Summary
In Midwest Media Property, L.L.C. v. Symmes Township, Ohio, 2006 WL 2347489, at *3-*4 (S.D. Ohio May 22, 2006), the court agreed that courts can consider a deficiency in a plaintiff's application that was not expressly identified by the municipality at the time of its decision, but it limited that consideration to only those deficiences that the municipality could show actually motivated, at least in part, its denial of the plaintiff's application.
Summary of this case from Covenant Media of Illinois, L.L.C. v. City of Des PlainesOpinion
Case No. 1:04-CV-604.
May 22, 2006
Memorandum and Order
This Memorandum and Order supplements the Memorandum and Order issued by this Court on January 18, 2006. Plaintiffs initiated this action on September 3, 2004, challenging on Constitutional grounds the Symmes Township Sign Regulations, which are a part of the Symmes Township Zoning Resolution. Plaintiffs are Midwest Media Property ("Midwest"), a limited liability company whose business is the erection and operation of advertising signs, and owners of property within the Township. In July and August 2004, Midwest's representative submitted sign applications for the erection of signs on the property of the other Plaintiffs and other Symmes Township property owners who are not parties to this action. A Township official either refused to accept the applications or denied them with various notations relating to provisions of the Symmes Township Sign Rules. For example, on the first application submitted, the official made notations referring to the provisions relating to the height and placement of billboards. Because the applications all contemplated signs of similar height and size, all well in excess of the allowable height and size under the Sign Regulations, Plaintiffs would have known from the time of the denial of the first application that all of their applications would be subject to denial on the same grounds.
In its initial Memorandum and Order in this matter, the Court observed that the proposed signs were all manifestly taller and larger than permitted under the Sign Regulations. The Court also observed that Plaintiffs had not challenged the height and size restrictions and that such restrictions are constitutionally permissible. In light of that state of affairs, the Court asked the parties to address a number of issues including the severability of the size and height restrictions of the Sign Regulations from those Plaintiffs have challenged on constitutional grounds, the significance of the fact that the Township did not specifically cite the height and size restrictions in each of the denials or refusals of applications by Plaintiffs, the severability of the height and size restrictions from the challenged provisions of the Sign Regulations, and Plaintiffs' standing to assert claims by third-parties in the event that their own claims are dismissed.
In response to the Court's January 18, 2006, Memorandum and Order, Defendant argues that the size and height restrictions are severable and are a constitutionally-permissible basis for the denial of all of Plaintiffs' applications. For that reason, it argues that Plaintiffs cannot demonstrate that they suffered any injury-in-fact as a result of the application of the challenged portions of the Sign Regulations by the Township. Because Plaintiffs did not suffer an injury-in-fact, Defendant argues, they do not have standing to assert claims on behalf of third-parties, and the Court must dismiss this action. Defendant seeks summary judgment on those bases.
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The evidence presented on a motion for summary judgment is construed in the light most favorable to the non-moving party, who is given the benefit of all favorable inferences that can be drawn therefrom.United States v. Diebold, Inc., 369 U.S. 654 (1962). "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (emphasis in original).
The Court will not grant summary judgment unless it is clear that a trial is unnecessary. The threshold inquiry to determine whether there is a need for trial is whether "there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250. There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party.Id.
The fact that the weight of the evidence favors the moving party does not authorize a court to grant summary judgment.Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 472 (1962). "[T]he issue of material fact required by Rule 56(c) . . . to entitle a party to proceed to trial is not required to be resolved conclusively in favor of the party asserting its existence; rather, all that is required is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or a judge to resolve the parties' differing versions of the truth at trial." First National Bank v. Cities Service Co., 391 U.S. 253, 288-89 (1968).
Moreover, although summary judgment must be used with extreme caution since it operates to deny a litigant his day in court,Smith v. Hudson, 600 F.2d 60, 63 (6th Cir.), cert. dismissed, 444 U.S. 986 (1979), the United States Supreme Court has stated that the "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to `secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). According to the Supreme Court, the standard for granting summary judgment mirrors the standard for a directed verdict, and thus summary judgment is appropriate if the moving party establishes that there is insufficient evidence favoring the non-moving party for a jury to return a verdict for that party. Id. at 323; Anderson, 477 U.S. at 250.
Accordingly, summary judgment is clearly proper "against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case and on which that party will bear the burden of proof at trial."Celotex Corp., 477 U.S. at 322. Significantly, the Supreme Court also instructs that the "the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion" against a party who fails to make that showing with significantly probative evidence. Id.; Anderson, 477 U.S. at 250. Rule 56(e) requires the non-moving party to go beyond the pleadings and designate "specific facts showing that there is a genuine issue for trial." Id.
Further, there is no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or similar materials negating the opponent's claim. Id. Rule 56(a) and (b) provide that parties may move for summary judgment "with or without supporting affidavits." Accordingly, where the non-moving party will bear the burden of proof at trial on a dispositive issue, summary judgment may be appropriate based solely on the pleadings, depositions, answers to interrogatories, and admissions on file.
