Opinion
Case No. 02-1147-KI.
March 29, 2004
Douglas M. Bragg, Tualatin, Oregon, John F. Winston, West Sherwood, Oregon, and Stephen F. Crew, T. Chad Plaster, Ramis Crew Corrigan Bachrach, LLP, Portland, Oregon, Attorneys for Plaintiffs.
Timothy J. Sercombe, Stuart M. Brown, Preston Gates Ellis, LLP, Portland, Oregon, Attorneys for Defendants.
OPINION
Before the court are defendants' motion for summary judgment (#38) and plaintiffs' motion for partial summary judgment (#43). Oral argument on these motions was held on November 10, 2003. After oral argument, a change in counsel for plaintiffs occurred. New counsel requested the opportunity to file an amended reply brief. I granted plaintiffs' request and they filed an amended reply brief on January 30, 2004. I also granted leave to defendants to file a sur-reply brief, which was filed on February 11, 2004. The motions were taken under advisement on March 9, 2004, following additional written arguments submitted by the parties.
For the reasons set forth below, I grant in part and deny in part both motions.
FACTS
Plaintiffs challenge actions taken by the City of Lake Oswego and its former Code Enforcement Specialist, Sandy Ingalls, regarding plaintiffs' advertising on a pole sign in a "general commercial" zone of the City. In addition to their claims regarding how the City's sign regulations were applied to them, plaintiffs also bring facial challenges to the constitutionality of those regulations and seek to have them stricken as unconstitutional.
I. The City's Sign Code
On or about January 5, 1994, the City adopted Ordinance No. 2085. That ordinance repealed then-existing regulations governing signs and replaced them with a new comprehensive set of sign regulations which were codified in Chapter 47 of the Lake Oswego Code (hereinafter, the "Sign Code"). The City's reason for adopting the Sign Code was in part to cure constitutional defects in its then-existing sign regulations. The Sign Code has since undergone four additional minor amendments.
Various sections of the Sign Code disallow pole signs, with some exceptions. The 1994 version of the Sign Code directed that nonconforming signs conform within five years of the Sign Code's effective date and required the removal of pole signs by February 3, 1999, or sooner if a new business or use necessitated an alteration. Thereafter, the City sent notices to businesses and local associations and held several public hearings on issues related to the Sign Code and whether the Sign Code adequately advanced business interests. Ultimately, the City Council extended the time for compliance for nonconforming signs to May 21, 2004 (i.e., the date on which the "amortization period" would end for nonconforming signs).
Following the filing of this case, the City adopted Ordinance No. 2358, which implements an amendment to Section 47.04.100 of the Sign Code. The amendment removes the May 21, 2004, deadline for removing and replacing all nonconforming signs in the City for all signs except pole signs.
II. The Pole Sign
A pole sign of approximately 40 square feet in area was constructed in 1980 on property with an address of 15835 Boones Ferry Road, Lake Oswego, Oregon. The pole sign was originally and is currently owned by plaintiff Ramsay Signs, Inc. ("Ramsay").
In 1980, the City's sign regulations required a permit from the City prior to construction of a pole sign. The sign regulations at the time only allowed "ground signs" in the industrial and commercial zoning districts. The sign at issue in this case was a "ground sign" under the regulations in effect at the time. Neither plaintiffs nor the City has any record of a permit having been issued in 1980 for the construction of the sign.
Ramsay began leasing the sign to Apollo Travel, Inc. ("Apollo"), a travel agency, in 1980. Ramsay continued to lease the pole sign to Apollo until 1996, when Apollo sold its operation to Keller Pinnell Travel, LLC, dba Journeys! of Lake Oswego ("Journeys"). At that time, Ramsay changed the content of the sign to reflect the new name of the travel agency. The version of the Sign Code applicable at the time Journeys purchased Apollo required the removal of nonconforming pole signs by February 3, 1999, or sooner if a new business or use necessitated an alteration. The City, however, did not require the Journeys sign to be removed or replaced.
In February 2001, plaintiff G.K., LTD. ("GK") purchased Journeys. GK also operates a travel agency at the same location. Without modifying the structure of the sign, Ramsay changed the copy content of the sign in early 2001 from "Journeys! of Lake Oswego, Formerly Apollo Travel" to "G.K. Ltd Travel Groups Tours Cruises Complete Travel Services Domestic International." Plaintiffs made this modification without a permit.
Prior to GK's purchase of Journeys, plaintiffs were aware that the pole sign would have to be replaced with a different type of sign at the end of the amortization period.
On or about April 27, 2001, defendant Ingalls, acting as the Code Enforcement Specialist for the City, sent a letter to plaintiffs regarding the pole sign. Ingalls informed plaintiffs that the sign was nonconforming and alerted plaintiffs that the sign was installed without a permit.
On or about May 29, 2001, plaintiffs applied for a sign permit and requested permission to retain the pole structure and the size of the existing sign. Ingalls, on behalf of the City, denied the permit in June 2001.
On or about August 23, 2001, the City cited GK for using a prohibited pole sign.
In October 2001, Ramsay applied for a variance to retain the existing pole sign and to allow an oversized sign (40 square feet instead of the 32 square-foot maximum). The City's Planning Director denied the variance application on or about December 17, 2001.
Ramsay appealed the decision to the City's Development Review Commission. After a hearing on the appeal on February 4, 2002, the Commission denied the variance in an order dated March 4, 2002.
Ramsay then appealed to the City Council, which held a public hearing on April 16, 2002. On May 14, 2002, the City Council issued findings and conclusions and entered an order affirming the Commission's denial of the variance. Ramsay did not appeal these findings and conclusions. GK did not present evidence or testimony in the City Council proceeding.
This case was filed on August 23, 2002. The City has halted enforcement of the Sign Code against plaintiffs pending resolution of this case. The pole sign remains in place and displays the advertisement for GK.
LEGAL STANDARDS
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). The initial burden is on the moving party to point out the absence of any genuine issue of material fact. Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion for summary judgment, the evidence is viewed in the light most favorable to the nonmoving party. Robi v. Reed, 173 F.3d 736, 739 (9th Cir.), cert. denied, 528 U.S. 375 (1999).DISCUSSION
I. Nature of Plaintiffs' Claims
In their First Amended Complaint, plaintiffs assert seventeen claims, pursuant to 42 U.S.C. § 1983, related to the City's Sign Code. Defendants seek summary judgment against all of plaintiffs' claims. Plaintiffs seek summary judgment on all of their claims except claims five, six, seven, eleven, fifteen, and seventeen.
Claims one through four assert violations of the First Amendment through unconstitutional regulation of commercial speech as applied to plaintiffs. Specifically, plaintiffs take the City to task for its enforcement of the Sign Code against plaintiffs' pole sign.
Plaintiffs also bring myriad facial constitutional challenges against the Sign Code under the First Amendment (based on the regulation of commercial and non-commercial speech) in claims eight, nine, ten, eleven, twelve, thirteen, fourteen, sixteen and seventeen.
In claim five, plaintiffs allege that they were denied equal protection under the law because of selective enforcement of the Sign Code based on race.
In claims six and seven, plaintiffs assert that enforcement of the Sign Code has effected an illegal taking of their property interests.
Finally, in claim fifteen, plaintiffs bring an equal protection challenge against the Sign Code on the basis that, on its face, it unconstitutionally discriminates between similarly situated persons.
As is evident from plaintiffs' claims, the primary thrust of this case relates to plaintiffs' First Amendment challenges to the Sign Code. I first address plaintiffs' facial constitutional challenges to the Sign Code under the First Amendment. I then discuss plaintiffs' as-applied challenges to the Sign Code as it relates to regulating pole signs. In the final section of this Opinion, I address the remaining claims (i.e., claims five, six, seven, and fifteen) and any unresolved issues.
II. Facial Challenges to the Sign Code under the First Amendment
A. Plaintiffs' standing
Although defendants have not contested plaintiffs' standing to challenge the constitutionality of the Sign Code on its face, it is important to observe that prudential standing rules are somewhat relaxed in the First Amendment context. Normally, a party bringing a lawsuit must show an actual or threatened injury resulting from the alleged illegal action and may only assert a violation of its own rights. In the context of the First Amendment, however, a third party can bring a facial challenge on the basis that a law regulates speech based on content, R.A.V. v. City of St. Paul, 505 U.S. 377, 381 (1992), or contains a prior restraint of protected speech, City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750 (1988). Plaintiffs assert facial challenges to the Sign Code under both of these theories.
B. Are the challenged provisions of the Sign Code content-neutral or content-based?
To determine whether government restrictions on speech can be upheld as constitutional, the principal inquiry is whether the restrictions are content-neutral or content-based. Foti v. City of Menlo Park, 146 F.3d 629, 636 (9th Cir. 1998). In Ward v. Rock Against Racism, 491 U.S. 789, 791-92, reh'g denied, 492 U.S. 937 (1989), the Supreme Court provided the following guidance for how to determine whether a regulation is content-neutral or content-based:
The principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. The government's purpose is the controlling consideration. A regulation that serves purposes unrelated to the content of expression is deemed content neutral, even if it has an incidental effect on some speakers or messages but not others. Government regulation of expressive activity is content neutral so long as it is "justified without reference to the content of the regulated speech."
(Quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984); other citations omitted; emphasis in original);see also Madsen v. Women's Health Ctr., Inc., 512 U.S. 753, 763 (1994) ("Our principal inquiry in determining content neutrality is whether the government has adopted a regulation of speech `without reference to the content of the regulated speech.' . . . We thus look to the government's purpose as the threshold consideration." (Citations omitted)).
In Foti, supra, the Ninth Circuit considered whether a city ordinance regulating picketing, leafleting, and displaying of signs on public property was content-neutral. The court stated: "`As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content based.'" Foti, 146 F.3d at 636 (quotingTurner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 643, reh'g denied, 512 U.S. 1278 (1994)). When considering the exemptions to a ban on signs on public property at issue in Foti, the court concluded that the exemptions were content-based "because a law enforcement officer must read a sign's message to determine if the sign is exempted from the ordinance" and "when `exceptions to the restriction on noncommercial speech are based on content, the restriction itself is based on content.'" Foti, 146 F.3d at 636 (quoting Nat'l Adver. Co. v. City of Orange, 861 F.2d 246, 249 (9th Cir. 1988)). Applying this test, the Foti court declared exemptions in the sign ordinance at issue for "open house" real estate signs and safety, traffic, and public informational signs to be content-based. Foti, 146 F.3d at 636. The court also cited favorably similar conclusions in other Ninth Circuit cases, such as Desert Outdoor Adver. v. City of Moreno Valley, 103 F.3d 814, 820 (1996), cert.denied, 522 U.S. 912 (1997) (addressing exemptions for signs such as official government notices and directional, warning, or informational signs), and Nat'l Adver., 861 F.2d at 248 (addressing exemptions for signs such as real estate signs). Id.
