Covenant Media of North Carolina, L.L.C. v. City of Monroe

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1194
COVENANT MEDIA OF NORTH CAROLINA, L.L.C.; MEI YONG “BILLY”
XIAO; CHINA BUFFET, L.L.C.,
Plaintiffs - Appellants,
v.
CITY OF MONROE, NORTH CAROLINA,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Senior
District Judge. (3:04-cv-00586)
Argued: March 19, 2008 Decided: July 18, 2008
Before NIEMEYER and KING, Circuit Judges, and David R. HANSEN,
Senior Circuit Judge of the United States Court of Appeals for the
Eighth Circuit, sitting by designation.
Affirmed by unpublished opinion. Senior Judge Hansen wrote the
opinion, in which Judge Niemeyer and Judge King joined.
ARGUED: Edward Adam Webb, WEBB LAW GROUP, L.L.C., Atlanta, Georgia,
for Appellants. William David Brinton, ROGERS TOWERS, P.A.,
Jacksonville, Florida, for Appellee. ON BRIEF: Kari R. Johnson,
Patrick H. Flanagan, CRANFILL, SUMNER & HARTZOG, L.L.P., Charlotte,
North Carolina; Ruth Holmes, ROGERS TOWERS, P.A., Jacksonville,
Florida, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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HANSEN, Senior Circuit Judge:
Covenant Media of North Carolina, L.L.C. ("Covenant"), Mei
Yong "Billy" Xiao, and China Buffet, L.L.C. (collectively referred
to as "the Appellants") appeal the district court's grant of
summary judgment in favor of the City of Monroe ("Monroe" or "the
City") in this suit challenging the constitutionality of the City's
sign ordinance. We affirm.
I.
In July and August of 2004, Covenant, a company in the
business of erecting and operating advertising signs for various
businesses and organizations, leased property in Monroe from Mei
Yong "Billy" Xiao and his business the China Buffet, L.L.C., for
the purpose of erecting billboards. The Appellants applied for
seven advertising sign permits, and within five days of submission,
the City denied the applications on grounds that the proposed
billboards violated the City's sign regulations, which restrict the
size, location, and spacing of billboards. Specifically, the City
stated that the area of each proposed billboard totaled 672 square
feet per side, in violation of the size restriction limiting the
area of billboards to 250 square feet per side. (J.A. at 116.)
See City of Monroe Land-Use Ordinance § 156.133(S)(2)(a) (J.A. at
66). Also, all but one of the proposed sign locations placed the
proposed billboards within 1,000 feet of a preexisting billboard,
3
and the site plan for the proposed China Buffet billboard placed it
within 50 feet of a building, all contrary to the City's billboard
location setback and spacing restrictions. See City of Monroe
Land-Use Ordinance § 156.133(S)(2)(c)(i), (iii) (J.A. at 66, 67).
The Appellants brought suit in November 2004 on First
Amendment grounds, claiming, in relevant part, that the City's
ordinance unconstitutionally favors commercial speech, lacks
procedural safeguards, grants City officials an impermissible level
of discretion, is overbroad in its application, and contains
improper time, place, and manner restrictions. They sought damages
and injunctive relief* pursuant to 42 U.S.C. § 1983 (2000). The
City moved for summary judgment, asserting that the Appellants
lacked standing to challenge any provisions of the ordinance other
than those that formed the basis of the City's denial of their
permit applications. The district court granted summary judgment
to the City, concluding that the Appellants suffered no
constitutional injury to satisfy Article III standing requirements
because the "permits were denied on the content-neutral and
constitutionally valid restrictions of height [size], setback and
spacing." (J.A. at 289.) The district court also rejected the
Appellants' overbreadth challenge for lack of injury in fact.
*
The Appellants withdrew their request for injunctive relief
after the City adopted a new sign ordinance in April 2006, and they
do not challenge the new ordinance in this appeal. All references
to the City's sign regulations in this opinion refer to the older
version.
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II.
We review de novo the district court's grant of summary
judgment, applying the same standards as the district court and
construing the facts in the light most favorable to the nonmoving
party. Darveau v. Detecon, Inc., 515 F.3d 334, 338 (4th Cir.
2008); see also Fed. R. Civ. P. 56(c) (summary judgment is
appropriate if "there is no genuine issue as to any material fact
and . . . the movant is entitled to judgment as a matter of law").
