MONTANA MEDIA INC v FLATHEAD CO

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MON7TXNAMEI)IA. INC.. Petitiorier and hppcliar~t, V. FLATIIE4D COtJNTY, CITY OF L i KITEFIStt, Respondenis and Rcspondcn~s APPEAL FROM: District Court of the Elevent11 Judicial District, In and for the County of Flathead, Cause No. DV-00-267B: The I-Ionorai>le Stewart E. Stadler, Judge presiding. COUNSFL OF RECORD: For Appellant: Alisa LaabutWright, Roet/el & Andress, Akron, Ohlo Chad M. Wold, Kold L,aw Fir~ii, P.C. Kalispell, Montana For Respo~ident City of Whitefish: John M Phelps. tledman, tirleman & L acosta, \VIi~tefish, Vlontana For Respondent Flathead Count): Jorinthon R Snirth, Ol"fice of llre Flathead Countj rittorriey, Kalrspell, \lont:ma Submitted on Briefs: .2ugnst 8, 2002 Dccidcci: Fcbruay 13% 2003 Filed: Justice 'Ferry h .Trie~ieiier i delivered the Opinion ofthe Court. 48 ,1-1 'Ihc "ipjnuliiint, ticnrana klvfcdia, inc., filed a cornpiaint for deciararor:: jiidger~~erit in the Ilistrict Court for the Eleventh .ludicial District in Flathead County, and requested that the District Court declare that the City ofWhitetish anci Flathead County zoning regulations: which regulate off-premise signs aiid billboards, violated Montana's Outdoor Advertising Act and the Montana and United States Constitutions. The City and the County filed counterclaims for injunctive relief \\rltieh sought to enforce their zoning regulations. 'The District Court denied Montana Media's petition for declaratory relief against the City, and permanently enjoined Montana Media from operating its signs that violated the City ordinance. The District Court denied blonlana Media's petition for declaratory relief agairist the County in part and postponed action on the County's tilotio~i injurictive relief u~ltil for issues of fact underlying Montana Media's equal protection allegatio~~s could be resolved. Montana Media appeals the District Court's denial of its declaratory judgme~itaction and the issuance of the permanent injunction. We affirm the judgment and injunction of the District Court. 32 LVe restate the issues on appeal as follows: T l j 1. Did the District Court err when it concluded that the City and Count); ordinances do not impose an tlnconstitutional restrietio~~ commercial speech'! on 44 1 2. Did the District Court err when it concluded that the City and County orctinances iio not create an uncortsritutional prior restraint or1 con!rnercial speech? 75 3. Did thc District Court crr mhcn ir concluded that thc City and County ordinances arc nor unconstiiutinnaliy vague'! 6 4. Did the District Court err when it concluded that the City and C:ourrty ordinances do noi violate the proccd~traldue process clause? 117 5. Did the District Court err u h e n it concluded that the City ordiiiance does not violate Montana Media's right to equal protection? F.4CT'UAII AND PROCEDURAL BACKGROUND 718 illontat~a Media, fnc. (IMontana Wedla), is a mat-ketrng company, iocated in Flathead County, that offers billboard >pace to those businesses that ~ b i s h advert~se seriice or to a product acailable at anothet locatron.' Montana Medra owns and operates a number of billboards which are locatcd within the jnrisdictions of Flathcad County and the City of of Whitefish. T ~ v o Montana Media's b~llboardsare subject to regulation pursuant to the Whitefish Zoning Jurisdiction Regulation (\VZJR) sign ordinancc which was adoptcd in 1090. 'The other b~llboards n n e d bq Montana Medta that are located ~ i t h i the County are o n subject to reg~tlat~onu r s u a ~ ~ t the Flathead County Zoning Rcgtrlation (FCZR) sign p to ordinance 1 '9 I; The City ordinance provides: Sign and biliboards arc distinguished in County ordinances depending 011 \\-l-ietherthey are designed for frequcnt cliange of copy. A billboard has a surface upon which ieinporarl, inessages arc dispiaycd, whereas a sig~i not designed Tor frey~tent is copy changes. FCZK $ 7.18.060. The City ordinance does not differentiate between billboards and off-preinise sig:?s. WZJR t: 17.120.120. 'The regula~ionof signs invitlves concern both of acstlietics and visual communication. Some signs give necessary and useful infoimation to those 1~110 usc the public rights-of-way. Others scwc no uscfui public purpose, n ~ a y even be safety hazards, and create unnecessary visual discord. 'I'hc emphasis of thcse regulations shall be to strike a balance betl;\.een the needs of the hiisinccs to identify their places ofhusincss, products and services offered; and as the aesthetic needs of the comn~rtnity a whole. WZJR 5 lj10 Signs are defined as: 17.100.010. Any device, structure, fixture, or placard using graphics, symbols; pictures, emblems, lighting scltcmes andlor written copy, or any other medium for visual cotnmunication, including its supporting structure and source of light: which is intended to be used to attract attention to a location or subject matter, for advertising, instruction, or information purposes. and is viewable from a public right-of-way. WZJR $; 17.120.040. 