In arguing that certain provisions of the Sign Code are content-based, plaintiffs rely heavily on the test set forth in Foti (i.e., that if a sign's message must be read to determine its legality, the sign ordinance must then be content-based). At the outset, I note that the Foti test only makes sense when the government regulation at issue has defined an acceptable or unacceptable sign based on the message it is trying to convey (e.g., a sign that advertises an open house). The test does not make sense when the applicable government regulation is not based on a sign's message but is, instead, based on a sign's appearance or change in its appearance. As such, the fact that a law enforcement officer has to examine a sign to determine its legality is not always dispositive. For instance, the fact that the applicability of certain provisions of the Sign Code is dependent on whether a sign uses flashing lights or whether a change in copy or appearance of a sign has occurred does not mean that those provisions (or provisions that define terms like "alter" or "change of copy") are content-based. Through these latter and similar provisions, the City is not attempting to regulate the content of a sign or determine its message but is, instead, defining triggering events such as when a grandfathered, non-conforming sign must be brought up to code or removed. Such a system is a reasonable means of protecting the investment of current sign owners or users from newly-imposed sign regulations.
In their briefs, plaintiffs list the alleged "offending" (i.e., content-based) sections of the Sign Code. See Plaintiffs' Amended Memorandum in Support of Plaintiffs' Motion for Partial Summary Judgment, pp. 11-16, 24-25; see also Defendants' Memorandum in Support of Defendants' Motion for Summary Judgment, p. 31, n. 9; p. 33, n. 11; pp. 35, 38 (identifying and discussing plaintiffs' alleged content-based provisions of the Sign Code). A more concise and defensible list of challenged provisions is provided by plaintiffs in one of their reply memoranda. See Plaintiffs' Reply Memorandum in Support of Motion for Partial Summary Judgment, p. 10.
This includes Section 47.04.100(1), which plaintiffs characterize as content-based in their as-applied challenges to the Sign Code. That section states:
A non-conforming sign in all zones other than the EC zone as described and established by the Lake Oswego Zoning Code may be maintained or undergo a change of copy without complying with the requirements of this chapter, with the exception that any change for a new business or use or any changes in a wall sign which is painted on a structure will comply with this chapter at such time as change in copy or alteration occurs.
Not only can the test articulated in Foti lead to an overly simplistic approach to whether a regulation is content-based, it can also detract from the more holistic analysis that a court should apply when analyzing the constitutionality of regulations that impact speech. As the Supreme Court emphasized in Ward, supra, a court must look at the purpose behind government regulation of speech, especially when dealing with time, place, or manner restrictions, as most of the Sign Code provisions clearly are. With a few minor exceptions noted below, I cannot discern any purpose or intent by the City to favor or disfavor certain messages, content, or viewpoints through the Sign Code provisions challenged by plaintiffs.
I now examine the few provisions of the Sign Code that are arguably content-based.
1. Exemptions to permit and fee requirements for permanent signs
In Section 47.06.205 of the Sign Code, certain permanent types of signs are exempted from fee, permit, or application requirements, although they must still comply with all other provisions and regulations of the Sign Code. In particular, no fee, permit, or application is required for "[p]ublic signs, signs for hospital or emergency services, legal notices, railroad signs, and danger signs." LOC 47.06.205(4). Plaintiffs argue that these provisions violate the Foti test because an enforcement officer must read a sign's message to determine if it is subject to these provisions.
The City offers a limiting construction of these provisions to support a finding that they are not content-based. See Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 n. 5, reh'g denied, 456 U.S. 950 (1982) ("In evaluating a facial challenge to a state law, a federal court must . . . consider any limiting construction that a[n] . . . enforcement agency has proffered."); see also Outdoor Sys., Inc. v. City of Mesa, 997 F.2d 604, 611 (9th Cir. 1993) (the court has a duty "to interpret a statute, if fairly possible, in a manner that renders it constitutionally valid."). Specifically, the City argues that "signs for hospital or emergency services" means signs owned by hospital and emergency service providers. Likewise, "railroad signs" means signs owned by railroads.
I find this construction to be reasonable and likewise read "public signs" to mean signs placed by government entities. Plaintiffs respond that such a construction still renders the Sign Code provisions constitutionally suspect because they are now viewpoint-based. In the absence of binding authority on point, I am reluctant to accept plaintiffs' argument and I refrain from declaring an exemption from fee, permit, and application requirements for government entities, railroads, and hospital and emergency service providers to be content- or viewpoint-based. I do note, however, that the Ninth Circuit inFoti, supra, stated that it was "troubled by the wholesale exemption for government speech" in the sign ordinance at issue in that case. Foti, 146 F.3d at 637. The court, nonetheless, decided not to rule on the issue and affirmed the district court's finding that the exemption was not content-based. Id. at 638.
In making this assertion, and many of their other key arguments, plaintiffs rely almost exclusively on two opinions from district courts outside of the Ninth Circuit. See North Olmstead Chamber of Commerce v. City of North Olmstead, 86 F. Supp.2d 755 (N.D. Ohio 2000); King Enter., Inc. v. Thomas Township, 215 F. Supp.2d 891 (E.D. Mich. 2002).
Of course, even with the construction offered by the City, there remains the issue of whether "legal notices" and "danger signs" are content-based exemptions to the fee, application, and permit provisions of the Sign Code. Given Ninth Circuit precedent, it is difficult to conclude otherwise. For instance, in Desert Outdoor Adver., 103 F.3d at 820, the court declared exemptions in a sign ordinance for "official notices" and "warning" signs to be content-based and, ultimately, unconstitutional.
The other exemption applicable to permanent signs that plaintiffs challenge is set forth at Section 47.06.205(10) of the Sign Code. It exempts "no solicitation" signs (as permitted by Section 34.16.945 of the Sign Code). As the City concedes, this provision is also content-based.
