Montana Media, Inc. v. Flathead County

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>leStewart 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

City of Whitefish:
For Respo~ident

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
lj 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

Whitefish. T ~ v o Montana Media's b~llboardsare subject to regulation pursuant to the
of

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
the aesthetic needs of the comn~rtnity a whole.
as

WZJR 5 17.100.010.

lj10 Signs are defined as:

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 off-

preniise 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 3 17.100.100(2)(hj.

$1 3 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/rredio,
cxcn~pted

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

fact that the ordirlance restr~cted
noncom~nerc~al
speech more than comrnerc~al
qpeeeh

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;rc., 453 li.S. at 52 i, i i j i S.C:t. at
:I,fetroiiiecficz,

-~
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

has held that these cases do not alter the applicability of /\~fetron~edi(irl billboard
to

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
the con~mercial applies to the facts before us.

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

hierroiite(liu, !PIC., 453 U.S. at 508, 101 S.Ct.
satisfied the fourth prong of (.'e~iirillF~z~d.~oi~.

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

restrictions in co~nmerciallyzoned areas. The City's ordinance is Inore narrowly tailored

than the ordinance in htt't~,o~~~eclirrrestricts speech no more than is necessary to achieve
and

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 5 7.18.050(2).
7\46 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

is
the Coiinty reach further than necessary 1s the final question. 12//etronzed1cz clcar on thrs

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

i~tzr-.
discretion of pelmitting officials. ~~~~~~~/ Oc~tiioorRcl..~ertisiii~q, , I03 F:.3d
the r~nbridled

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

Cns & Elec.?447 U.S. at 571; 100 S . 0 . at 2354. The issue has
apply to it." Ci'iltrrrl f,/ud.~lso/i

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

proposal con~plies
with the applicable City laws and regulations. What constitutes an off-

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

237
because it can be dissected or subject to different interpretations. ljr-~et-.~, Mont. at 371,

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 post-

23
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

only under exceptional circumstances, wl~ich not apply in thls ease,
to the ord~nance, 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: