Opinion
Civil No. JFM-03-2372
January 15, 2004
OPINION
Trinity Outdoor, L.L.C. ("Trinity") has brought this action against the City of Rockville, Maryland ("the City"), challenging the constitutionality of the City's sign ordinance under the First Amendment. The City has filed a motion to dismiss for lack of standing. I will grant the motion.
I.
Trinity Outdoor, L.L.C., is a limited liability company organized under the laws of Georgia and engaged in the outdoor advertising industry. Trinity has pursued outdoor advertising opportunities in Maryland and, prior to filing this action, it had signed seven lease agreements with property owners in the City who agreed to let Trinity post its signs on their property. However, it had not yet then registered to do business in Maryland or obtained a license to engage in the business of outdoor advertising in Maryland as required by state law. See Md. Code Ann., Corp. Assoc. § 7-202, 7-203; Md. Code Ann., Transp. I § 8-708.
In July 2003, Trinity submitted to the City seven applications to erect free-standing off-site signs along State Highway Routes 28 and 355. According to the City, the applications were rejected at the counter because the City's sign ordinance prohibits off-site advertising. Furthermore, the signs Trinity sought permission to erect were several times larger than any sign allowed by the sign ordinance and by a separate ordinance ("Chapter 19.5") enacted in October 2003, after this suit was instituted.
Trinity refused to acknowledge in the memoranda it filed that its proposed signs would exceed the size restrictions of the sign ordinance and of Chapter 19.5. It did so only in responding to repeated questioning during oral argument on the motion to dismiss.
The sign ordinance creates a comprehensive scheme for regulating the permitting, placement, construction, size, design, operation, and maintenance of signs within the City. The ordinance provides that no sign shall be erected without the prior issuance of a sign permit, which is to be granted in the discretion of the Superintendent of the Division of Licenses and Inspection subject to certain enumerated criteria. Trinity contends that the ordinance is overbroad, contains restrictions which discriminate on the basis of content, and employs a permitting scheme which grants unbridled discretion to government officials.
II.
As indicated above, the City has moved to dismiss the complaint for lack of standing. Federal courts are obligated "to examine their own jurisdiction, and standing `is perhaps the most important of [the jurisdictional] doctrines.'" U.S. v. Hays, 515 U.S. 737, 742, 115 S.Ct. 2431, 2435-2435 (1995) (citation omitted); see Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986). Standing is a core element of federal subject matter jurisdiction; thus it is subject to the same standard of review that applies to a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). Falwell v. City of Lynchburg, Virginia, 198 F. Supp.2d 765, 771 (W.D.Va. 2002).
The plaintiff has the burden of proving subject matter jurisdiction. See Richmond, Fredericksburg Potomac R. Co. v. U.S., 945 F.2d 765, 768 (4th Cir. 1991). In considering a motion to dismiss for lack of standing, the court must accept as true all material factual allegations in the complaint and must construe the complaint in favor of the plaintiff. Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975). Although a court may not consider evidence outside the pleadings in deciding a motion to dismiss for failure to state a claim, the Fourth Circuit has articulated a different standard for dismissal when the court's jurisdiction is called into question:
In determining whether jurisdiction exists, the district court is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment. . . . The district court should apply the standard applicable to a motion for summary judgment, under which the nonmoving party must set forth specific facts beyond the pleadings to show that a genuine issue of material fact exists . . . The moving party should prevail only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.Richmond, 945 F.2d at 768.
III.
"The irreducible constitutional minimum of standing requires: (1) that the plaintiff personally has suffered actual or threatened injury that is concrete and particularized, not conjectural or hypothetical; (2) that the injury fairly can be traced to the challenged action; and (3) that the injury is likely to be redressed by a favorable decision from the court." Burke v. City of Charleston, 139 F.3d 401, 405 (4th Cir. 1998) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136-37, 119 L.Ed.2d 351 (1992)).
