Midwest Media Property, L.L.C v. Symmes Township , 503 F.3d 456 ( 2007 )

SUTTON, J., delivered the opinion of the court, in which GREER, D.J., joined. CLAY, J. (pp. 466-81), delivered a separate dissenting opinion.

OPINION

SUTTON, Circuit Judge.

The district court granted summary judgment to Symmes Township on plaintiffs’ claims that the township’s sign regulations violated the First (and Fourteenth) Amendment because plaintiffs lack standing to challenge them. We affirm.

I.

Midwest Media, a company that erects and operates advertising signs, applied nine times for zoning permits to allow it to display billboards in Symmes Township, located in the greater Cincinnati metropolitan area, on. behalf of its clients. Midwest Media filed one of the nine applications on behalf of CTI Properties and another on behalf of Speckert.

To post a sign in Symmes Township, the applicant must comply with the township’s sign regulations. At the time Midwest Media filed these applications, the regulations prohibited “off-premise advertising sign[s] carrying a commercial message.” Symmes Twp., Hamilton County, Ohio, Zoning Resolution art. XXXI, § 314.14; see id. § 312.40 (defining “[o]ff-premise [advertising sign” as “[a] sign which directs attention to a business, commodity, or commercial or non-commercial service or entertainment which is not conducted, sold or offered upon the premises where such sign is located or affixed”); id. § 323.1(2) (prohibiting “[o]ff premise advertising”). They also imposed several height and size restrictions. See, e.g., id. § 321.2-1(3) (“No freestanding pole sign located three hundred ... feet from the right of way ... shall exceed forty-five ... feet in height ... and no sign within six hundred fifty ... feet from the right of way ... shall exceed twenty ... feet in height ....”); id. § 321.2-2(4) (“No freestanding pole sign shall contain more than one hundred twenty (120) square feet of sign area per side (maximum 2 sides).”).

According to the township, the regulations are designed to “minimize the possibility that sign size, location, or character will create hazards adversely affecting the public safety,” id. § 311.4, to “provide sign regulations which are directly related to land use and therefore to the functional and economic need for signs of varying sizes, types and locations,” id. § 311.8, to “create a more aesthetic environment,” id. § 311.10, and to “provide for the size, lighting and spacing of off-premise advertising signs according to customary use and to provide special rules for retail areas which are surrounded by Residence Districts,” id. § 311.12.

Midwest Media first sought permission to post a 40-foot-high, 672-square-foot, double-sided sign. The zoning inspector for the Hamilton County Rural Zoning Commission, which contracts with Symmes Township to oversee zoning matters, denied the application, noting that the proposed sign violated the township’s height limit, see id. § 322.1-3, and its prohibition on off-premises advertising, see id. § 323.1(2).

Midwest Media’s second application sought to display a 672-square-foot, single-face sign that stood 40 feet high. The zoning inspector denied the application, reasoning that “Commercial billboard[s] are not permitted in Symmes twp,” JA 77, the application exceeded the township’s height and square-footage limits, see Zoning Resolution art. XXXI, § 321.2 — 2(3)—(4), and it violated the prohibition on off-premises advertising, see id. § 323.1(2).

The third application sought permission to display a 672-square-foot, single-face sign standing 40 feet high, and the zoning inspector denied the certificate for the same reasons as he did the second one.

The fourth application sought permission to post a double-sided, 672-square-foot sign, standing 40 feet high. Once again, the zoning inspector'denied the certificate because it violated the township’s height and square-footage limits and its ban on off-premises advertising.

The fifth application sought permission to display another double-sided, 672-square-foot sign measuring 40 feet high. In denying the certificate, the inspector cited sections of the township regulations setting size and height limits and prohibiting off-premises advertising. See id. §§ 321.2 — 2(3)—(4), 323.1(2).

The sixth, seventh and eighth applications requested permission to erect a “monopole,” double-sided, 672-square foot billboard measuring 40 feet high. The zoning-plans examiner denied the certificates, citing the regulation prohibiting off-premises advertising signs, see id. § 323.1(2), and noted later (in an affidavit) that she could have denied the requests on the basis of size and height limits.

The ninth application sought to display a 40-foot-tall, three-sided sign measuring 672 square feet on two of the sides and 288 on the third. The township rejected the application, citing the ban on off-premises advertising, see id., and Midwest Media’s failure to seek a variance, and noting later (in an affidavit from the zoning-plans examiner) that the proposed sign violated the township’s size and height requirements.