Plaintiffs argue that, contrary to the Court's finding as set forth in the January 18, 2006, Memorandum and Order, they did allege the unconstitutionality of the size and height restrictions in their complaint in this matter. They further argue that a challenge to any portion of the Sign Regulations is a challenge to the Regulations as a whole. Accordingly, they argue, the size and height restrictions may not be severed from other provisions Plaintiffs have challenged. They contend that they have suffered an injury-in-fact by virtue of the application of unconstitutional provisions irrespective of the constitutionality of the size and height restrictions. Accordingly, they contend, they may assert the unconstitutionality on overbreadth grounds of the Sign Regulations on behalf of third-parties.
Having considered the most recent submissions of the parties, the Court concludes that it must first determine whether the size and height restrictions of the Sign Regulations were a basis for the denial or refusal of each of the applications in question. As the Court has noted, evidence submitted by Defendant establishes unequivocally that the Township cited, inter alia, the provisions of the Sign Regulations that included the height and size restrictions in denying the first of the applications submitted by Plaintiffs. Although those provisions were not the cited basis for every subsequent denial or refusal of an application by Plaintiffs, evidence submitted by Defendant stands for the proposition that the height and size restrictions were a contemplated basis for each action by the Township of which Plaintiffs now complain.
Plaintiffs contend that such evidence amounts to post hoc rationalization and that the Court may not consider it in the present context. This very contention has been rejected by other courts in similar circumstances. In Get Outdoors II, LLC v. San Diego, 381 F.Supp.2d 1250 (S.D. Calif. 2005), the Court considered as evidence of reasons for the denial of an application not cited in the initial denial an affidavit of a knowledgeable official outlining the deficiencies in the application. See id. at 1259. The same result obtained inPresidio Golf Club v. National Park Service, 155 F.3d 1153, 1164-65 (9th Cir. 1998), in which the Court distinguished the post hoc rationalizations for official actions that are generally prohibited as evidence under Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971), from official statements providing "adequate explanation[s] for [official] action." Presidio Golf Club, 155 F.3d at 1165 (quoting Overton Park, 401 U.S. at 420, as quoted by Kunaknana v. Clark, 742 F.2d 1145, 1149 (9th Cir. 1984)). In KH Outdoor, L.L.C. v. Clay County, Florida, 410 F.Supp.2d 1160, 1167 n. 9 (M.D. Fla. 2006), the Court concluded that provisions not cited for a denial but further delineating the applicable prohibitions are "appropriately considered." The Court is persuaded by the rationale of those cases, permitting the Court to consider all applicable provisions of the Sign Regulations to the extent that Defendant has been able to demonstrate through evidence that those provisions motivated, at least in part, the Township's denial or refusal of Plaintiffs' applications.
Plaintiffs have not offered contrary. The Court concludes, therefore, as a matter of law, that the Township denied or refused each of Plaintiffs' applications because it contemplated a sign both taller and larger than permitted by the Sign Regulations. Plaintiffs do not deny that each of the contemplated signs exceeded the Sign Regulations' height and size restrictions, and the evidence of record plainly demonstrates that the signs were not permitted under those provisions of the Regulations.
The Court has observed that Plaintiffs do not challenge the constitutionality of the height and size restrictions per se. Such restrictions are routinely permitted to reduce visual blight and promote traffic safety. See, e.g.. Ladue v. Gilleo, 512 U.S. 43, 48 (1994). See also Metromedia v. San Diego, 453 U.S. 490, 510, 541, 556-560, 570 (1981) (seven justices concurring in conclusion that such public concerns may justify a ban on otherwise protected speech). While such restrictions have been invalidated in the absence of evidence that safety and aesthetics were the motivation for their adoption, the Sign Regulations in this case include explicit statements of purpose and intent identifying public safety and aesthetics.See Horizon Outdoor, LLC v. Industry, California, 228 F.Supp.2d 1113, 1126 (C.D. Calif. 2002).
Plaintiffs argue that the height and size restrictions are unconstitutional, nonetheless, because the Sign Regulations confer discretion upon the Township to permit deviations. They observe that the Supreme Court has stated that a government regulation that allows arbitrary application is "`inherently inconsistent with a valid time, place, and manner regulation because such discretion has the potential for becoming a means of suppressing a particular point of view.'" Forsyth County, Georgia v. The Nationalist Movement. 505 U.S. 123, 130 (1992) (quoting Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 649 (1981)). The Supreme Court did not invalidate all such regulations that confer a modicum of discretion upon a public official, however. It merely reiterated that "`a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license' must contain `narrow, objective, and definite standards to guide the licensing authority'" in order to curtail the risk of viewpoint discrimination. Forsyth County, 505 U.S. at 131 (quotingShuttlesworth v. Birmingham, 394 U.S. 147, 150-51 (1969)).
