BILL ANALYSIS
SENATE TRANSPORTATION & HOUSING COMMITTEE BILL NO: sb 1470
SENATOR ALAN LOWENTHAL, CHAIRMAN AUTHOR: leno
VERSION: 4/6/10
Analysis by: Jennifer Gress FISCAL: yes
Hearing date: April 13, 2010
SUBJECT:
Outdoor Advertising Act (OAA): lawfully erected signs
DESCRIPTION:
This bill makes more precise the definition of "lawfully
erected" signs and provides that a civil action may be taken
against the owner of an unlawfully erected sign for the
disgorgement of revenues and for civil penalties not to exceed
$2,500 for each day a sign is not in compliance with the law.
ANALYSIS:
The Outdoor Advertising Act (OAA) regulates the placement of
advertising displays adjacent to and within 660 feet of
interstate or primary highways. The OAA regulates the size,
illumination, orientation, and location of advertising displays
and, with some exceptions, specifically prohibits any
advertising display from being placed or maintained on property
adjacent to a section of highway that has been landscaped.
The OAA defines lawfully erected signs as advertising displays
that were erected in compliance with state laws and local
ordinances in effect at the time of their erection or that were
not erected in compliance but have subsequently been modified to
become so. Signs that are not lawfully erected include those
erected in a way that did not meet the laws, ordinances, or
regulations governing advertising displays at the time the
display was erected or signs whose "use" was subsequently
altered in a way that causes the display not to meet those laws
currently.
Advertising displays that were not lawfully erected are deemed
to be lawful if a government entity did not provide written
notice to the sign owner that the display was unlawful within
five years of the display being erected. This provision of law
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is known as a "rebuttable presumption." Under existing law, an
entity ordering the removal of a sign that was, at one time,
unlawfully erected but under the rebuttable presumption is
considered lawful, is required to pay the sign owner just
compensation for the removal of the display.
As a general principle, entities that require the removal of any
advertising display anywhere in the state (not just within 660
feet of the highway) that was lawfully erected, including those
deemed lawful under the rebuttable presumption, are required to
pay the sign owner just compensation to do so. This is true
even if a display is nonconforming. Nonconforming signs, as
opposed to unlawful signs, are those that were erected in
conformance with the laws or regulations in effect at the time
the display was erected but that do not meet the laws or
regulations currently in place because of a change in law,
ordinance, or regulation.
Upon the erection or alteration of a sign, an owner must obtain
a building permit. If a display does not have a valid,
unrevoked, or unexpired permit, the following penalties shall be
assessed:
$100 for an advertising display that is placed in a location
permitted by law.
$10,000 for an advertising display that is placed in a
location not permitted by law or local ordinances and is not
removed within 30 days of written notice from the entity with
jurisdiction over the property upon which the display is
located, plus $100 for each day the advertising display
remains in place after the 30 days lapse.
Existing law also provides for the disgorgement of gross
revenues that are received by or owed to a sign owner for an
unauthorized advertising display.
This bill :
Adds precision to the definition of "lawfully erected" in the
following ways:
o Specifying that changes to a sign's "height,"
"orientation," "size," and "technology" may cause a sign to
become unlawful,
SB 1470 (LENO) Page 3
o Specifying that a sign that is brought into compliance
with existing laws must be "maintained in" compliance in
order to be deemed lawfully erected, and
o Specifying that a sign must meet its building permit
requirements in order to be considered lawfully erected.
Permits the Attorney General, any district attorney, county
counsel, city attorney, or city prosecutor to bring a civil
action against an owner whose sign is unlawfully erected or
altered for the disgorgement of revenues the sign owner
collected while the sign was out of compliance, even if the
sign was subsequently brought into compliance, and makes the
sign owner liable for civil penalties not to exceed $2,500 for
each violation of any state law, local ordinance, or building
permit requirement for each day the sign is in violation.
Identifies how the moneys collected through successful
enforcement actions shall be distributed.
Specifies that the penalties established by the bill shall be
in addition to any criminal, civil, or other legal remedy
established by law and provides that an agency bringing an
enforcement action against a sign owner may request the court
to award the agency its enforcement costs.
COMMENTS:
1.Purpose . According to the author, the proliferation of
illegal outdoor advertising where sign owners have erected new
signs or modified existing signs without the proper permit and
in violation of laws in effect at the time has gone unchecked
for too long. California cities have limited compliance and
inspection resources and many, including the City of Los
Angeles and the City of San Francisco, utilize the citizen
complaint process for code enforcement. The City of San
Francisco has only three inspectors searching the city for
sign compliance and the City of Los Angeles has six sign
inspectors for a city that contains 468 square miles and
10,000 outdoor advertising displays.
The Los Angeles City Attorney's Office, the sponsor of this
measure, asserts that current law, by requiring payment of
just compensation if a government entity requires removal of a
sign, protects sign owners who did not erect their signs in
accordance with state and local laws in effect at the time of
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their erection or who subsequently modified their signs in
violation of their building permit.
