Covenant Media of Sc v. City of No. Charleston
| Decision Date | 06 July 2007 |
| Docket Number | No. 06-1894.,06-1894. |
| Citation | 493 F.3d 421 |
| Parties | COVENANT MEDIA OF SOUTH CAROLINA, LLC, Plaintiff-Appellant, v. The CITY OF NORTH CHARLESTON, Defendant-Appellee. Scenic America, Amicus Supporting Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Edward Adam Webb, The Webb Law Group, L.L.C., Atlanta, Georgia, for Appellant. Derk B.K. Van Raalte, IV, Brady Hair Law Offices, North Charleston, South Carolina, for Appellee. ON BRIEF: Randal R. Morrison, Sabine & Morrison, San Diego, California; Stephanie P. McDonald, Senn, McDonald & Leinbach, L.L.C., Charleston, South Carolina; J. Brady Hair, Brady Hair Law Offices, North Charleston, South Carolina, for Appellee. William D. Brinton, Rogers Towers, P.A., Jacksonville, Florida, for Amicus Supporting Appellee.
Before WILLIAMS, Chief Judge, and TRAXLER and SHEDD, Circuit Judges.
Affirmed by published opinion. Chief Judge WILLIAMS wrote the opinion, in which Judge TRAXLER and Judge SHEDD joined.
Covenant Media of South Carolina, LLC ("Covenant"), a company in the business of erecting and operating billboards, appeals the district court's grant of summary judgment to the City of North Charleston ("North Charleston" or "City"), South Carolina on Covenant's claim under 42 U.S.C.A. § 1983 (West 2003) that North Charleston violated Covenant's First Amendment rights through its sign regulations. For the following reasons, we affirm.
Although billboards are important communication tools that convey political, social, and, most commonly, commercial messages, they create unique issues apart from their communicative function because they are "large, immobile, and permanent structures." Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 502, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981). (internal quotation marks omitted). Billboards convey messages, but they do so through imposing structures dotting the landscape. These structures "create[ ] a unique set of problems for land-use planning and development." Id.
Because of their large, inescapable visual presence, billboards have been the target of national and state regulation. For example, in the Highway Beautification Act of 1965, 72 Stat. 1028, Congress declared "that the erection and maintenance of outdoor advertising signs, displays, and devices in areas adjacent to the Interstate System and the primary system should be controlled in order to protect the public investment in such highways, to promote the safety and recreational value of public travel, and to preserve natural beauty." 79 Stat. 1028, § 131(a).
South Carolina responded to the concerns caused by billboards by enacting the Highway Advertising Control Act (HACA), S.C.Code Ann. § 57-25-110 et seq. (West 2006). HACA, however, does not purport to provide exclusive regulation for billboards, and it contemplates that municipalities may enact stricter regulations of billboards. See S.C.Code Ann. § 57-25-220. This case concerns North Charleston's efforts, through its general sign regulations, to regulate billboards within its city limits and the effect those regulations had on Covenant.
The relevant facts are detailed later, but a brief preview now will help set the stage. In December 2004, Covenant submitted an application to construct a billboard in North Charleston. At the time, the City had in effect a zoning regulation (the "Sign Regulation") governing billboards as well as other signs. When months later the City had not provided Covenant a decision on the application, Covenant filed this lawsuit challenging the constitutionality of the Sign Regulation. Four months later, the City published its intention to amend the Sign Regulation.1 Two days after that published notice, Covenant filed twenty-five additional applications. In the end, none of Covenant's applications were approved.
Until October 13, 2005, North Charleston had in effect a Sign Regulation governing placement of billboards and other signs within the city limits. The Sign Regulation distinguished between off-premises signs and on-premises signs. Off-premises signs were defined as signs "identifying or advertising a business, person, or activity, or goods, products, services or facilities not located on the premises where the sign is installed or directing persons to a different location from where the sign is installed." Sign Regulation, § 8-2(g). On-premises signs were defined as signs "identifying or advertising a business, person, or activity, or goods, products, services or facilities located on the premises where the sign is installed." Sign Regulation, § 8-2(h).
