Signs for Jesus v. Pembroke, NH ( 2020 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 17-1192
    SIGNS FOR JESUS; HILLSIDE BAPTIST CHURCH,
    Plaintiffs, Appellants,
    v.
    TOWN OF PEMBROKE, NH; PEMBROKE ZONING BOARD OF ADJUSTMENT;
    EVERETT HODGE, Code Enforcement Officer, Town of Pembroke, in
    both his individual and official capacities,
    Defendants, Appellees.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF NEW HAMPSHIRE
    [Hon. Paul J. Barbadoro, U.S. District Judge]
    Before
    Howard, Chief Judge,
    Torruella and Barron, Circuit Judges.
    Michael J. Tierney, with whom Wadleigh, Starr & Peters,
    P.L.L.C. was on brief, for appellants.
    Christopher Cole, with whom Megan Carrier and Sheehan Phinney
    Bass & Green, PA were on brief, for appellees.
    October 7, 2020
    HOWARD,   Chief   Judge.      The   Town    of   Pembroke,   New
    Hampshire, bans the use of electronic signs in all of its zoning
    districts except its commercial district (C1) and certain nearby
    areas.   In April 2015, Hillside Baptist Church -- located outside
    of these areas -- applied for a permit to install an electronic
    sign on its property, which would transmit messages provided by
    Signs for Jesus, a nonprofit corporation.             The Pembroke Zoning
    Board of Adjustment (the "Board") denied the permit, citing the
    electronic sign provision in the Pembroke Sign Ordinance (PSO).
    After a series of unsuccessful administrative appeals,
    Signs for Jesus and Hillside Baptist Church (collectively, the
    "Church") filed a complaint in district court against Pembroke,
    the Board, and Everett Hodge, the Town's Code Enforcement Officer
    (collectively, the "Town"), alleging violations of the United
    States Constitution, the New Hampshire Constitution, the Religious
    Land Use and Institutionalized Persons Act (RLUIPA), and certain
    New Hampshire zoning laws.     Both parties filed cross-motions for
    summary judgment. The court granted the Town's motion and declined
    to exercise supplemental jurisdiction over the Church's state
    statutory claims.    The Church now appeals that ruling.        Because we
    conclude that the Town has met its summary judgment burden on all
    counts, we affirm.
    - 2 -
    I.
    A. Regulatory Framework
    The stated purpose of the PSO is to "[p]romote" street
    safety, "[r]educe distractions and obstructions," "[d]iscourage
    excessive visual competition," and "[p]reserve or enhance town
    character."     Pembroke, N.H., Code ch. 143, art. VIII, § 143-57.
    To that end, the PSO requires that individuals and businesses
    desiring to install signs submit applications for permits to the
    Town's Code Enforcement Officer, who is authorized to issue a
    permit "only if [he] determines that the sign complies with, or
    will comply with all applicable provisions of [the PSO]."
    Id. § 143-59A(3). Certain
    types of signs, such as political and "for
    sale" signs, however, are exempt from the permit requirement.
    Id. § 143-59A(8)(a)-(e). Regardless
    of whether a sign is exempt from the permit
    requirement, it is always subject to a "Dimensional Table of Signs"
    in Section 143-62, which specifies the types of signs that are
    allowed in each zone of Pembroke.       See
    id. §§ 143-19, 143-62.
    Pursuant to a March 2012 change to the table, at the time of the
    Church's application, "Electronic Changing Signs" were banned from
    all zones, except in C1 and certain lots "directly abutting
    Pembroke Street."
    Id. § 143-63X. While
    the PSO restricts "permitted signs" to signs that
    "conform to the provisions of [the sign ordinance]," it specifies
    - 3 -
    that two types of signs are always allowed under the PSO.                    First,
    "[s]igns which are required by federal, state or municipal laws"
    are   categorically     allowed    under    the       PSO.
    Id. § 143-58A. Additionally,
    a separate provision allows "non-conforming sign[s]
    lawfully   existing     at   the   time    of    adoption"      of    the    PSO   to
    "continue," unless such signs pose safety problems under the PSO.
    Id. § 143-58G(1). B.
    Facts and Procedural History
    Hillside Baptist Church, located in the Limited Office
    (LO) District in Pembroke, displayed a sign on its property that
    conveyed religious messages and could be changed manually.                         In
    April   2015,   the    Church   applied    for    a    permit    to   install      an
    electronic sign that could be remotely programmed to display
    different religious messages each day, with messages provided by
    Signs for Jesus.
    Hodge denied the Church's application, on the ground
    that the Church is located in a zone where electronic signs are
    prohibited.     At the time, there were three electronic signs on the
    same road as the Church.        The first was a gas station sign in the
    LO district, which predated the adoption of the PSO.                   The second
    was a sign on the property of Pembroke Academy, a public school in
    the Residential District, which posted messages advertising school
    - 4 -
    events.1     The third sign was a temporary electronic sign, erected
    during the summer of 2015 by the New Hampshire Department of
    Transportation       (NHDOT)      to    inform     motorists        of   possible
    construction delays.2
    Following Hodge's denial of its application, the Church
    filed an administrative appeal and variance request with the Board.
    After a public hearing, the Board denied both the Church's appeal
    and its request for a variance.             In its Notice of Decision, the
    Board emphasized that allowing the electronic sign would "detract
    from the rural character of the Route 3 corridor," and noted that
    the   municipality's     interest      in    maintaining      the   area's   rural
    character was "compelling."        The Church moved for a rehearing, but
    the Board again denied the appeal and variance request in October
    2015.
    The Church responded to these rejections by filing a
    complaint in the district court.            After first determining that the
    Church      had   standing   to   challenge      only   the    electronic    sign
    provision, the district court granted the Town's motion for summary
    1
    Pembroke Academy is operated by School Administrative Unit
    53, a political subdivision within the state. See N.H. Rev. Stat.
    Ann. § 507-B:1.
    2
    In his declaration submitted to the district court, Hodge
    testified that he was aware of "two temporary" NHDOT signs. The
    Church mentions only one NHDOT sign in its briefing. Whether NHDOT
    erected one or two signs does not affect our analysis of any of
    the Church's claims.
    - 5 -
    judgment with respect to the Church's constitutional and RLUIPA
    claims, and declined to exercise supplemental jurisdiction over
    the complaint's state statutory claims.    See Signs for Jesus v.
    Town of Pembroke, 
    230 F. Supp. 3d 49
    , 57-68 & n.14 (D.N.H. 2017).
    This appeal followed.
    The Church maintains that the court erred in holding
    that the PSO does not violate the First Amendment's free-speech
    guarantees.   As it did in the district court, the Church argues
    that it has standing to pursue a First Amendment challenge to the
    PSO as a whole, both facially and as applied.   And it also contends
    that it has standing to challenge the electronic sign provision in
    particular, again both facially and as applied.
    In addition to its First Amendment claims, the Church
    also challenges the district court's dismissal of its claims under
    the Federal and New Hampshire equal protection clauses, as well as
    its RLUIPA claims.   Finally, the Church argues that the district
    court erred in declining to exercise supplemental jurisdiction
    over its remaining state law claims.
    II.
    We review a district court's grant of summary judgment
    de novo.   Specialty Nat'l Ins. Co. v. OneBeacon Ins. Co., 
    486 F.3d 727
    , 732 (1st Cir. 2007).   In this case, the Church had also filed
    its own motion for summary judgment, but "[t]he presence of cross-
    motions for summary judgment neither dilutes nor distorts th[e]
    - 6 -
    standard of review."
    Id. (quoting Mandel v.
    Bos. Phoenix, Inc.,
    