2. Regulation of temporary signs
In Section 47.08.300 of the Sign Code, certain temporary signs are allowed and exempted from fee, permit, or application requirements, although they must still comply with all other provisions and regulations of the Sign Code. Section 47.08.300(B) of the Sign Code, entitled "Allowed Signage," sets forth which temporary signs are allowed in residential zones, as well as which temporary signs are allowed in commercial or industrial zones. Section 47.08.300(B)(1) states:
In any residential zone temporary signage shall be allowed for each and every lot. This signage shall not be restricted by content, but is usually and customarily used to advertise real estate sales, political or ideological positions, garage sales, home construction or remodeling, etc. Signage shall be allowed for each lot as follows:
a. Temporary signs not exceeding six square feet, provided the signs are erected not more than 90 days prior to an election and removed within five days following the election.
b. One temporary sign not exceeding six square feet provided the sign is removed within fifteen days from the sale, lease or rental of the property or within seven days of completion of any construction or remodeling. An additional sign of the same size may be erected if the property borders a second street and the signs are not visible simultaneously. On tracts of land of more than 2 acres in residential zones the sign area may be increased to 32 square feet. In no case shall the sign or signs be erected for more than twelve (12) months.
c. One temporary sign not exceeding four square feet in area which is erected for a maximum of eight days in any calendar month and is removed by sunset on any day it is erected.
d. Temporary signs erected within a building which do not obstruct more than 10 percent of any individual window surface.
(Emphasis added).
Plaintiffs challenge Sections 47.08.300(B)(1)(a) and (b) on the basis that they restrict temporary signs connected to elections and to the sale, lease, rental, construction, or remodeling of property. Likewise, they challenge similar provisions in Section 47.08.300(B)(2) applicable to commercial or industrial zones. For instance, plaintiffs argue that the provisions restrict the display of temporary election signs in residential, commercial, and industrial zones both in terms of sign size and the time within which such messages may be displayed. Plaintiffs assert that such restrictions could only be applied once an enforcement officer ascertains that the signs pertain to election issues, thus demonstrating that the restrictions are content-based.
The City responds that the provisions at issue do not limit themselves to election signs or signs about property leasing, remodeling, etc. Instead, the City characterizes the provisions as allowing for additional signage, regardless of content, during certain time periods or when property is put to a particular use. For instance, during an election season, or while a contractor is remodeling a house, the relaxed signage rules apply regardless of whether a sign suggests anything about elections or advertises a remodeling contractor's business. Plaintiffs characterize this interpretation as "bizarre," but it is a fair reading of the provisions and demonstrates the lengths to which the City has gone to regulate signs without doing so on the basis of content.
The City defends one other temporary sign provision, in the context of commercial or industrial zones, on the same basis. That provision states:
Temporary non-illuminated signs not exceeding 16 square feet for charitable fundraising events placed by nonprofit and charitable organizations. Such signs shall not be placed more than seven days prior to the event and must be removed within two days following the event. No more than three such events shall be advertised in this manner per lot per year.
LOC 47.08.305(B)(2)(C)) (emphasis added).
Unfortunately for the City, it did not follow the same model with this provision as it did with the other portions of Section 47.08.305. In this instance, the City has made a special allowance for increased signage "for charitable fundraising events," thus making a special exception for certain sign content. In other words, there is no way to read this provision as allowing any type of content on signs up to 16 square feet around the time a charitable fundraising event is taking place.
3. Construction and design standards for permanent signs
In reviewing plaintiffs' arguments, the only other provision of the Sign Code that strikes me as potentially content-based is Section 47.06.200(5): "Copy on signs visible from streets shall be designed to reduce distractions to motorists. Signs may be reviewed for clarity and readability."
Defendants offer a construction of the provision to prevent it from being construed as content-based. Namely, they argue that the provision can be read "to refer to the visibility of the sign not the intelligibility of its message." Defendants' Memorandum In Opposition to Plaintiffs' Motion for Partial Summary Judgment, p. 14. Although it is a close call, I find defendants' construction to be fair and conclude that the provision does not open the door for the City to determine a sign's message. The latitude provided to City officials by the provision is limited to ensuring that the appearance of a sign does not provide a distraction to drivers.
C. The constitutionality of the content-based provisions
Now that I have identified which provisions of the Sign Code are content-based, the issue becomes whether they are constitutional. To begin this analysis, I first summarize the provisions of the Sign Code that I have found to be content-based:
• The exemption from fee, permit, and application requirements for permanent signs that are "danger signs," "official notices," and "no solicitation" signs.
• The allowance of temporary signs in commercial or industrial zones, without a permit, "for charitable fundraising events."
Content-based sign regulations on non-commercial speech are presumptively unconstitutional. Foti, 146 F.3d at 637 (citingR.A.V., 505 U.S. at 382). To pass constitutional muster, they must survive strict scrutiny. Boos v. Barry, 485 U.S. 312, 321-22 (1988). Strict scrutiny requires the government to show that "the regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end."Id. Also, the regulation must use the least restrictive means to further the articulated compelling interest. Foti, 146 F.3d at 636 (citing Sable Communs. of California v. F.C.C., 492 U.S. 115, 126 (1989)).
Because the City, in its written and oral arguments, maintained that the Sign Code was a content-neutral ordinance, it did not provide argument or evidence to support a finding that the specific provisions identified above could satisfy strict scrutiny. Regardless, with the possible exception of "danger signs," I find it doubtful that the City could demonstrate that the contentbased provisions of the Sign Code meet such a high standard. As such, I find the provisions to be unconstitutional.