Under the Sign Regulation, "all off-premises signs [were] considered to be billboards." The regulation required that a permit be issued before a billboard could be constructed, and billboards were required to comply with certain requirements. Sign Regulation, §§ 7-2, 8-6(c). For example, billboards could not "be located outside of an approved billboard plaza," which was defined as parts of certain main thorough-fares, and could not "be located in a neighborhood which is primarily residential in character." Sign Regulation, § 8-6(c). There were also size and spacing requirements: No billboard could "have an area of greater than seven hundred seventy-two (772) square feet," and no billboard could be "be located any closer than one thousand (1,000) feet from any existing billboard." Id.
Applications to construct billboards were required to be filed with North Charleston's zoning administrator. Important for this appeal, the Sign Regulation did not require the zoning administrator to act on an application within a specified period of time.
On December 1, 2004, Covenant submitted an application to construct a billboard at 2161 Ashley Phosphate Road (the "December 2004 Application"). At the North Charleston City Hall, Covenant submitted the December 2004 Application to an authorized City official, who provided Covenant an initialed Receiving Record acknowledging receipt of the application.
By late spring 2005, Covenant had received no word from North Charleston concerning the December 2004 Application. Covenant did not call, write a letter, or otherwise inquire into the status of the application. Instead, Covenant responded to the City's inaction by filing a civil action against North Charleston under 42 U.S.C.A. § 1983 alleging that North Charleston violated Covenant's First Amendment rights through enforcement of its Sign Regulation.
In September 2005 — after Covenant had filed this lawsuit — North Charleston began acting on long-intended revisions to the City's sign regulations. On September 15, 2005, the City Council conducted the first reading of the Revised Sign Regulation that, among other things, capped the total number of billboards in the City at the current level and set a time limit for the City to act on a sign permit application. On September 28, 2005, the City published notice in Charleston's largest newspaper, The Post and Courier, that a public hearing would be held on October 13, 2005, during which the Revised Sign Regulation would be approved.
On September 30, two days after the published notice of the hearing for approval of revisions to the sign regulations, Covenant submitted twenty-five additional sign permit applications to the City of North Charleston (the "September 2005 Applications"). The September 2005 Applications were for permits to build billboards on several North Charleston streets, including multiple locations on Rivers Avenue and Ashley Phosphate Road.
On October 13, 2005, North Charleston's City Council enacted the Revised Sign Regulation. The City Council's stated purpose for the Revised Sign Regulation was to establish signage rules that "foster overall improvement to the aesthetic and visual appearance of the city, preserve and open up areas for beautification on property adjoining the public roadways, reduce visual clutter, enhance the City of North Charleston as an attractive place to live and work, reduce blighting influences, and improve traffic safety by reducing driver distractions." (J.A. at 118-19.)2
To accomplish this purpose, the Revised Sign Regulation prohibits a net increase in new billboards. The only new billboards that it allows are those billboards that are constructed to replace existing billboards pursuant to a relocation agreement with the City. Revised Sign Regulation, § 8-6(e). For those billboards that can be built, the Revised Sign Regulation incorporates the former Sign Regulation's size and spacing requirements. Thus, as before, new billboards cannot be larger than 772 square feet and must be at least 1000 feet from an existing billboard. Revised Sign Regulation, § 8-9(b).
The Revised Sign Regulation also includes a 45-day time limitation for the City to act on sign permits, a procedural provision that was missing from the old ordinance. If the City fails to act within the 45-day period, the permit is deemed denied. Revised Sign Regulation, § 8-6(e).
From the time Covenant submitted its December 2004 Application through the adoption of the Revised Sign Regulation, Covenant owned no operating billboards, had no contracts with sign manufacturers or installers, and had no advertising contracts. After North Charleston adopted the Revised Sign Regulation, Covenant purchased another advertising company, Adams Outdoor, thereby acquiring over 300 billboard structures in South Carolina.
On October 14, 2005 — the day after the City adopted the Revised Sign Regulation — North Charleston's zoning administrator notified Covenant by letter that its December 2004 Application could not be processed under the old Sign Regulation because the application failed to show property lines, dimensions, rights of way, and parking areas and because it did not include...
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