    456 F.3d 198
    , 205 (1st Cir. 2006)).
    A. Standing
    Article III, section 2 of the Constitution restricts the
    federal    judicial      power   to    the    resolution        of        "Cases"    and
    "Controversies."         U.S. Const. art. III, § 2.                  The "case-or-
    controversy" requirement is satisfied only where a plaintiff has
    "standing" to sue. Sprint Commc'ns Co., L.P. v. APCC Servs., Inc.,
    
    554 U.S. 269
    , 273 (2008).        To establish such standing, a plaintiff
    must    identify    an    injury      in   fact     that   is        1)     "concrete,
    particularized, and actual or imminent," 2) "fairly traceable to
    the challenged action," and 3) "redressable by a favorable ruling."
    Clapper v. Amnesty Int'l USA, 
    568 U.S. 398
    , 409 (2013) (quoting
    Monsanto Co. v. Geertson Seed Farms, 
    561 U.S. 139
    , 149 (2010)).
    As the party invoking federal jurisdiction, the Church "bears the
    burden of establishing these elements."               Lujan v. Defenders of
    Wildlife, 
    504 U.S. 555
    , 561 (1992).
    The    parties    agree   that    the   Church      has       standing    to
    challenge the electronic sign provision itself with regard to all
    of its claims.        In the Church's First Amendment claims in its
    appellate briefing, however, the Church focuses on a number of
    other regulatory provisions that it contends are content-based.
    Those     provisions      include     exemptions      from      the         permitting
    provisions, various categories of signs for which special rules
    - 7 -
    and conditions apply, and two provisions addressing government-
    related signs.    And, the Church contends that, in light of these
    provisions, the electronic sign provision is itself impermissibly
    content-based and is unconstitutional under the First Amendment.
    To the extent that the identified exemptions allow a sign to
    circumvent the requirements of the electronic sign provision,
    there is no standing problem with that contention, as the parties
    seem to agree.
    Insofar as the Church's argument nevertheless fails,
    because even though those exemptions may be content-based they do
    not exempt a proposed sign from complying with the electronic sign
    provision, the Church appears to have a fallback argument.       That
    argument suggests that the Church has standing to challenge the
    PSO "as a whole" on the basis of the content-based exemptions, no
    matter whether those exemptions are relevant to the Town's denial
    of   the   Church's   request.   Because   the   Church   advances   no
    affirmative argument that the electronic sign provision is not
    severable from different parts of the PSO that may be content-
    based, though, it has no standing to challenge those provisions on
    this basis.3   See Ayotte v. Planned Parenthood of N. New Eng., 546
    3 To the extent the Church relies in arguing otherwise
    on Reed v. Town of Gilbert, 
    576 U.S. 155
    (2015), which did not
    address standing, it is mistaken. In Reed, a church pastor was
    cited for violating a sign ordinance that treated signs differently
    based on the content of their 
    message. 576 U.S. at 160-61
    . It
    was clear in Reed that if the communicative content of the pastor’s
    - 8 -
    U.S. 320, 328-29 (2006) ("[W]hen confronting a constitutional flaw
    in a statute, . . . . [w]e prefer to . . . sever its problematic
    portions while leaving the remainder intact . . . ."); Sabri v.
    United States, 
    541 U.S. 600
    , 609-10 (2004) (expressing disapproval
    of facial challenges "of th[e] sort" where a party claims "the
    statute could not be enforced against him, because it could not
    [constitutionally] be enforced against someone else").
    The Church also challenges the electronic sign provision
    facially on the ground that it confers unbridled discretion to the
    Town to determine which signs to deem as electronic changing signs
    subject to the strictures of the provision.4   See City of Lakewood
    sign had been different, the town there would have subjected the
    sign to more favorable treatment.
    Id. For that reason,
    the
    pastor's injury was fairly traceable to the disparate treatment of
    his sign relative to other signs falling within the ordinance's
    various other content-based sign categories, and thus invalidation
    of the ordinance as a whole would have redressed the
    injury. See
    id. at 164
    ("The restrictions in the Sign Code that
    appl[ied] to any given sign . . . depend[ed] entirely on the
    communicative content of the sign.").     Here, by contrast, the
    plaintiff's injury is fairly traceable only to the electronic sign
    provision itself, because that provision barred the plaintiff's
    sign regardless of whether or not any of the other allegedly
    content-based provisions of the PSO also applied to the
    sign. Cf. Maverick Media Grp., Inc. v. Hillsborough County, 
    528 F.3d 817
    , 820 (11th Cir. 2008) ("[A] plaintiff whose sign permit
    applications were denied on the basis of one provision in a
    county's sign ordinance, but which could have been denied on the
    basis of some alternate, but unchallenged regulation, does not
    have a redressable injury.").
    4 While the Church cannot bring this challenge as-applied,
    because its challenge targets the nature of the discretionary
    authority delegated to the Town rather than its specific denial of
    the Church's request to put up its proposed sign, the Church has
    made a claim that the electronic sign provision is facially invalid
    - 9 -
    v. Plain Dealer Publ'g Co., 
    486 U.S. 750
    , 758-59 (1988).     It has
    standing to do so.   See Van Wagner Bos., LLC v. Davey, 
    770 F.3d 33
    , 39 (1st Cir. 2014) ("City of Lakewood does not require a
    plaintiff to identify instances of self-censorship or content-
    based   decisionmaking   before   a    facial   challenge   may    be
    mounted. . . .   Rather, the federal cases all are in harmony with
    the Supreme Court's presumption that regulatory schemes exhibiting
    the features it identified pose those threats.").   Insofar as that
    argument fails, the Church also appears to contend that it has
    standing to challenge the PSO as a whole facially due to other
    provisions in the PSO that themselves confer unbridled discretion
    to the Town to determine which signs to allow.      But, so long as
    those provisions are unrelated to the denial of the Church's sign
    request, we do not see how the Church could have standing to
    challenge them, for, again, the Church fails to develop any
    argument for why these provisions are not severable from the
    electronic sign provision that formed the basis of the Town's
    denial of the Church's request.   See 
    Sabri, 541 U.S. at 609-10
    .
    Keeping these limitations on the scope of the Church's
    standing to challenge different portions of the PSO in mind, we
    proceed to consider the Church's First Amendment challenges to the
    PSO.
    as a conferral of unbridled discretion.   See City of 
    Lakewood, 486 U.S. at 758-59
    .
    - 10 -
    B. Content-Based Speech Restriction Claim
    The   Church      first    challenges       the       electronic    sign
    provision as an unconstitutional restriction on its freedom of
    speech.   The First Amendment, which applies to the states through
    the Fourteenth Amendment, provides that "Congress shall make no
    law . . . abridging the freedom of speech."                  U.S. Const. amend. I.
    Evaluating the constitutionality of a speech restriction first
    requires a determination about whether the restriction is content
    based or content neutral.            
    Reed, 576 U.S. at 165
    .              "Government
    regulation    of     speech    is   content     based    if    a   law   applies   to
    particular speech because of the topic discussed or the idea or
    message expressed."
    Id. at 163.
          Such speech restrictions are
    subject to strict scrutiny, which requires the government to
    demonstrate that the restriction advances a "compelling interest"
    and is "narrowly tailored to achieve that interest."
    Id. at 171
    (quoting Ariz. Free Enter. Club's Freedom Club PAC v. Bennett, 
    564 U.S. 721
    , 734 (2011)).
    Content-neutral        regulations,        by    contrast,     "serve[]
    purposes unrelated to the content of expression,"                   and are subject
    to intermediate scrutiny which requires that the restrictions be
    "narrowly tailored to serve a significant governmental interest,
    and   that    they     leave    open    ample     alternative         channels     for
    communication of the information."              Ward v. Rock Against Racism,
    - 11 -
    
