Summary
In Paradigm Media Group, the court found that there were "opportunities for commercial speech through the medium of signs [which] assure that such form of expression is not suppressed, while at the same time the prohibition on new billboards effectively advances the City's aesthetic objectives."Id.
Summary of this case from RTM Media, LLC v. City of HoustonOpinion
CA 3:01-CV-612-R
July 30, 2002
MEMORANDUM OPINION AND ORDER
Defendant's Motion for Summary Judgment is before the Court. Plaintiff Paradigm Media Group, Inc., d/b/a Billboard Development ("Paradigm" or "Plaintiff") filed this suit against Defendant City of Irving ("City of Irving" "the City" or "Defendant"), alleging the City's current sign ordinance, Ord. No. 7757, ("sign ordinance") is unconstitutional under: (1) the First Amendment; and (2) the First and Fourteenth Amendments and Section 1983 thereby. Paradigm seeks declaratory, injunctive, and monetary relief. For the reasons stated below, Defendant's Motion for Summary Judgment is GRANTED as to all claims.
This Court's opinion grants summary judgment on all of Plaintiff's claims. Therefore, Plaintiff's Motion for Summary Judgment and the Defendant's Motion to Dismiss are moot and will not be addressed. Furthermore, Plaintiff's requests for declaratory, injunctive, and monetary relief are also moot and will not be addressed.
I. BACKGROUND FACTS
Plaintiff is an Indiana Corporation with operations in Texas. Plaintiff's operations in Texas are outside Irving and outside the Dallas-Fort Worth area. Plaintiff is not authorized to conduct business in Texas because Plaintiff failed to file corporate franchise tax returns or other required documents with the State of Texas. Plaintiff appears to be engaged in the business of operating and selling outdoor advertising signs.Sometime late in the year 2000, Paradigm, through one if its principals, Charles Dennis ("Dennis"), began to solicit leases from property owners for the purpose of establishing an outdoor advertising sign on their properties. Dennis is Paradigm's only employee.
On February 21, 2001, Plaintiff submitted forty-two applications to the Building and Inspection Department ("the Department") for sign permits to build billboards on various thoroughfares and transit lines within the City. Each application states that it is for an off-premise advertising sign, meaning that the sign would advertise products or services that are not available at the site of the sign. None of the sites are zoned for billboard use.
On February 22, 2001, the Department denied all forty-two applications for sign permits based on the City's sign ordinance, which prohibits construction of new billboards within the City after June 3, 1999. In addition, the sign ordinance does not permit variances to authorize prohibited signs. Accordingly, Plaintiff's subsequent request for variances to allow permits to build the billboards was denied. In rejecting Plaintiff's applications for sign permits, the Department made no inquiry regarding zoning of the property or the applications' compliance with other provisions of the City's sign ordinance.
A. The City's Sign Ordinance
The City adopted its current sign ordinance on November 30, 2000, as a comprehensive revision to prior regulations. App. D-2; App. D-33; Aff. of William Elliott, ¶ 6. The adopting ordinance contains a severability clause. App. D-40, § 2. The adoption of the sign ordinance was preceded by extensive public review, including proceedings by a specially appointed task force. App. D-2 — D-3; Aff. of William Elliott, ¶ 7. Section 7-4(15) of the sign ordinance prohibits "billboards installed after June 3, 1999." Section 7-1 of the sign ordinance defines the term billboard as "an outdoor advertising sign or structure, which advertises a use, product or service not found on the premises where the sign is located." Under the sign ordinance, the term "billboard" is used interchangeably with the terms "advertising sign billboard" and "off-site advertising sign."
The sign ordinance permits various forms of on-premise signs that advertise a use, product or service that is sold or manufactured on the site. The sign ordinance also allows "multi-tenant directory signs," which allow the consolidation of advertising for "more than one business, commercial use or corporate location in the same development in which the sign is located." App. D-38. Furthermore, the sign ordinance permits owners of separately permitted lots to enter into a "unified sign agreement" for purposes of erecting a multi-tenant sign, conditioned on exclusion of all other pole signs on the premises. App. D-58 — D-61, § 7-7.
Technically, a billboard is a type of "pole sign." App. D-38 (defining "pole sign").