11 I ' Noneornmercial stgns are petmittcd throughout the clty subject to slre, densrty and placenlent restrictions. Slgns that ad~erttse place of bustness found at that location - onsrte a signs - arc permitted subject to size restrictions. The City ordinance provides tllat an offpreniise sign is a "sign structure advertising an establishment, merchandise, service, or cntertainnient, u h ~ 1s not sold, produced, manufactured, or f~~r~nsliect property on h at the which the sign is located." WZJR 3 17.120.340. Off-premise signs cvithin the City are only permitted in cotnn~ercial industrial zones, are subject to srze and setback restrictions, and and lequlrc a permit under ccrta~nctrcumstances. WZJR $;$ 17.1OO.OG(J(i), 17.100.090, 17.100.100. The ordinance strictly prohibits off-p~rnise signs, other than directional signs, in residential zones. Pennits are I-cquired wiicn a iicw sign i s erected, or tvhen tlre copy1 design, illumination or sire ofan cxisring sign is changed. WZJIC 5 i7.iOii.i00(1). !l /2 A g~mdfkthcr clause required that non-conforming signs which were erected before 1990, be brought into compliance with the City ordinance as soon as any ofthe following events occurred: 1) the sign was relocated or replaced; 2) the structure or size of the sign was altered; 3) the sign was damaged or taken out of service; or 1 by September 30. 1996, for ) ofGpremise signs located in the public right-of-way. WZJR $1 3 3 17.100.100(2)(hj. Montana Media otvns two off-premise signs, or billboards, that arc subject to the City ordinance. Montana Media purchased billboard 03696, which is locatccl 011thc west sidc of Highway 93 Soutlt, on July 9, 1999. When billboixrd 03696 was purchasect by Montana Media it had no signage or lighting fixtures. In July of 1999, an apron, nclv copy and two advertising fiices were installed. In December of 1999, new lighting fivttires were installed without a permit. Billboard 03696 violates the ordinance sire and setback restrictions. Montana Media purchased billboard 05897, which is located on the east side of Highway 93 South, on September 13,2000. Later, Montana Media installed an apron, a new advertising face and new lighting fixtures without a permit. Billboard 05897 also violates the ordinance sire and setback restrictions, ri14 11 011 May 2, 2000, thc City informed klontana Media that billboard 03606 violated ordinance size restrictions, public right-of-tvay setback restrictions, neighhoring lot setback restriction, and was modit<cd without a permit. The City explained that lsccarise there was no fcas~ble inanncr to bring the b~ilboard into ~ompi~artcc,mouid habc to be rcrno\cd It it is iindispr~tcd that both hiilboards trotate ihc Crt! ordinmcc q 15 The County adopted a slgn ordlnancc as part of the Flathcad Count) Zoi1111g Regulations in 1003. The County defines a sign as "[alny medium or visual ~ommunicatio~i including its suppoi~irrg structure and source of light which is used or intended to be used to attract attention to a location or subject matter for advertising, instruction, or informat~onal purposes." FCZR 5 7.18.060. 1 he County ordinance defines and regulates billboards and offs~te signs dlffcrerttly. 7116 The County ordinance provides two definitions for billboards. First, a billboard is defined as: [A] standard outdoor advertising sign larger than 250 square feet or [sic] total structural surface area which is designed to convey a message or to advertise products services or businesses not located on the premises on which the sign is located. 4 sign shall not be considered a billboard unless it is built with a surface on which poster panels or painted bulletins are mounted for the purpose of conveying visual messagcs or advertisements. el7 I The second definition of billboard provides: Billboardipainted bulletin sign means a standard outdoor advertising sign which is designed to advertise products, serviecs or businesses not located on the premises on which the sign is located. 11, sign shall not be considered a billboard u~lless sign is designed with a surface on which temporary poster the panels or painted bulletiris are mounted for the purpose of conveying a visual ad\-ertising message. Ti8 Tiic different definitions of rhc term tiillboard have significant ic,gal irnplicsrions in rcvieu-ing time ordinance for consrirutional validity. Billboards arc only pcrnmitted in specific zones within the coutlty. Any proposed construction. reconstruction, replacement or major alteration of a billboard conducted suhsequel~t to tltc cnactment ofthe ordinance requires the issuance of a confom~ance permit prior to commencement. FCZR 5 5.1 1.030(10). All signs must be brought into compliance by July 1, 2003. FCZR 1 3 5.1 1.030(0). An offsite sign is a sign that advertises "an establishment, mcrcbandise, senrice or entertainment" located elsewhere. The definition explicitly excludes billboards. FCZR 3 7.18.060(8). Offsite signs are not designed to display temporary messages and are restricted to 64 square feet per face. FCZR 3 5.11.020(3). '20 Due to a Montana Department of Transportation road widening project, State law required that Montana Media move a number of billboards that were within the County's jurisdiction. Consequently, the billboards would have to comply with the County ordinance when they were moved. Montana 'Media did not apply for a permit before making alterations to one of its billboards outside of i-lungry Horse. Furthermore, its billboarcts were not brought into compliance, The County notified Monta~ta klcdia ofthc infractions and requested its signs be brought into conipliance. 