naegele-outdoor-advertising-incorporated-dba-naegele-outdoor , 19 F.3d 11 ( 1994 )

19 F.3d 11

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
NAEGELE OUTDOOR ADVERTISING, INCORPORATED, d/b/a Naegele
Outdoor advertising Company of Raleigh-Durham,
Plaintiff-Appellant,
v.
CITY OF DURHAM, Defendant-Appellee.
THE SOUTHERN ENVIRONMENTAL LAW CENTER; National Trust for
Historic Preservation; National Institute of
Municipal law Officers; American
Planning Association, Amici Curiae.

No. 92-2321.

United States Court of Appeals,
Fourth Circuit.

Argued Sept. 29, 1993.
Decided March 1, 1994.

Appeal from the United States District Court for the Middle District of North Carolina, at Durham. Frank W. Bullock, Jr., Chief District Judge. (CA-85-722-D)

Andrew Lewis Frey, MAYER, BROWN & PLATT, Washington, D.C. On brief Kenneth S. Geller, Ragesh Tangri, MAYER, BROWN & PLATT, Washington, D.C.; William S. Byassee, SMITH, HELMS, MULLISS & MOORE, Greensboro, NC, for Appellant.

Karen Ann Sindelar, OFFICE OF THE CITY ATTORNEY, Durham, NC. On brief Reginald B. Gillespie, Jr., FAISON & FLETCHER, Durham, NC, for Appellee.

Katherine E. Slaughter, SOUTHERN ENVIRONMENTAL LAW CENTER, Charlottesville, VA. David A. Doheny, Paul W. Edmondson, NATIONAL TRUST FOR HISTORIC PRESERVATION, Washington, D.C., for Amici Curiae Southern Environmental Law Center and National Trust; Robert H. Freilich, FREILICH, LEITNER & CARLISLE, Kansas City, MO, for Amicus Curiae National Institute of Municipal Law Officers; Dwight H. Merriam, ROBINSON & COLE, Hartford, CT, for Amicus Curiae American Planning Association.

M.D.N.C.

AFFIRMED.

Before WIDENER, Circuit Judge, and BUTZNER and CHAPMAN, Senior Circuit Judges.

OPINION

PER CURIAM:

1

Naegele sued the City of Durham challenging the city's outdoor advertising signs ordinance under the First, Fifth, and Fourteenth Amendments. The district court granted Durham's motion for summary judgment. On appeal this court affirmed the judgment on the First Amendment issue but reversed and remanded on the Fifth Amendment Takings Clause issues. Naegele Outdoor Advertising, Inc. v. City of Durham, 844 F.2d 172 (4th Cir.1988). We instructed the court to determine whether Naegele's suit was premature and, if not, whether the ordinance denies Naegele economically viable use of its property. To this end, we directed the court to first identify the appropriate unit of Naegele's property affected by the ordinance and then to apply the multi-factor takings analysis of Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1979).

2

On remand, the district court held that Naegele's claim was not premature, and it accepted the parties' stipulations that left no genuine issue as to any material fact. The district court concluded that the Durham ordinance did not effect a taking of Naegele's property requiring just compensation under the Fifth and Fourteenth Amendments. Naegele appeals the court's grant of Durham's motion for summary judgment.

3

Upon consideration of the record, briefs, and oral argument, we affirm for reasons adequately stated by the district court in its opinion, Naegele Outdoor Advertising, Inc. v. City of Durham, 803 F.Supp. 1068 (M.D.N.C.1992).

AFFIRMED