                           IN THE SUPREME COURT OF MISSISSIPPI
                                    NO. 1999-CA-00653-SCT
RED ROOF INNS, INC.
v.
CITY OF RIDGELAND, MISSISSIPPI

DATE OF JUDGMENT:                                  03/12/1999
TRIAL JUDGE:                                       HON. JOHN T. KITCHENS
COURT FROM WHICH APPEALED:                         MADISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                            MARK D. HERBERT
ATTORNEY FOR APPELLEE:                             JERRY L. MILLS
NATURE OF THE CASE:                                CIVIL - OTHER
DISPOSITION:                                       AFFIRMED - 03/01/2001
MOTION FOR REHEARING FILED:                        3/22/2001
MANDATE ISSUED:



     EN BANC.

     COBB, JUSTICE, FOR THE COURT:




                             STATEMENT OF THE CASE AND FACTS

¶1. This is an appeal by Red Roof Inns, Inc. (Red Roof) from a decision of the Madison County Circuit
Court, upholding the validity of certain portions of the City of Ridgeland's sign ordinance. The ordinance
adopted by the City of Ridgeland on January 2, 1991, was the result of the City's extensive review of its
land use planning that included the study of on-premises business signs. Input from businesses within the
City, including Red Roof, was sought. Public hearings were held before the adoption of the ordinance
which regulated the placement of new signs within the city limits. The new ordinance did not "grandfather"
existing non-conforming signage, but rather contained an amortization schedule based on original
construction cost. Signs of an original construction cost of greater than $7,000 were assigned the maximum
amortization period of five years, and thus Red Roof had five years in which to comply.

¶2. At the end of the five year period, the City gave notice to Red Roof and several other businesses that
their signs remained non-conforming and should be removed or brought into compliance. Red Roof, along
with five other businesses whose signs were in place at the adoption of the ordinance, appealed to the Sign
Appeals Board on constitutional grounds, alleging that the building inspector's acts under the ordinance
were invalid, illegal, arbitrary and capricious. The Sign Appeals Board entered an order denying the
requested relief. Red Roof, aggrieved by the board's decision, perfected its appeal to the Madison County
Circuit Court.
¶3. The circuit court upheld the decision of the Sign Appeals Board, ruling that the "ordinance regulating
signs within [Ridgeland] does not affect taking or damaging of the Appellant's property without providing
the payment of due compensation. The ordinance does not violate Article 3, Section 17 of the Mississippi
Constitution of 1890 or the United States Constitution." The court went on to say that the city engaged in a
valid exercise of its police power, and also noted that "the Appellants took no action to contest the validity
or constitutionality of this sign ordinance until five (5) years after its effective date."

¶4. Aggrieved by the circuit court's judgment upholding the decision of the Board of Sign Appeals, Red
Roof appeals to this Court, raising three issues which we combine as follows:

      I. DID THE CIRCUIT COURT ERR IN FINDING THAT SECTION 18-7(d)(3) OF THE
      ORDINANCE DOES NOT VIOLATE ART. 3 § 17 OF THE MISSISSIPPI
      CONSTITUTION NOR IMPERMISSIBLY DESTROY ANY VESTED INTEREST OF
      RED ROOF IN ITS NON-CONFORMING USE?

      II. DID THE CIRCUIT COURT ERR IN FINDING THAT AMORTIZATION EQUALS
      JUST COMPENSATION IN VIOLATION OF MISSISSIPPI CODE ANN. § 49-23-1 et
      seq.?

¶5. Finding no error, we affirm the circuit court's decision upholding the validity of the pertinent portions of
the City's sign ordinance.

                                        STANDARD OF REVIEW

¶6. This Court has stated that neither it, nor the circuit court, should sit as a super-zoning commission. City
of Biloxi v. Hilbert, 597 So.2d 1276, 1281 (Miss. 1992). The appellate court should not determine
whether it would adopt the ordinance in question; instead it should determine whether the City's decision to
adopt the ordinance is reasonable and supported by substantial evidence. Id. The decisions of municipal
authorities in zoning decisions are presumed to be valid legislative decisions. Woodland Hills
Conservation Ass'n, Inc. v. City of Jackson, 443 So.2d 1173, 1180 (Miss. 1983). In examining a
zoning order issued by a city council, the circuit court sits as an appellate court with a restricted scope of
judicial review. Ridgewood Land Co. v. Moore, 222 So.2d 378, 379 (Miss. 1969). To be reversed, the
order must be shown to be arbitrary, capricious, discriminatory, beyond the legal authority of the City
Board or unsupported by substantial evidence. Id. at 379.