721 0 1 1 b%ay 25, 2000, Montana kfcdiit filed a complaint in the District Court for the Eleventh Judicial District in Flathead Coimty, in which it reyrrcstcd tleclaratory relief from both thc City and County ordinances. Montana Media alleged that the City 7 and County ordinances violated i\/lontana's Otltdoor Advertising Act and the C~ountlordinance violated the Wonrana and ijnitcti Stares Cunstiruticjns. [Later,it was aiiegcd that the City ordinance was unconstitutional as well. The City filed an answer, that denied the allegations, and a counterclaim. that requested injunctive relief elljoining Montana Media from operating the two subject billboards and ordered their removal. The County filed an answer, that denied the allegations, and counterclaiun, that req~~ested court to order that Montana Media bring two of its non-conforming the billboards into compliance. 7/22 On October 18, 2000, a hearing was held in the District Court and Montana Media argucd that both the City and the County ordillanccs violated the Outdoor :\dvertising Act. Montana Media also argucd that the City and County ordinances violated the United States and Montana Constitutions': ( 1 ) prohibitions against prior restraints; (2) equal protection clauses: (3) dire process clauses; (4) takings clauses; and ( 5 ) vagueness clauses. 123 On Clareh 7,2001, the ilistrict Court issued an Order which denied declaratory relief against the City and dcnied declaratory relief against the County except for the equal protectio~lclaim. On September 4; 2001, thc District Court issued an Order which pernlancntly etljoincd Montana Media from operating its signs in violation of' thc City ordinance. The County's request for injunctive relief will he decidcd following an evidentiary hearing regarding the ey~ial protection irllcgations, 'i2.1 The Districr Court cctfified that its orders cvere final pursuant to Rule 54(b), "\;i.R.Civ.P.,and bioniana Media obtained a stay ofcxccution of thc Disrricr C'oun's orders pending this appeal. STIZNUARD OF REVIELV 7125 Our review of questions of constitutional law is plenary. In Re Citsto(fyof' KI-nrrse,2001 MT 37,7/ 16,304 Mont. 202,7 16, I9 P.3d X I I,!] 16 (citation omitted). We review a district court's interpretation of the law to determine if it is correct. C'rrsto& of Krurlse, 3 16 (citation omitted). DISCUSSION ISSUE 1 '126 Did the Distrlct Court en. \+hen it concluded that the C ~ t yand Count) ordinances do not irnpose an unconstit~~tional restriction on commercial spcech? ' 2 7 Montana Media asserts that the City ordinance places a greater restriction on off-premisc signs and billboards than it places on other offsite signs and that the County ordinance places greater restrictions on billboards than other offsite signs. Vlontana Wedla contends that the C ~ t j and County ordinances \lolate tlte First Anlendment because the City and County have failed to dcmonstratc that the subject ordinances directly advance the governmental interests asserted and are not more exiensive than necessary lo serve that interest. ('28 The Supreme Corm has recognized that pitrsuunt to First Amendment speech protect~ons.each illedlum of conirnuilicatiotl 1s sulycet to its o u n lam and reflects 0 differing societal vaiucs and needs. ;t.fetror~rcl;a, v. City oJ'Suti Diego ( 198 L j, ir~c. 453 U.S. .190? 50 1 1 0 L S.Ct. 2582, 2889, ci9 IL.Ed.2d 800, To dete~minc 'ivhat iau I applies to the current appeal .'requires a particularized inquiry into the interests at stake here beginning with a precise appraisal of the character of the ordinance as it affects communication." ;Vtetro/-olriedin, I~zc., 453 U.S. 503, 101 S.Ct, at 2890. at 1129 The subject signs are freestanding structures destgned to convey different commercial messages or, In othcr terms, billboards. Due to the permanence, structure and design of billboards, they present a unique set of problems for development and planning. Designed to draw attention, billboards potentially distract motorists from their primary task of driving, clutter thc landscape and obscure the natural and historic features that attract many to areas such as the Flathead Valley and the City of Whitefish. In order to balance a business' interest in advertising with the public's interest in safety and aesthetics, the City and County adopted sign ordinances to regulate the size and location of signs. Specifically, the ordinances place restrictions and prohtb~tionson billboards. Consequently, both ordinances must be analy~ed pursuant to the law of billboards. !I30 !t is well established that com~nercialand noncommercial speech enjoy Iric., different protections in the context ofthc First Amendment. ~Zl'erroi~zetlin, 453 1j.S. at 506, 101 S.Ct. at 2891-892. Commercial speech is accorded less constitutio~iai pro!cctio~lthan noncommercial speecl~, ,tl'eti.ott~edi(~, 453 I.I.S. at Ifre.: 506, 10 1 S.Ct. at 2890. The Suprenle Court has noted that commercial speech ~rtay be 10 regulated in situations where noncommercial speech may not be. Clelrorrleriirr, irzc., 453 U.S. at Soh, 101 S.Ct. ar 2892. 