After the denial of the ninth application, Midwest Media, CTI Properties and Spec-kert filed this lawsuit against Symmes Township, challenging the validity of the off-premises advertising ban, though not the size and height restrictions, and the validity of the permitting process because it lacked “procedural safeguards.” Compl. ¶¶ 49-50, 54. The plaintiffs sought an injunction, damages and attorney fees.

Soon after plaintiffs filed this lawsuit, Symmes Township amended the regulations to clarify some of them, to remove others and to leave still others intact. Of particular interest to this lawsuit, the township left in place its size and height requirements. See Zoning Resolution art. XXXI, § 313.3-5.

Symmes Township filed a motion for summary judgment, which the district court initially denied because “the parties had given inadequate attention” to (1) whether the court could “require the Township to permit the erection of signs in clear violation” of the size and height requirements, which appeared to be “constitutionally permissible regulations,” simply “because [zoning] officials] failed to cite those regulations in denying” some of the applications, D. Ct. Order at 7, 2006 WL 143476, (2) whether the size and height provisions were “severable and enforceable even if other provisions [were] not,” id., and (3) whether the plaintiffs were “entitled to damages even though their applications would have been subject to denial even in the complete absence of the contested portions of the Sign Rules,” id. at 7-8. After additional briefing on these points, the court granted the township’s supplemental motion for summary judgment on the ground that plaintiffs lack standing to bring their claims.

II.

This appeal raises two “ease[ ]” or “controvers[y]” issues under Article III: Is the dispute moot in view of the township’s passage of the amendment to the sign-ordinance law? And, even if the case is not moot, do plaintiffs haye standing to bring this challenge?

A.

While standing restricts a party’s capacity to bring a lawsuit at the time the complaint is filed, mootness restricts a party’s capacity to bring a lawsuit throughout the course of the litigation. United States Parole Comm’n v. Geraghty, 445 U.S. 388, 396-97, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980). Mootness occurs “when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). Even when an action presents a live case or controversy at the time of filing, subsequent developments-including the passage of a new law or an amendment to the original law may moot the case. Hall v. Beals, 396 U.S. 45, 48, 90 S.Ct. 200, 24 L.Ed.2d 214 (1969).

In most cases, the repeal or amendment of a law moots challenges to the original law. But, in this case, plaintiffs sought money damages arising from the township’s failure to approve their nine sign applications. The existence of this damages claim preserves the plaintiffs’ backward-looking right to challenge the original law and to preserve a live case or controversy over that dispute. Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381, 387 (6th Cir.2005).

B.

To meet the “irreducible minimum” requirements of constitutional standing, plaintiffs must demonstrate (1) that they “have suffered an injury in fact&emdash;an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical,” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotation marks and citations omitted), (2) that a causal link exists “between the injury and the conduct complained of,” id.-i.e., that the “injury ... fairly can be traced to the challenged action of the defendant,” Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976), and (3) that it is “likely, as opposed to'merely speculative, that the injury will be redressed by a favorable decision,” Lujan, 504 U.S. at 561, 112 S.Ct. 2130 (internal quotation marks omitted). Each requirement is “an indispensable part of the plaintiffs case” and “must be supported in the same.way as any other matter on which the plaintiff bears the burden of proof.” Id.

The key problem with plaintiffs’ claim is one of redressability. Even if plaintiffs could show that the township’s original off-premises advertising ban (or its sign-approval process) violated the First Amendment, each of Midwest Media’s nine sign applications sought permission to post signs that plainly violated the township’s size and height regulations. See JA 92 (denying application and noting that sign exceeded height limit); JA 77 (denying application and citing general provision containing size and height limits); JA 88 (same); JA 110 (same); JA 157 (affidavit from zoning inspector stating that application “could have been denied” because the proposed sign “exceeded, the height limitation” and “exceeded the maximum square footage” permissible); JA 160 (affidavit from zoning-plans examiner stating that three applications “could haye been denied because” they “exceeded height limitations” and “exceeded the maximum square footage” permissible); JA 163 (affidavit from zoning-plans examiner stating that application “could have been denied because ... it exceeded height limitations” and “exceeded the maximum square footage” permissible). Yet plaintiffs chose not to challenge the size and height requirements in their complaint&emdash; perhaps in view of the difficulty of such a challenge here. See Prime Media, Inc. v. City of Brentwood, 398 F.3d 814, 818-21 (6th Cir.2005) (rejecting challenge to sign ordinance’s size and height requirements); see also Members of City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 807, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984) (rejecting challenge to city’s ban on posting signs on public property).