Furthermore, because existing law allows signs that are out of
compliance with permit requirements to be brought back into
compliance, existing law encourages sign companies to ignore
existing codes to maximize profit knowing that the best a
governmental entity can do is force them to bring the sign
into compliance with the code.
The author argues that there is a need to ensure that laws
protecting the visual landscape can be enforced in a manner
that will dissuade sign companies from failing to comply with
permitting requirements that exist to protect the public from
unsafe and unfair construction.
By narrowing the definition of "lawfully erected" and
establishing civil remedies, this bill provides a stronger
disincentive from erecting or altering a sign in a manner that
causes it be illegal. In doing so, this bill will help to
protect the visual integrity of communities.
2.Narrowing the definition of "lawfully erected." The changes
to the definition of "lawfully erected," though modest, help
government entities enforce against a sign owner who erects or
modifies a sign illegally by making more explicit those
actions that may make a sign illegal.
The first change is to clarify that a sign must be in
compliance with its building permit requirements, not simply
state law or local ordinance, in order to be deemed lawfully
erected. A building permit, while generally governed by laws
and ordinances, may include specific conditions regarding the
placement or use of the sign that are not necessarily
articulated in a law or local ordinance. Such conditions
often depend on the specific features of the location where
the sign owner plans to erect the sign. A government entity
might require, for example, a sign to be oriented in a
particular direction so as to minimize the impact of the sign
on nearby residences.
Second, this bill specifies that if a sign was not erected in
compliance with laws and ordinances in effect at the time it
was erected but was subsequently brought into compliance, the
sign may only be deemed lawful if it is maintained in
compliance. This provision intends to deal with the situation
where a sign owner, upon notice that a sign is unlawful,
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brings a sign into compliance only to modify it again,
sometimes days later. The addition of "maintained," however,
only applies to those signs that were not erected in
compliance with laws in effect at the time the sign was
erected but were subsequently brought into compliance. It
does not apply to signs that were erected in compliance with
laws in effect at the time they were erected but were
subsequently altered in a manner that caused them to become
out of compliance. To deal more fully with the problem of
modifying signs illegally, the committee may wish to consider
an amendment to stipulate that signs that were erected in
compliance with law at the time they were erected must also be
"maintained" in compliance.
Finally, by specifying that alterations to the "height,"
"orientation," "size," and "technology" of a sign may cause
it to become illegal, this bill removes ambiguity that may
give rise to claims that while a sign may have been altered,
its "use" remains in compliance with existing law.
3.Anywhere in the state . The OAA generally applies to the
placing of signs within 660 feet of the highway right-of-way,
including the provisions for penalties and disgorgement in
existing law. Provisions contained within the OAA regarding
the removal of lawfully erected signs and payment of just
compensation, however, apply to signs anywhere in the state.
Because this bill deals, in part, with creating penalties for
unlawfully erected signs, the sponsor has structured the bill
such that the civil penalties and disgorgement established
therein would also apply to signs located anywhere in the
state.
4.Previous legislation . This bill attempts to deal with the
same problem as two previous bills - SB 690 (Leno) in 2009 and
SB 563 (Ridley-Thomas) in 2007. Having met resistance with
each attempt, the approach taken in each of these three
measures has been increasingly modest. SB 563 went the
furthest, substantially narrowing the definition of "lawfully
erected," including deletion of the rebuttable presumption,
and allowing for the removal of unlawful signs without payment
of just compensation, among other provisions. Following
passage by this committee, SB 563 was re-referred to the Rules
Committee to work out additional issues where it ultimately
died.
Starting where SB 563 left off, SB 690 made smaller changes to
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the definition of "lawfully erected," limited the rebuttable
presumption to signs erected prior to 1984 (when the
rebuttable presumption first went into effect), and allowed
for removal of unlawful displays without compensation. That
bill passed this committee last year 6-4. When considering
the bill, the Judiciary Committee requested amendments that
would have applied the rebuttable presumption to signs placed
as recently as 1994 and required a government entity to
provide notice to sign owners so that they may have an
opportunity to bring their signs back into conformance with
existing laws. These amendments were unacceptable to the
author and the sponsor, and the bill remained in that
committee.
Unlike the previous two bills, this bill does not remove the
rebuttable presumption or provide new authority to remove
signs without payment of just compensation. Instead, it makes
smaller changes to the definition of "lawfully erected" and
provides for civil penalties and disgorgement of revenues for
unlawful signs.
5.Double-referral . This bill is double-referred to this
committee and the Judiciary Committee. If this bill is passed
in this committee, it will therefore be referred to the
Judiciary Committee. If the author or the committee requests
that amendments be adopted when this bill is heard in this
committee, the amendments should be taken in the Judiciary
Committee so that the bill may be heard in that committee on
April 20th.
POSITIONS: (Communicated to the Committee before noon on
Wednesday,
April 7, 2010)
SUPPORT: Los Angeles City Attorney's Office (sponsor)
OPPOSED: None received.