Such a de minimus portion of the Sign Code, however, does not require that the Sign Code be voided in toto, as plaintiffs request. Instead, the offending provisions shall be severed, as allowed by Section 10.02.050 of the Sign Code and state law under ORS 174.040, which provides:
As noted at the end of the Opinion, the parties shall have three weeks to submit a proposed form of judgment. As part of that process, the City is welcome to propose alternatives to severing the offending provisions of the Sign Code, such as textual modifications that resolve the constitutional infirmities identified in this Opinion. For instance, it is plausible that the City could re-write the current exemption applicable to charitable fundraising events by following the non-content-based approach it uses in the context of temporary signs during an election season.
It shall be considered that it is the legislative intent, in the enactment of any statute, that if any part of the statute is held unconstitutional, the remaining parts shall remain in force unless:
(1) The statute provides otherwise;
(2) The remaining parts are so essentially and inseparably connected with and dependent upon the unconstitutional part that it is apparent that the remaining parts would not have been enacted without the unconstitutional part; or
(3) The remaining parts, standing alone, are incomplete and incapable of being executed in accordance with the legislative intent.
The stricken portions of the Sign Code are minor exemptions or exceptions to major portions of the Sign Code (e.g., regulations governing temporary signs). The remaining parts of the Sign Code are not dependent on the stricken portions and can be executed effectively without them. These conclusions are further bolstered by the fact that, as explained below, I find no other constitutional infirmities in the Sign Code that warrant the severance of additional provisions.
D. The constitutionality of the content-neutral provisions
In the event that the government's restriction on speech is determined to be contentneutral, the government may permissibly impose reasonable time, place, and manner requirements on speech. Such requirements are valid if the government can show that (1) they are narrowly tailored to serve a substantial governmental interest; and (2) they leave open ample alternative channels for communication of the information. Ward, 491 U.S. at 791. Under this time, place, and manner analysis, a narrowly tailored regulation does not have to eliminate all less restrictive alternatives, but must not burden substantially more speech than is necessary to further the government's legitimate interest. Id. at 799.
The City argues that these standards are satisfied, both for the specific Sign Code provisions challenged by plaintiffs and for the Sign Code as a whole. In support of this argument, the City emphasizes the interests served by the Sign Code as set forth in Section 47.03.010, which states in relevant part:
The City Council finds that to protect the health, safety, property and welfare of the public, to provide the neat, clean, orderly and attractive appearance of the community, to improve the effectiveness of signs, to provide for safe construction, location, erection, and maintenance of signs, to prevent proliferation of signs and sign clutter, and to minimize adverse visual safety factors to travelers on public highways and on private areas open to public travel, it is necessary to regulate the design, quality of materials, construction, location, electrification, illumination and maintenance of signs visible from public property, public rights-of-way and private areas open to public vehicular travel.
The courts have consistently been willing to accept, as substantial government interests, the types of concerns arising from signs and billboards as articulated in the Sign Code. See Nat'l Adver., 861 F.2d at 249 ("Under Metromedia [v. City of San Diego, 453 U.S. 490 (1981)], the City's interests in traffic safety and aesthetics are sufficient to justify continued content-neutral regulation of the noncommunicative aspects of billboards, such as size, spacing and design."); see also Outdoor Sys., 997 F.2d at 611 (finding it "obvious" that the aesthetic and safety goals of a sign ordinance represented substantial governmental interests). Based on this precedent and my review of the Sign Code, I fail to see how the challenged provisions of the Sign Code are not narrowly tailored to serve substantial government interests or do not leave open ample alternative channels of communication. This conclusion takes into consideration the City's ban on most pole signs, discussed below, which plaintiffs point to as proof that ample alternative channels are not available.
Based on the foregoing, summary judgment is granted against plaintiffs' tenth and twelfth claims for relief. In regard to plaintiffs' eighth and ninth claims for relief, in which plaintiffs allege that the Sign Code is facially unconstitutional because it regulates non-commercial speech on the basis of content or viewpoint, summary judgment is granted in plaintiffs' favor solely to the extent that certain provisions of the Sign Code, as specified above, shall be severed. In all other respects, summary judgment is granted on those claims in defendants' favor.
Plaintiffs' twelfth claim for relief alleges that certain provisions of the Sign Code prefer commercial over non-commercial speech. Plaintiffs do not develop this argument in their briefs and I otherwise do not find such a preference in the Sign Code.
E. Does the Sign Code constitute an unconstitutional prior restraint of speech?
In addition to challenging the constitutionality of provisions of the Sign Code on the basis that they are content-based, plaintiffs also argue that the provisions requiring a permit before erecting certain signs constitute an unconstitutional system of prior restraint on speech. Plaintiffs advance two theories to support their argument: (1) the Sign Code lacks adequate procedural safeguards; and (2) the Sign Code gives city officials unbridled discretion in approving or denying signs.
1. Does the Sign Code contain adequate procedural safeguards?
Plaintiffs argue that the Sign Code lacks adequate procedural safeguards. In particular, plaintiffs take issue with the process available to a party after the City denies an application for a sign permit. Relying on Freedman v. Maryland, 380 U.S. 51 (1965), plaintiffs argue that the Sign Code is unconstitutional because it does not provide for prompt judicial review of an adverse permit decision by the City.
The City responds that Freedman is inapplicable, given the Supreme Court's more recent decision in Thomas v. Chicago Park Dist., 534 U.S. 316 (2002). In Thomas, the Court held that procedural safeguards required by Freedman do not apply to a content-neutral time, place, and manner permitting scheme. Id. at 322. In response, plaintiffs reiterate their argument that the Sign Code is riddled with content-based provisions.
As explained above, I have found only a few provisions in the Sign Code to be contentbased. Significantly, the provisions that I have found to be content-based are in portions of the Sign Code that expressly provide exceptions to the requirement that a sign permit must be obtained. Because the Sign Code is a content-neutral time, place, and manner permitting scheme, I find plaintiffs' arguments to be misplaced. Summary judgment is granted against plaintiffs' thirteenth claim for relief.
