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Signs for Jesus v. Town of Pembroke, NH

United States District Court, D. New Hampshire

January 27, 2017

Signs for Jesus, et al.
v.
Town of Pembroke, NH, et al. No. 2017 DNH 016

          MEMORANDUM AND ORDER

          PAUL BARBADORO UNITED STATES DISTRICT JUDGE.

         Hillside Baptist Church and Signs for Jesus want to install an electronic sign on the Church's property in Pembroke, New Hampshire. They brought this action against the Town of Pembroke, its Zoning Board of Adjustment, and its Code Enforcement Officer, Everett Hodge, after defendants denied plaintiffs' request for a permit to install the proposed sign. Plaintiffs allege violations of the United States Constitution, the New Hampshire Constitution, and the Religious Land Use and Institutionalized Persons Act (RLUIPA). The matter is before me on cross motions for summary judgment.

         I. BACKGROUND

         A. The Pembroke Sign Ordinance

         Applications for an electronic sign are governed by Pembroke's sign ordinance. Pembroke, N.H., Code ch. 143, art. VIII, §§ 143-57 to -66, relevant version available at Doc. No. 1-5. The stated purpose of the ordinance is to “[p]romote the safety, comfort and well-being of the users of streets;” “improve traffic safety;” “discourage excessive visual competition among signs;” and “[p]reserve or enhance town character by requiring new and replacement signage which is . . . [c]ompatible with the surroundings.” Id. § 143-57.

         The ordinance sets out “General requirements” in section 143-58. Subsection A, entitled “Permitted signs, ” provides that “[o]nly 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. § 143-58(A). Below this subsection, a box of text provides that “[s]igns which are required by federal, state or municipal laws are permitted.” Id. Subsection B lists signs that are generally prohibited. Id. § 143-58(B). Subsection G allows all signs that predate the adoption of the ordinance. Id. § 143-58(G).

         The “General requirements” provisions are followed by section 143-59, entitled “Administration, ” which details the process that must be followed to procure a sign permit. Subsection A, entitled “Permits, ” provides that “no sign shall be erected, displayed, altered or enlarged until an application has been filed” and a permit issued. Id. § 143-59(A). Within that subsection, provision A(8), entitled “Exception to permits, ” identifies five types of signs that “shall be exempt from the permitting requirements.”[1]

         The remaining sections of the ordinance regulate where and how particular types of signs may be used. Id. §§ 143-60 to -66. A Table of Signs divides Pembroke into a number of zoning districts (e.g., Commercial, Residential, and Limited Office) and allows certain signs in some districts but not others. Id. §§ 143-60, -62.

         Several years ago, the Town decided to protect its natural aesthetic by limiting the number of electronic signs. Accordingly, the ordinance was amended to bar Electronic Changing Signs in all districts but the Commercial District and limited parts of other districts that abut the Commercial District. See Id. § 143-62, -63(X). Electronic Changing Signs include “electronic message center (EMC), electronic message sign (EMS), and changeable copy board (CCB) signs.” Id. § 143-63(X). “These signs are capable of storing and/or displaying single or multiple messages in various formats at varying intervals.” Id. Electronic Changing Signs are identifiable by certain physical criteria, including text, graphics, or patterns that are illuminated or flash. See Id. When allowed, Electronic Changing Signs are subject to the additional minimum requirements specified by the ordinance, such as a limitation on their nighttime brightness, “along with all other requirements for signage within” the sign ordinance as a whole. Id.