The City's prohibition on new billboards applies only to commercial signs and does not apply to non-commercial signs. Non-commercial signs may be established without regard to the general requirement that each sign "pertain to the identification of the primary uses and/or primary services provided or primary products sold on the premises." Ord. No. 7757, § 7-2(1). Non-commercial signs, however, must comply with the "same time, place and manner regulations" as other signs. Ord. No. 7757, § 7-17.
In addition, pre-existing billboards are not prohibited under the sign ordinance, but the pre-existing billboards must comply with the provisions governing non-conforming sign regulations, including amortization provisions (thirty years), rules for destruction of signs, and compensation provisions consistent with state law. Ord. No. 7757, § 7-5. There are an estimated fifteen pre-existing billboards in Irving.
Some of the pre-existing billboards are conforming signs under the sign ordinance by virtue of their authorization in site plan zoning districts, pursuant to the conflict provisions in Section 7-19.
The sign ordinance also provides a narrow exception for construction of "advertising structures" at "sports facilities." Ord. No. 7757, § 7-15. The sign ordinance defines "advertising structure" as "any structure erected in conjunction with an on the same site as a sports facility for the purpose of advertising the facility as well as any product, business or service." Ord. No. 7757, § 7-1. The sign ordinance defines "sports facility" as "any facility which is enclosed by walls; expressly designed for the conduct of sports activities . . . [and owned by a public entity or private school] in which sports activities are conducted from time to time; and which has a seating capacity of 5,000 or more spectators." Ord. No. 7757, § 7-1. Pursuant to Section 7-15 of the sign ordinance, in order to establish an advertising structure, a permit must be obtained, dimensional standards must be observed, and a resolution must be obtained from the City Council authorizing the facility.
Advertising structures may or may not constitute billboards, depending on whether the product is sold at the sports facility.
There are two existing sports facilities within Irving, Texas Stadium and Irving Stadium. There are three advertising structures at Texas Stadium, but none at Irving Stadium. No advertising structures have been approved in the City since June 3, 1999, nor are there any pending applications.
B. Purpose of Sign Ordinance and Implementation of Plan
The City's sign ordinance was adopted for multiple purposes recited on the face of the ordinance, including reduction of "visual clutter along streets and highways;" prevention of "traffic hazards associated with signs distracting the attention of drivers;" "improving the image of the City;" and "improving and preserving the aesthetic appeal of its residential and commercial districts." Ord. No. 7757, preamble; App. D-17; App. D-34; Aff. of Cliff Miller, ¶ 18. The sign ordinance advances the goals expressed in the Federal highway Beautification Act, the Texas Highway Beautification Act, and the Texas Department of Transportation's regulations regarding placement of outdoor signs. App. D-31; Aff. of James C. Cline Jr., ¶ 10. In addition to Irving, at least 113 cities in Texas ban construction of new billboards.
Among the means used to implement this plan and to accomplish these objectives are: (1) the prohibition of billboards; (2) the limitation on the number, height, and size of on-premise signs; and (3) the promotion of multi-tenant signs. App. D-40 — D-53; App. D-55; App. D-58 — D-61; Ord. No. 7757, §§ 7-2, 7-3, 7-4(15), 7-7. The prohibition on billboards and the comprehensive standards for on-premise commercial advertising is consistent with and implement the urban design and general economic development objectives expressed in the Comprehensive Plan and more detailed subsequent studies. App. D-17; Aff. of Cliff Miller, ¶ 18. The billboard prohibition is effective in achieving the purposes of the Comprehensive Plan and of the sign ordinance because: (1) it prevents establishment of large signs that detract from the City's efforts to achieve a consistent urban image along transportation corridors and within development districts; and (2) billboards do not foster economic development within the community. Id.
This Court adopts and incorporates by reference the section in Defendant's Motion for Summary Judgment entitled "C. History of Sign Ordinance." This section outlines the historical background and development of the City's Comprehensive Plan.
In addition, the changes to on-site regulations further reduce the negative visual impacts of advertising by regulating the size and height of signs and by encouraging common use of advertising signs. Id. There is a generalized relationship between traffic safety and limitation of outdoor advertising, and billboards are among the causes of distraction-related auto accidents. App. D-31; Aff. of James C. Cline Jr., ¶¶ 11-12.
Many of the forty-two applications for billboard permits submitted by Plaintiff are located on transportation corridors or transit ways for which the City is attempting to create an enhanced visual form. App. D-17 — D-18; Aff. of Cliff Miller, ¶ 19. Approval of the billboard applications would have negative impacts that would significantly undermine the implementation of objectives relating to urban design and economic development along the transportation corridors and would cause potential traffic safety concerns.
