Desert Outdoor Advertising, Inc. v. City of Moreno Valley

• Decision Date: 20 December 1996
• Docket Number: 95-55531,Nos. 95-55529,s. 95-55529
• Citation: 103 F.3d 814
• Parties: 96 Cal. Daily Op. Serv. 9270, 96 Daily Journal D.A.R. 15,309 DESERT OUTDOOR ADVERTISING, INC., and Outdoor Media Group, Inc., Plaintiffs-Appellants, v. The CITY OF MORENO VALLEY; Frank Garcia; Quintin K. Strom; Andrew Rodriguez; Ron Smith, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 814

103 F.3d 814

96 Cal. Daily Op. Serv. 9270, 96 Daily Journal

D.A.R. 15,309

DESERT OUTDOOR ADVERTISING, INC., and Outdoor Media Group Inc., Plaintiffs-Appellants, v. The CITY OF MORENO VALLEY; Frank Garcia; Quintin K. Strom Andrew Rodriguez; Ron Smith, Defendants-Appellees.

Nos. 95-55529, 95-55531.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 7, 1996.

Decided Dec. 20, 1996.

Paul E. Fisher, Fisher & Delsack, Newport Beach, CA, for plaintiff-appellant, Outdoor Media Group, Inc.

Michael F. Wright, Case, Knowlson, Burnett & Wright, Los Angeles, CA, for plaintiff-appellant, Desert Outdoor Advertising, Inc.

Dennis J. Mahoney, Mac Lachlan, Burford & Arias, San Bernardino, CA, for defendants-appellees.

Appeals from the United States District Court for the Central District of California, Terry J. Hatter, District Judge, Presiding. D.C. No. CV-88-03689-TJH.

Before: HUG, Chief Judge, PREGERSON and REINHARDT, Circuit Judges.

Opinion by Judge PREGERSON; Concurrence by Judge REINHARDT.

PREGERSON, Circuit Judge:

Appellants Desert Outdoor Advertising, Inc. ("Desert") and Outdoor Media Group, Inc. ("OMG") are billboard operators who conduct business in the City of Moreno Valley. In a suit against the City and several of its public officials, appellants challenged the constitutionality of Moreno Valley Ordinance No. 133, which regulates structures and signs. The district court granted summary judgment in favor of the City and granted judgment on the pleadings in favor of the public officials. The court denied appellants' summary judgment motion. We have jurisdiction under 28 U.S.C. § 1291. We reverse.

BACKGROUND

The City of Moreno Valley was incorporated on December 3, 1984, in a formerly unincorporated area of Riverside County. In June 1987, the City adopted Moreno Valley Ordinance No. 133 based on a similar pre-existing Riverside County Ordinance.

Moreno Valley Ordinance No. 133 regulates both "off-site" and "on-site" structures and signs. Off-site structures and signs may include commercial or noncommercial messages. On-site structures and signs may only contain commercial messages. Off-site structures and signs are defined as structures and signs "used for the display of political messages and the promotion of products, goods, services, or business establishments not conducted, manufactured, or sold upon the premises on which the display is located." Moreno Valley Ordinance No. 133 § 19.2(a). The ordinance defines "on-site" structures and signs as "structures and signs that are erected or maintained to advertise goods sold, business conducted or services rendered on the parcel of land upon which the sign is located." Id. § 19.2(e). ¹

The ordinance imposes different restrictions on off-site and on-site structures and signs. Off-site structures and signs are subject to locational and structural restrictions and may be erected in only three zones in the City (medium manufacturing, heavy manufacturing, and service commercial). Id. § 19.3(a) & (b). Moreover, before anyone can erect an off-site sign, the ordinance requires that the person apply for a conditional use permit. Id. § 19.3(c). The ordinance states that the issuance of a permit by City officials is subject to findings that

such a display will not have a harmful effect upon the health or welfare of the general public and will not be detrimental to the welfare of the general public and will not be detrimental to the aesthetic quality of the community or the surrounding land uses.

Id. § 19.3.

In contrast, on-site structures and signs, as long as they conform to certain restrictions, may be erected in any zone of the City. Id. § 19.4. Furthermore, no conditional use permit is required before erecting an on-site structure or sign.

Finally, four categories of off-site structures and signs are exempted from the locational restrictions and may be placed in any zone in the City. The exempted structures and signs are:

(1) Official notices issued by any court or public body or officer;

(2) Notices posted by any public officer in performance of a public duty or by any person in giving legal notice;

(3) Directional, warning or information structures required by or authorized by law or by Federal, State or City authority; including signs necessary for the operation and safety of public utility uses;

(4) A structure erected near a city or county boundary, which contains the name of such city or county and the names of, or any other information regarding, civic, fraternal or religious organizations located therein.