93 A four-part analysis has bcen developed by the United States Supreme Court to determine the validity of a comniercial speech restriction. First, comlnercial speech must concern a la\vful activity and not be misleading to be protected. C'enft-czlH~~dsotz Gus & Elec. v. P ~ l b l i c s e rCol??t?l (1980), 447 U.S. 557,560,100 S.Ct. 2343,2351, ~. 'PZ 65 L.Ed.2d 31-1. Next, there must be a substantial government interest for adopting H~idsoir(ins & Elec., 447 C1.S. at 566, a restriction on commercial speech. Cet~trill 100 S.Ct. at 2351. If the speech is protected and there is a substantial government interest, the regulation must directly advance the asserted government objective, and reach no further than necessary to accomplish that objective. Cenlrczl Hurlson Gizs & Elec., 447 U.S. at 506, 100 S.Ct. at 2351. The government bears the burden of demonstrating a substantial interest andjustifqing the challenged regulation. (;t-eilter 01.lecztzsB t ~ o c ~ ~ J C ~ s t i 1 ~ 1V~ L;liteilLYtmtes(10'10), 527 U.S. 173, 183, 1 19 ~ g A .~ s . , . S.Ct. 1923, 1930, 144 L.Ed.2d. 161. 732 'The parties concede that the billboards in this case are protected commercial speech and that aesthetics and safety arc substantial governmental interests. The controversy arises from the third and fourth prongs of the L:entr.cll fIzld.cort inquiry. and Montana b!edia contends that the C ~ t y County fatled to meet thelr burden of dcrrmnstrating that their sign ordinances directly ad\:ance the interest of aesthetics and safety, and are not more extensive than necessary. Montana Media suggests that 11 the Respondents' reiiaricc upon Lleironierlii~is misplaced in light of subsequent cases that providc strongcrpro~cction comrncrciai spcech anu increase the governnrenr's ibr burden of proof with concern to the third and fourth prong of Centrul Hurisu~l. '133 111 ;kler~~otizedicl, United States Supreme Court considered whether a San the [liego sign ordinance that permitted onsite comn~ercial advcrtising, prohibited offsitc coinntercial billboards, and prohibited ~iiost noncornmercial messages was constitutional. ,2.(ctronledia. I w . , 153 U.S. at 503, 101 S.Ct. at 2890. The record indicated that the subject signs historically displayed both comnlercial and ~~oncom~nercial mcssagcs. Recognizing that commercial speech cnjoyed less protection than noncornmercial speech, the Court bifurcated the issues. ;Cletrorrzcdiil, Inc., 453 U.S. at 504-051 101 S.C:t. at 2891. 1/34 The restriction on commercial speech was reviewed pursuant to the four-part C'entt-a1Hlriisutz analysis. 'l'he first prong of C'entrul l'l~liisorlwas not at issue, and there was no question that traffic safety and aesthetics constituted a substantial ~overnment interest. ~\lert-ot?zerlim. IEC.,453 U.S. at 507-08, 101 S.Ct. at 2892-893. .. I'he Court proceeded to the fourth prong of Cerztrcd Eft~dsur~ posttllated that a and billboard prohibition was the most effective means to improve salkty and aesthetics. iGfetrutr~i-'rliii, 453 C.S. at 508, 101 S.i:t. at 2893. Therefore, it concluded that lt~c., no San Diego had ~.eached ftn<her than necessary to accomplish its objective, which satisfied the fourth prong of C,.~~rrirrii Htin'.sorl. hleii-otrlc?di~t,i c . , 153 U.S, a t 508, i/ 101 S.Ct. at 2893. In fact, the Court noted that San Diego had stopped short of fully 12 accomplishing its goals because it permitted onsite advertising and spccificaily cxcn~pted vthcr sigris fr.crrn thc proilihitiocr. ;L/eirz>/rredio, inc., 453 i..:,S, at X%, I 0 1 S.Ct at 2893. 735 With respect to the third prong, the C'orrrt concluded that the prohibition of offsite billboards was directly related to San Diego's interest in traffic safety and improving aesthetics. ibletr*on~edicl,r ~ . 453 U.S. at 509-12, 101 S.Ct. at 2893-895. i , Metromedia's contention that the distinction made between ousite and offsite advertising was impermissible was dismissed by the Court, which deferred to the city's judgement in placing a higher value on one form of comsncrcial speech over another in the context ofregulating billboards. iblerrortzcrlia,Inc., 453 iJ.S. at 51 0- 12, 101 S.Ct. at 2803-895. Consequently, the San Diego ordinance was constit~~tionally valid as it pertained to comnlercial speech and the third prong of Cknrrrrl II~c~lso~z xras satisfied. Ilf~~~t-ortzecIi(z,~453 L1.S. at 512, 101 S.Ct. at 2895. IIJ ., '136 The second part of ~Llctronzedin addressed San Diego's restriction on noncommercial speccli. The ordinance pemiitted onsite commercial messages. but d ~ not pro\ ~ d for nonconimerc~al d c speech. The Court's analqs~s finds fault n ith the noncom~nerc~al speech more than comrnerc~al qpeeeh fact that the ordirlance restr~cted in contra\-enrio~~ the greater constitutional protectio~l of enjoyed by noncommercial speech. ilkrronictliii, l i ~ c453 I,J.S.at 513. 