         B. Procedural History

         Hillside Baptist Church (the “Church”) wants to install its electronic sign next to the road on its property at 547 Pembroke Street in Pembroke, New Hampshire. Although the Church has an existing sign that can be changed manually, it hopes to upgrade to an electronic sign that can be remotely preprogrammed to display different messages each day. The new sign would display religious messages, and it would be provided by Signs for Jesus, a non-profit corporation “whose purpose is to publicly display daily Bible scriptures to the public via road signs.”[2]

         The Church is located in Pembroke's Limited Office (“LO”) district, in which both residential and limited commercial development is permitted but electronic signs are barred. Two electronic signs are currently in use on the same road as the Church in districts that do not permit such signs. The first, which is on property owned by a gas station in the LO district, predates the adoption of the sign ordinance. The second is on property owned by Pembroke Academy, a public school in the Residential district.[3]

         In April 2015, the Church applied for a permit to install an electronic sign. Town Code Enforcement Officer Everett Hodge determined that section 143-64(X) of the ordinance classifies the Church's proposed sign as an Electronic Changing Sign. Because the proposed sign would be erected in Pembroke's LO district - where electronic signs are prohibited - Hodge denied the Church's application. His decision was based solely on the Church's ineligible location, not its religious identity or proposed messages.

         In May 2015, the Church filed an administrative appeal and a variance request with the Town's Zoning Board of Adjustment (“the Board”). The Church contended that the permit denial violated its rights under the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. 2000(cc), and the United States and New Hampshire constitutions. The Board held a public hearing on July 27, 2015, where it heard from the Church and community members. In rejecting the Church's appeal and variance request, the Board found that Hodge had correctly interpreted the sign ordinance, that a variance was not required under ordinary variance criteria, and that federal law did not require a contrary result. When the Board explained its decision, it emphasized the Town's interest in promoting a semi-rural aesthetic by limiting electronic signs in the LO district.

         In August 2015, the Church requested a rehearing. Following a presentation by the Church, the Board again denied the Church's administrative appeal and variance request. In announcing the Board‘s decision, the Vice Chairman of the Board read from the draft motion that had been provided by counsel. It later issued a written Notice of Decision.

         In November 2015, the Church filed its complaint here, claiming state and federal free speech, free exercise of religion, equal protection, and due process violations, along with claims under RLUIPA's substantial burden and equal terms provisions.[4] Doc. No. 1 at 9-24. The complaint names as defendants the Town of Pembroke (the “Town”), its Zoning Board of Adjustment, and its Code Enforcement Officer, Everett Hodge.[5]Id. at 1. The Church seeks declaratory, injunctive, and monetary relief. Id. at 24-25. The parties have filed cross motions for summary judgment. Doc. Nos. 32, 34.

         II. STANDARD OF REVIEW

         Summary judgment is appropriate when the record reveals “no genuine dispute as to any material fact and [that] the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The evidence in the record must be considered in the light most favorable to the nonmoving party, drawing all reasonable inferences in its favor. See Navarro v. Pfizer Corp., 261 F.3d 90, 94 (1st Cir. 2001).

         A party seeking summary judgment must first identify the absence of any genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A material fact “is one ‘that might affect the outcome of the suit under the governing law.'” United States v. One Parcel of Real Prop. with Bldgs., 960 F.2d 200, 204 (1st Cir. 1992) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)), abrogated in part on other grounds. If the moving party satisfies this burden, the nonmoving party must then “produce evidence on which a reasonable finder of fact, under the appropriate proof burden, could base a verdict for it; if that party cannot produce such evidence, the motion must be granted.” Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 94 (1st Cir. 1996); see Celotex, 477 U.S. at 322-23.

         On cross motions for summary judgment, the standard of review is applied to each motion separately. See Am. Home Assurance Co. v. AGM Marine Contractors, Inc., 467 F.3d 810, 812 (1st Cir. 2006); see also Mandel v. Boston Phoenix, Inc., 456 F.3d 198, 205 (1st Cir. 2006) (“The presence of cross-motions for summary judgment neither dilutes nor distorts this standard of review.”). Thus, I must “determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed.” Adria Int'l Group, Inc. v. Ferré Dev., Inc., 241 F.3d 103, 107 (1st Cir. 2001).