    491 U.S. 781
    , 791 (1989) (quoting Clark v. Cmty. for Creative Non-
    Violence, 
    468 U.S. 288
    , 293 (1984)).
    But    speech   restrictions   that   are   facially   content-
    neutral are considered content-based and thus subject to strict
    scrutiny if they exhibit a speaker preference that "reflect[s] the
    Government's preference for the substance of what the favored
    speakers have to say (or aversion to what the disfavored speakers
    have to say)."    Turner Broad. Sys., Inc. v. F.C.C., 
    512 U.S. 622
    ,
    658 (1994); see 
    Reed, 576 U.S. at 163-64
    .       To show that a facially
    content-neutral regulation is subject to strict scrutiny, the
    plaintiff must show not only that the restriction distinguishes
    between speakers, but also that it "reflects a content preference."
    
    Reed, 576 U.S. at 170
    (quoting 
    Turner, 512 U.S. at 658
    ); see also
    
    Ward, 491 U.S. at 791
    ("A regulation that serves purposes unrelated
    to the content of expression is deemed neutral, even if it has an
    incidental effect on some speakers or messages but not others.").
    Thus, where the evidence indicates that the challenged regulation
    was enacted to advance a purpose unrelated to content preference,
    it is subject only to intermediate scrutiny.       See 
    Turner, 512 U.S. at 658-59
    (rejecting the application of strict scrutiny to a law
    preferring broadcasters over cable programmers where its purpose
    was to promote economic growth for struggling broadcast stations).
    - 12 -
    1.
    The parties agree that the electronic sign provision
    itself is a facially content-neutral restriction.                      The Church
    contends, however, that a number of other provisions in the PSO
    are content-based.       Because, as we have explained, the Church only
    has standing to challenge those other provisions if it is correct
    that they excuse a speaker from complying with the electronic sign
    provision,     we   first   consider         whether    the   Church       correctly
    characterizes the allegedly content-based exemptions as limiting
    the applicability of the electronic sign provision.
    On the Church's own account, a number of these exemptions
    are exemptions from the permit requirement in Section 143-59 of
    the PSO.     The Church makes no sustained argument, however, that
    this section of the PSO sets forth any exemption that spares a
    sign from having to comply with the electronic sign provision.
    Moreover, the plain text of the PSO indicates that the electronic
    sign   provision     applies     notwithstanding         whether     any    of    the
    exemptions set forth in Section 143-59 apply.                 For, while Section
    143-59 specifically exempts certain signs "from the permitting
    requirements,"      it   does   not    exempt    them     from   any   other       PSO
    provisions, such as the electronic sign provision.                     Bolstering
    this reading, both before the district court and in this court,
    the Town has maintained that the electronic sign provision is
    "entirely    independent"       of   the   permit      requirement     from      which
    - 13 -
    Section 143-59 sets forth exemptions.               See Sullivan v. City of
    Augusta, 
    511 F.3d 16
    , 26-27, 29 (1st Cir. 2007) (deferring to a
    city's interpretation of the applicability of an ordinance where
    it was supported by the plain text of the statute and was not
    contradicted by any evidence in the record).5
    Most   of    the   remaining       provisions    that   the   Church
    characterizes as content-based are provisions in Section 143-63 of
    the ordinance that lay out different categories of signs and the
    special conditions that apply to them, as well as corresponding
    provisions     in   Section     143-62    that     describe    the   dimensional
    requirements    for      each   such    category    of   sign.       Because     the
    electronic sign provision falls within these sections of the PSO
    and itself lays out special rules for "electronic changing signs,"
    the Church contends that, in determining that its proposed sign
    was an electronic changing sign, the Town necessarily determined
    that its sign did not belong to any of the allegedly content-based
    categories    of    signs   identified      in    Section     143-63.      Had   it
    determined otherwise, the Church suggests, the Town could not have
    deemed the Church's sign to be an electronic changing one.
    Here too, though, the plain text of the PSO stands in
    the Church's way.        Nothing in the PSO precludes a sign from being
    5 The Church makes no argument that being subjected to the
    permitting process itself constitutes an injury for standing
    purposes even though its proposed sign is prohibited no matter
    whether it is subject to that process or not.
    - 14 -
    both an "electronic changing sign" and, for instance, a "Political
    Sign" or a "For Sale" sign under Section 143-63.                  If a sign falls
    under one of these allegedly content-based categories and is also
    an electronic changing sign, moreover, there is no indication in
    the    ordinance    that    the    sign    is   exempt     from   satisfying     the
    requirements of the electronic sign provision.                In accordance with
    this reading of the PSO, the Town represents that if a sign meets
    the definition of an electronic changing sign, "it is an Electronic
    Sign, irrespective of the content of its message."                  We thus accept
    the Town's reasonable reading of its law.                 See 
    Sullivan, 511 F.3d at 26-27
    .
    There is one provision in Section 143-63 that bears
    additional discussion. That provision is the PSO's "public service
    exception," which not only identifies a category of sign and
    subjects it to special rules but also provides that "temporary
    governmental agency signs which carry public-service announcements
    and notices may be permitted to exceed the dimensional requirements
    of [the PSO]."       Pembroke, N.H., Code ch. 143, art. VIII, § 143-
    63P.     Here,     too,    the    Church   asserts    that    the    provision   is
    impermissibly      content-based.           But,     we    conclude    that    this
    provision, like the others in Section 143-63, does not excuse a
    sign from compliance with the electronic sign provision.
    That exemption, by its own terms, only enables the
    government to "exceed . . . dimensional requirements" that would
    - 15 -
    otherwise constrain its choice of signage.
    Id. Despite its easing
    of these "dimensional" rules, as with the permitting exceptions
    and the other provisions for special categories of signs, the
    public   service      announcement       provision     does    not    negate    the
