i was struck by how different both procedural and factual situation is in the case that we could see and hear coming from the city of goma the original city of beaumont signed ordinance the one thing you won't find in any of the city's briefs  lower court or here is any pretense that it was constitutional it was in oregon that said said if the city planner liked signs like your signs you can have them the city planner didn't like your signs you can't have them period we're here today on a motion to dismiss that was granted so there is no after the fact that the ration is no evidence he wanted to be rice and it was in the original complaint and what's interesting about it is the timing of our case is different than i understand the timing to be of the other cases we apply for permits were denied and we appealed that through the proper process we were denied they had we filed the lawsuit we prevail in the first amendment claims because only in genie give me your strongest argument i made a right to when i was a lesson you know billboards are used contrary to what to the city's attorney has argued billboard companies put up noncommercial messages as well as commercial and we were deprived of our right to do either for those people who live in say you know in any city they see all sorts of billboards ranging from you know tacky to charitable messages that the billboard companies themselves are funding under the discretion of bowman's exercise my client was deprived of putting out any of those types of messages and unlike the other cities if you look at the records page one seventy nine and one eighty which is the planning commission report and what struck me there is we're not we were not in the city at the time we applied that said we want no more billboards on page one seventy nine of the record it talks about how they wanted to put signs up at the bottom of sentences that proposal combined with prior signs approved recently by the city council would result in but berman had just to prove signs we don't even know when this record when those applications were made they may have been made before and after my client applied but what we do know is that at the time my client applied beaumont was allowing signs we also know from this report and this is literally these two pages are the only thing outside the pleadings and the ordinances themselves that we handle that at least the city planning commission considered content in the paragraph before that the diagram of the fourth paragraph down the staff gives three reasons why they think that this should be denied reason number two is quote the potential advertising content of the sign that's a first amendment violation and they are to consider potential advertising content is a reason to restrict or deny a billboard permit nothing in any case starting with metromedia across the board allows that no ultimate conclusions do not bring the end of the content based issue but the fact that it's in the report and that they had unfettered unlimited discretion with no criteria and the fact that we have no evidence apart from these two pages because it was on a twelve b six motion tells us that the city apparently may have considered potential content in denying the science here what we also don't have here is any in this report is sign of the issue so i assume there is no evidence that the signs violated any content neutral building state fifty electrical or other code nowhere is there any suggestion that they were in the wrong zoning area that they were oversized that they would not comply with the building uniform building code would not comply with the uniform electrical code certainly proud to a media group they had a couple hundred signs at the time they were in business that were legal they knew how to build illegal so there's no suggestion here that after a media group intended to build them it was on a primary highway which i believe these were without proper caltrans approval and without filling the state requirements so that all we are left with your was a denial of the permit application based soley on discretionary matters that are not spelled out in any ordinance and were at least content was at least part of what was considered two errors i believe that the district court made one relating both related to motives one relates to the damages issue and we cited a case we filed a letter with the court in the last day or so oh i know the city a letter with a large number of cases the one case that they didn't cite to the court is if you go to shepards and you shepherd guys this district court opinion it comes up with two decisions one is the covenant media case against huntington park which as applied challenge and particularly where there's at least an implication or intimation that there may have been some content based consideration that's a violation of one nine hundred eighty three we had a first amendment right to put these signs up absent the city planner exercising their discretion there was nothing in the law that prevented these signs from being built you know that because the record is very clear there's nothing that shows that we were going to build oversized improperly what you could not legally a bill to sign anyway because it was double the size that either ordinance allows that's a garden variety causation issue you don't have any damages caused by the end constitutional part of the ordinance because you didn't comply with the constitutional part there is no constitutional part of the old ordinance that anyone has pointed to that we were in violation mainly because the ordinance really was simon everything if you filed the the old ordinance and we're entitled to redress both nominal and actual damages based on the violation of the old ordinance not what they did after the fact to fix it the other thing is is that and because again we hear an there's no record having explored it one of the reasons they denied us is a hypothetical possible new development in ten years where our science might not be the type of science they want prevent new development that tells that you know it may very well be bomani intends never to have any new science again but that's not consistent with the two pieces two pages of evidence we have with a stable these signs may come conflict with the new development we may want to wait so that we get science that don't conflict with that develop in ten years time that doesn't sound like news no new science to make you want to reserve the balance of your time yes i do