Opinion
Case No. 03-74905.
June 25, 2004
AMENDED OPINION AND ORDER DISMISSING PLAINTIFFS' COMPLAINT
When this case was filed, it contained a first amendment challenge pursuant to 42 U.S.C. § 1983, to a municipal zoning ordinance, Southgate Code § 1298.20(b)(4), regulating nonconforming signs. Plaintiff, Huron Advertising Company, Inc. d/b/a Huron Sign Company ("Huron Sign"), a Michigan corporation with its principal place of business located in Ypsilanti, Michigan, is in the business of manufacturing and repairing signs. (Complaint, ¶ 8.) Plaintiff Short, the President and co-owner of Huron Sign, is a resident of Ypsilanti, Michigan, (Complaint, ¶ 8.) Defendant City of Southgate ("Southgate") is a municipal corporation located in Wayne County, Michigan.
Defendant Southgate enacted a comprehensive Planning and Zoning Code regulating, among other things, the size and proximity of free-standing commercial and noncommercial signs. Signs are defined as all "outdoor advertising structures, awnings, billboard signs and other notices which advertise a business, commercial venture or name of a person." § 1298.18. Free-standing signs in any Commercial or Industrial area may not be more than twenty feet in height nor more than 100 square feet in area on each side. § 1298.18(g). Signs that exceed the permitted size requirements under the ordinance, but that were in existence at the time of the ordinance's enactment, are considered "lawful, nonconforming signs."
On November 26, 1997, Defendant amended its zoning code and enacted § 1298.20, titled Nonconforming Signs. Section 1298.20 permits the continued use of nonconforming signs which existed on the date of the amendment's enactment, but places specific restrictions on the type of alterations that may be made to such lawful nonconforming signs. The stated intent of the amendment is "to recognize the prompt elimination, as expeditiously as is reasonable, of such lawful nonconforming signs." § 1298.20(a). Section 1298.20(b) provides:
A nonconforming sign: (1) Shall not be altered in any fashion so as to prolong the life of the sign or to change the shape, size, type or design of the sign; (2) Shall not be re-established after the activity, business or usage to which it relates has been discontinued, closed or sold; (3) Shall not be re-established after having been damaged or destroyed if the estimated expense of reconstruction exceeds fifty percent of the replacement cost as determined by the Building Official; and (4) Shall not have any changes made in the words or symbols used or the message displayed on the sign unless the sign is a bulletin board sign or substantially similar type of sign designed for periodic change of the sign message.
§ 1298.20(b) (emphasis added by underlining).
Plaintiffs perform work on several signs located in Southgate, Michigan. One such sign, and the subject of this case, is a lawful, nonconforming, free-standing pole sign, owned by and advertising the presence of Murray's Auto Parts. The design on the sign's face includes the name and logo of Murray's Auto Parts. The pole sign is approximately 30 feet in height and 154 square feet in face area, which is a violation of § 1298.18(g). However, the sign was allowed to remain in use as a lawful, nonconforming sign because it was erected prior to the enactment of § 1298.18(g). In August of 2002, the vinyl facing of the pole sign was damaged during a windstorm. The sign's structure, panel frame, and electrical components were undamaged.
In September of 2002, employees of plaintiff Huron Sign replaced the vinyl facing of the sign for Murray's Auto Parts. The new vinyl facing was different than the old vinyl facing because it displayed a new logo for Murray's Auto Parts. (Pls.' Complaint, ¶ 11.)
On or about September 10, 2002, as Huron Sign employees were completing the work on the pole sign, two Southgate City Building Officials appeared on the job site. According to Plaintiffs, the men stated "that the sign would probably have to come down due to the changes made by Huron Sign." (Pls. Complaint, ¶ 12). Defendant contends the officials directed the Huron Sign employees "to stop the sign installation immediately." (Def. Respouse, ¶ 12.) Plaintiffs completed the installation of the new vinyl facing.
On September 11, 2002, Defendant notified Plaintiffs by letter that the new vinyl facing on the pole sign was "installed illegally and violates Southgate City Code," and directed Plaintiffs to remove the sign by September 16, 2002. (Pls. Complaint, Ex. 2.) Plaintiff Short visited the offices of Defendant's building inspector on September 16, 2002 to discuss the September 11 letter, but the director was allegedly unavailable. (Pls. Complaint, ¶ 14.) Plaintiffs did not remove the pole sign.
On July 15, 2003, Defendant issued a Municipal Civil Infraction Notice of Violation to Plaintiff Short. The Notice alleged that Short violated Defendant's zoning code by failing to secure a permit to change the facing on the Murray's Auto Parts pole sign, as required by § 1298.18(o). Section 1298.18(o) provides that "[n]o portable or permanent sign shall be installed in any district unless a sign permit is secured." (Pls. Complaint, Ex. 3.) A State of Michigan Uniform Law Citation, dated August 6, 2003, was issued to Plaintiff Short following the Notice. (Pls. Complaint, Ex. 4.)