Id. § 19.2(d). Before the incorporation of the City, appellant Desert constructed an off-site sign on a location outside the three zones permitted under the ordinance. Desert built and maintained this off-site sign without county or City permits. County zoning laws in effect at that time did not allow off-site signs at that location. In 1987, the City annexed territory which included the location of Desert's off-site sign. In May 1988, appellant OMG built an off-site sign within the City's limits, but outside the three zones permitted under the ordinance. OMG did not obtain county or City permits either.

The City brought two separate state court actions against Desert and OMG to compel the removal of the Desert and OMG signs. Desert and OMG filed their own action against the City in United States District Court for damages, declaratory relief, and an injunction. The district court stayed that action pending outcome of the state court litigation. However, the district court retained jurisdiction over the federal constitutional claims. The state court entered judgment in favor of the City and against Desert and OMG on the state law claims, and issued a permanent injunction requiring Desert and OMG to remove their signs. OMG unsuccessfully appealed the state court's rulings, while Desert did not appeal. The City then filed a notice with the district court that the state court proceedings had concluded.

Desert, OMG, and the City then filed cross-motions for summary judgment on their federal claims. The various public officials named as individual defendants moved for judgment on the pleadings based on qualified immunity. The district court entered a judgment in favor of the City and the individual public officials, which Desert and OMG now appeal.

ANALYSIS

I. Standing

The City contends that Desert and OMG do not have standing to challenge the constitutionality of its sign ordinance and the permit process. We review the question whether appellants have standing de novo. Barrus v. Sylvania, 55 F.3d 468, 469 (9th Cir.1995).

To have standing, Desert and OMG must satisfy three elements: (1) they must have suffered an injury in fact; (2) the injury must be fairly traceable to the City's challenged conduct and not the result of the independent action of some third party; and (3) it must be likely that the injury will be redressed by a favorable decision. Medina v. Clinton, 86 F.3d 155, 157 (9th Cir.1996).

In this case, Desert and OMG have shown all three elements of standing. First, appellants suffered an injury in fact because the City actually brought an enforcement action against appellants. See Virginia v. American Booksellers Ass'n, 484 U.S. 383, 393, 108 S.Ct. 636, 643, 98 L.Ed.2d 782 (1988) (standing requires party to have "actual and well-founded fear that the law will be enforced against them"); Blair v. Shanahan, 38 F.3d 1514, 1519 (9th Cir.1994) (courts inquire whether "plaintiffs showed a reasonable threat of prosecution under the statute"). Second, appellants' injury is directly traceable to the City's conduct in passing the ordinance and in attempting to compel appellants to remove their signs. Third, a declaration that the ordinance is unconstitutional would likely redress Desert and OMG's injuries by enabling them to maintain their signs.

Desert and OMG also have standing to challenge the permit requirement, even though they did not apply for permits, because applying for a permit would have been futile. Aleknagik Natives Ltd. v. Andrus, 648 F.2d 496, 499 (9th Cir.1980) (plaintiffs need not exhaust administrative remedies when doing so would be futile). Applying for a permit would have been futile because: (1) the City brought state court actions against Desert and OMG to compel them to remove their signs; and (2) the ordinance flatly prohibited appellants' off-site signs located outside the three permitted zones.

II. The Permit Requirement for Off-Site Structures and Signs

Desert and OMG contend that the permit requirement violates the First Amendment because it gives "unbridled discretion" to City officials. We review the district court's grant of summary judgment de novo. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1261, 134 L.Ed.2d 209 (1996).

A person must obtain a permit before erecting an off-site structure or sign. Although the issuance of a permit by City officials is subject to some objective criteria relating to locational and structural standards, City officials have discretion to deny a permit on the basis of ambiguous and subjective reasons. For example, the ordinance states that a permit shall issue subject to findings that the structure or sign "will not have a harmful effect upon the health or welfare of the general public and will not be detrimental to the welfare of the general public and will not be detrimental to the aesthetic quality of the community or the surrounding land uses." Moreno Valley Ordinance No. 133, § 19.3.

As the Supreme Court stated, "a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional." Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51, 89 S.Ct. 935, 938, 22 L.Ed.2d 162 (1969). Furthermore, we have noted that "a law cannot condition the free exercise...