In most cases an inquiry into standing invokes prudential as well as constitutional considerations. These considerations require that a claim not be an abstract, generalized grievance shared by all or a large class of citizens; rather, the plaintiff must assert his own legal rights, not the rights or interests of third parties. Warth, 422 U.S. at 499, 95 S.Ct. at 2205. However, prudential requirements are usually relaxed in First Amendment cases, particularly those involving claims that a statute confers undue discretion upon executive officials or that is overbroad. See Secretary of State of Maryland v. Joseph A. Munson, Inc., 467 U.S. 947, 956-957, 104 S.Ct. 2839, 2847, 81 L.Ed.2d 786 (1984); Burke v. City of Charleston, 139 F.3d 401, 405 (4th Cir. 1998); Clark v. City of Lakewood, 259 F.3d 996, 1010 (9th Cir. 2001). As a result, if a plaintiff satisfies the three constitutional requirements of standing, he may rely on arguments demonstrating that the rights of third parties are violated by the challenged statute even if his own conduct or speech could be constitutionally restricted. He is given the right to sue "not because . . . [his] own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression." Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973).
In the present case Trinity met none of these requirements at the time it filed suit. It had not registered to do business or obtained a license to engage in the business of outdoor advertising in Maryland. It did not even allege in its complaint an intent to comply with those requirements. Therefore, on the facts as plead it could not have erected the signs for which it sought permits even if the City's sign ordinance were declared unconstitutional. Therefore, the ordinance itself cannot be said to have caused any injury to Trinity. Likewise, because it had not met these independent statutory requirements, Trinity's inability to erect the signs was not traceable to the ordinance, and invalidation of the ordinance would not give it redress.
Trinity contends that the denial of its application under the size ordinance itself constituted cognizable injury. That would be true if Trinity had been proposing to engage in speech that arguably was constitutionally protected. Indeed, in that instance in order to have standing Trinity would not have needed to submit an application at all and could have challenged the ordinance even if, after an individualized inquiry, it were determined that its speech could be constitutionally banned. See City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 755-756, 108 S.Ct. 2138, 2143, 100 L.Ed.2d 771 (1988); Freedman v. Maryland, 380 U.S. 51, 56, 85 S.Ct. 734, 737, 13 L.Ed.2d 649 (1965). That is so because if a statute is overbroad and/or confers upon executive officials discretion that is unfettered by stated objective criteria, the statute's very existence has a chilling effect upon the exercise of First Amendment rights in a constitutionally protected zone. In such cases an after-the-fact determination that the plaintiffs particular speech could have been prohibited under a properly drawn statute does not cure the broader ill. That concern, however, does not exist in the present case because offsite commercial advertising (the only type of speech in which Trinity sought to engage) categorically is not constitutionally protected. See, e.g., Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 512 (1981); Georgia Outdoor Advertising, Inc. v. City of Waynesville, 833 F.2d 43, 44 (4th Cir. 1987).
Harp Advertising Illinois, Inc., v. Village of Chicago Ridge, Illinois, 9 F.3d 1290 (7th Cir. 1993), is on point. In Harp, the plaintiff advertising company challenged the village's sign and zoning codes, which prevented the company from erecting an off-premise billboard. The Seventh Circuit held that the company lacked standing to challenge either code because it could not put up its sign even if its challenge were victorious. Id. at 1291. A separate sign ordinance, which the plaintiff did not challenge, contained size restrictions which would preclude the posting of the plaintiff's sign. Id. Consequently, the Court found that the plaintiff could not fulfill the redressability requirement for standing. Id. at 1292. The court emphasized that although Harp launched a facial attack on the ordinance, the company was still required to meet the three constitutional criteria for standing. Id. The court determined that an invalidation of the challenged sign and zoning codes would not redress Harp's inability to erect its proposed sign because the village could prevent erection of the sign simply by enforcing another valid ordinance already in effect. Id.