' Having chosen not to challenge the size and height regulations and having filed nine applications to post a sign in the township that violated these regulations, plaintiffs cannot tenably show that success in challenging other regulations of the sign ordinance will redress any injury caused by these regulations. For even in the absence of these regulations-even if, consistent with the relief sought in plaintiffs’ complaint, our court invalidated them that would not redress plaintiffs’ injury because the sizé and height restrictions still would preclude the township from approving their sign applications and thus still would preclude plaintiffs from erecting each of these signs.

In reaching this conclusion, we follow a path marked by several decisions from other circuits, most of which not only presented the same redressability problem but also arose from disputes over sign ordinances — and indeed disputes over sign ordinances litigated by the same law firm. In Advantage Media, L.L.C. v. City of Eden Prairie, 456 F.3d 793 (8th Cir.2006), the Eighth Circuit identified a similar standing flaw. “[A] favorable decision for Advantage,” the court reasoned, “even with respect to those sign code provisions which were factors in the denial of its permit applications would not allow it to build its proposed signs, for these would still violate other unchallenged provisions of the sign code like the restrictions on size, height, location, and setback.” Id. at 801; see id. at 802 (“[F]or even in victory [plaintiff] would be ‘no closer’ to erecting its billboards or obtaining damages than when litigation began.”). To the same effect is KH Outdoor, L.L. C. v. Clay County, 482 F.3d 1299 (11th Cir.2007). Plaintiff “has not satisfied the redressability requirement,” the court held: “Any injury [plaintiff] actually suffered from the billboard and offsite sign prohibition is not redressible because the applications failed to meet the requirements of other statutes and regulations not challenged.” Id. at 1303.

The Fourth Circuit reached a similar conclusion in a similar setting: “Because Covenant’s application violated the spacing requirement, it could not have been approved regardless of whether other substantive provisions of the Sign Regulation are held to be unconstitutional.” Covenant Media of S. C, L.L.C. v. City of N. Charleston, 493 F.3d 421, 430 (4th Cir.2007); see id. (Plaintiff “does not have standing to challenge other substantive provisions of the Sign Regulation that could have served as the basis for denying the December 2004 Application.”); Harp Adver. Ill., Inc. v. Vill. of Chi. Ridge, 9 F.3d 1290, 1291 (7th Cir.1993) (denying standing to company that challenged city’s zoning and sign codes, but not its size provision, because the company “could not put up its sign even if it achieved total victory in [the] litigation” given that its proposed sign was “six times as large as Chicago Ridge allows”); see also Clark v. City of Lakewood, 259 F.3d 996, 1009 (9th Cir.2001) (reasoning that because plaintiff did not challenge “an additional barrier” to his adult-entertainment license application, “the district court could not redress his alleged injury in this lawsuit”); Deeper Life Christian Fellowship v. Sobol, 948 F.2d 79, 83-84 (2d Cir.1991) (holding that church lacked standing to challenge permit procedure as granting “unbridled discretion” to officials because the statute prohibited all religious organizations from receiving permits; thus “even if [the church] were to change its tenets [to comply with the permit requirements]' the statute would still not allow appellant a permit so long as it remained a religious organization”); cf. Renne v. Geary, 501 U.S. 312, 319, 111 S.Ct. 2331, 115 L.Ed.2d 288 (1991) (finding a dispute nonjusticiable where another unchallenged statute “might be construed” to prohibit the same conduct as the challenged statute); 13 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3531.5.

We need not decide whether plaintiffs could resolve this standing defect by alleging that they wish to post signs that would satisfy the township’s size and height restrictions. Nothing in their complaint offers any indication that they have any such plans — and if the nine past applications (none of which satisfied the size and height restrictions) are precedent, there is no reason to think that they will file any such application in the future. There thus is no basis for alleging imminent injury from the regulations, as they offer no basis for concluding that they will seek permission to post a sign that would comply with the unchallenged portions of the ordinance.