                                                DISCUSSION

      I. DID THE CIRCUIT COURT ERR IN FINDING THAT SECTION 18-7(d)(3) OF THE
      ORDINANCE DOES NOT VIOLATE ART. 3, § 17 OF THE MISSISSIPPI
      CONSTITUTION, OR IMPERMISSIBLY DESTROY ANY VESTED INTEREST OF
      RED ROOF'S IN ITS NON-CONFORMING USE?

¶7. Red Roof argues that the City's enforcement of the sign ordinance was an unconstitutional taking of its
property under Article 3, Section 17 of the Mississippi Constitution.(1) Red Roof mistakenly relies upon
Jackson Mun. Airport Auth. v. Evans in support of this argument. Evans concerns eminent domain
controversies in which there is an actual taking for public use, principles which do not have equal
application in zoning matters. Jackson Mun. Airport Auth. v. Evans, 191 So.2d 126, 132-33 (Miss.
1966).

¶8. The City agrees with Red Roof that Evans is instructive, but distinguishes Evans on the grounds that it
was decided under the Airport Zoning Act, which provided for non-conforming uses. Pursuant to that Act,
zoning regulations were adopted, one of which prohibited trees in excess of 50 feet in height in approach
zones. Evans, 191 So.2d at 127. The Evans Court reviewed the law regarding the ownership of air rights
above one's property and held that the airspace involved in that case was not in the public domain. Id. at
133. Concerning the property's proximity to the surface, the Court opined that "under the guise of a
perhaps otherwise valid zoning order Appellants have so interfered with and restricted the use and
enjoyment of Defendants-Appellee's private property as to constitute a taking or damaging thereof for
public use without due compensation being first made as required in Section 17 of the Constitution of the
State of Mississippi." Id. This Court further stated:

     The fact that private property may not be taken for public use without compensation is not debatable.
     However, in determining whether this constitutional protection has been violated by the ordinance
     under consideration, two main issues arise: (1) Whether the air space above land is a constitutionally
     protected property right, and whether in the instant case there has been a constitutionally proscribed
     taking. . . . In considering [whether an unconstitutional taking has resulted] the distinction must be
     made between zoning regulations which merely restrict the enjoyment and use of property through a
     lawful exercise of the police power, and a taking of property for a public use, for which compensation
     must be paid. In the former instance, where the owner of property is merely restricted in the use and
     enjoyment of his property, he is not entitled to compensation. . . . However, mere regulation under
     the police power which can be modified at the discretion of regulating authority is wholly
     different from the taking or appropriating of private property by the government for a
     specific public use.

Id. at 132-33 (emphasis added).

¶9. As in Evans, we draw a distinction between the exercise of a regulation under the police power and a
taking that requires compensation. Unlike the ordinance in Evans, which sought to appropriate the airspace
above an owner's property for the airport's use, the City in this instance has not sought to appropriate non-
conforming signs for public use. Rather, the City has adopted an ordinance requiring the removal of non-
conforming signs pursuant to an exercise of police power.

¶10. Grant v. Mayor & City Council of Baltimore also provides a good analysis of the concerns
considered in circumstances very similar to those in the present case. 129 A.2d 363 (Md. 1957). Baltimore
passed an ordinance providing for removal from residential areas of billboards which constituted a non-
conforming use after a five-year tolerance period. Grant, 129 A.2d at 263. As in the present case, the
ordinance was challenged, and the Maryland Court of Appeals stated:

     Nonconforming uses have been a problem since the inception of zoning. Originally they were not
     regarded as serious handicaps to its effective operation; it was felt they would be few and likely to be
     eliminated by the passage of time and restrictions on their expansion. For these reasons and because it
     was thought to require immediate cessation would be harsh and unreasonable, a deprivation of rights
     in property out of proportion to the public benefits to be obtained and, so, unconstitutional. . . . [M]
     ost, if not all, zoning ordinances provided that lawful uses existing on the effective date of the law
     could continue, although such uses could not thereafter be begun. Nevertheless, the earnest aim and
     ultimate purpose of zoning was and is to reduce nonconformance to conformance as speedily as
     possible with due regard to the legitimate interests of all concerned. . . .'The right . . . to continue a
     non-conforming use is not a perpetual easement to make a use of one's property detrimental to his
     neighbors and forbidden to them.'

Id. at 365 (internal citations omitted). See also State ex rel. Dema Realty Co. v. McDonald, 121 So.
613, (La. 1929)(forced closing of grocery store in residential district after one year amortization period
upheld); State ex rel. Dema Realty Co. v. Jacoby, 123 So. 314 (La. 1929)(one year grace period for
drug stores upheld as constitutional); Standard Oil Co. v. City of Tallahassee, 183 F.2d 410 (5th Cir.
1950)(ordinance requiring closing of gas station near State Capitol building after ten-year amortization
period upheld).

