Outdoor One, Inc. v. Town of Munster (N.D.Ind. 2005)

Full title: OUTDOOR ONE, INC. Plaintiff, v. TOWN OF MUNSTER, INDIANA, Defendant

Court: United States District Court, N.D. Indiana, Hammond Division

Date published: Feb 14, 2005

Cause No. 2:03cv25 PPS (N.D. Ind. Feb. 14, 2005)

Opinion

Cause No. 2:03cv25 PPS.

February 14, 2005

ORDER

PHILIP P. SIMON, District Judge

Plaintiff Outdoor One, Inc., wants to erect seven billboards in the Town of Munster, but was rebuffed by Munster on the grounds that the billboards violated the town's sign ordinance. Outdoor One filed suit raising a number of alleged constitutional violations, and the matter is before the Court on Munster's Motion for Summary Judgment for lack of standing. Because there is no case or controversy at issue here, the Defendant's Motion is granted.

I. BACKGROUND

On January 21, 2003, the Plaintiff, Outdoor One, Inc., filed this Complaint requesting that the Court, among other things, declare Division 10 of the Town of Munster's Comprehensive Zoning Ordinance (the "Sign Ordinance") unconstitutional as a violation of Plaintiff's First, Fifth and Fourteenth Amendment rights under the United States Constitution, seeking an injunction against Munster's further enforcement of the sign ordinance and also for punitive damages against Munster. More specifically, Outdoor One's Complaint alleges that the Sign Ordinance impermissibly restricts speech by content, violates equal protection, is overbroad, unreasonably restricts speech when less restrictive means are available, violates due process, is impermissibly vague, is a deprivation of rights under 42 U.S.C. § 1983, and that the Sign Ordinance violates the Indiana Constitution Article I, § 9 and § 23. Both parties have moved for summary judgment.

II. FACTS

Outdoor One is an Indiana corporation operating an advertising business in which it leases real property from property owners and then erects off-premises outdoor advertising signs ("billboards") on the leased property in order to disseminate commercial and non-commercial messages on behalf of itself and its advertisers.

At issue in this litigation is Munster's Comprehensive Zoning Ordinance. Division 10 of the zoning ordinance is the Sign Ordinance, and it creates a comprehensive scheme for regulating the permitting, placement, number, construction, size, height, design, operation, content, and maintenance of signs within Munster. § 26-1011 of the Sign Ordinance defines a billboard as "a sign permanently attached to a building, to the ground, or to a permanent structure having a location upon the ground, advertising a business, product, service or event not available on the premises where the sign is located." § 26-1014(5) of the Sign Ordinance expressly prohibits the use of "billboards or any signs advertising a business, product, service or event not available on the premises where the sign is located." The Sign Ordinance further regulates the use of signs within C-1 commercial districts, shopping center districts, commercial planned unit developments, and business complexes through § 26-1053, which limits all signs to being under sixty square feet in net area.

Outdoor One acquired interests in seven separate parcels of real property in Munster with plans to construct and operate seven standardized billboards, each with a surface area over 1,900 square feet, well over the applicable limits. Outdoor One applied for permits to build the seven billboards, each of which was to be placed in a C-1 commercial district. Munster denied the applications, citing the prohibition of billboards under § 26-1014(5) as justification for its denial. The Munster Board of Zoning Appeals later denied applications for use variances for the same proposed signs, saying that billboards were prohibited under § 26-1014(5). In addition, and importantly for this case, the Board of Zoning also said that since all of the billboards were to be placed in a C-1 commercial district, Outdoor One's proposed signs were impermissible due to the size and height limitations of § 26-1053. Outdoor One then filed this eight-count Complaint against Munster.

Munster filed a motion to dismiss because they interpreted the Complaint as only challenging § 26-1014(5), and because § 26-1053 would also prevent Outdoor One from building their billboards, even if Outdoor One won the suit, Munster believed that the billboards would not go up and Outdoor One lacked standing. The Court held that Munster's interpretation of the Complaint was too narrow, that it could be read as a facial attack on the entirety of the billboard regulatory scheme. Thus, if Outdoor One won the suit, it was possible under the Complaint that they could put up their billboards, and Outdoor One had standing to sue. Now that Munster has had a chance to pursue discovery on this issue, they have moved for summary judgment on essentially the same grounds that they moved to dismiss.