Defendant initiated proceedings against Plaintiff for the alleged civil infraction concerning the pole sign in the 28th District Court, located in Southgate. Case No. 03-0984CM. By Stipulated Order dated December 12, 2003, this Court stayed the 28th District Court proceedings until such time that this Court issues its final opinion and order and this case is closed. (Stipulated Order, Dec. 12, 2003.)
On September 5, 2003, Plaintiffs applied for a permit for the changes made to the vinyl facing of the sign for Murray's. (Pls. Complaint, Ex. 5.) On September 22, 2003, Defendant dented Plaintiffs' permit application, citing § 1298.20(b)(4), because the permit application "indicates the existing and proposed faces are different, and that wording and symbols have been changed." (Pls. Complaint, Ex. 6.) Plaintiffs appealed the denial of its permit application to the Board of Zoning Appeals ("BZA"). On November 5, 2003, the BZA denied Plaintiffs' appeal. (Pls. Mt. Ex. 9.)
On December 5, 2003, Plaintiffs filed a Complaint against Defendant Southgate, pursuant to 42 U.S.C. § 1983, alleging that Southgate City Code § 1298.20(b)(4) is unconstitutional on its face, and as applied to Plaintiffs, that it violates Plaintiffs' First Amendment rights. Plaintiffs do not challenge Defendant's entire Planning and Zoning Code, only § 1298.20(b)(4). Plaintiffs allege that § 1298.20(b)(4) "conditions the privilege of maintaining nonconforming signs upon the message on the sign itself." (Pls. Br. 1.) Plaintiffs argue that § 1298.20(b)(4) constitutes an illegal content-based restriction on both commercial and non-commercial speech, and that it unconstitutionally chills the right of expression of third parties. (Pls. Complaint, ¶ 22-23.)
Plaintiffs filed a Motion for Summary Judgment requesting that § 1298.20(b)(4) be held unconstitutional and for other relief.
On May 19, 2004, I presided at a hearing to resolve this issue. During the course of that hearing, the fact content of the case changed markedly.
Before that change I was prepared to rule on whether that Section in the Ordinance (§ 1298.20(b)(4) was content neutral or content based; whether the purpose of that Ordinance constituted a substantial government interest; whether that Ordinance was "narrowly tailored" to serve a substantial government interest, and, whether that Ordinance leaves open "ample alternative channels" for communication of information.
The substantial change that occurred affected Plaintiffs' position with regard to the issues that it raised in its Motion for Summary Judgment. That factual change is as follows. As heretofore stated, Plaintiffs had submitted an application for a signed permit on September 5, 2003. That application had been rejected. The Defendant has now changed its position and the permit that was earlier filed by the Plaintiffs has now been authorized. The civil infraction issued against Plaintiff in the 28th District Court in Michigan will be dismissed and an Affidavit has been filed by the head of the Building Department, David Collins, that he will not be issuing anymore citations for the violation of this Section, § 1298.20(b)(4).
When this change in the Defendant's position was outlined in detail to me, I was of the tentative opinion that Plaintiffs' Motion for Summary Judgment was subject to be denied and that Section 1298.20(b)(4) of the Ordinance on its face and as applied to Plaintiffs, was constitutional as a valid content neutral regulation narrowly tailored to serve a substantial government interest that leaves open ample alternative channels of communication.
But with this change in the Defendant's position, a new issue appeared and that is whether or not the issue raised by the Plaintiffs had become moot.
I therefore raised the issue of standing and asked for briefs. I now address that issue.
To have standing, Plaintiffs' must have suffered an injury in fact which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical, Lujan v. Defenders of Wildlife, 504 U.S. 555 at 560-61 (1992). Here, Plaintiffs' injury is not `concrete and particularized' because the City of Southgate has issued a permit to Plaintiff for the pole sign as requested in Plaintiffs' permit application. Plaintiff also does not suffer an `actual or imminent' injury in fact because the City of Southgate, per affidavit of David Collins, is not going to enforce Southgate Code § 1298.20(b)(4).
Plaintiffs state in their brief on standing and mootness that, in the context of First Amendment challenges, parties are permitted to challenge an ordinance because it may cause them or others to refrain from constitutionally protected speech. Virginia v. American Booksellers Association, Inc., 484 U.S. 383, 392-3 (1988). As stated above, evidenced by the Affidavit of David Collins, the non-enforcement of Southgate Code § 1298.20(b)(4) will not cause Plaintiffs to refrain from constitutionally protected speech and it will not cause others to refrain from constitutionally protected speech.
Thus, it appears to me that Plaintiffs have not suffered an injury in fact that is concrete and particularized and actual or imminent and not conjectural or hypothetical. Therefore, I find that the issue of standing must be resolved in favor of Defendant on the ground that this is a case which is now moot and accordingly, Plaintiffs' Complaint should be and it is hereby dismissed.
Since the Plaintiff has prevailed in this case by a route that may not have been completely contemplated by Plaintiff, it nonetheless is in a real sense the prevailing party and therefore, it has a right to tax costs.
IT IS SO ORDERED.