    government's obligation to comply with non-dimensional aspects of
    the PSO.    As the Town represented to the district court, this
    provision thus does not "create an 'exemption' from the restriction
    on electronic signs."       If a qualifying public service announcement
    were "displayed as an electronic sign," according to the Town, it
    "would still be banned at the Church's location."
    To be sure, the restrictions on electronic signs are
    regulated in part in a section of the PSO labeled "Dimensional
    Table of Signs."       But, we see no reason to think that the Town's
    representation to us that the restrictions are not "dimensional
    requirements" that temporary public service announcements may
    exceed is incorrect.        Nor does the Church mount an argument for
    why the Town's reading of the PSO on this point is implausible.
    Indeed, in its opening brief, it simply brushes past the question
    by   omitting   the     portion     of    the   ordinance      that     references
    "dimensional requirements" altogether.               And, thus, we accept the
    Town's reading of its own ordinance, see 
    Sullivan, 511 F.3d at 30
    ,
    particularly    as    it   avoids   a    constitutional       concern    that   the
    contrary reading would create.
    - 16 -
    The final exception that we need to address that the
    Church contends is content-based does not appear in either Section
    143-59's     permitting   provisions   or   Section   143-63's   special
    provisions.6     That exception states, without qualification, that
    "[s]igns which are required by federal, state or municipal laws
    are permitted."     Pembroke, N.H., Code ch. 143, art. VIII, § 143-
    58A.       The Town argues that there is no textual basis in the
    ordinance for concluding that these signs are allowed without the
    signs having to "conform to the provisions [applicable to other
    signs],"
    id., but we are
    not convinced.
    Rather than specifically referencing signs required by
    law, the "conform to" language caveats a different sentence of the
    ordinance, which reads in full as follows: "Only signs which refer
    to any lawful use, permitted use or an approved special exception
    use as set forth in Article IV of this Chapter shall be permitted,
    provided such signs conform to the provisions of this article."
    Id. (emphasis added). While
    the required-by-law exemption appears
    in the same subsection of the ordinance as the provision with the
    6
    At oral argument, the Church suggested that it had standing
    to challenge yet other exemptions in the PSO related to electronic
    signs, namely, the time and temperature exceptions and the
    provisions allowing holiday lights.     These arguments, however,
    were only cursorily mentioned in the briefs and are accordingly
    waived. See United States v. Zannino, 
    895 F.2d 1
    , 17 (1st Cir.
    1990)   ("[I]ssues   adverted   to   in  a   perfunctory   manner,
    unaccompanied by some effort at developed argumentation, are
    deemed waived.").
    - 17 -
    language regarding conformance with the provisions of the article,
    the required-by-law exemption is codified in a sentence that is
    displayed in a box separated off from the rest of the text of the
    ordinance, including the conformance language that the Town reads
    as qualifying the exception.       Thus, there is no reason to conclude
    that signs required by law, which the ordinance generally deems to
    be "permitted," are only "permitted" if they "conform to the
    provisions of this article."       Such signs are allowed even if they
    violate the electronic sign provision, and the ordinance draws a
    distinction in its application of the electronic sign provision
    between signs required by law and the sign the Church requested to
    display.     Even with the limitations on the scope of the Church's
    challenge that we have recognized, then, the Church may challenge
    the electronic sign provision as expressing a preference for
    government     speakers    based   on        this    assertedly     content-based
    exemption from it.
    2.
    The Church contends that the required-by-law exception
    to   the   electronic     sign   provision          reflects   an   impermissible
    preference for government speech.              The district court concluded
    that the required-by-law exception did not reflect a content
    preference, however, and proceeded to apply intermediate scrutiny.
    We agree with the district court's approach.
    - 18 -
    We have previously found that a broader exemption for
    government signage did not render an otherwise content-neutral
    ordinance to be content-based.         See John Donnelly & Sons v.
    Campbell, 
    639 F.2d 6
    , 8-9 & n.4 (1st Cir. 1980) (holding that a
    sign ordinance was content neutral despite excepting "[s]igns of
    a duly constituted governmental body").        In Campbell, we reasoned
    that the government signage exception reflected an "appropriate
    governmental   interest"   and   was      "justified   by    sheer   public
    necessity."
    Id. at 9
    (first quotation quoting Police Dep't of
    Chi. v. Mosley, 
    408 U.S. 92
    , 95 (1972)).
    We can identify no reason to reach a contrary conclusion
    here.   The exemption for signs required by state law appears
    primarily intended to codify the New Hampshire state government's
    general exemption from local zoning ordinances.             See Region 10
    Client Mgmt., Inc. v. Town of Hampstead, 
    424 A.2d 207
    , 209 (N.H.
    1980) ("[Z]oning restrictions do not apply to the State or its
    agencies 'unless the legislature has clearly manifested an intent
    that they shall.'") (quoting City of Portsmouth v. John T. Clark
    & Son, Inc., 
    378 A.2d 1383
    , 1384 (N.H. 1977)).              Moreover, this
    state government exemption from local zoning ordinances extends to
    other government subdivisions, including school districts.              See
    City of Manchester Sch. Dist. v. City of Manchester, 
    843 A.2d 966
    ,
    972 (N.H. 2004) ("[T]here is a comprehensive statutory scheme that
    evidences a legislative intent not to permit municipalities to
    - 19 -
    exercise      broad   control     over     the    establishment,            powers     and
    functioning of school districts.").              The underlying purpose of the
    state   law    exemption   is    to   allow      New    Hampshire      to    carry     out
    "legitimate state functions," unimpeded by the cost of complying
    with    the     variable       signage     restrictions          across        different
    municipalities and zones within those municipalities.                          Region 10
    Client Mgmt., 
    Inc., 424 A.2d at 209
    (quoting John T. Clark & Son,
    