C. Lease With Texas Stadium
The City owns or leases the land where Texas Stadium is located. The City has leased that property and the stadium to Texas Stadium Corporation ("TSC") for many years. App. D-26 — D-27; Aff. Sandy Cash, ¶ 6. The current lease dates to 1984, and has not been amended substantially since then. Id. Under the lease, TSC has the exclusive right to use or authorize others to use the three existing advertising structures, known as "theme towers," which are located on the stadium land for advertising purposes. Id. As rent, the City receives eight percent of the total operating revenue from the operation of the Texas Stadium, including advertising revenues. Id. Operating revenue includes revenue from advertising on the theme towers, but the amount of such revenues are not itemized or otherwise differentiated in TSC's annual audit reports to the City. Id. The lease requires observation of the City's laws and regulations by TSC. Id. of the three existing theme towers, the last two towers were authorized by City Council resolution in 1990. Each was constructed prior to December 1998. App. D-28; Aff. Sandy Cash, ¶ 9.
The actual rent complication is more complicated, but is not relevant to the issues in this case.
As documented by recent studies, Texas Stadium is an important generator of economic activity in Irving and represents a unique economic opportunity for the community. App. D-27, ¶ 7. Among the economic benefits to the City are $130 million in local economic activity and 200 jobs attributable to events at Texas Stadium. Id. Advertising revenues, including revenues resulting from operation of billboards, were anticipated as a component of the overall economic activities at Texas Stadium from the inception of the lease. App. D-28, ¶ 9.
Due to the location of Texas Stadium at the confluence of three major freeways and its capacity to attract the attention of passers-by, Texas Stadium is not a desirable location for limitation of signs to preserve scenic views. App. D-32; Aff. of James C. Cline Jr., ¶ 13.
II. ANALYSIS
A. Summary Judgment Standard
Rule 56(c) of the Federal Rules of Civil Procedure allows summary judgment when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 55(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Melton v. Teachers Ins. Annuity Ass'n of Am., 114 F.3d 557, 559 (5th Cir. 1997). The court must decide all reasonable doubts and inferences in the light most favorable to the party opposing the motion. See Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir. 1994); Walker v. Sears, Roebuck Co., 853 F.2d 355, 358 (5th Cir. 1988). As long as there appears to be some support for the disputed allegations such that "reasonable minds could differ as to the import of the evidence," the motion must be denied. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 250 (1986).
The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323; Lynch Properties, Inc. v. Potomac Ins. Co., 140 F.3d 622, 625 (5th Cir. 1998). Where the nonmoving party bears the burden of proof on a claim upon which summary judgment is sought, the moving party may discharge its summary judgment burden by showing that there is an absence of evidence to support the nonmoving party's case. See Celotex, 477 U.S. at 325. Once the moving party has satisfied this burden, the non-moving party must go beyond the pleadings and by its own affidavits or depositions, answers to interrogatories, and admissions on file set forth specific facts showing a genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Edwards v. Your Credit, Inc. 148 F.3d 427, 431-32 (5th Cir. 1998). Summary judgment will be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.
B. Plaintiff's First Amendment Claim
This Court finds that the City's sign ordinance is not in violation of the First Amendment.
1. Elements of a First Amendment Claim
The seminal case on First Amendment review of sign regulation isMetromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981). InMetromedia, a plurality of the Supreme Court upheld the City's regulation of commercial speech through its ban of billboards, applying the test set forth in Central Hudson Gas Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 556 (1980). In Central Hudson, the Court advanced the distinction between the protection accorded commercial and non-commercial speech under the First Amendment, stating: "The Constitution . . . accords a lesser protection to commercial speech than to other constitutionally guaranteed expression. The protection available for a particular commercial expression turns on the nature both of the expression and of the governmental interests served by its regulation." Id. at 562-63.
Once it is determined that the commercial speech is lawful and not misleading, the constitutional test for evaluating regulation of commercial speech set forth by the Court in Metromedia involves a three part inquiry. "A restriction on otherwise protected commercial speech is valid only if it [1] seeks to implement a substantial government interest, [2] directly advances that interest, and [3] reaches no further than necessary to accomplish the given objective." Metromedia, 453 U.S. at 507 (citing Central Hudson, 447 U.S. at 563-66). The Supreme Court has never deviated from this three-part test in evaluating restrictions on commercial speech. See, e.g., Greater New Orleans Broad. Ass'n. Inc. v. United States, 527 U.S. 173, 175 (1999) (applying the Central Hudson test).