Surprisingly, in responding to the Motion for Summary Judgment, and in open Court during an oral argument on the Motion, Outdoor One continued to state that it was not challenging § 26-1053 of the Munster sign ordinance. Thus, if § 26-1053 applies to the signs that Outdoor One wants to erect, then whether § 26-1014 is unconstitutional as Outdoor One contends does not matter, because § 26-1053 dooms Outdoor One's plans anyway.

III. DISCUSSION

A. Summary Judgment Standard

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 of material fact and the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The party seeking summary judgment carries the initial burden of demonstrating an absence of evidence to support the position of the non-moving party. Doe v. R.R. Donnelly Sons, Co., 42 F.3d 439, 443 (7th Cir. 1994). The non-moving party must then set forth specific facts showing there is a genuine issue of material fact and that the moving party is not entitled to judgment as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 252 (1986). A genuine dispute about a material fact exists only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

In making this determination, the Court must draw every reasonable inference from the record in the light most favorable to the non-moving party. Haefling v. United Parcel Serv., Inc., 169 F.3d 494, 497 (7th Cir. 1999). The non-moving party must support its contentions with admissible evidence and may not rest upon mere allegations in the pleadings or conclusory statements in affidavits. Celotex, 477 U.S. at 324. The plain language of Rule 56(c) mandates the entry of summary judgment against a party who fails to establish the existence of an element essential to its case and on which that party will bear the burden of proof at trial. The production of only a scintilla of evidence will not suffice to oppose a Motion for Summary Judgment. Anderson, 477 U.S. at 252.

B. Standing Requirement

The Article III case or controversy requirement of the United States Constitution limits federal courts to hearing only those cases in which the plaintiff can demonstrate standing. Family Children's Center, Inc. v. School City of Mishawaka, 13 F.3d 1052, 1058 (7th Cir. 1994). A suit will be dismissed as nonjusticiable for lack of standing. Smith v. Boyle, 144 F.3d 1060, 1063 (7th Cir. 1998). The plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing the required elements of standing. Lee v. City of Chicago, 330 F.3d 456, 468 (7th Cir. 2003). To establish standing, a plaintiff must show (1) injury in fact; (2) a causal connection between the injury and the conduct complained of such that the injury is fairly traceable to the defendant's actions; and (3) that a favorable decision is likely to redress the injury. Tobin for Governor v. Illinois State Board of Elections, 268 F.3d 517, 527 (7th Cir. 2001). The plaintiff is not required to show by a certainty that a favorable judgment will redress his injury, but instead need only show a "probabilistic benefit from winning a suit" in order to establish standing." Family Children's Center, Inc., 13 F.3d at 1058.

In Harp Advertising Illinois, Inc. v. Village of Chicago Ridge, Illinois, 9 F.3d 1290 (7th Cir. 1993), the Seventh Circuit dealt with the third requirement of standing in a context very similar to this case. In Harp, the Court found that the plaintiff, Harp, lacked "standing to challenge either the sign code or the zoning code, because it could not put up its sign even if it achieved total victory in [the] litigation." Id. at 1291. The billboard Harp proposed to put up was 20 by 60 feet, larger than allowed by village ordinance. Since Harp was not challenging the ordinance dealing with the size limits of signs, the court found the litigation "irrelevant," and that Harp lacked standing. Id. A similar analysis applies here, because even if we strike down § 26-1014(5), § 26-1053 still prevents Outdoor One from putting up their billboards, as they far exceed the size limitations imposed by § 26-1053 .

Although Munster spends several pages of their Brief in Support of their Motion for Summary Judgment arguing that § 26-1053 is a content neutral, constitutional exercise of their police powers, Outdoor One's Response Brief largely ignores that argument. In fact, at oral argument Outdoor One's counsel expressly disclaimed any contention that § 26-1053 was itself unconstitutional. Outdoor One likely did not contend otherwise because they would face an uphill battle if they did. Outdoor One has admitted that it is only making a facial challenge to the Ordinance, and on its face, § 26-1053 is a content neutral regulation of the time, manner and place of speech. The restrictions in § 26-1053 at issue here limit all signs in a commercial zone (which is where Outdoor One wanted to put up all of the signs), regardless of content, to a maximum area of sixty square feet and a maximum height of eighteen feet. There is a four part test that determines when a restriction on commercial speech is valid under the First Amendment:

First, only speech that is truthful and not misleading receives First Amendment protection. Second, the restriction must seek to implement a substantial government interest. Third, the restriction must directly advance that interest. Fourth, the restriction must reach no further than necessary to accomplish its objective.