¶11. The Grant court also stated:

     Implicit in the theory of the police power, as differentiated from the power of eminent domain, is the
     principle that incidental injury to an individual will not prevent its operation, once it is shown to be
     exercised for proper purposes of public health, safety, morals, and general welfare, and there is no
     arbitrary and unreasonable application in the particular case.

Grant, 129 A.2d at 366 (citing Livingston Rock & Gravel Co. v. Los Angeles County, 272 P.2d 4, 8
(Cal. 1954)).

¶12. The case of PA Northwestern Distribs., Inc. v. Zoning Hearing Bd., which speaks specifically to
the issue of reasonable amortization provisions, stated:

     The weight of authority supports the conclusion that a reasonable amortization provision would not be
     unconstitutional. It has been stated that a blanket rule against amortization provisions should be
     rejected because such a rule has a debilitating effect on zoning, unnecessarily restricts a state's police
     power, and prevents the operation of a reasonable and flexible method of eliminating nonconforming
     uses in the public interest. . . . Other cases have considered several factors in determining the
     reasonableness of these provisions. Those factors weigh any circumstance bearing upon a balancing
     of public gain against private loss, including the length of the amortization period in relation to the
     nature of the nonconforming use. . . . Our case law has expressed a preference for the protection of
     nonconforming uses in the face of changing zoning ordinances. . . . That protection, however, is not
     absolute.

584 A.2d 1372, 1377 (Pa. 1991)(internal citations omitted). A large majority of cases have upheld a
variety of sign amortization provisions. Jay M. Zitter, Validity of Provisions for Amortization of Non-
conforming Uses, 8 A.L.R. 5th 391, 408 (1992). The cases cited by this annotation discuss cases in
which courts have upheld amortization provisions requiring the removal of non-conforming signs. For
example, in E.B. Elliott Adver. Co. v. Metropolitan Dade County, a case directly on point, the Fifth
Circuit determined that an ordinance providing for the discontinuance of non-conforming use after a five
year amortization period for non-conforming signs did not constitute a deprivation of property without due
process of law. 425 F.2d 1141, 1155 (5th Cir. 1970).

¶13. Furthermore, in Palazzola v. City of Gulfport, this Court held that the right to continue a non-
conforming use may be lost even where significant value remains in the prior use, and that the
reasonableness of a zoning ordinance and the exercise of the police power must be determined on the facts
of the particular case. 211 Miss. 737, 52 So.2d 611, 612 (1951).

¶14. For the foregoing reasons, we find all aspects of this issue to be without merit.

      II. DID THE CIRCUIT COURT ERR IN FINDING THAT AMORTIZATION EQUALS
      JUST COMPENSATION IN VIOLATION OF MISSISSIPPI CODE ANN. § 49-23-1 et
      seq. ?

¶15. Red Roof also cites the following language from § 49-23-17(2) of the Mississippi Code which governs
regulation of off-premises outdoor advertising signs along Mississippi's primary highways:

      If any political subdivision or other governmental agency requires the removal of any outdoor
      advertising sign lawfully erected, just compensation shall be paid to the owner of the sign for the cost
      of removal plus the fair market value of the sign removed. The use of amortization for whatever period
      shall not constitute just compensation.

Miss. Code Ann. § 49-24-17(2) (1999). Red Roof argues that, "[w]hile this section is directed to off-
premises signs, the principles therein should be applied to Red Roof's signage as well." This argument fails in
light of the plain language of § 49-23-17(4), which provides: "This section shall not apply to any on-
premises sign ordinance adopted by a political subdivision or other governmental agency before May 15,
1992." The application of the principle suggested by Red Roof would not only be in dissonance with
legislative intent, but would contradict the clear language of the statute.

¶16. For the foregoing reasons, this issue is without merit.

                                              CONCLUSION

¶17. The City of Ridgeland's ordinance appears to be reasonably devised and written. The ordinance
included fairly established amortization periods based on the original cost of construction of the non-
conforming signs. The City applied it equally to all businesses. Numerous non-conforming signs were
removed as the various amortization periods ran. When the final amortization period expired and notice was
given to the several businesses with remaining non-conforming signs, only the six original appellants failed to
comply. Red Roof was the only original appellant to appeal the circuit decision to this Court.

¶18. The City of Ridgeland, in adopting this ordinance and applying the amortization period for which the
ordinance provided, engaged in a valid exercise of the police power. The ordinance does not amount to a
taking under Article 3, Section 17 of the Mississippi Constitution, and the decision of the circuit court
comports with the majority view. The judgment of the circuit court is therefore affirmed.

¶19. AFFIRMED.