We also apply de novo review to the district court's legal
conclusions regarding Article III standing. See Covenant Media of
S.C., L.L.C. v. City of N. Charleston, 493 F.3d 421, 428 (4th Cir.
2007), cert. denied, 128 S. Ct. 914 (2008).
As an initial matter, the Appellants assert that the district
court impermissibly made factual findings and failed to draw
inferences from the record in their favor, citing the district
court's factual recitation of background material relating to other
businesses owned by Covenant's owners and their litigation
strategies in other states. After carefully reviewing the record
in this case, we conclude that the district court did not
improperly resolve any genuine issues of material fact. The
disputed background material was not essential to the district
court's legal conclusions, and there is no dispute regarding the
material facts of this case. The Appellants sought to erect
billboards in Monroe that violated the ordinance's size, location,
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and spacing restrictions, and the City promptly rejected each
application on these grounds. Any matters dealing with the
business or litigation practices of Covenant's owners and their
other business ventures are not material to the resolution of this
dispute. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)("Only disputes over facts that might affect the outcome of
the suit under the governing law will properly preclude the entry
of summary judgment."); see also Drewitt v. Pratt, 999 F.2d 774,
778 (4th Cir. 1993)(same). The Appellants have not identified any
genuine issue of material fact that precludes summary judgment in
this case.
The Appellants assert that the district court's standing
analysis is flawed because the court addressed the merits of their
constitutional claims in concluding that they lacked standing. We
agree that it is inappropriate to first consider the merits of a
claim when determining whether a party has standing under Article
III of the Constitution. See Warth v. Seldin, 422 U.S. 490, 500
(1975) (noting that "standing in no way depends on the merits" of
the claim); Covenant Media of S.C., 493 F.3d at 429 (holding that
the standing analysis must not be confused with the merits of a
case because "[a] plaintiff's standing to bring a case does not
depend upon his ultimate success on the merits underlying his
case"). On the other hand, we also acknowledge the reality that,
"because standing is addressed on a claim by claim basis, an
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unfavorable decision on the merits of one claim may well defeat
standing on another claim if it defeats the plaintiff's ability to
seek redress." Get Outdoors II, L.L.C. v. City of San Diego, 506
F.3d 886, 893 (9th Cir. 2007). Despite any flaws in the district
court's analysis, we "can affirm on any basis fairly supported by
the record." Eisenberg v. Wachovia Bank, N.A., 301 F.3d 220, 222
(4th Cir. 2002). After carefully reviewing the record and the
parties' arguments, we find no reversible error, and for the
reasons that follow, we conclude that the district court reached
the correct result in granting summary judgment to the City.
It is well established that standing is a threshold
jurisdictional issue that must be determined first because
"[w]ithout jurisdiction the court cannot proceed at all in any
cause." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94
(1998) (internal quotation marks omitted); see also Pye v. United
States, 269 F.3d 459, 466 (4th Cir. 2001) (citing Steel Co., 523
U.S. at 102). The "irreducible constitutional minimum of standing"
consists of three elements. Lujan v Defenders of Wildlife, 504
U.S. 555, 560 (1992). First, there must be "an 'injury in fact'–an
invasion of a legally protected interest" that is both "concrete
and particularized" as well as "actual or imminent." Id. (internal
quotation marks omitted). "Second, there must be a causal
connection between the injury and the conduct complained of" such
that the injury can be said "to be fairly traceable" to the
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defendant's actions. Id. (internal quotation marks omitted).
Third, there must be a likelihood "that the injury will be
redressed by a favorable decision." Id. (internal quotation marks
omitted); see also Covenant Media of S.C., 493 F.3d at 428.
When challenging an ordinance, even though "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." Id. at 429-30 (quoting Gonzales
v. Carhart, 127 S. Ct. 1610, 1639 (2007)). Thus, a finding that a
plaintiff has standing to bring suit challenging one provision of
an ordinance "does not provide it a passport to explore the
constitutionality of every provision of [a] [s]ign [r]egulation."
Id. at 429. Accordingly, we must consider standing independently
with regard to each provision challenged.