In this case, the Sign Regulations provide narrow, objective, and definite height and size standards to guide the discretion of the Township official charged with considering applications for the erection of signs. The Regulations do not run afoul of the First Amendment in that regard. While the Regulations permit the Symmes Township Board of Zoning Appeals to authorize a variance from the Sign Regulations, that Board's discretion is not unfettered. Rather, the provision authorizing variances, § 184.2, allows deviation only when "a literal application of the provisions of the Resolution will result in unnecessary hardship." The same provision clarifies that the variance must observe the "spirit of the Resolution." Far from arbitrary application, the applicable provisions require that the authorized officials act within a narrow set of guidelines and enforce the spirit of the Zoning Resolution at all times. Absent evidence from Plaintiffs of arbitrary variances, the Court is not persuaded that the Sign Regulations' height and size restrictions are constitutionally invalid because the Board of Zoning Appeals may permit hardship variances while still requiring compliance with the spirit of the Zoning Resolution.
Thus far, then, the Court has concluded that Defendant has established as a matter of law that it denied or refused all of Plaintiffs' sign applications, at least in part, on the basis of the Sign Regulations' height and size restrictions, which constitute Constitutionally permissible bases for restricting Plaintiffs' First Amendment rights. The evidence also establishes that Plaintiffs' applications would have been denied in the absence of any of the provisions of the Sign Regulations that they have challenged in this action. The Court must, therefore, determine whether Plaintiffs' claims in this action are moot.
The Court assumes, for the purpose of this Memorandum and Order only, that the specific provisions of the Sign Regulations challenged by Plaintiffs are unconstitutional. The Court's mootness analysis begins with a determination whether the unchallenged and constitutionally permissible height and size restrictions may be severed from the putatively unconstitutional provisions of the Sign Regulations.
Severability in the context of a local ordinance or regulation is a matter of state law. See Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 772 (1988). Ohio courts determine whether a provision is severable by asking whether
(1) the constitutional and unconstitutional parts are capable of separation so that each may be read and may stand by itself;
(2) the unconstitutional part is so connected with the general scope of the whole as to make it impossible to give effect to the apparent intention of the enacting body if that part is stricken;
(3) the insertion of words or terms is necessary in order to separate the constitutional part from the unconstitutional part and to give effect to the constitutional part only.State v. Bickford, 147 N.W. 407, Syllabus ¶ 19 (1913). In this instance, the outcome of that analysis is not in dispute.
The Sign Regulations' height and size restrictions may be read and stand by themselves. Moreover, enforcement of those provisions alone gives effect to the stated intention of Symmes Township in enacting the Sign Regulations: the promotion of public safety and preservation of aesthetics. Finally, the height and size restrictions may be given effect without the insertion of words or terms. The height and size restrictions are severable from the putatively unconstitutional provisions of the Sign Regulations. Plaintiffs have not argued otherwise.
Because the height and size restrictions are severable and independently enforceable, Plaintiffs are precluded from demonstrating that they have suffered a redressable injury by virtue of the application of the putatively unconstitutional provisions of the Sign Regulations. The Township would not have approved their applications had all of the putatively unconstitutional provisions of the Sign Regulations been stricken. The existence and enforcement of those provisions, therefore, deprived Plaintiffs of nothing to which they would otherwise have been entitled. They are entitled to neither damages nor equitable relief in the form of an order requiring that the Township permit them to erect the contemplated signs.See Prime Media, Inc. v. Brentwood, 398 F.3d 814, 824 (6th Cir. 2005); Valley Outdoor, Inc. v. County of Riverside, 337 F.3d 1111, 1114-15 (9th Cir. 2003), cert. denied, 540 U.S. 1111 (2004); Harp Advertising Illinois, Inc. v. Chicago Ridge, 9 F.3d 1290, 1291 (7th Cir. 1993). Defendant is, therefore, entitled to summary judgment with respect to Plaintiffs' claims.
One issue remains unresolved: do Plaintiffs have standing to assert the claims of third parties who may be affected by the putatively unconstitutional provisions of the Sign Regulations even if they are not entitled to relief themselves, having suffered no injury-in-fact? Plaintiffs have argued that they may pursue those claims inasmuch as they have challenged the constitutionality of the Sign Regulations as a whole on overbreadth grounds. The Court concludes that Plaintiffs do not have standing to assert an overbreadth claim.
Among the prudential limits on standing is the requirement that a plaintiff "generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties." Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 955 (1984) (quoting Warth v. Seldin, 422 U.S. 490, 499 (1975)). Courts relax that requirement in the First Amendment context when a regulation or statute is challenged on overbreadth grounds. Id. at 956-57. Even in that context, however, a plaintiff must demonstrate that it has suffered an injury-in-fact by virtue of the application or threatened application of the unconstitutional regulation. Id. at 958. Having concluded as a matter of law that Plaintiffs cannot prove an actual or threatened injury-in-fact, the Court also concludes that they lack standing to assert an overbreadth challenge to the Sign Regulations on behalf of third-parties. Accordingly, Defendant is entitled to summary judgment with respect to that challenge as raised by Plaintiffs.
For those reasons, Defendant's supplemental motion for summary judgment (Doc. 51) is hereby GRANTED in its entirety. This action is CLOSED.
IT IS SO ORDERED.