    Inc., 378 A.2d at 1384-85
    ).
    To the extent that the ordinance also exempts signs that
    state   or     federal   law     requires     non-governmental          entities        to
    display, moreover, it merely reflects the limits of the Town's
    authority     to   regulate     behavior    that       these   other    governmental
    entities      require.     See    Prolerized       New    Eng.    Co.     v.    City    of
    Manchester, 
    103 A.3d 217
    , 221 (N.H. 2014) (holding that a local
    ordinance is preempted where it "permits that which a State statute
    prohibits or vice versa" (quoting N. Country Envtl. Servs. v. Town
    of Bethlehem, 
    843 A.2d 949
    , 954 (N.H. 2004))); Hillsborough Cnty.
    v. Automated Med. Labs., Inc., 
    471 U.S. 707
    , 713 (1985) (noting
    that state law must give way when "compliance with both federal
    and state regulations is a physical impossibility" and that "for
    the purposes of the Supremacy Clause, the constitutionality of
    local ordinances is analyzed the same way as that of statewide
    laws" (first quoting Fla. Lime & Avocado Growers, Inc. v. Paul,
    
    373 U.S. 132
    , 142-43 (1963))).             And, while we note that the PSO
    - 20 -
    exception for legally required signs extends to signs required by
    "municipal laws" as well as state and federal laws, we read the
    reference to "municipalities" in the required-by-law exemption to
    only reflect that fact that, as we have noted, state law prohibits
    the Town from regulating the land use of other municipalities,
    like school districts. In line with this reading, the Church fails
    to identify any laws imposed by the Town of Pembroke itself that
    would require the use of electronic signs that would otherwise
    violate the terms of the PSO, much less any specific signs that
    are required by such laws.
    It is true that Campbell predates the Court's decision
    in Reed, which held that facially content-discriminatory laws
    cannot be content-neutral.       
    See 576 U.S. at 165-66
    .          But, while
    the law at issue in Campbell was speaker-based, it was content-
    neutral on its face, 
    see 639 F.2d at 8-9
    & n.4, and Reed recognized
    that such laws are only subject to strict scrutiny when the
    speaker-based discrimination "reflects a content 
    preference," 576 U.S. at 170
    (quoting 
    Turner, 512 U.S. at 658
    ).           Thus, Campbell's
    holding on this point remains good law.
    Accordingly, because the exception for legally required
    signs only reflects the existence of external limits on the Town's
    power   to   regulate   the   signs   displayed   or   required    by   other
    governments, it is neither speaker-based nor content-based.               The
    Town has applied the electronic sign provision equally to all signs
    - 21 -
    that   are    within     its   power    to    regulate;   the   required-by-law
    exception merely acknowledges a legal limit to the scope of that
    power.
    3.
    Separate from any exemptions in the PSO itself, the
    Church argues that restricting the allowance of electronic signs
    to the C1 district -- and requiring churches to apply for variances
    in order to locate in that district -- reflects a preference for
    commercial speech and thus is content-based in that respect.              But,
    the Town's treatment of electronic signs by the Town's zoning
    scheme   is    not   a   content-based        or   speaker-based   restriction,
    because it applies equally to all property owners within their
    given area of the Town. All property owners within the C1 district
    and certain nearby lots abutting Pembroke Street, including the
    two churches that have applied for and received variances to locate
    in the C1 district, can display electronic signs adhering to
    certain requirements on their property.                   All property owners
    outside those areas cannot.            Thus, the ordinance simply imposes a
    location-based restriction on speech.
    We   recognize    that     a    location-based    restriction   on
    speech, like other facially content-neutral laws, may be treated
    as content-based if it "cannot be 'justified without reference to
    the content of the regulated speech,' or [was] adopted by the
    government 'because of disagreement with the message [the speech]
    - 22 -
    conveys,'" 
    Reed, 576 U.S. at 164
    (second set of alterations in
    original) (quoting 
    Ward, 491 U.S. at 791
    ).            But, here, the Church
    develops no argument for why the locational rules imposed on
    churches are a pretext for the Town to regulate the content of
    speech with regard to the use of electronic signs.                  Thus, this
    aspect of the Town's ordinance is also a content-neutral time,
    place, and manner restriction on speech, which we subject to
    intermediate scrutiny.       See 
    Ward, 491 U.S. at 791
    .
    C. Time, Place, and Manner Speech Claim
    The electronic sign provision withstands intermediate
    scrutiny because it is "narrowly tailored to serve a significant
    governmental interest."      
    Ward, 491 U.S. at 796
    (quoting 
    Clark, 468 U.S. at 293
    ).        With respect to the Church's proposed sign, the
    Town       asserts   an   interest    in      "preserv[ing]   the     existing
    neighborhood characteristics and aesthetics, including the rural
    and natural look of [Pembroke]."7          It is well established that, in
    the realm of content-neutral regulations, aesthetic concerns are
    significant governmental interests.            See Members of City Council
    of L.A. v. Taxpayers for Vincent, 
    466 U.S. 789
    , 805-06 (1984);
    Metromedia, Inc. v. City of San Diego, 
    453 U.S. 490
    , 507-08 (1981);
    7
    The district court considered the Town's traffic safety
    concerns as well, but the Town concedes that traffic safety was
    not at issue with the Church's proposed sign. Because the Church
    is pressing an as-applied challenge here, we accordingly focus on
    the Town's asserted aesthetic interest.
    - 23 -
    Naser Jewelers, Inc. v. City of Concord, 
    513 F.3d 27
    , 34 (1st Cir.
    2008).
    We hold that the electronic sign provision is narrowly
    tailored to achieve this stated goal.             A speech restriction is
    sufficiently narrowly tailored so long as the "regulation promotes
    a substantial government interest that would be achieved less
    effectively absent the regulation." 
    Ward, 491 U.S. at 799
    (quoting
    United States v. Albertini, 
    472 U.S. 675
    , 689 (1985)).              Here, we
    can   identify   no   basis   to   doubt   that   the   Town's   interest   in
    maintaining its "quaint little New England village" aesthetic
    would be achieved less effectively without the electronic sign
    provision.    See 
    Naser, 513 F.3d at 35
    (concluding that the city's
    goal of "not rendering [its] visual image and community character
    to be that of a potential Times Square" would be achieved "far
    less effectively" absent its ban on electronic messaging signs)
    (alteration in original).
    The Church maintains that the scope of the electronic
    sign provision nonetheless renders it unconstitutional.             It first
    argues that the provision is underinclusive because the PSO allows
    property owners to erect "less aesthetically pleasing" signs --
    "sandwich board signs" and "neon signs" among them -- without
    obtaining a permit.     However, the First Amendment does not require
    that a municipality, in advancing its aesthetic interests through
    a content-neutral regulation, eliminate all possible sources of
    - 24 -
    visual blight.         See 
    Metromedia, 453 U.S. at 511
    (concluding that
    an ordinance allowing onsite advertising while banning offsite
    advertising satisfied intermediate scrutiny); 
    Vincent, 466 U.S. at 811
    ("[T]he validity of the esthetic interest in the elimination
    of signs on public property is not compromised by failing to extend
    the ban to private property.").                   Here, as the district court
    explained, in banning electronic signs outside of the commercial
    district, Pembroke has made a reasonable attempt to balance its
    aesthetic interest with a countervailing interest in economic
    development.        Such a balance does not upset narrow tailoring.                   See
    
    Metromedia, 453 U.S. at 511
    .
    We   likewise       reject   the    Church's       argument    that    the
    electronic      sign    provision      is   unconstitutional         because     it    is
    overinclusive.         Although the Town may not "burden substantially
    more       speech   than      is   necessary      to    further    [its]     legitimate
    interests," it         need    not    choose      the   least     restrictive    means
    possible, as "the regulation will not be invalid simply because a
    court concludes that the government's interest could be adequately
    served by some less-speech-restrictive alternative."                         
    Ward, 491 U.S. at 799-800
    .8
    8
    We reject the Church's invitation, drawing from language in
    McCullen v. Coakley, 
    573 U.S. 464
    , 495 (2014), to require the Town
    to "affirmatively prove that less restrictive measures have been
    tried." In both McCullen and Rideout v. Gardner, 
    838 F.3d 65
    (1st
    Cir. 2016), another case upon which the Church relies, the
    connection between the speech restriction and the asserted
    - 25 -
    Moreover, the electronic sign provision leaves open
    "alternative channels for communication."          
    Ward, 491 U.S. at 791
    .
    To assess whether the alternatives are adequate, we examine "the
    ability of a party to disseminate its message to the same general
    audience despite the restrictions at issue."          
    Sullivan, 511 F.3d at 49
    (Lipez, J., dissenting in part).           Here, the Church remains
    free to communicate its religious messages to passers-by through
    its existing, manually changing sign, or through any other non-
    electronic    sign.   We   doubt   that    the    Church's   inability   to
    communicate the same message to the same audience through an
    electronic sign frustrates its goals, particularly where, as here,
    the Church has proposed a static electronic sign that "will not
    flash or scroll." Although the Church maintains that an electronic
    sign would be a more convenient means of achieving its goals,
    "[t]he First Amendment does not guarantee a right to the most cost-
    effective means of distribution."         Globe Newspaper Co. v. Beacon
    Hill Architectural Comm'n, 
    100 F.3d 175
    , 193 (1st Cir. 1996)
    governmental interest was more tenuous. See 
    McCullen, 573 U.S. at 494-95
    , 497 (striking down a buffer zone around abortion clinics
    statewide when "the problem appears from the record to be limited
    principally to [a single] clinic on Saturday mornings [and] the
    police appear perfectly capable of singling out lawbreakers");
    
