Last Friday Michael Falick and Chris Rothfelder discussed vesting rights for billboard permits and whether local zoning codes can be pre-empted by a state code.  California out of home attorney Richard Hamlin of Hamlin|Cody says California approaches these issues differently…

Count on California to approach these subjects differently.

Vesting: Filing an application does not create a vested right. Obtaining a building permit does not create a vested right to build. Property owners must spend “substantial” amounts in reliance on the permit before any rights to build become vested. As one might expect, “substantial” will vary. To some extent, like obscenity, courts know substantial when they see it–or don’t.

Preemption: California has not only not passed a preemption statute, it has done the opposite. Several provisions of California’s Outdoor Advertising Act (“OAA”), which is in the Business and Professions Code, allow cities and counties to enact more restrictive regulations. For example:
-Sec. 5230 explicitly allows restrictions greater than those imposed by the OAA
-Sec. 5231 explicitly allows cities and counties to require licenses and permits in addition to those required by the OAA.
-Sec. 5408.3 explicitly allows cities and counties to impose spacing and size requirements that are stricter than those allowed by the OAA.

On the positive side, Sec. 5412 requires compensation for the compelled removal of a billboard that was legal when enacted. The section applies to non-conforming displays and to displays that have been allowed an amortization period. Sec. 5412.6 requires compensation if an agency compels removal of a display as a condition of a permit. (The courts have found that to take advantage of Sec. 5412.6, the operator must file a specific type of court case within sixty or ninety days of discovering the take-down condition, but we have successfully relied on this code section to remove a mandatory take-down condition.)

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