101 S.Ct. at 28%. C'o~:sequently,thc .~ Court held that the manner in which San Diego restricted noncommercial speecl? rendered ihc ordirrancc invaiid. :I,fetroiiiecficz, i;rc., 453 li.S. at 52 i, i i j i S.C:t. at 9y99, -~ @37 Montana Media contends that ,Metroniedin has llmtted precedentla! balue because subsequent commercial speech cases raise the government's burden of proof and provide stronger constitutional protections for commercial speech than existed at the time Merromen'irz was decided. The cases cited by Montana Media stand for the propositions that the government must demonstrate that: (1) the harms asserted by the government are real and that the restriction will "alleviate them to a material degree" to satisfy the third prong of Central HZI(~.SOII;( 2 ) the challenged regulatio~i and must reflect careful consideratio~lof the cost and benefit of thc regulation in light of the burden imposed on speech to satisfy the fourth prong. (;reliter iVew Orlecrr~s Uroa(fciistii~gAs.sr~., 527 G.S. at 188, 119S.Ct. at 1932. Iizc.; '138 However, this line of cases does not address billboard law. The Ninth Circuit to has held that these cases do not alter the applicability of /\~fetron~edi(irl billboard cases. Ackerb~ Corr~nzurzicntions Noutl~uest KrochilliLs(1997 0th Cir.), 108 F.3d of v. 0 1 - 11 We agree. 'The commercial speech cases cited by Montana Media involve different communicative mediums. Specifically, the cases involve sidewalk news racks and radio adveniscn~cnts.News racks and radio waves do not create the same problems that a 400 square foot sign that is specifically designed to draw attention to itself causes. Nothing in the Supreme Court cases cited by Montana hlcdia changes the standard for con~nlercialbillboards established in ilfetron~ecliil. 13 \Vc couciude that whrle ihc Supren~e Court has cons~derednumerous cornmcrc~ai speech issiics since, ."i.ieirortieciiciremains ihc controlling iaw in biiibnarci cascs. "' 31 'rhc application oft2.i'etrorirct!kitr is limited only by the factual differences and the precise issues presented by this appeal. The challenged ordinance in Metrorncn'iir pro~ided part in The following signs shall be prohibited: 3. Any sign which advertises or otherwise directs attention to a product, service or activity, event, person, institution, or business . . . which occurs or is generally conducted, sold, manufacturedi produced or offered elsewhere than on tlte premise where the sign is located. [Emphasis added.] il.fetronzetlia, Irzc., 453 U.S. at 493, 101 S.Ct. at 2885. The ordinance prohibited both noncolnn~ercialand co~nmercraloffsite billboards. While onsite commercial signs were pernlttted most noncomrnerc~alspccch was prolilbited. Conseq~tently, Court b~fureated the the issues. On the issue of commercial speech A4etroi11etlicz establishes that it is constitutionally permissible to prohibit offsite commercial billboards to further the goals of traffic safety and aesthcttcs. 7 hc flam In the San Dtego ordinance mas that it accorded onsite commercial speech more protection than noncommercial speech. j2.fett,ow~edin suggests that an ordinance wltich only prohibits offsitc commercial speech would he valid. 1. City Ordinance 140 The City ordinance subjects commercial signs to greater restrictions than non- commercial signs. Off-premise signs that advertise "'an establishment, merchandise, service, or cntcrtainmcnt, cvhich is not soia, produced, manutactured: or fi~mished the property on a: which the sign is located" are resrrieted to industrial and cornnlercial /ones, subject to size: setback and permit regulations. 'vVZ.JP, i; 17.120.340. Noncommercial signs arc permitted throughout the cntirc city. !!41 The noncommercial speech restrictions found in the San [liego ordinance arc not present in the City ordinance. The restriction on commercial signs is consistent with greater protection accorded to noncommercial speech by the First Amendment. Consequently, only speech analysis in kletr-ol~zediu applies to the facts before us. the con~mercial 742 ~Cteirotzerficr noted that the distinction made between onsite and offsite coinmercial advcrtising did not invalidate tire regulation for being undcrinclusivc. i%feirornec/ia,Inc., 453 U.S. at 51 1-12>101 S.Ct. at 2804-895. Referring to the greater value accorded to onsite commercial speech, the Court stated: "the city inay believe that offsite advertising, with its periodically changing content, presents a more acute problem than docs onsite advertising." J%letrorr~eo'ic:, . , 453 U.S. at 51 1. 