This first factor, whether the commercial speech is lawful and not misleading, is not contested and is not at issue in this case.
2. The City's sign ordinance, which bans off-premise advertising signs, satisfies the Central Hudson test.
i. Substantial Government Interest
In upholding the City of San Diego's regulation of commercial billboards, the Court in Metromedia gave credence to the City's two asserted government interests: (1) traffic safety; and (2) aesthetics. The Court recognized these two government interests as "substantial." Furthermore, in Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 806-07 (1984), the Court stated:
The problem addressed by this ordinance — the visual assault on citizens of Los Angeles presented by an accumulation of signs posted on public property — constitutes a significant substantive evil within the City's power to prohibit. `[T]he City's interest in attempting to preserve [or improve] the quality of urban life is one that must be accorded high respect.Vincent, 466 U.S. at 807.
In this case, the City's interests in regulating off-premise commercial billboards appears on the face of the sign ordinance. The preamble to the sign ordinance recites that the City Council of Irving has a substantial interest in: (1) "preventing visual clutter along the streets and highways within its city limits;" (2) "preventing traffic hazards associated with signs distracting the attention of drivers on its streets and highways;" (3) "improving the image of the city to those who are passing along its streets and highways;" and (4) "improving and preserving the aesthetic appeal of its residential and commercial districts." App. D-34; Ord. No. 7757, preamble.
The City's interest in aesthetics is substantial not only because its regulation of billboards is designed to improve the quality of life, but also because of the immediate linkage between the visual appearance of the City and its economic prosperity. App. D-17; Aff. of Cliff Miller, ¶ 18.
ii. Direct Advancement of Substantial Government Interest
In Metromedia, the Court considered more closely whether the City of San Diego's ordinance banning commercial billboards directly advanced "governmental interests in traffic safety and in the appearance of the city." Metromedia, 453 U.S at 508. Although the record in the case was sparse concerning the relationship between prohibition of billboards and traffic safety, the Court affirmed the City's asserted substantial government interest, stating: "We likewise hesitate to disagree with the accumulated, commonsense judgments of local lawmakers and of the many reviewing courts that billboards are real and substantial hazards to traffic safety." Id. at 509. Furthermore, in upholding the City of Dallas' comprehensive sign ordinance against a First Amendment challenge, this Court held: "As long as the City has a reasonable basis for believing that the restriction of commercial speech directly advances the government interest at issue, the court will not disturb that decision." Brewster v. City of Dallas, 703 F. Supp. 1260, 1264 (N.D. Tex. 1988).
In this case, the City's Director of Transportation, James C. Cline Jr. ("Cline"), testified that there is a generalized relationship between restrictions on outdoor advertising and traffic safety, although the quantification of the relationship remains elusive. App. D-31; Aff. of James C. Cline Jr., ¶ 11. Cline also stated that the relationship between traffic safety and billboards has long been recognized in both federal and state laws that require spacing between signs along highways. See, e.g., Tex. Transp. Code Ann. § 391 (Texas highway Beautification Act); 23 U.S.C.A. § 131 (Federal Highway Beautification Act of 1965).
In Metromedia, the Court also sustained the City of San Diego's aesthetic rationale for restricting billboards, noting: "It is not speculative to recognize that billboards by their very nature, wherever located and however constructed, can be perceived as an `{aesthetic] harm'" Metromedia, 453 U.S. at 510. Although the Court acknowledged that an aesthetic rationale could be a disguise for a "public rationalization of an impermissible purpose," it could find no evidence that the asserted justification was "an ulterior motive" for "the suppression of speech."Id.
The City of Irving's billboard prohibition was preceded by extensive findings in its adopted Comprehensive Plan that the visual appearance of the City was a critical factor in attracting economic opportunities to the community and contributed substantially to the overall quality of life in the City. App. D-4; App. D-27; App. D-88; Aff. of Cliff Miller ¶ 10; Aff. Sandy Cash, ¶ 7. Even before the City finalized its Comprehensive Plan, it took significant steps to implement the aesthetic objectives documented therein by adopting an overlay zoning district along a new public highway. The purpose was done to enhance the visual character of the commercial land abutting the highway, including expressly the prohibition of billboards along the thoroughfare. App. D-15 — D-16; Aff. of Cliff Miller, ¶ 15, App. D-95, § 52-64(b)(I)(c)(3)(b).