2. Does the Sign Code provide unbridled discretion?
Plaintiffs also assert that the permitting scheme included in the Sign Code is constitutionally infirm because it vests city officials with too much discretion to approve or deny signs and sign permits. The first provision that plaintiffs take issue with is Section 47.08.305, which governs temporary signs requiring a permit. The relevant portions from that regulation state:
The City Manager may allow temporary signs larger than those allowed by 47.08.300 to be erected. This signage shall not be restricted by content, but is usually and customarily used to advertise special events and store openings on banners. The City Manager shall allow the erection of such signs only if the City Manager finds that the proposed sign will not materially impair the purposes of the Sign Code expressed in LOC 47.03.010. Seasonal decorations erected within the public right-of-way shall be considered to be such signs. These signs shall meet all applicable City Code provisions. Lighting of such signs will be reviewed as part of the application and may be allowed depending on impact to surrounding development.
LOC 47.08.305(1) (emphasis added).
The extent of signage allowed and the location of the signage is at the discretion of the City Manager.
LOC 47.08.305(3).
Plaintiffs' primary complaint about these provisions is that they rely on Section 47.03.010 to provide guidance to the City Manager in deciding whether to allow the erection of larger, temporary signs than allowed under Section 47.08.300. Section 47.03.010 is quoted in full above and expresses the purposes of the Sign Code, such as protecting aesthetics and safe traffic circulation, but does not otherwise set forth objective criteria for whether a sign should be approved or not.
The other primary provision that plaintiffs take issue with is Section 47.06.200(4), which is part of the construction and design standards for permanent signs. That section states:
Signs shall be designed to be compatible with other nearby signs, other elements of street and site furniture and with adjacent structures. Compatibility shall be determined by the relationships of the elements of form, proportion, scale, color, materials, surface treatment, overall sign size and the size and style of lettering.
LOC 47.06.200(4).
The Ninth Circuit has stated that "a law cannot condition free exercise of First Amendment rights on the `unbridled discretion' of government officials." Desert Outdoor Adver., 103 F.3d at 818 (citation omitted). "[A] law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional."Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51 (1969). The danger is that absent standards controlling the exercise of discretion, government officials may determine "who may speak and who may not based upon the content of the speech or viewpoint of the speaker." City of Lakewood, 486 U.S. at 763-64.
As made clear in City of Lakewood, the requirement of sufficiently definite standards is the mechanism used by the courts to ensure that licensing officials do not allow sign content or viewpoint to affect their decisions. Consistent with my conclusions above regarding other provisions in the Sign Code that allow temporary signs without a permit, I fail to see how the authority vested in the City Manager to permit larger temporary signs opens the door to content or viewpoint regulation. Section 47.08.305(1) explicitly states that such signs "shall not be restricted by content," a factor recently relied upon by the Ninth Circuit to find that an Oregon statute regulating billboards did not provide unbridled discretion to state officials in granting or denying variances. Lombardo v. Warner, 353 F.3d 774, 778 (9th Cir. 2003). The design factors set forth in Section 47.06.200(4) also clearly regulate the appearance of signs, rather than their content or the viewpoint expressed. As such, I conclude the Sign Code is not an unconstitutional prior restraint based on unbridled discretion vested in City officials and summary judgment is granted against plaintiffs' fourteenth claim for relief.
I acknowledge plaintiffs' argument that this opinion is not binding authority because a petition for rehearing en banc has been filed in the case, but I find those arguments to be unpersuasive. See Hart v. Massanari, 266 F.3d 1155, 1170-71 (9th Cir. 2001) ("Once a panel resolves an issue in a precedential opinion, the matter is deemed resolved, unless overturned by the court itself sitting en banc, or by the Supreme Court.").
In addition to finding that the provisions challenged by plaintiffs do not lend themselves to content or viewpoint discrimination, I also note that the Supreme Court has recently raised the bar regarding claims of "unbridled discretion," particularly when brought as facial challenges to content-neutral time, place, and manner restrictions:
Granting waivers to favored speakers (or, more precisely, denying them to disfavored speakers) would of course be unconstitutional, but we think that this abuse must be dealt with if and when a pattern of unlawful favoritism appears, rather than by insisting upon a degree of rigidity that is found in few legal arrangements.Thomas, 534 U.S. at 325.
F. Disposition of plaintiffs' remaining facial challenges under the First Amendment
As noted above, plaintiffs seek summary judgment on all of their facial challenges to the Sign Code under the First Amendment other than claims eleven and seventeen. The above discussion takes into consideration the arguments raised by plaintiffs in support of their motion for partial summary judgment. However, because defendants seek summary judgment against all of plaintiffs' facial challenges under the First Amendment, I must still resolve those claims not fully addressed in conjunction with plaintiffs' motion.
1. Eleventh claim for relief
In their eleventh claim for relief, plaintiffs allege that provisions of the Sign Code are facially unreasonable time, place, or manner regulations. In other words, plaintiffs argue that portions of the Sign Code, even if content-neutral, do not pass constitutional muster.
In their First Amended Complaint, plaintiffs specifically cite Sections 47.04.115 (variances) and 47.12.500 (prohibited signs) of the Sign Code as being in violation of the standards that govern content-neutral time, place, and manner restrictions on speech. See Ward, supra (restrictions must be narrowly tailored to serve a substantial governmental interest, leave open ample alternative channels for communication of the information, and not burden substantially more speech than is necessary to further the government's legitimate interests).