    Rideout, 838 F.3d at 73
    (striking down New Hampshire's ban on
    "ballot selfies" enacted for purposes of reducing voter fraud and
    coercion despite the fact that the state "ha[d] not received any
    complaints of vote buying or voter intimidation since at least
    1976"). Here, the connection between an electronic sign ban and
    an interest in preserving a town's rural character is immediately
    apparent.
    - 26 -
    (upholding ban on newspaper racks despite the higher cost of
    employing street vendors).        Because the electronic sign provision
    is narrowly tailored to further the Town's aesthetic interest and
    leaves   open   ample    alternative   channels     for    communication,   we
    affirm the district court's entry of summary judgment on the
    Church's free speech claim in favor of the Town.
    D. Unbridled Discretion Claim
    There remains one loose end.          As we noted before, the
    Church   contends   that    various    provisions    of    the   PSO   "grant[]
    unbridled discretion to determine which signs are and are not
    permitted    without    narrow,    objective   and    definite     criteria."
    However, as we have already explained, the Town denied the Church's
    sign on the basis of its status as an electronic changing sign,
    and the other provisions that the Church identifies as conferring
    unbridled discretion do not enable the Town to allow a sign that
    would otherwise be barred by the electronic sign provision.               Nor,
    as we have already noted, does the Church make any argument that
    the electronic sign provision would not survive even if the other
    provisions were invalidated on this ground.               Thus, we narrow our
    focus to the electronic sign provision itself.
    That provision describes the "Electronic Changing Signs"
    it regulates as follows:
    Electronic Changing Signs include, but are not
    limited to, electronic message center (EMC),
    electronic message sign (EMS), and changeable
    - 27 -
    copy   board    (CCB)   signs   that   display
    illuminated    messages    that   can   change
    frequently, can flash, display and/or convey
    messages in text, graphics, pictures, symbols,
    multiple colors, rhythms, animation, and/or
    patterns. This sign's message may be changed
    by   the  electronic    switching   of  lamps,
    illuminated tubes, bulbs, and/or through the
    apparent movement of light. These signs are
    capable of storing and/or displaying single or
    multiple messages in various formats at
    varying intervals.
    Pembroke, N.H., Code ch. 143, art. VIII, § 143-63X.     The Church
    contends that the provision's use of the "include, but are not
    limited to" language gives the Town overly broad discretion to
    determine what constitutes an electronic changing sign.    And, it
    argues, the Town's treatment of the Church's proposed sign, which
    the Church characterizes as "static" and not "changing," as falling
    under the scope of the statute is evidence of the standard-less
    discretion that the Town has to treat proposed signs as prohibited
    electronic changing signs.
    The Supreme Court has long recognized that "a licensing
    statute placing unbridled discretion in the hands of a government
    official or agency constitutes a prior restraint."         City of
    
    Lakewood, 486 U.S. at 757
    .   The mere existence of some measure of
    discretion in implementing a licensing regime, however, does not
    render such a regime constitutionally suspect.    Rather, "perfect
    clarity and precise guidance have never been required even of
    regulations that restrict expressive activity," and accordingly,
    - 28 -
    the Court has upheld even standards for regulating expression that
    are "undoubtedly flexible" and require officials to "exercise
    considerable discretion."         
    Ward, 491 U.S. at 794
    .
    Here, the Town's ordinance quite specifically lays out
    the criteria used to determine whether a sign is an electronic
    changing sign.    These criteria are, as the District Court found,
    objective ones. It is clear, for instance, that a sign using light
    bulbs that turn on and off to display a rotating series of textual
    messages over the course of a day would constitute an electronic
    changing sign.    Moreover, given the well-defined examples that the
    ordinance identifies as electronic changing signs, we do not read
    the "including, but . . . not limited to" language in the ordinance
    as   a   free-floating    grant   of    authority   to   treat    any   sign   as
    potentially falling within the scope of the ordinance, but instead
    as reaching only other signs similar to the ones specifically
    identified.    See Circuit City Stores, Inc. v. Adams, 
    532 U.S. 105
    ,
    114–15, 121 (2001) ("[W]here general words follow specific words
    in a statutory enumeration, the general words are construed to
    embrace only objects similar in nature to those objects enumerated
    by   the   preceding     specific      words.")   (quoting   2A    N.   Singer,
    Sutherland on Statutes and Statutory Construction § 47.17 (1991)).
    The Church contends that the Town's application of the
    electronic sign provision to the Church's proposed sign, which the
    Church characterizes as "static," demonstrates that the Town's
    - 29 -
    reading of the statute must not be so limited, as the Church asks
    us to conclude that the Church has not proposed a "changing" sign
    within    the     meaning    of     the   statute.       But,    despite      its
    characterization of its own sign, the Church concedes that its
    proposed sign could "change" as often as once per day, which puts
    it squarely within the scope of the ordinance.               The Church also
    fails to identify any other reason to suspect the Town applies its
    statute in anything but the commonsense way we do here.                Thus, we
    see no reason to think that the Town, in reviewing proposed signs
    under    the    electronic   sign    provision,      exercises   the   sort    of
    unfettered discretion that the First Amendment prohibits.
    E. RLUIPA Claims
    The Church brings two distinct claims under RLUIPA on
    appeal, the first under the "equal terms" provision, and the second
    under the "substantial burden" provision.
    1. Equal Terms
    The "equal terms" provision of RLUIPA provides that
    "[n]o government shall impose or implement a land use regulation
    in a manner that treats a religious assembly or institution on
    less than equal terms with a nonreligious assembly or institution."
    42 U.S.C. § 2000cc(b)(1).           The first step in the RLUIPA "equal
    terms" analysis is to identify a relevant secular comparator.
    Although several circuits have articulated different approaches,
    they all generally require that the comparators be similarly
    - 30 -
    situated with respect to the purpose of the underlying regulation.
    See, e.g., Lighthouse Inst. for Evangelism, Inc. v. City of Long
    Branch, 
    510 F.3d 253
    , 268 (3d Cir. 2007) ("[A] religious plaintiff
    under the Equal Terms Provision must identify a better-treated
    secular   comparator    that    is   similarly    situated   in   regard   to
    the objectives of      the     challenged     regulation")   (emphasis     in
    original); River of Life Kingdom Ministries v. Village of Hazel
    Crest, Ill., 
    611 F.3d 367
    , 371 (7th Cir. 2010) (en banc) (holding
    that plaintiff must point to a similarly situated comparator with
    respect to "zoning criteria") (emphasis removed).
    The Church points to Pembroke Academy and NHDOT as
    comparators.9   Both were allowed to erect electronic signs in the
    LO (Limited Office) district. However, the district court rejected
    Pembroke Academy and NHDOT as viable comparators "because the state
    has deprived the Town of any power to regulate governmental land
    uses."    Signs for 
    Jesus, 230 F. Supp. 3d at 67
    (citing Primera
    Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward County,
    9 Before the district court, the Church offered the filling
    station in the LO district as a comparator but does not pursue
    that argument here. In its briefing, the Church also posits that
    commercial entities allowed in the C1 zone are comparators.
    However, entities located in the C1 zone are subject to completely
    different zoning restrictions, which would disqualify them as
    comparators under any formulation of the test.           Moreover,
    distinguishing between commercial and non-commercial entities is
    an "accepted zoning criterion." River of 
    Life, 611 F.3d at 373
    .
    - 31 -
    
