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Signs for Jesus v. Town of Pembroke

United States District Court, D. New Hampshire

August 1, 2016

Signs for Jesus, et al.
v.
Town of Pembroke, et al. Opinion No. 2016 DNH 126

          Pierre A. Chabot, Esq.

          Michael J. Tierney, Esq.

          Christopher Cole, Esq.

          Garry R. Lane, Esq.

          Megan C. Carrier, Esq.

          MEMORANDUM AND ORDER

          Paul Barbadoro United States District Judge

         In April 2015, Signs for Jesus and Hillside Baptist Church applied for a permit to install an electronic sign on Pembroke Street in Pembroke, New Hampshire. When their application was denied, they filed this action against the Town of Pembroke, Pembroke’s Zoning Board of Adjustment, and Pembroke’s Code Enforcement Officer. Plaintiffs allege that Pembroke’s zoning ordinance, and defendants’ actions, violate the United States and New Hampshire constitutions, as well as federal and state statutes.

         Defendants have moved, pursuant to Federal Rule of Civil Procedure 14(a)(1), for leave to file a third-party complaint against the State of New Hampshire and School Administrative Unit 53 (“SAU 53”), which operates Pembroke’s local public high school. In the alternative, defendants would like to add the State and SAU 53 as required parties under Federal Rule of Civil Procedure 19(a)(1). The plaintiffs oppose defendants’ motion.

         I. BACKGROUND

         Signs for Jesus and Hillside Baptist Church (collectively “the Church”) want to install an electronic sign on Church-owned land at 547 Pembroke Street, in Pembroke’s historic district. The purpose of the proposed sign is to display Bible scripture. Down the street from the Church, at 530 Pembroke Street, there is a Mobil gas station, which has an electronic sign. See Doc. No. 1 at 4. Also, for several months during the summer of 2015, the New Hampshire Department of Transportation maintained an electronic traffic sign on Pembroke Street, south of the Mobil station. See Id. Pembroke Academy, the town’s public high school, has a permanent electronic sign at 276 Pembroke Street. See Id. at 5.

         Sections 143-57 to 143-66 of the Pembroke Zoning Ordinance set out the town’s sign regulations. Id.; see Doc. No. 1-5 (the sign ordinance). The ordinance regulates the size, placement, and application process for signs in Pembroke. See Doc. No. 1-5. The ordinance creates several exemptions to the regulations, however, including exemptions for signs “required by federal, state or municipal laws, ” signs advertising properties for sale or rent, and “public service signs.” Doc. No. 1 at 5-6, 10. Section 143-59 of the ordinance further provides that some, but not all, speakers must obtain a permit from Pembroke’s Code Enforcement Officer before erecting a sign. See Doc. No. 1-5 at 5-6. In addition, section 674:54 of the New Hampshire Revised Statutes purportedly exempts “government use[s]” of state- or town-owned land from local zoning ordinances.

         In April 2015, the Church applied for a permit to install its proposed sign. Pembroke’s Code Enforcement Officer denied that application. See Doc. No. 1 at 7. The Church then appealed the Officer’s decision to Pembroke’s Zoning Board of Adjustment, and filed a separate variance request. Id. After a public hearing, the Board denied the Church’s administrative appeal and its request for a variance. Id. at 8. In August 2015, the Church requested a rehearing pursuant to N.H. Rev. Stat. Ann. § 677:2, but the Board denied those requests. Id.

         In November 2015, the Church filed its complaint here. The Church alleges, among other things, that Pembroke’s sign ordinance is facially unconstitutional in light of Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015), because, the Church argues, the ordinance includes impermissible content-based speech restrictions. Doc. No. 1 at 1-2. The Church further claims that the ordinance is unconstitutional as applied, and violates state and federal law. See Id. at 12-14.

         II. ...


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