Plaintiffs’ invocation' of the over-breadth doctrine does not solve this problem. Yes, the doctrine relaxes the traditional requirement “that a party may assert only a violation of its own rights.” Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 392, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988); see also Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) (“Litigants ... are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.”). But, earlier this year, our court reminded litigants that overbreadth does not excuse a party’s failure to “allege an injury arising from the specific rule being challenged, rather than an entirely separate rule that happens to appear in the same section of the municipal code.” Prime Media, Inc. v. City of Brentwood, 485 F.3d 343, 351 (6th Cir.2007); see id. at 350 (“Because overbreadth creates an exception only to the prudential standing inquiry, the Supreme Court has made clear that the injury in fact requirement still applies to overbreadth claims under the First Amendment.”) (emphasis added); see also Am. Booksellers; 484 U.S. at 392, 108 S.Ct. 636 (“To bring a cause of action in federal court requires that plaintiffs establish at an irreducible minimum an injury in fact....”); Sec’y of Md. v. Joseph H. Munson Co., 467 U.S. 947, 958, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984) (noting that a “crucial issue[ ]” for overbreadth standing is whether the plaintiff “satisfies the requirement of ‘injury-in-fact’ ”).

The similarities ■ between this case and Prime Media, 485 F.3d 343, deserve emphasis. Prime Media wanted to display signs that violated the city’s billboard ordinance, including its prohibition on off-premises advertising and its size and height restrictions. Id. at 346. After holding that the size and height limitations constituted valid time, place and manner restrictions, see Prime Media, Inc. v. City of Brentwood, 398 F.3d 814, 821 (6th Cir. 2005), we remanded the case to the district court to decide whether Prime Media had standing to challenge the entire billboard ordinance, id. at 825. The district court concluded that it did not and dismissed the' lawsuit, Prime Media, Inc. v. City of Brentwood, No. 3:02-1034, 2005 WL 3754055, at *3 (M.D.Tenn. July 29, 2005), and we affirmed, holding that Prime Media lacked constitutional standing to mount an overbreadth attack on the ordinance, see Prime Media, 485 F.3d at 353-54. Because the size and height restrictions were valid time, place and manner restrictions and because Prime Media’s signs violated these provisions, the company necessarily did not suffer a redressable injury. See id. at- 352 (“If it had attempted to produce a billboard'which complied with the height and size requirements, and was threatened with rejection or regulation under the other challenged ordinance provisions, there would arguably be a cognizable injury in fact. Eyen if it had articulated some plans that it had developed to erect such a sign, but was discouraged from doing so because it was destined to lose based on one of the ordinance’s substantive provisions ... Prime Media might have a claim of an imminent, threatened injury. However the record bears no evidence of such a development. As a result, Prime Media has not been subject to or affected by the other ordinance provisions challenged in its remaining claims.”).

As it was in Prime Media, so it is here: All of the signs plaintiffs sought to erect violated Symmes Township’s size and height requirements, and they have not provided us with any facts showing that they intend to display signs that comply with these provisions. Having suffered no cognizable injury, they lack standing to mount an attack on the township’s sign regulations-whether under the over-breadth doctrine or under any other doctrine. See Advantage Media, 456 F.3d at 799 (“Under no circumstances ... does the overbreadth doctrine relieve a plaintiff of its burden to show constitutional standing.”); CAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1270 (11th Cir.2006) (“The overbreadth doctrine does not relieve a plaintiff of the burden to prove constitutional standing, which requires that the plaintiff himself has suffered some threatened or actual injury resulting from the putatively illegal action.”) (internal quotation marks' omitted); Gospel Missions of Am. v. City of L.A., 328 F.3d 548, 554 (9th Cir.2003) (noting that overbreadth standing requires “injury-in-fact”); Flarp Adver., 9 F.3d at 1292 (“[The overbreadth doctrine] does not imply, however, that the requirement of standing to sue has been elided.”).. Plaintiffs do no better by contending that, they have brought a facial challenge. See Covenant Media, 493 F.3d at 429-30 (“Although there is broad latitude given facial challenges in the First Amendment context, a plaintiff must establish that he has standing to challenge each provision of an ordinance by showing that he was injured by application of those provisions.”) (internal citations and quotation marks, omitted).

Plaintiffs next argue that, even if the size and height restrictions are constitutional and even if they would defeat their claims, they cannot be severed from the rest of the statute, including the allegedly unconstitutional parts of it. As a result, they say, they should be permitted to pursue their claims against other parts of the law. “Severability of a local ordinance is a question of state law....” City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 772, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988). Ohio has established a three-part inquiry to determine whether severability is appropriate: “(1) Are the constitutional and the unconstitutional parts capable of separation so that each may be read and may stand by itself? (2) Is the unconstitutional part so connected with the general scope of the whole as to make it impossible to give effect to the apparent intention of the Legislature if the clause or part is stricken out? (3) Is the insertion of words or terms necessary in order to separate the constitutional part from the unconstitutional part, and to give effect to the former only?” State v. Hochhausler, 76 Ohio St.3d 455, 668 N.E.2d 457, 466-67 (1996) (internal quotation marks omitted).