    450 F.3d 1295
    , 1311 (11th Cir. 2006)).              Here, too, we agree with
    the district court.
    The Town's power to regulate land use is derived from
    the state.    See N.H. Rev. Stat. Ann. § 674:16; John T. Clark &
    Son, 
    Inc., 378 A.2d at 1384
    ("Cities and towns have only such
    powers as are granted to them by the state.").                  But the Town's
    regulatory power, as mentioned above, does not extend to regulating
    governmental land uses, which include any governmental use of land
    owned or occupied by the state or school district "for any public
    purpose which is statutorily or traditionally governmental in
    nature."    N.H. Rev. Stat. Ann. § 674:54.            Accordingly, the PSO's
    exemption for legally-required signs merely reflects Pembroke's
    lack of authority to regulate governmental land use.
    The   Church    is   not    similarly    situated   with   Pembroke
    Academy and NHDOT because it is not a governmental entity and its
    proposed sign is not for a public purpose that is statutorily or
    traditionally governmental in nature.             The Church and its sign are
    therefore    subject   to    the   Town's       regulatory   authority,   while
    Pembroke Academy and NHDOT are not. While we agree with the Church
    that all three entities may be alike in that their signs affect
    the aesthetic landscape in the LO district in a similar way, the
    parties are not appropriate comparators for purposes of the RLUIPA
    - 32 -
    equal terms analysis because only the Church is subject to the
    regulatory authority of the Town.10
    This   analysis   accords   with   the   Eleventh   Circuit's
    decision in Primera.    There, the Eleventh Circuit held that a
    church that was denied a variance was not similarly situated to a
    school that had been granted rezoning because the entities sought
    relief from different governing bodies (the school from the zoning
    board, and the church from the board of adjustment) and sought
    different forms of relief (rezoning versus a 
    variance). 450 F.3d at 1311-12
    .   Given these differences in regulatory schemes, the
    court held that the church and the school were not appropriate
    comparators under RLUIPA.
    Id. at 1313-14.
    The Church also puts forth no evidence that a non-
    governmental secular entity is treated on other than equal terms,
    in light of the PSO's objectives.     Absent the existence of such a
    similarly-situated comparator, the Church's equal terms claim
    10  The Church cites Digrugilliers v. Consol. City of
    Indianapolis, 
    506 F.3d 612
    (7th Cir. 2007), for the proposition
    that the Town is an instrumentality of the state and therefore we
    must look to the combined effect of the state and municipal law to
    appreciate the RLUIPA violation.      But, Digrugilliers was not
    engaged in looking for an appropriate comparator under the RLUIPA
    equal terms analysis as we are here. Moreover, as the district
    court noted, Digrugilliers "in no way calls into question" the
    principle that entities who are subject to different regulatory
    schemes and decision-making bodies are not similarly situated.
    See Signs for 
    Jesus, 230 F. Supp. 3d at 68
    n.12.        Without a
    similarly-situated comparator, our RLUIPA equal terms analysis is
    halted.
    - 33 -
    fails.   See River of 
    Life, 611 F.3d at 373
    ("[I]f religious and
    secular land uses . . . are treated the same . . . that is enough
    to rebut an equal-terms claim.").          We thus hold that the district
    court correctly entered summary judgment on the Church's RLUIPA
    equal terms claim.
    2. Substantial Burden
    We proceed to the Church's next RLUIPA challenge, that
    the electronic sign provision imposes a substantial burden on its
    religious exercise.       RLUIPA provides:
    No government shall impose or implement a land use
    regulation in a manner that imposes a substantial
    burden on the religious exercise of . . . a religious
    assembly or institution, unless the government
    demonstrates that imposition of the burden . . . is
    in   furtherance   of  a   compelling    governmental
    interest; and is the least restrictive means of
    furthering that compelling governmental interest.
    42 U.S.C. § 2000cc(a).           Although the statute does not define
    "substantial    burden,"         we    have    applied      a   "common-usage
    understanding[]"     of    its    terms.       Roman     Catholic   Bishop   of
    Springfield v. City of Springfield, 
    724 F.3d 78
    , 95 (1st Cir.
    2013).   A "burden" is "[s]omething that hinders or oppresses," or
    "something oppressive or worrisome," while something "substantial"
    is "important" or "significantly great."
    Id. at 9
    6 (alterations
    in original) (citations omitted).
    We have outlined factors that are helpful in determining
    whether a particular regulation imposes a substantial burden:
    - 34 -
    1) "whether the regulation at issue appears to target a religion
    . . . because of hostility to that religion itself"; 2) whether
    the   regulation           was   "imposed     on     the        religious    institution
    arbitrarily, capriciously, or unlawfully"; and 3) "whether local
    regulators have subjected the religious organization to a process
    that may appear neutral on its face but in practice is designed to
    reach a predetermined outcome contrary to the group's requests."
    Id. at 9
    6-97 (citations omitted).
    The    Town       contends    that         any     "inconvenience"      the
    electronic      sign       provision   imposes       on     the     Church    cannot   be
    "significant enough to rise to the level of a 'substantial burden'
    as contemplated by RLUIPA."                After all, requiring the Church to
    continue    using      a    manually   changeable,          non-electronic      sign   is
    hardly    an    "oppressive"        imposition       on     the    Church's    religious
    exercise.       Roman Catholic Bishop of 
    Springfield, 724 F.3d at 95
    ;
    see Westchester Day Sch. v. Village of Mamaroneck, 
    504 F.3d 338
    ,
    349 (2d Cir. 2007) ("There must exist a close nexus between the
    coerced    or    impeded         conduct    and     the    institution's      religious
    exercise for such conduct to be a substantial burden on that
    religious exercise"); Midrash Sephardi, Inc. v. Town of Surfside,
    
    366 F.3d 1214
    , 1227 (11th Cir. 2004) ("'[S]ubstantial burden'
    requires something more than an incidental effect on religious
    exercise.").         As we discussed in the free-speech context, though
    an electronic sign may be more convenient, the Church nonetheless
    - 35 -
    remains free to convey its desired messages to the same audience.
    See
    id. at 99
    ("[T]he mere existence of some expenses does not put
    'substantial pressure on [the religious institution] to modify its
    behavior'")           (quoting     Bethel   World     Outreach    Ministries     v.
    Montgomery Cnty. Council, 
    706 F.3d 548
    , 556 (4th Cir. 2013)); Civil
    Liberties for Urban Believers v. City of Chicago, 
    342 F.3d 752
    ,
    761-62 (7th Cir. 2003) (holding that law created no substantial
    burden       under    RLUIPA     even   though    plaintiff   churches    "expended
    considerable time and money" to relocate to certain districts).
    But, we need not resolve this case on this ground because
    the Church does not contend that the extent of the burden imposed
    by the electronic sign provision, standing alone, constitutes a
    RLUIPA violation.           Instead, the Church focuses its argument on the
    third        factor    we   have    identified      as   an   indicator    of   the
    substantiality of the burden imposed on a religious institution,
    as it contends that the Board "prejudged" its application before
    denying the Church's permit at the public hearing.11
    The Church's theory of prejudgment hinges largely on
    actions that Hodge and members of the Board took prior to the
    11
    In a footnote, the Church makes reference to the other two
    factors, arguing that prohibiting churches from the C1 district
    "targets religious signs" and that the PSO vests "unbridled
    discretion" in the Code Enforcement Officer to determine whether
    certain signs are eligible for exemptions.    Not only are these
    arguments underdeveloped and thus waived, but they also target
    provisions of the PSO that the Church does not have standing to
    challenge. 
    See supra
    Part II.A.
    - 36 -
    Board's meeting in October of 2015.        The record indicates the
    following facts that the Church identifies as supporting its
    position.
    A week before that meeting, Hodge and the chair and vice
    chair of the Board, William Bonney and Bruce Kudrick, met with a
    lawyer to discuss the Church's application for a variance.    Bonney
    and Kudrick were the only Board members present at the meeting, in
    order (according to Bonney's deposition), to avoid triggering the
    requirements for a public meeting.      Such a pre-meeting gathering
    was "rare," and Bonney could not remember any similar ones during
    his thirty years on the Board.      At the meeting, on request the
    attorney provided the Board members a draft motion that would deny
    the Church's request.    He did not pass on an equivalent draft of
    a motion for approval.
    But, while the Church argues that, on the basis of this
    evidence, a jury could find that the Board was colluding to deny
    the Church a permit prior to its October meeting, the evidence
    could not support that inference.        Bonney testified that the
    purpose of drafting the motion to deny was to ensure that the Board
    "knew the motion that we had to make if we were going to deny,"
    and he further testified that he "didn't know whether we were going
    to approve or deny [the request] until the end of the meeting."
    (emphasis added).     The Church identifies nothing in the record
    that would suggest that the Board's explanation for this meeting
    - 37 -
    was false or that the Board otherwise prejudged the outcome of the
    Church's request.      As Bonney testified, the Board consulted with
    an attorney because the Church had hired "expensive counsel," who
    had noted that the Church's request implicated issues of federal
    law and, again, no evidence contradicts that assertion.                   Thus, a
    juror would have nothing but speculation to rely on to conclude
    that the purpose of the meeting was not, as Bonney testified, to
    discuss   "matters     that        were     outside   [the     Board's]     normal
    jurisdiction," namely issues related to RLUIPA, which the Board
    members   considered    to    be    more     complicated     than   the   standard
    variance factors that usually guided their decisions.
    Accordingly, the fact that the Board had counsel ready
    is not a basis on which a jury could conclude that the Board
    improperly     prejudged      the         decision.        Likewise,      Bonney's
    uncontradicted deposition testimony was that the Board members
    only received a draft motion regarding denial, not approval,
    because a motion for approval would have been simple to draft:
    "you have to state the reasons for denial" but "you don't have to
    state the reasons for approval."              The Church again fails to note
    anything in the record that would provide a juror with a reasonable
    basis to dispute that conclusion.
    The Church separately alleges that "the Town doctored
    the minutes" of the October meeting, which it apparently views as
    evidence in support of its theory that the Board's denial of the
    - 38 -
    Church's request for a variance was pre-determined.                       But, it
    neither   explains    what    discrepancies    exist   between      the    actual
    events at the meeting and the recorded minutes nor why any such
    discrepancies could be best explained by deliberate "doctor[ing]."
    To the extent such doctoring occurred, the Church also fails to
    explain how it would be indicative of a pre-cooked resolution of
    the Church's request for a variance.           Thus, we treat this aspect
    of the Church's challenge as waived. See United States v. Zannino,
    