think there's a different case do you want to state your name again like you say you are randall morrison for the city of beaumont thank you thank you this case is slightly different from the get outdoors cases because we have an application to the planning people and then it's appealed to the planning commission and then it goes to the city council and all three steps the answer was no so if there's any kind of issue about due process certainly due process was fulfilled they had their opportunity to present their evidence and their arguments and they failed at every step now since they process they were going through is on that point if that wish use this was made known to me in another case i'm working on very recently one case that discusses this issue is called patrick media group versus the california coastal commission that is the fundamental california coastal commission and what it says that case is roughly fourteen fifteen years ago i believe i billboard is a constitutional right that's false it's a structure it's not a message the first amendment exists to explain and protect the expression not structures and not the pursuit of profit nominal damages what would be the basis for any kind of damages real damages or non damages if they maintain that they have damages in creep airing the applications that's no good under california law because  california law for property rights investing a permit rights is very clear soft costs don't count is there a basis for attorneys excuse me i damages awarded any kind based on the procedure they went through and the denial of the suv needs to know even if one line in the report says because of the advertising messages that's only one of three or four grounds that are given and furthermore it's not specific as to any kind of message or any kind of speaker or any kind of viewpoint and furthermore the other point of denial are all pure zoning they're all looking at the question of the appropriateness of this structure to this location it's plain and simple pure zoning the city was not involved in any kind of message censorship planners decisions they were not since or decisions there's nothing about we don't like alcohol and we don't like to see no ads we don't like gentlemen's clubs and whatever may be a h point in some cities there's nothing like that in the record here furthermore the reasons that are given are because of this type is to be developed in the near future when that conflict with existing build lords conflict with land development that's expected in the near future of course that would somebody who's going to come in and put a shopping center do they want great big billboards walking their view from the freeway no they don't and the city knows that is the city visual impact and the third reason was it would after adversely affect existing views of open space now we moved to the moodiness point which was the main one discussed by the trial court and the key filing their applications there's all kinds of case law that says billboard entitlement to vested rights to develop or to build is controlled entirely by state law state line california is the right if you know that being the case we always have to consider our jurisdiction but obviously since we've never heard this before right we're not going to be you can't expect council to be prepared to on the other side be prepared to address this on saturday so i suspect and talk with my panel here but that we may require you within one week to supply us with a five let no more than five page letter brief on that point and if we feel that it has any merit then we would certainly allow counsel for the appellant to respond to that if we feel that it doesn't have any merit and maybe we don't need to have a response but i think i'd obviously we can't fairly respond to it in this you know in this venue and i wouldn't expect appellant counsel to do that right i agree with all that and i would case number two out of chicago shown by the city the argument has been and the sign company's grief that they were deprived of the opportunity to rely on but the footnote in coming of media versus hunting and parks  here we have a new ban on billboards that applies not only to the area where o m g wants to build new structures but also across the entire city every sign company everybody everywhere all the time so this certainly does not fall within that exception that's all i have proposal and i would not go i don't want you to use your time on this but i want to clear it with you would be to have this study within one week give us to a no more than five page letter brief and that you would obviously get a copy as well we will review it and if we feel that it needs a response meaning that you know we feel that it may have some merit and we want to hear from you about that then we will contact we will contact you and give certain that when the court sees at least both sides of the issue there still is case here for the court to decide all right well we just we just have to make sure that we have jurisdiction to do what we do so all right then you can deal with your rebuttal at this point thank you thank you very briefly i'd like to call the panel's attention to page one eighty of the excerpt of records because there was a serious misstatement by counsel for the city the first paragraph i'm going to read it  says quote with regard to the advertising content of the sign it's the proposal were to be approved by the planning commission staff would recommend conditions to preclude the advertising of adult oriented b provision for revocation of the permit if this condition is violated there's a very specific we don't want a gold advertising on these signs bases for in part for denying my clients applications right in their own report so this isn't least in part a content based decision but again i ask just that the court look at the new covenant media decision that we cited in our letter and look at the same covenant media decision huntington beach case the council just cited because ultimately judge moore did not find the case to be moot because she found there still was a damages claim alive and permitted the case to perceive the final point i would make because it's been made a few times here that the billboard is not speech you could argue i suppose that a newspaper is a piece of paper with ink on it but that's really elevating form over substance my client puts noncommercial messages up on its billboards so does every billboard company that i've ever represented or kno