United States District Court, D. New Hampshire
Signs for Jesus, et al.
Town of Pembroke, et al. Opinion No. 2016 DNH 126
A. Chabot, Esq.
Michael J. Tierney, Esq.
Christopher Cole, Esq.
R. Lane, Esq.
C. Carrier, Esq.
MEMORANDUM AND ORDER
Barbadoro United States District Judge
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
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
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
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.
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.
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.