    895 F.2d 1
    , 17 (1st Cir. 1990) ("[I]ssues adverted to in a
    perfunctory manner, unaccompanied by some effort at developed
    argumentation, are deemed waived.").
    F. Equal Protection
    The    Church    next   asserts   that   the   Town's    disparate
    treatment of its sign violates equal protection guarantees under
    both the New Hampshire and United States Constitutions.               See N.H.
    Const. pt. 1, art. 2; U.S. Const. amend. XIV.                    Because the
    framework   used    for     evaluating   claims   raised   under    the     Equal
    Protection Clause of the National Constitution mirrors that used
    for evaluating claims raised under the equivalent guarantee in the
    New Hampshire Constitution, we address both claims together.                  See
    In re Sandra H., 
    846 A.2d 513
    , 517 (N.H. 2004).
    An equal protection claim first requires identifying a
    similarly-situated individual who has been subject to a different
    classification, and thus different treatment, under the relevant
    - 39 -
    law.    See City of Cleburne v. Cleburne Living Ctr., 
    473 U.S. 432
    ,
    439 (1985); In re Sandra 
    H., 846 A.2d at 518
    .                      If the plaintiff
    identifies      an    appropriate     comparator,         we    then   determine    the
    appropriate     level    of   scrutiny.           Under    both    federal    and   New
    Hampshire law, classifications based on suspect classes such as
    "race, alienage, or national origin," or those affecting certain
    fundamental rights are subject to strict scrutiny.                       See City of
    
    Cleburne, 473 U.S. at 440
    ; In re Sandra 
    H., 846 A.2d at 517
    .                    Under
    New Hampshire law, classifications that implicate an "important
    substantive right," including "the right to use and enjoy private
    real     property      subject      to     zoning         regulations,"      engender
    intermediate scrutiny.        Petition of Hamel, 
    629 A.2d 802
    , 804 (N.H.
    1993); see also In re Sandra 
    H., 846 A.2d at 517-18
    .
    Here, the district court found that the Church's equal
    protection claims "fail[ed] as a threshold matter" because the
    Church and Pembroke Academy are not similarly situated.                      Signs for
    
    Jesus, 230 F. Supp. 3d at 63
    .            It nonetheless proceeded to analyze
    the    claims   and    held   that,      "in   any   event,"       the   differential
    treatment withstood constitutional muster.
    Id. at 64.
    We agree with the district court that the Church and
    Pembroke Academy are not similarly situated, nor is the Church
    similarly situated to NHDOT.          Pembroke Academy is a subdivision of
    the state.
    Id. Likewise, NHDOT is
    an agency of the state.                   See
    N.H. Rev. Stat. Ann. § 21-L:2.             As already noted, the Town has no
    - 40 -
    power to regulate either Pembroke Academy's or NHDOT's sign use
    absent    the   clearly      manifested    intent    of      the    New    Hampshire
    legislature to give the Town that power.                   See Region 10 Client
    Mgmt., 
    Inc., 424 A.2d at 209
    .              In contrast, the Town's zoning
    ordinances authorize it to regulate non-governmental entities.
    See N.H. Rev. Stat. Ann. § 674:16; see also Signs for 
    Jesus, 230 F. Supp. 3d at 64
    .           This is not a case in which the Town has
    treated a non-governmental religious organization differently than
    a non-governmental secular organization.                In fact, the Town has
    not treated the proposed comparators at all under its zoning laws
    because    it   lacks    the   legal    authority       to   impose       any    zoning
    restrictions on either Pembroke Academy or NHDOT. The governmental
    entities    cannot      be   comparators      because    they      experienced       no
    treatment against which to compare the Town's treatment of the
    Church.    Even if the Town had attempted to restrict the Pembroke
    Academy or NHDOT signs, the Town would have had no basis in its
    zoning power to take action against Pembroke Academy or NHDOT.
    Hodge himself testified that he signed the permit for the Pembroke
    Academy sign despite noting that it violated the zoning laws
    because    he   "believed      state    law     required     [him]    to"       do   so.
    Accordingly, we affirm the district court's ruling on the Church's
    federal and state equal protection claims because the Church is
    not similarly situated to its proposed comparators.
    - 41 -
    G. Supplemental Jurisdiction
    Finally, the Church asserted state statutory claims
    challenging the zoning laws before the district court.          Having
    disposed of all the Church's federal claims, the district court
    declined to exercise supplemental jurisdiction over these claims.
    Signs for 
    Jesus, 230 F. Supp. 3d at 68
    n.14.
    We review a district court’s decision regarding the
    exercise of supplemental jurisdiction for abuse of discretion.
    Allstate Interiors & Exteriors, Inc. v. Stonestreet Const., LLC,
    
    730 F.3d 67
    , 72 (1st Cir. 2013).         We have held that a district
    court may decline to exercise supplemental jurisdiction when it
    has dismissed all claims over which it has original jurisdiction,
    28 U.S.C. § 1367, and absent certain circumstances inapplicable
    here, doing so is not an abuse of discretion.       See Rivera-Díaz v.
    Humana Ins. of Puerto Rico, Inc., 
    748 F.3d 387
    , 392 (1st Cir.
    2014).   Thus, the district court did not abuse its discretion in
    declining to exercise supplemental jurisdiction over the Church's
    state statutory claims once the federal claims were dismissed.
    III. Conclusion
    For the foregoing reasons, the judgment of the district
    court is affirmed.
    - 42 -
    

Document Info

Docket Number: 17-1192P

Filed Date: 10/7/2020

Precedential Status: Precedential

Modified Date: 10/7/2020

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