         III. ANALYSIS

         The principal issue in this case is whether the Town improperly denied the Church's request for an electronic sign permit. The Church argues that the Town's denial of its request violates its First Amendment right to free speech, its First Amendment right to freely exercise its religion, its state and federal constitutional rights to equal protection, its Fourteenth Amendment right to procedural due process, and its rights under RLUIPA's undue burden and equal terms provisions. In addition to these claims, the Church challenges other aspects of the zoning ordinance that have no direct bearing on whether the Church is entitled to an electronic sign. I begin by examining the Town's contention that the Church lacks standing to challenge aspects of the zoning ordinance that have no direct connection to its request for an electronic sign.

         A. Standing

         The Church attacks several sections of the zoning ordinance that have no bearing on whether it is entitled to install an electronic sign on its property. For example, it complains that the ordinance improperly authorizes content-based exemptions from the sign permitting requirement, even though the Church is barred by the ordinance from installing an electronic sign on its property regardless of whether it is subject to the permitting requirement. It also argues that the ordinance improperly excludes churches from the Commercial district, even though it has no plans to relocate to that district. The Town responds by arguing that the Church lacks standing to challenge aspects of the zoning ordinance that have no bearing on its alleged injury.

         The Supreme Court has explained that “[t]o establish Article III standing, an injury must be ‘concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.'” Clapper v. Amnesty Int'l USA, 133 S.Ct. 1138, 1147 (2013) (quoting Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010)). In the present case, the Church's inability to obtain an electronic sign has nothing to do with the sign permitting requirement because the Church would be barred from installing an electronic sign on its property even if the permit requirement were invalidated. Nor is its entitlement to an electronic sign affected by the fact that it cannot build in the Commercial district because the Church has no plans to build a church in that district. Accordingly, the Church lacks standing to raise these claims because its alleged injury is not fairly traceable to the sections of the ordinance it challenges. See Tanner Advert. Grp v. Fayette County, 451 F.3d 777, 791 (11th Cir. 2007) (en banc).

         The Church cannot acquire standing by construing its claims as a facial attack on the ordinance. See Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 796-98 (1984). “[A] holding of facial invalidity expresses the conclusion that the statute could never be applied in a valid manner.” Id. But “[t]he seminal cases in which the Court held state legislation unconstitutional ‘on its face' did not involve any departure from the general rule that a litigant only has standing to vindicate his own constitutional rights.” Id. Facial challenges do “not create any exception from the general rule that constitutional adjudication requires a review of the application of a statute to the conduct of the party before the Court.” Id.; cf. Maverick Media Grp. v. Hillsborough County, 528 F.3d 817, 820-23 (11th Cir. 2008) (per curiam).

         The overbreadth doctrine also cannot save the Church here. The Church cites the overbreadth doctrine in only a single line of its complaint. That bare assertion neither mentions the connection between overbreadth and standing, nor asserts that the ordinance is substantially overbroad. In any event, “[t]he overbreadth doctrine does not . . . grant a plaintiff carte blanche to challenge an entire ordinance merely because some part of the ordinance - to which the plaintiff is not subject - might be unconstitutional.” Maverick, 528 F.3d at 822. Rather, “a plaintiff who has established constitutional injury as to himself under a provision of a statute may also attack that provision under the overbreadth doctrine to vindicate the rights of others not before the court.” Id. at 822; see also FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 233-34 (1990), overruled in part on other grounds by City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774, 781 (2004). The overbreadth doctrine “does not, because it may not, waive the Article III requirement that the plaintiff have suffered a real injury in fact as to a challenged provision of an ordinance.” Maverick, 528 F.3d at 822; see also Prime Media, Inc. v. City of Brentwood, 485 F.3d 343, 350 (6th Cir. 2007) (“Prime Media's standing with regard to the size and height requirements does not magically carry over to allow it to litigate other independent provisions of the ordinance without a separate showing of an actual injury under those provisions.”).

         For these reasons, the Church lacks standing to challenge provisions in the ordinance that are unrelated to its request for an electronic sign permit.

         B. Free Speech

         The Church first argues that the Town violated the Church's First Amendment right to free speech.[6] I evaluate this claim by determining the appropriate level of scrutiny that must be applied to the Town's actions and then considering ...


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