We first address whether the Appellants have standing to
assert an as-applied challenge to the size restriction. There is
no dispute that (1) the City denied the Appellants' permit
applications--a concrete injury; (2) this denial was the direct
result of the City applying the sign ordinance's 250-square-foot
size restriction--causation; and (3) there is a likelihood of
redress from a favorable decision by this court if the provisions
challenged are all found to be unconstitutional. But cf. Maverick
Media Group, Inc. v. Hillsborough County, Fla., No. 07-12330, 2008
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WL 2130477 (11th Cir. May 22, 2008)(and cases cited therein
indicating that a sign permit applicant lacks a redressable injury
to challenge the constitutionality of a sign ordinance where the
permit could have been denied on the basis of some alternate but
unchallenged regulation). The Appellants challenged all three
bases for the denial of their permit applications, thus there is a
likelihood of redressability unless one of the grounds for denial
is found to be constitutional. We conclude that they have standing
to challenge the size restriction.
Billboards are subject to reasonable time, place, and manner
restrictions. "[W]e begin with the venerable principle that 'each
medium of expression must be assessed for First Amendment purposes
by standards suited to it, for each may present its own problems.'"
Arlington County Republican Comm. v. Arlington County, 983 F.2d
587, 591 (4th Cir. 1993) (alterations omitted) (quoting S.E.
Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975)). Billboards
are large, permanent structures, designed to stand out, and thus
they "create[] a unique set of problems for land-use planning and
development." Metromedia, Inc. v. City of San Diego, 453 U.S. 490,
502 (1981) (plurality). In this context, the Supreme Court has
"observed that time, place, and manner restrictions are permissible
if they are justified without reference to the content of the
regulated speech, serve a significant governmental interest, and
leave open ample alternative channels for communication of the
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information." Id. (internal quotation marks and alterations
omitted).
The sign ordinance at issue defines billboards as off-
premises, outdoor structures of display, either freestanding or
attached to a building, see City of Monroe Land-Use Ordinance
§ 156.14 (J.A. at 73), without any distinction based on the content
of the messages displayed. The prohibition of billboards exceeding
250 square feet in area per side likewise makes no content-based
distinctions. Id. § 156.133(S)(2)(a) (J.A. at 66). There is no
dispute that billboards may include either commercial or
noncommercial messages and that all billboards are subject to this
size restriction. We conclude that the City's billboard size
restriction is a content-neutral regulation.
The Appellants assert that the ordinance is content-based due
to distinctions born out of the definition of "on-premise" and
"off-premise" signs in section 156.133(C) of the ordinance. (J.A.
at 53.) They argue that these underlying definitions result in
more favorable spacing and location restrictions for on-premises
commercial signs, but they point to no more favorable size
restrictions to support their argument. In fact, the on-premises
commercial size limitations are much more restrictive, and neither
commercial on-premises signs nor any off-premises signs are
permitted to exceed the 250-square-foot size restriction that
applies to all billboards.
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The Appellants assert that the size restriction is not
narrowly tailored to meet a substantial government interest, but
again, the record does not support their assertion. The express
purpose of the ordinance is to maintain public and traffic safety
and to enhance the aesthetic appearance and attractiveness of the
community. See City of Monroe Land-Use Ordinance § 156.133(A)
(J.A. at 53). Settled authority in this circuit, as well as in the
Supreme Court, recognizes that, in the context of billboards,
safety and aesthetics are substantial government interests, and
that "'a city may justifiably prohibit all off-premise signs or
billboards for aesthetic and safety reasons.'" Nat'l Adver. Co. v.
City of Raleigh, 947 F.2d 1158, 1168 (4th Cir. 1991) (quoting Major
Media of the S.E. v. City of Raleigh, 792 F.2d 1269, 1272 (4th Cir.
1986), which cites Metromedia, 453 U.S. at 508-11), cert. denied,
504 U.S. 931 (1992); see also Arlington County Republican Comm.,
983 F.2d at 591 (noting that in the Supreme Court's Metromedia
decision, "without an impermissible preference of commercial speech
over noncommercial speech, seven Justices would have upheld the
prohibition on billboards as an acceptable means to promote
aesthetics and traffic safety."); Naegele Outdoor Adver., Inc. v.
City of Durham, 844 F.2d 172, 173-74 (4th Cir. 1988) (finding no
free speech violation where the ordinance banned all commercial,
off-premises billboards and avoided any preference of commercial
over noncommercial speech).