Based on how plaintiffs pleaded their eleventh claim, defendants address Sections 47.12.500 and 47.04.115 in their memorandum in support of their motion for summary judgment and explain why they meet constitutional standards or argue that such standards are inapplicable. Plaintiffs, however, never refute those arguments. This fact, combined with my earlier review of the constitutionality of these content-neutral provisions, lead me to grant summary judgment in defendants' favor on plaintiffs' eleventh claim for relief.
2. Sixteenth and seventeenth claims for relief
In their sixteenth claim for relief, plaintiffs allege that the Sign Code is facially overbroad in its regulation of speech, but do not specify any particular offending provisions. In their seventeenth claim for relief, plaintiffs allege that the Sign Code is unconstitutionally vague. Defendants move against these claims and take pains to address the numerous enumerated sections of the Sign Code that plaintiffs allege are unconstitutionally vague.
Again, plaintiffs do not respond to defendants' arguments. Furthermore, I have already reviewed many of the provisions challenged by plaintiffs as vague and my extensive review of the Sign Code leads me to reject plaintiffs' rather amorphous and redundant overbreadth claim. Summary judgment is granted against plaintiffs' sixteenth and seventeenth claims for relief.
III. As-Applied Challenges to the Sign Code under the First Amendment
I now turn to the issue of whether plaintiffs have valid constitutional challenges based on how the Sign Code has been applied to them. In their first and second claims for relief, plaintiffs assert that the City's enforcement of the Sign Code against plaintiffs, due to their pole sign, does not meet constitutional standards. Specifically, they assert that the triggering mechanism that requires them to bring their sign into compliance or remove it is an unconstitutional content-based restriction on speech. In their third and fourth claims for relief, plaintiffs allege that provisions in the Sign Code deprive them and others of the right to free expression through the medium of pole signs.
As an initial matter, I note that I treat plaintiffs' pole sign as a "non-conforming" sign (plaintiffs' characterization) rather than an "illegal" sign (defendants' characterization), mostly due to the fact that summary judgment is clearly warranted even if the sign is treated as non-conforming.
As to plaintiffs' first theory, it deserves only short shrift here given my conclusion above that provisions in the Sign Code that require a sign be brought into compliance upon a change of copy or alteration (e.g., Section 47.04.100(1)) are not content-based and are constitutional time, place, and manner restrictions.
I also find plaintiffs' second theory, that the Sign Code impermissibly bans a medium of speech used by plaintiffs, untenable. First, I note that the Sign Code does not actually ban pole signs, at least in the general commercial zone in which plaintiffs' pole sign is located. The section of the Sign Code applicable to plaintiffs' pole sign is Section 47.10.410(1)(D), which states:
Sign Types: Monument signs shall be allowed. Pole signs shall only be allowed when necessary to provide vision clearance at driveways or intersections and when there is no alternative, visible on-building or monument sign location. No pole signs shall be allowed in the OC/R-2.5, OC/NC and R-2.5/W zones.
(Formatting in original).
Defendants assert, and plaintiffs do not counter, that plaintiffs did not make the requisite showing pursuant to this code section when they applied for a sign permit and variance for their pole sign.
Second, I do not subscribe to plaintiffs' characterization of pole signs as a medium of speech protected by the First Amendment. One type of signs is simply not comparable to entire media such as pamphlets, handbills, and billboards that have warranted protection by the courts. Plaintiffs cite to City of Ladue v. Gilleo, 512 U.S. 43 (1994), to support their argument, but the facts of that case involved a near-total ban of signs in residential areas. Moreover, the Court in that case made clear that "[i]t is common ground that governments may regulate the physical characteristics of signs," just as the City is doing vis-a-vis pole signs. Id. at 48.
Along these lines, a regulation banning one type of sign — especially when an exception exists to allow that type of sign when there is no adequate alternative — while allowing numerous other sign types (e.g., wall signs, monument signs), is narrowly tailored and leaves open ample, alternative channels of communication. Summary judgment is granted against plaintiffs' asapplied constitutional challenges to the Sign Code as set forth in their first four claims for relief.
Because of my rulings on the merits, I do not reach defendants' argument that plaintiffs' fourth claim for relief is premature (for lack of damages). Likewise, because I reject plaintiffs' first claim for relief on the merits, I do not address any issues related to damages to support that claim.
IV. Remaining Claims (Non-First Amendment Claims)
As noted above, plaintiffs assert four claims in addition to their facial and as-applied claims under the First Amendment.
A. Claim Five
In claim five, plaintiffs allege that they were denied equal protection under the law because of selective enforcement of the Sign Code based on race. In their memorandum in opposition to defendants' motion for summary judgment, plaintiffs state that they have decided to not pursue this claim and ask that it be dismissed. Summary judgment (and dismissal with prejudice) is granted against plaintiffs' fifth claim for relief.
B. Claims Six and Seven
In their sixth claim for relief, plaintiffs seek just compensation because defendants, through the Sign Code, "are taking, or will take, all of the value of [plaintiffs' pole sign] by requiring its removal." First Amended Complaint, ¶ 65. In their motion for summary judgment, defendants respond that this claim is premature because the pole sign still stands and, accordingly, plaintiffs have not been damaged. Defendants also argue that plaintiffs have not exhausted their state remedies before bringing this claim in federal court. Plaintiffs counter with a tenuous argument that they have, in fact, incurred damages in the form of out-of-pocket expenditures for fees associated with sign permit and variance applications and a $100 fine in response to the citation by the City.
Given that the pole sign has not yet been removed, any losses incurred by plaintiffs do not relate to the removal of the sign, and it appears that plaintiffs have additional state procedures to exhaust for seeking just compensation, I grant summary judgment against plaintiffs' sixth claim for relief.