101 S.Ct. at 2895 (citatiort omitted). Setting billboards Im back frorn the public right-of-way and restricting billboard sire alleviates the visual impact of billboards and improves both safety and aesthetics. Furthemlore. permitting billboards in industrial and con~snercialareas where aesthetics have already been sacrificed for cosnmercc, while prohibiting them in other zones snakes perfect sense and is in line with the City's objective. Therefore. we conclude that the City ordiltancc ciircctly advances the C'ity's goal of-reducing visual blight and traffic hazards created by billboards and satisfies the third prong of C'enfrillliudrot~. 16 9j33 la rlfcfr-otrzcdiil.the Court concluded that a billboard prohibition was the most effective rcmcciy for. thc traffic ha~ards and visual bligilr caused by biilhoards. which satisfied the fourth prong of (.'e~iirillF~z~d.~oi~. hierroiite(liu, !PIC., 453 U.S. at 508, 101 S.Ct. at 28%. 'l'hc Court further held that San Diego had gone no further than necessary to meet its end. ,iletroinedicr, Inc., 453 L.S. at 508>101 S.Ct. at 2893. 743 In this case, billboards are only prohibited in residential areas and subject to zoned areas. The City's ordinance is Inore narrowly tailored restrictions in co~nmercially and than the ordinance in htt't~,o~~~eclirrrestricts speech no more than is necessary to achieve its objective. We conclude that the City ordinance reaches no further than necessary to acconiplish its objective. B. County Ordinance 1145 The County ordinance provides two different definitions for the term billboard. The definition of billboard relied upon by both parties refers only to those signs that are designed to ad\-crtise commercial messages. Consequently, we review the County ordinance i n light of the billboard definition provided for at FCZR 7\46 5 7.18.050(2). The County's billboard restrictions arc similar to thosc found in the City ordinance. Montana Media does not dispute the County's characterization of its signs as billboards. C ~ n s c y u e n t l~ v apply the C~ent~-czlff~id.sor~ as adopted in ;bfetromeiliirto the County ~~c . criteria ordinance to detcmnline if the ordinance is a valid comniercial speech regulation. "4 17 T'he first two prongs itf C'cnr,-rrl i~f~ulso~~not disputed. I'he County ordinance are regulates protectect commercial speech and the County has asserted a substantial interest in 17 reducing the traffic ltazards and visual blight caused by billboards. Theretitr~~L lnust t%-determine whether thc ordinance directly advances the ikunty's objective and wirctiier ~ i l c regulation reaches further than necessary to achieve that objective. 'i48 The County ordinance provides a more specific and limited definition of thc term billboard than provided for in the City ordinance. The County billboard regulations only apply to those signs designed with a surface upon which temporary poster panels or painted bulletins can bc displayed for the purpose of advertising commercial messages. FCZR 6 17.18.060(2). Other offsite signs are treated differently. This discrepancy is attributed to the fact that billboards can be up to 432 square feet, whereas other offsite signs are limited to 64 square fcet. Billboards arc allowed in certain industrial zones subject to permit, size, and setback restrictions, \vhile they are prohibitcd throughout the remainder of Flathead County. Consequently, we adopt the logic expressed in our analysis of tltc City ordinance. 940 Consistent with ~2.Ietr-onrediu, conclude that it is within the County's discretion to we prohibit billboards in areas where other comn~ereial noncommercial signs are permitted. or Logic dictates that a 432 square foot sign may create an unacceptable traffic hazard and eyesore in a zone where tile benefit of a commerc~al message d~splaycd a 64 square foot on slgn face, or at a place of h u s ~ n e ~ s , outweigh those harms. We concludc that the County may ordinance directly advances the County's objective and resolve the third prong of Cer~tml I f ~ f d s o in the County's favor. n '0 5 Whether or not the prohibition and perniit requirements imposed upon billboards by the Coiinty reach further than necessary 1s the final question. 12//etronzed1cz clcar on thrs is 18 issue and has been adopted above. We cariclude that the County ordinance reaches no fui3hcr than necessary to acl~icve goals and, therefore, the fourth prong of Clt.nrriiiiicrrkon its is satisfied. !SSUE 2 1 51 Did the District Court e n when it concluded that the City and County ordinances do not create and uuconstitutional prior restraint on speech'? 7152 Montana Media contends that both the City and County ordinances place an unconstitutional prior restraint on speech because the ordinances give the City and County unbrsdled authontp to grant or deny a pennlt based upon the content of the sign. \lie note that a substantial portion of Montana Media's argument with regard to this issue discusses the City and County ordinances' treatment of different categories of noncom~~iercial speech. tione\ er, not~comrnerc~al speech u as not the subject before the District Court, tliereforc, no factual record mas de\.clopcd belo\+ and those arguments are not properly raised before t h ~ s Court. We only consrder nhether the ordinance is an unconst~tuttonalpnor restraint of commercial speech. 