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The content-neutral 250-square-foot size limitation furthers
the City's substantial interests in traffic safety and aesthetics
by permitting billboards only in certain areas and limiting their
size. The City's size restriction is "not substantially broader
than necessary to protect the [C]ity's interests in traffic safety
and aesthetics, and directly advance[s] the [C]ity's interests";
additionally, it leaves open ample alternative avenues of
communication by not banning all billboards. See Get Outdoors II,
506 F.3d at 894. We conclude that the size restriction is
constitutional, and each one of the Appellants' permit applications
was properly rejected on this ground.
Our conclusion on the merits of the constitutional challenge
to the size restriction defeats standing on the Appellants'
remaining as-applied claims. Because the permit applications were
properly denied on the basis of the independently constitutional
size restriction, the Appellants lack a redressable constitutional
injury to support their challenges to the location and spacing
restrictions. See id. at 893 (finding no redressability and thus
not reaching additional challenges to an ordinance after one
restriction was found to be constitutionally valid); Covenant Media
of S.C., 493 F.3d at 430 (finding no constitutional injury where
the permit applications could not be approved due to an
unchallenged spacing violation, regardless of whether other
substantive provisions are held to be unconstitutional).
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The Appellants also assert a facial overbreadth claim, arguing
that they should have been permitted to challenge other provisions
of the ordinance. The overbreadth doctrine constitutes "'a
departure from traditional rules of standing'" by permitting an
individual to challenge a regulation on the theory that it
threatens the speech of others. Giovani Carandola, Ltd. v. Bason,
303 F.3d 507, 512 (4th Cir. 2002) (quoting Broadrick v. Oklahoma,
413 U.S. 601, 613 (1973)). It does not, however, eliminate the
need to demonstrate an injury in fact. See Peterson v. Nat'l
Telecomm. & Info. Admin., 478 F.3d 626, 634 (4th Cir. 2007). Only
those "who have suffered some injury from the application of the
contested provisions to begin with" may bring an overbreadth
challenge. See id. (internal quotation marks omitted). Here,
because the permit applications were timely denied on the basis of
a valid size restriction, the Appellants cannot demonstrate an
injury in fact or redressability under any other provision of the
ordinance. See Covenant Media of S.C., 493 F.3d at 430 (noting
that because the application violated the unchallenged spacing
requirement, it could not have been approved regardless of whether
other provisions could be found to be unconstitutional, and thus,
there was no substantive constitutional injury due to other
provisions that might have been unconstitutional); see also
Advantage Media, L.L.C. v. City of Eden Prairie, 456 F.3d 793, 801
(8th Cir. 2006) (finding that the plaintiff had no standing to
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challenge restrictions or procedures that were not factors in the
denial of its own permit applications).
The Appellants argue that the prospect of a prior restraint of
speech due to a lack of procedures in the permit application
process and the unbridled discretion of City officials can
constitute an actual injury for an overbreadth challenge. The
Supreme Court has "long held that when a licensing statute
allegedly vests unbridled discretion in a government official over
whether to permit or deny expressive activity, one who is subject
to the law may challenge it facially without the necessity of first
applying for, and being denied, a license." City of Lakewood v.
Plain Dealer Publ'g. Co., 486 U.S. 750, 755-56 (1988). The injury
arises in that instance from the prospect of self censorship; "the
mere existence of the licensor's unfettered discretion, coupled
with the power of prior restraint, intimidates parties into
censoring their own speech." Id. at 757; see Prime Media, Inc. v.
City of Brentwood, 485 F.3d 343, 351 (6th Cir. 2007) (holding that
"the prospect of prior restraint and resulting self-censorship can
itself constitute the required actual injury" for Article III
standing purposes).
The Appellants do not assert that they were intimidated into
censoring their own speech. To the contrary, they submitted to the
permit process, and the record establishes that the City denied
their permit applications in a timely manner in part on the basis
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of the billboard size restriction, which we have found to be
constitutional. No change in the permit procedures would result in
the approval of their applications to erect oversized billboards.
There is no suggestion that they intend to file future applications
that would comply with the size restriction or that they are
fearful to submit such an application. See Get Outdoors II, 506
F.3d at 895 (holding plaintiff lacked standing to bring a prior
restraint claim where its applications were denied on
constitutionally valid grounds and the plaintiff did not show an
intent to file permit applications that comply with the valid
requirements). Thus, the Appellants suffer no threat of prior
restraint and lack standing to bring the claim.
III.
Accordingly, we affirm the district court's grant of summary
judgment in favor of the City.
AFFIRMED
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