Plaintiffs' seventh claim for relief is similar to their sixth claim in that it attacks the amortization provisions in the Sign Code that will require removal of the pole sign in the near future. Those provisions require that non-conforming signs, such as plaintiffs' pole sign, be brought into compliance by May 21, 2004. LOC 47.04.100(5), 47.04.102(1). Plaintiffs ask the court to strike the amortization scheme as facially unconstitutional because the Sign Code "contains no provisions for the payment of just compensation or allowing sign owners a notice and opportunity to be heard on the issue of the value of speech lost as a result of the forced removal of existing signs." First Amended Complaint, ¶ 73.
Defendants raise three arguments against this claim. Specifically, they argue that (1) the claim is not ripe because plaintiffs have not exhausted their state remedies; (2) the amortization period allowed by the Sign Code is reasonable based on case law; and (3) the claim is timebarred by the applicable statute of limitations because it accrued at the time of the adoption of the amortization provisions in 1994 and 1997. Plaintiffs attempt to refute the argument that the claim is time-barred but, significantly, do not challenge defendants' assertion that plaintiffs have not exhausted their state remedies. Indeed, given that plaintiffs' facial challenge is premised on the Sign Code denying plaintiffs the economically viable use of their sign, they must exhaust all state procedures before bringing this type of facial challenge in federal court.Sinclair Oil Corp. v. County of Santa Barbara, 96 F.3d 401, 406-07 (9th Cir. 1996), cert. denied, 523 U.S. 1059 (1998) ("[E]ven if a zoning ordinance, on its face, `takes' property for Fifth Amendment purposes, no constitutional violation occurs until the state refuses to justly compensate the property owner."). Summary judgment is granted against plaintiffs' seventh claim for relief.
C. Claim Fifteen
In claim fifteen, plaintiffs bring an equal protection challenge against the Sign Code on the basis that, on its face, it unconstitutionally discriminates between similarly situated persons. Specifically, plaintiffs cite the following sections of the Sign Code: 47.04.100, 47.04.102, and 47.08.300. These provisions set forth the treatment of non-conforming and unlawful signs, and address temporary signs exempt from fee, application, and permit requirements.
In moving for summary judgment against this claim, defendants argue that it is timebarred by the applicable statute of limitations because it accrued at the time of the adoption of the Sign Code in 1994. As defendants succinctly state: "If the code facially discriminates, it did so starting in 1994." Defendants' Memorandum In Support of Motion for Summary Judgment, pp. 18-19. Plaintiffs do not challenge this argument. Moreover, the applicable statute of limitations is two years, thus rendering plaintiffs' claim untimely. Bibeau v. Pac. N.W. Res. Found. Inc., 188 F.3d 1105, 1108 (9th Cir. 1999), modified 208 F.3d 831 (9th Cir. 2000) (statute of limitations in Oregon for Section 1983 actions is two years). Summary judgment is granted against plaintiffs' fifteenth claim for relief.
V. Rulings on Remaining Issues
A. Immunity of Defendant Ingalls
Defendants assert that defendant Ingalls is entitled to absolute or qualified immunity against plaintiffs' claims for damages (i.e., plaintiffs' first, fourth, fifth and sixth claims for relief). Although defendants' arguments regarding qualified immunity are well taken, I do not need to reach this issue given that I have concluded that summary judgment is appropriate against all of plaintiffs' claims for damages.
The required first step in a qualified immunity analysis "is to consider the materials submitted in support of, and in opposition to, summary judgment, in order to decide whether a constitutional right would be violated if all facts are viewed in favor of the party opposing summary judgment." Jeffers v. Gomez, 267 F.3d 895, 909 (9th Cir. 2001) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). "If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Saucier, 533 U.S. at 201.
Plaintiffs' claims against Ingalls are premised on her enforcing unconstitutional, contentbased provisions of the Sign Code that require plaintiffs to remove their sign pole. As I have concluded above, the provisions enforced by Ingalls are not content-based and are constitutional. The few terms in the Sign Code that I have deemed to be content-based and unconstitutional were not at issue in Ingalls' enforcement of the Sign Code against plaintiffs.
B. Standing of Plaintiffs Gillison and Kusudo
Defendants argue that summary judgment on claims eight through seventeen (plaintiffs' facial challenges to the Sign Code) should be granted against plaintiffs W.H. Gillison and Kathleen Kusudo because they do not have standing independent from their status as owners of the corporate plaintiff, GK. Plaintiffs counter that Gillison and Kusudo have standing to seek declaratory and injunctive relief because they are citizens of the City of Lake Oswego and their rights to free speech have been chilled by the Sign Code. Although it appears that Gillison and Kusudo pleaded standing only on the basis of being owners of GK, I decline to rule on this issue given that I have already granted summary judgment against claims eight through seventeen.
CONCLUSION
Based on the foregoing, full summary judgment is warranted against all of plaintiffs' claims for relief, with the exception of portions of plaintiffs' eighth and ninth claims for relief. On those claims, in which plaintiffs allege that the Sign Code is facially unconstitutional because it regulates non-commercial speech on the basis of content or viewpoint, summary judgment is granted in plaintiffs' favor solely to the extent that certain provisions of the Sign Code, as specified above, shall be severed. Accordingly, defendants' motion for summary judgment (#38) is GRANTED IN PART and DENIED IN PART. Plaintiffs' motion for partial summary judgment (#43) is GRANTED IN PART and DENIED IN PART.The parties shall confer and, if possible, jointly submit a proposed form of judgment (and related stipulations, if any) within three weeks from the date of this Opinion. If the parties are unable to agree on the form of judgment, each party may submit a proposed judgment within three weeks. Objections to a proposed judgment shall be filed no later than one week thereafter.