753 An ordinance or regulation that suhjects protected speech to prsor restraint wlthout narrow, objective and definite standards to guide the permitting offjcials violates the First An~endment.IJesert Outdoor Acfb,e,enisir~g, I:. CZCJ; itic. ufibforetio l=i~/le~~ 9th Cir.), 103 ( 1996 F.3d 814, 816 (cilation omitted). 'The law may not condition the rxcrcisc of frcc speech on the r~nbridled discretion of pelmitting officials. ~~~~~~~/ Oc~tiioorRcl..~ertisiii~q, , I03 F:.3d i~tzr-. at 818 (citation omitted). Whether the prohibition against prior restraints applies to 19 commercial speech is subject to debate. In Cewtrcii k1z~ddson, C;ou~?stated: '~commerciai the spccch is such a sturdy brand ofexprcssion that traditional prior restraint doctrine rt~ay riot apply to it." Ci'iltrrrl f,/ud.~lso/i Cns & Elec.?447 U.S. at 571; 100 S . 0 . at 2354. The issue has not been revisited by the C:ourt and has created uncertainty througliotrt the land. Nor has it been adequately briefed in this ease. Therefore, we dispose of Montana Media's assertions without determining whether the doctrine of prior restraint applies to commercial speech based on those facts and arguments properly raised on appeal. 75f The City ordinance provides that permits required for a change of copy, design, size or illumination, shall be granted within fourteen days of an application. WZJR 5 17.100.100(a-0. The applicant is required to provide the location of tlie sign, the name and address of the property owner, thc type of sign or structure, a site plan, and a scale drawing to receive a permit. WZJR 8 17.100.100(d). The administrator has little discretion when deciding to grant or deny a permit and is required to issue a permit if the alteration or with the applicable City laws and regulations. What constitutes an offproposal con~plies premise sign in the City ordinance is objectively defined and not subject to interpretation. If an off-premise sign complies with the ordinance, apcrmit must be granted with~n fourteen days. \Ye conclude the City ordinance does not grant City officials unfettered discretion and prokides objective guidelines for the issuance of a permlt 755 Tile County ordivlance provides that pri)posed construction, reconstruction, repiacen~cnt, alteration of a billboard, beyond a change of copy and niaintcnance, requires or a conforniance permit. FCZfZ 5 5.1 1.030(10). A biilboard is objecrively defined as a sign 20 capahlc of dispiaying poster panels or painted bulletins, that advertises products, services or btrsinesses not located on that premise. FCZR 4 7.1 8.060(2). The perrnii prctcess ensures thai billboards comply with the setback and size requirements and does not consider the rnessagc of the sign or give County officials the authority to deny a pernlit that satisfies those standards. Consequently, we conclude that the County ordinance does not grant officials unfettered discretion and provides objective guidelines for the issuance of a permit. For these reasons, we affirm the District Court's conclusion that neither the City nor County ordinances creates an unconstitutional prior restraint on speech. ISSUE 3 156 Did the District Court e n when it concluded that the City and County ordinances are not unconstitutionally vague'? 7/57 Montana Media contends that the City and County ordinances' vague nature grants officials sweeping authority to interpret the ordinances as he or she sees tit. Furthermore, Monttana Media maintains that both ordinances are susceptible to inconsistent and arbitrary application. Specifically, the definition of political sign in the City and County ordinances. the holiday sign exemption in the City ordinance, and the distinction between offsite signs and billboards in the County ordinance are cited as fatally flawed. .$iS A noncriminal statute or regulation is unconstitutionally vague if a person ofcommon intelligence must necessarily guess at its meaning. Broenc- v. il.lr,trtanii 13ept. ?f Rcverzztc (1080), 237 bloni. 367, 371, 773 P.2d 320, 323. Ho\vever, a term i s not vague simply because it can be dissected or subject to different interpretations. ljr-~et-.~, Mont. at 371, 237 21 773 P.2d at 323. l'ltis Court is required to uphold the constitutionaiity of a siatute when that can he accomplished by a reasonable construction ofthe stamte. iiroer.;, 237 blont. ar 37 i . 