      PITTMAN, C.J., SMITH, WALLER, DIAZ AND EASLEY,JJ., CONCUR. McRAE, P.J.,
      DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY BANKS, P.J. MILLS,
      J., NOT PARTICIPATING.

      McRAE, PRESIDING JUSTICE, DISSENTING:

¶20. Mississippi's constitution provides that for every wrong, there is a redress. Miss. Const. art. III, § 24.
When the City of Ridgeland enacted their signage ordinance, they forced users of non-conforming signs, the
use of which was legal prior to the ordinance, to either conform to the new guidelines or to take their signs
down within five years. Under either option, the City's ordinance constitutes a taking of the property of the
owners of these signs, which violates a vested right to these owners. This "taking" cannot be without due
compensation to Red Roof Inns because a property right has been taken from it. Accordingly, I dissent.

¶21. The majority states that Red Roof mistakenly relies upon the case of Jackson Mun. Airport Auth. v.
Evans, 191 So. 2d 126 (Miss. 1966), to support its argument. From the quoted language of Evans, the
majority emphasizes the distinction between a "mere regulation under the police power" and a "taking or
appropriating of private property," drawing the conclusion that the ordinance is simply an exercise of the
City's police power. However, the majority fails to emphasize the language in Evans that states the two
main issues to be considered when determining whether a constitutional protection has been violated by an
ordinance. To determine a violation, the court must consider (1) whether the ownership in the property is a
constitutionally protected property right and (2) whether there has been a constitutionally proscribed taking.
The ownership in the sign in this case is a vested property right, and one that is protected by our
constitution.

¶22. We have stated that, "the nature of the right to a non-conforming use is a property right" Barrett v.
Hinds Co., 545 So. 2d 734, 737 (Miss. 1989). Non-conforming uses have been allowed to continue
where the use was lawful at the time of the adoption of the ordinance, so long as the use did not change or
become abandoned. Id. Once a non-conforming use has been established and not abandoned, it runs with
the land. Id. (citing Appeal of Indianhead, Inc., 414 Pa. 46, 198 A.2d 522 (1964); Eitnier v. Kreitz
Corp., 404 Pa. 406, 172 A.2d 320 (1961)). Red Roof's ownership is a property right that cannot be taken
without just compensation.

¶23. In addition, the lower court did not even address the issue of Red Roof's constitutional rights, finding
that Red Roof had not brought its claim within the five-year amortization period. This time span has no
bearing on Red Roof's right to bring its claim now, because its grievance did not arise until the Sign Appeals
Board forced its compliance. Instead, the lower court affirmed the ruling of the Sign Appeals Board, which
has no authority to address the constitutional rights of the parties. Red Roof properly petitioned the lower
court for a review of their constitutional rights, and a proper review should have been granted.

¶24. The majority states that Red Roof erroneously relies on Miss. Code Ann. § 49-23-17(2) (1999), to
support its argument that it should receive just compensation, stating that this code section is qualified by the
date restriction in § 49-23-17(4). Despite the language of the statute, it is clear that the statute was
attempting to follow the principles of our state's constitution, that every wrong has a redress. Despite the
date restriction, the language of the statute provides a clear indication that just compensation should also
apply to on-premises signs. Therefore, this statute does not prohibit recovery by Red Roof in this case,
especially since its protected rights have been violated, and because the statute is following the mandates of
our state's constitution.

¶25. The majority lists a number of cases from other jurisdictions in support of amortization provisions, but
there are also a number of jurisdictions which do not support such provisions. See also Town of
Greenburgh v. General Outdoor Adver. Co., 109 N.Y.S.2d 826, 828 (1951); City of Corpus
Christi v. Allen, 254 S.W.2d 759, 761 (Tex. 1953); City of Akron v. Chapman, 116 N.E.2d 697,
700 (Ohio 1953); Town of Somers v. Camarco, 127 N.E.2d 327, 328 (N.Y. 1955); and James v. City
of Greenville, 88 S.E.2d 661, 669 (S.C. 1955). Despite these cases, it is clear that Red Roof's property
right has been taken from them, and under our constitution, its right should be protected.

¶26. I would remand to the trial court for a determination and award of just compensation to Red Roof Inns
for the taking of its property right involving the sign.

¶27. For the above reasons, I dissent.

     BANKS, P.J., JOINS THIS OPINION.

1. Red Roof does not challenge the constitutionality of the ordinance under the Takings Clause of the Fifth
Amendment of the U.S. Constitution, on the theory that Art. 3, § 17 of the state constitution grants broader
protection against mere "damage" rather than an actual taking. See, e.g., Smith v. Mississippi State
Highway Comm'n, 183 Miss. 741,184 So. 814 (1939).