The only distinction between Harp and the present case is that here Chapter 19.5, the independent ordinance containing unchallenged size restrictions, was enacted after Trinity filed its application under the challenged sign ordinance. According to Trinity, this distinction is critical because there was no requirement that it register to do business or obtain an outdoor advertising permit in Maryland before it filed its application. The question, however, is not whether Trinity needed to register to do business and obtain an outdoor advertising permit in order to have "standing" to file for a sign application. The question is whether it needed to do so in order to erect signs — the only concrete, particularized, non-conjectural and non-hypothetical injury it claims. Because the answer to this question is "yes," Trinity's failure to take the steps it was required to take before engaging in business in Maryland is fatal to its claim.
The challenged sign ordinance itself includes a provision imposing size requirements that Trinity's proposed signs would not meet. The City contends this provision can be severed from the other provisions of the ordinance and establishes an independent basis for denial of Trinity's application. The severance issue has not been briefed, however, and I do not reach it. I also, of course, do not reach the question of the constitutionality of the sign ordinance. If the City has concluded that any of the ordinance's provisions are of doubtful validity, it might be well advised to amend them.
Trinity has not sought leave to amend its complaint to make allegations about its recent efforts to register to do business and obtain an outdoor advertising license in Maryland. As Trinity apparently recognizes, such an amendment would be futile in light of the fact that Chapter 19.5 has been enacted in the interim. Because the size restrictions of that chapter would prohibit Trinity's proposed signs, Trinity's belated efforts to become registered and licensed are immaterial.
IV.
Trinity finally argues that Chapter 19.5 cannot prevent it from erecting its signs because the new ordinance operates as a retroactive impairment of Trinity's vested rights to erect signs. Trinity cites an unpublished Eleventh Circuit case for the proposition that" when an application for a permit satisfies all existing and pending laws, the permit must then issue: a new law passed after the application was filed has no effect on the matter of issuance." National Advertising Company v. The City of Fort Lauderdale, at 6 (11th Cir. 1993).This argument is without merit. As National Advertising recognizes, whether a person has obtained a vested right to erect signs is a matter of state law. Although there apparently is no Maryland case addressing the question of vested rights in the context of sign permits, Maryland courts have discussed the principle of vested rights in the analogous area of land-use and zoning. Under Maryland law, the standard for "Vesting" in the zoning context requires that:'"1) there must be the actual physical commencement of some significant and visible construction; 2) the commencement must be undertaken in good faith, to wit, with the intention to continue with the construction and to carry it through to completion; and 3) the commencement of construction must be pursuant to a validly issued building permit.'" Powell v. Calvert County, 368 Md. 400, 409, 795 A.2d 96, 101 (2002) (quoting Sykesville v. West Shore Communications, Inc., 110 Md.App. 300, 305, 677 A.2d 102, 104 (1996)).
Trinity admits it has met none of these requirements. However, citing National Waste Managers, Inc. v. Anne Arundel County, 135 Md. App. 585, 763 A.2d 264, 277 (2000), it invokes the proposition that "[i]f a municipality `willfully delays processing an application in order to prevent an applicant from securing vested rights through substantial construction . . . the courts grant the permittee a period of time to attempt to secure that state of completion that will vest his right thereto'" (quoting 4 Ziegler, Rathkopf's The Law of Zoning and Planning, § 50.03 (4th ed. Rev. 1994). The court went on to say that this opportunity to obtain vested rights should be afforded when "a municipality, by action or inaction, prevents, interrupts, or interferes with a permittee's efforts" to obtain its vested rights. Id.
There are two fallacies in Trinity's reliance upon National Waste Mangers. First, that case did not involve the question of standing but the tolling of limitations. The court merely held that the defendant could not, after the conclusion of litigation, assert a deadline that would not have expired if it had not chosen to litigate in the first instance. Second, in order to commence "actual physical" construction of signs, the sine qua non for obtaining vested rights, Trinity not only was required to obtain a permit under the challenged ordinance but also to register to do business in Maryland and obtain an outdoor advertising license. As previously discussed in this opinion, it did neither before instituting suit.
A separate order granting the City's motion to dismiss is being entered herewith.