Lavey v. City of Two Rivers, 171 F.3d 1110, 1113-14 (7th Cir. 1999).

There is no indication that the first prong is at issue in this case. And § 26-1053 passes muster under the second prong. The substantial government interest articulated by Munster in the code itself is:

[T]o regulate, classify, restrict and control the location, size, type, placement and maintenance of all signs within the town for the purpose of preserving the health, safety and general welfare of the town and its citizens, and to ensure that signs are compatible with their surroundings and zoning uses, and that they are legible and properly maintained.

§ 26-1012. Courts have held similar purposes to be substantial government interests. See, e.g., Metromedia, Inc. v. San Diego, 453 U.S. 490, 508 (1981) (holding that there cannot be "substantial doubt that the twin goals that the ordinance seeks to further — traffic safety and the appearance of the city — are substantial government goals."). Turning to the third prong of the test, it is clear that the Munster Code directly advances the interest outlined above. § 26-1053 speaks almost exclusively to the permissible size and location of signs. This Court would be remiss in overturning the commonsense judgment of Munster, many other local lawmakers, and other reviewing courts that limiting the size and location of signs has an affect on traffic safety. See, Metromedia, 453 U.S. at 528.

Finally, § 26-1053 is not more restrictive than necessary to accomplish its objective. The Supreme Court upheld an ordinance that banned all billboards in Metromedia. 453 U.S. 490. It is difficult to see how § 26-1053, which does allow some types of billboards provided they are the right size, could be overly restrictive when an outright ban is not. With such a comparatively narrow scope, § 26-1053 passes muster under the fourth prong of the test for constitutionality applicable here. Undoubtedly because, as this discussion indicates, § 26-1053's constitutionality seems apparent, Outdoor One chose to concede this issue.

Instead of arguing the constitutionality of § 26-1053 directly, Outdoor One argued that § 26-1014(5) is not content neutral. But that argument has no bearing on whether or not § 26-1053 is itself unconstitutional, but it is the starting point of Outdoor One's position that § 26-1014(5) is not severable from the rest of the Munster Town Code, and that if § 26-1014(5) is constitutionally invalid, the entire scheme regulating signs would fall, and § 26-1053 with it.

In Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983), the Supreme Court stated that unconstitutional provisions in a statute should be severed if it appears that the legislature would have enacted the constitutional provisions of the statute independently of those provisions. 462 U.S. 931 (citing Buckley v. Valeo, 424 U.S. 1 (1976)). But "severance is improper if the unconstitutional provision is `an integral part of the statutory enactment viewed in its entirety.'" Zbaraz v. Hartigan, 763 F.2d 1532, 1545 (7th Cir. 1985) (quoting Scheinberg v. Smith, 659 F.2d 476, 481 (5th Cir. 1981)); United States. v. Booker, 125 S.Ct. 738, 763-64 (2005).

As an initial matter, the Munster Code at § 1-9 does have a severability clause that applies throughout the Munster Town Code:

The sections, subsections, paragraphs, sentences, clauses and phrases of this Code and all provisions adopted by reference in this Code are severable, so that if any section, subsection, paragraph, sentence, clause or phrase of this Code or of any provision adopted by reference in this Code is declared unconstitutional or invalid by a valid judgment of a court of competent jurisdiction, such judgment shall not affect the validity of any other section, subsection, paragraph, sentence, clause or phrase of this Code or of any provision adopted by reference in this Code, for the town council declares that it is its intent that it would have enacted this Code and all provisions adopted by reference in this Code without such invalid or unconstitutional provisions.

