Richard L. Verrilli, Cross-Appellee v. City of Concord, Cross-Appellant

KILKENNY,

concurring and dissenting.

My dissent is limited to that part of the majority opinion which declares unconstitutional two portions of the ordinance: § 7417(o)(2)(a), the general size and number limitation, and § 7417(o)(4)(c), the size limitation on a headquarters sign.

The majority concedes that similar restrictions were upheld by the court in Baldwin v. Redwood City, 540 F.2d 1360 (CA9, 1976), but would distinguish the cases on the theory that the conditions in Redwood City are substantially different from those in the City of Concord. I think this distinction is unsound. The cities are on opposite sides of San Francisco Bay and are somewhat less than sixty miles apart. Moreover, the justifications relied upon in Baldwin — “the appearance of the community,” “reducing accumulation of debris,” “minimizing traffic hazard,” and “other legitimate municipal interests” [540 F.2d at 1369] —were similarly urged by affidavit before the district court here. To this extent, the finding of the district court that the city did not attempt to justify its restrictions is clearly erroneous. F.R.Civ.P. 52(a). The *267only factor in Baldwin not specifically advanced in the district court here is “. Redwood City’s experience with the effects of the elements, particularly the wind, upon unreinforced signs of various sizes.” 540 F.2d at 1369. The absence of this evidence should not, in itself, be a controlling factor. In any event, I would hold that the court should take judicial notice of the wind factors in the San Francisco Bay area and say there is no substantial difference in the wind hazards experienced in the respective cities. Rule 201(b) of the Federal Rules of Evidence permits this approach. Surely the size of the respective cities1 has no relevance. Speaking in connection with the similar restrictions in Redwood City,2 the Baldwin court said:

“Neither limitation significantly deters the exercise of First Amendment rights; they are comparable to the decibel restriction on sound trucks upheld in Kovacs v. Cooper, supra. Neither is related in any way to the content of the posters. Their effect upon the quantity of expression is remote. Larger signs may be erected by complying with structural and design requirements applicable to other than temporary signs; and there is nothing in the record to suggest that the numbers of parcels in separate ownership in Redwood City is so limited that the 80 square foot per parcel limit imposes any significant restriction on the total exposure a candidate can obtain. Baldwin himself testified that he used signs slightly smaller than 16 square feet in the Kerwin campaign in 1974 and was satisfied with the size; he also testified that although he had placed more than 80 square feet of signs on a piece of property on occasion, it was improbable that he would want to do so often.
“Both limitations contribute to the appearance of the community and further other legitimate municipal interests. ‘Temporary signs’ are not required to meet design and structural requirements. The 16 square feet limitation on such signs is based upon Redwood City’s experience with the effects of the elements, particularly the wind, upon unreinforced signs of various sizes. This legitimate interest might be served as well by slightly less restrictive size limitations, but ‘[sjuch distinctions in degree become significant only when they can be said to amount to differences in kind.’ Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 640, 46 L.Ed.2d 659 (1976). The city officials justify the aggregate sign area limitation of 80 square feet per lot as reducing accumulation of debris and minimizing traffic hazard. The relationship of the restriction to these interests is attenuated and the unavailability of less restrictive alternatives questionable, but the burden imposed on free speech by this restriction is so minimal that generous allowance may be made for municipal preferences.’’ [Emphasis added.] 540 F.2d at 1369.

The law, as thus enunciated in Baldwin, should be applied to the record before us. The Constitution should not be used as a tool to create distinctions where none exist, nor should the appellate courts create lines of authority so indistinguishable that the lower courts are thrown into a state of confusion. Surely, the majority here has not given “general allowance ... [to the] municipal preferences” expressed by the City of Concord.

I would hold that the city met the tests as outlined in Baldwin. If Baldwin had been decided and considered at the time of the decision by the district court, I am certain that it would have found these sections constitutional. Otherwise, I concur in the opinion of the majority.

. Redwood City approximately 55,000, Concord approximately 90,000.

. These restrictions limited “. individual signs to a maximum area of 16 square feet and the aggregate area of signs on a single parcel to 80 square feet . . . ” 540 F.2d at 1368.