The valid size and height restrictions on the one hand and the purportedly unconstitutional off-premises ban and procedural provisions on the other satisfy Ohio’s severability requirements. All of the provisions comfortably stand on their own; even without the challenged provisions, the height and size restrictions further several goals of the sign regulations-most especially the goal of “public safety” and “aesthetic[s].” Zoning Resolution art. XXXI, §§ 311.4, 311.10. And no words or terms need be added to separate the challenged portions from those not challenged or to give meaning to the size and height provisions. See, e.g., Norwood v. Horney, 110 Ohio St.3d 353, 853 N.E.2d 1115, 1150-51 (2006); State ex. rel. Maurer v. Sheward, 71 Ohio St.3d 513, 644 N.E.2d 369, 377-78 (1994); Bd. of Lucas County Comm’rs v. Waterville Twp. Bd. of Trs., 171 Ohio App.3d 354, 870 N.E.2d 791, 801-03 (2007). Because the size and height requirements are severable from the allegedly unconstitutional provisions and because they prohibited plaintiffs from obtaining relief on their damages and injunction claims, the district court properly relied on those provisions in concluding that plaintiffs lacked standing to bring this lawsuit.

Several of our sister circuits, have reached a like conclusion in like circumstances. See Covenant Media, 493 F.3d at 430 (severing height and size restriction in holding that “[bjecause Covenant’s application violated the spacing requirement, it could not have been approved regardless of whether other substantive provisions of the Sign Regulation are held to be unconstitutional. Covenant, therefore, could not have suffered any substantive constitutional injury due to other provisions of the Sign Regulation that may have been unconstitutional.”); Advantage Media, 456 F.3d at 801 (“The district court properly considered the provisions of the sign code to be severable in making its overbreadth standing determination.”); Tanner Adver. Group, L.L.C. v. Fayette County, 451 F.3d 777, 797 (11th Cir.2006) (en banc) (“[T]he Tanner panel opinion’s conclusion that the overbreadth doctrine allows a litigant who was only injured under- § A-l of a statute also to challenge § A-2 or even all of § A of a statute is incorrect.... ”).

Plaintiffs, lastly, contend that- the district court “ignore[d]” the claims of Spec-kert and CTI Properties or erroneously “lump[ed] them in with” Midwest Media’s claims. Br. at 22. But they give us no reason to treat the claims of the various companies as distinct. The only Speckert-specific evidence that the plaintiffs provide is an affidavit from the company’s managing member, Robert Speckert, who never mentions the size and height regulations, let alone questions their constitutionality. And the plaintiffs offer nothing — save the application that Midwest Media filed on CTI Properties’ behalf — setting forth a unique claim for CTI Properties. Neither Speckert nor CTI Properties has alleged, for instance, that it plans to apply for signs that would comply with Symmes Township’s size and height limits. As with Midwest Media’s claims, theirs too fail for want of standing.

In brief response to the extensive analysis offered by our dissenting colleague, we make the following observations. The Fourth, Seventh, Eighth, Ninth and Eleventh Circuits have rejected virtually identical claims — most of them arising from the same types of sign ordinances, concerning the same types of challenges and relying on the same standing problem. The dissent’s concern that “the district court analyzed the constitutionality of the sign regulations and used the resolution of that issue to deny standing,” Dissent at 470, is not presented by this case. Instead, the district court simply did what these other circuits have done: It reasoned that a plaintiff who attacks, say, four out of five substantive provisions of a sign ordinance does not raise a redressible injury because “[a]n injunction against the portions of the sign and zoning codes that it has challenged would not let it erect the proposed sign; the village could block the sign simply by enforcing another, valid, ordinance already on the books.” Harp Adver., 9 F.3d at 1292. The concern that plaintiffs did challenge the size and height restrictions because the complaint mentioned article XXXI of the township’s code does not change matters. The' substantive counts of the complaint did not mention the size and height restrictions, and the counts of the complaint — as well as the pleadings and other submissions before the district court and this, court — make it clear that, while plaintiffs challenged several other provisions, they did not challenge the size and height restrictions.

III.

For these reasons, we affirm.