In addition, looking at the statute as a whole, it is clear that § 26-1014(5) is not an integral part of the statutory scheme. Especially in light of the robust severability clause in the Munster Town Code, it seems very likely that Munster would have enacted the other parts of the Sign Ordinance even if the challenged parts were deemed unconstitutional. This situation is not at all unlike what happened in Pleasureland Museum, Inc. v. Beutter, 288 F.3d 988, 1004-05 (7th Cir. 2002). In Pleasureland, after the Seventh Circuit found several disclosure requirements and the parts of an ordinance that limited signage to the legal name of the enterprise unconstitutional, it refused to strike down the entirety of the ordinance, because it found that the unconstitutional parts were severable. The statute at issue here, § 26-1014(5), limits billboards to advertising things available on the premises. This limitation is no more integral to the entirety of the statute than the parts found severable in Pleasureland. For these reasons, § 26-1014(5) is severable from the rest of the sign ordinance, so even if Outdoor One succeeded in invalidating it, the rest of the Sign Ordinance, § 26-1053 included, would still be valid.

We turn now to the second way that Outdoor One tries to establish standing — an attempt to show that § 26-1053 does not apply to them at all. (Response at p. 11). This argument is without merit. By its clear language and terminology, § 26-1053 applies to all signs in commercial districts, which is where Outdoor One plans to erect its billboards. § 26-1011 of the Munster Town Code defines a billboard as "a sign" (emphasis added) that advertises a business, product, service or event. Thus, a billboard is a sign, and § 26-1053 applies to the billboards Outdoor One seeks to erect. § 26-1053 divides the regulation of signs in commercial districts into three parts: permitted signs generally; permitted signs, conditional; and permitted signs for gasoline service stations. None of these categories allow a sign that has a net area greater than sixty feet. Outdoor One appears to make the argument that § 26-1053 somehow differentiates between on-premises and off-premises signs, but § 26-1053 does not make this distinction. Rather, all signs must be under sixty square feet in net area. § 26-1053(1)(b) states:

Businesses located at street level with a setback of less than 35 feet will be permitted one principal sign for each business with frontage. Such signs may be wall-mounted, roof-mounted or projecting, and shall not exceed one square foot in gross area for each front foot of the structure occupied by the business. The maximum gross sign area shall not exceed 60 square feet for each business frontage. The total specified in this subsection shall apply to the sum of all display surfaces. No freestanding signs shall be allowed.

§ 26-1053(2)(a) contains a similar provision for businesses set back more than 35 feet from the street. Id. Likewise, § 1053(2)(b) — the provision dealing with freestanding signs — limits such signs to sixty square feet. None of these provisions makes any distinction between whether a sign is located on or off-premises. Therefore, the size restrictions in § 26-1053 plainly apply to Outdoor One's proposed signs.

Finally, Outdoor One's proposed signs do not comply with § 26-1053, and they have indicated that they have no interest in installing signs that do. All seven signs proposed by Outdoor One in this case were identical, each one 1,920 square feet in area, and each one over eighteen feet high. Outdoor One's president admitted in his deposition that the smallest sign that they would ever construct would be substantially in excess of the size limitations of § 26-1053. (O'Donnel Deposition, pp. 32-35). Outdoor One's president could not think of any circumstance in which he would construct a sign of sixty square feet in Munster. (O'Donnel Deposition, p. 35). Accordingly, the evidence demonstrates that Outdoor One's proposed signs do not comply with § 26-1053, and that they do not intend to build any that do.

In short, Outdoor One does not — indeed, cannot — effectively challenge the constitutionality of § 26-1053. It also fails to show that § 26-1053 does not apply to them. Finally, Outdoor One admits that they have no plans to build signs that comply with § 26-1053. Thus, a "victory" in this case for Outdoor One — that is, a finding that § 26-1014 is unconstitutional — would not give them the ability to put up their signs because they run headlong into § 26-1053 anyway. As a consequence, there is no case or controversy and Outdoor One lacks standing to pursue its claims. In other words, even if they prevail, there is "no prospect for gain." Harp Advertising, 9 F.3d at 1292. This failure to show that they have standing is fatal to their case, and Munster's Motion for Summary Judgment must be granted.

IV. CONCLUSION

For the foregoing reasons, Munster's Motion for Summary Judgment [Docket No. 44] is GRANTED. Outdoor One's Motion for Summary Judgment [Docket No. 41] is DENIED AS MOOT. The Clerk shall enter judgment for Defendant against Plaintiff. Plaintiff shall take nothing from this case. This case is TERMINATED and all further settings are vacated.

SO ORDERED.