, but not always. The CourtPage 894 also requires payment of compensation where a government regulation is so oppressive that it effectively takes the property.¹⁸

A Actual Taking or Physical Invasions of Private Property for Public Use

The most identifiable¹⁹ form of compensable taking is eminent domain, i.e., "[t]he inherent power of a governmental entity to take privately owned property, esp[ecially] land, and convert it to public use, subject to reasonable compensation for the taking."²⁰ A prominent example of eminent domain is where the government takes land to build a road, building, or stadium, or perhaps to let private citizens create a new private development.²¹ Usually, when the government takes property for a public project it acknowledges that it is taking title to property and pays the owner the fair market value.²² Sometimes, however, the government essentially takes possession of property through a "practical ouster" of the owner's possession.²³ One example is "where real estate is actually invaded by superinduced additions of water, earth, sand, or other material, or by having any artificial structure placed on it, so as to effectually destroy or impair its usefulness, it is a taking, within the meaning of the Constitution."²⁴ The Court has found the smallest physical invasion of property to constitute a taking.²⁵

In Pumpelly v. Green Bay Co.,²⁶ the Court recognized that the government should not be able to avoid paying compensation by not takingPage 895 title.²⁷ Constitutional taking should not be, according to the Court, construed so narrowly that:

If the government refrains from the absolute conversion of real property to the uses of the public it can destroy its value entirely, can inflict irreparable and permanent injury to any extent, can, in effect, subject it to total destruction without making any compensation, because, . . . it is not taken for the public use.²⁸

On the other hand, the Court in the 19th Century expressly held that without physical invasion of some sort, there would be no compensable taking of property under the Fifth or Fourteenth Amendments.²⁹ In Transportation Co. v. City of Chicago,³⁰ the Court held that Chicago did not "take" a dock owner's property when the City blocked access by building a dam in front of his dock.³¹ The Court held that "acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking within the meaning of the constitutional provision."³²

B Regulatory Takings

By 1922, the Supreme Court had clearly eliminated the requirement that government must physically invade property before a court could find that the government took property, holding that property could be taken in a constitutional sense without an invasion.³³ According to the Court, a regulation can constitute a taking if the regulation goes "too far."³⁴ In Pennsylvania Coal Co. v. Mahon, the Court noted that making an activityPage 896 commercially impracticable to perform (i.e., mining coal) has the same constitutional effect as appropriating or destroying the coal to be mined.³⁵Thus, under Takings Clause jurisprudence, the economic impact of the regulation matters.

Takings jurisprudence did not go "too far" in the half century after Pennsylvania Coal. During that time, the Court regularly rejected takings claims even where regulations substantially devalued property.³⁶ Then, in 1978, the Court reawakened Pennsylvania Coal in Penn Central Transportation Co. v. City of New York,³⁷ a case won, ironically, by the government.³⁸ In that case, the Court identified several factors to be considered when determining if a restriction on the use of private property will be found to be invalid for failure to pay just compensation.³⁹ The factors included: (1) the economic impact on the property owner; (2) the extent to which the regulation interfered with the property owner's distinct investment-backed expectations; and (3) the character of the government action.⁴⁰ In a later case,⁴¹ the Supreme Court defined as a taking a "regulation [which] denies all economically beneficial or productive use of land."⁴² A taking will not be found if such a regulation permits reasonable, beneficial use of the property.⁴³ Additionally, the resulting restriction on use of the property must be substantially related to a legitimate public purpose.⁴⁴

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The Supreme Court found the substantial relation element lacking in Nollan v. California Coastal Commission,⁴⁵ and held that the California Coastal Commission (CCC) could not require the property owners to grant an easement parallel to the Pacific Ocean across the ocean side of their property as a precondition to...