773 P.2d a 323. t 7 5 9 T h e City ordinance provides that political signs, and citnlpaign and election signs do not require permits. Political signs express "a political or social position, as compared to expressing support for a political candidate or election measure," campaign signs advertise a candidate for public officc or a political party, and election signs advertise or support an election measure. WZJR $3 17.120.360, 17.120.140; 17.120.190. We conclude that there is nothing vague or uncertain about what these tetms mean. 1160 Next, Montana Media suggests that the exemption of ltoliday or non-profit special event dccorations leads to "some dangerous conclusions." This assertion is followed by a list of unanswered questions supported by no analysis, and in the end, leaves only one question to be answered: Where's the Reef! !1 6 Finally, Montana Media asserts that the distinction made hctween offsite signs and billboards by the County ordinance is vaguc and gives the County too much discretion in detern~ini~tg what signs require a conformance permit. We acknowledge that there is a distinction between billboards and offsite signs. irrespective of this observation, Montana Media fails to demonstrate that the definitions are \ague fi(92 We conclude that the City and County ordinances are not unconstitutionally vague. T;63 Did the District C:ourt err when it concluded that thc City and County ordinanecs do not violatc rhe procedural cltre process clause'? 4 Montana Media contends that the City and County ordinances violate procedural due process of lam because they do not guarantee a hearing before depribat~on property of '165 Article 11, Section 17 of the Montana Constitution probtdes that "no person shall be deprived of life?liberty, or property without due proccss of law." Due process rcquires both notice of a proposed action and the opportunity to be heard. I'ickens v. Slleltorz-Tl~onxns, 2000 MT 13 I,?! 13, 300 Mont. 16,lj 13. 3 P.3d 603,:; 13. Montana Media is required to demonstrate that it: ( I j has a property interest; and (2) the proccdurcs in place provide an inadequate protection of that property interest. 166 There is no dispute that Montana Media has a property interest in its billboards. 'lhe issue before this Court is whether the ordinances include procedural protections for an aggrieved pat-ty to be heard before property is taken. Procedural Due Process requires that some form of hearing be available that provides a meaningful and timely opportunity to be heard before property is taken. See Logan 11. Ziril~tzern~an (1982), 455 U.S. 422, 434, 102 S.Ct. 1 148, 1 156- 157,71 I..Ed.2d 265, n n c l ~ V f ~ ~ t / ~ ~ r ~ f 'Stare (1 007): 280.Wont. 401, Cb~~neM~~ 496,930 P.2d X8,90. Procedural Due Process does not prescribe what procedural safeguards must be in place. Logniz, 455 U.S. at 434,102 S.Ct. at 1 157. Ifowever, the procedure shou!d refleer the nature of the private and governmental interests involved. Only under exigent circumstances, where the govenlment's interest requires immediate action, may a post23 deprivation rather than a pre-deprivation hearing satisfy due process. Boddie v. C,'oimecric~tt (ir)?l); 401 U.S. 371, 379, 01 S.Ct, 780i 786; I..Ed,ld 113. 28 767 The Board of Adjustment is responsible for hearing appeals that allege an error related to the enforcement of either the City or County ordinance. The Board is bound by known procedures and there 1s a right to appeal the board's determination to a court of record. Once an appeal is filed, enforcement 1s stayed unless a stay uould cakise em~ncnt peril to person or property. in tills ease, all enforcement against Montana Media has bee11stayed. Pursuant to the ord~nance, only under exceptional circumstances, wl~ich not apply in thls ease, do co~ild City or County deprive someone of their property ux:ithout a hearing. We co~ ~clude the that the procedural safeguards provided for in the City and County ordinances provide sufficient procedural safeguards and ensure that a pre-deprivation hearing is available to 768 Did the District Court err m-hen it coileluded that the City ordinance does not violate Montana Media's right to equal protection'? 7 6 9 M o n t a n a Lledia contends that it demonstrated that the City does not apply its ordinance nnifomly among off-premise signs because it failed to regulate its own "Welcome to Whitefish" sign. It is argued that the sign is an off-prenlise sign and has been treated differently than other off-prcmise signs. "70 Article 11. Section 4 of the Montana Constitution provides that "[nlo person shall be denled the equal protection of the laws." The equal proteet~onclause requlres tl~at"all 24 pcrsons be treated alike under like circumstances," C;i.oi/m.i.1). I%oii&rosil I ~ z n iOci?), 283 ( blont. 45") 447, 94 P.2d 69% 703. 42 g66 The '%We!come to W1-,itefishnsign docs not advertise an csiablisl~ment~ merchandise, servicc or enteftainrnent that is located else~vhere.Thereforei the \vclcome sign and subject signs are not alike. fur them ore^ the welcome sign fits within the official government sign exemption found at LVZJR 9 17.100.040. In this case, we conclude that the City did not violate the equal protection clause of either the state or federal constitutions when it treated the "Welcome to Whitefish" sign differently than the subject signs. 757 For the foregoing reasons the judgment of the District Court is affirmed. \lie Concur:

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