Former Director of Community Development, now Assistant City Manager, Cliff Miller ("Miller"), testified by affidavit that in his professional judgment the enactment of the permanent billboard prohibition in Irving in 1999 significantly advanced the aesthetic objectives of the adopted Comprehensive Plan and subsequent planning studies for the Northwest Corridor of the City. App. D-8; Aff. of Cliff Miller, ¶ 18. A similar opinion was given by the City's Manager of Current Planning, Steve Reed ("Reed"). App. D-23, Aff of Steve Reed, ¶ 11.
In Metromedia, the sign company, as has the Plaintiff in this case, focused its attack on the signs the City of San Diego allowed under its regulations rather than on the billboard prohibition per se. Because the San Diego ordinance permitted onsite signs advertising goods and services offered on the property where the sign was located, the sign company argued that the "exception" could not itself be construed to advance traffic safety and aesthetic objectives. Metromedia, 453 U.S at 510-11. The Supreme Court rejected this under-inclusive argument in Metromedia.Id.
Similarly, in this case, Plaintiff contends that allowing billboards at sports facilities also cannot be justified on safety or aesthetic grounds. This Court rejects Plaintiff's arguments, holding that a municipality is not required to abandon its police powers once it decides to regulate commercial advertising by subjecting all forms of such speech to the same constraints. Rather, a City may choose to implement other legitimate objectives by regulating some forms of advertising more stringently than others. See, e.g., Vincent, 466 U.S. at 810; Lindsay v. City of San Antonio, 821 F.2d 1103, 1109 (5th Cir. 1987).
iii. Reaching No Further Than Necessary
In Metromedia, the Supreme Court made an inquiry on "narrow tailoring," and concluded that the City of San Diego's sign ordinance was no broader than necessary to effect its aims, commenting:
If the city has a sufficient basis for believing that billboards are traffic hazards and are unattractive, then obviously the most direct and perhaps the only effective approach to solving the problems they create is to prohibit them. The city has gone no further than necessary in seeking to meet its ends. indeed, it has stopped short of fully accomplishing its ends: It has not prohibited all billboards, but allows onsite advertising and some other specifically exempted signs.Metromedia, 453 U.S at 508. See also, Vincent, 466 U.S. 810-816.
Similarly, in this case, outdoor advertising is allowed in three circumstances under the City's sign ordinance: (1) onsite monument and pole signs; (2) on billboards and advertising structures that pre-existed the ban adopted on June 3, 1999; and (3) prospectively, on advertising structures at sports facilities. App. D-45; App. D-55; App. D-65 — D-66; Ord. No. 7757 §§ 7-2(22), 7-4(15), 7-15; Aff. of William Elliott, ¶ 31. These opportunities for commercial speech through the medium of signs assure that such form of expression is not suppressed, while at the same time the prohibition on new billboards effectively advances the City's aesthetic objectives. Accordingly, Defendant is entitled to summary judgment on Plaintiff's First Amendment claim.
This Court rejects Plaintiff's argument that the City allegedly discriminated as to the identity of the speaker and by the content of the speech by allowing an exemption for advertising structures at sports facilities. Such argument is unsubstantiated by the evidence in this case.
C. Plaintiff's Section 1983 Claims
In order to prevail on its claims under Section 1983, Plaintiff must show that the City of Irving, acting under color of state law, has through official policy or custom, proximately caused the deprivation of a federal constitutional or statutory right. Carey v. Piphus, 435 U.S. 247, 253 (1978); Harrington v. Harris, 118 F.3d 359, 365 (5th Cir. 1997). In this case, the asserted constitutional interests invaded are rights to freedom of expression under the First and Fourteenth Amendments to the United States Constitution. Because, as stated supra, Plaintiff failed to show a cognizable deprivation of its rights to freedom of expression under the First and Fourteenth Amendments, Defendant is entitled to summary judgment on Plaintiff's Section 1983 claims.
IV. CONCLUSION
For the foregoing reasons, Defendant's Motion for Summary Judgment is GRANTED as to all claims.