503 F.3d 456 (6th Cir. 2007), 06-3828, Midwest Media Property, L.L.C. v. Symmes Township, Ohio

Docket Nº:06-3828.
Citation:503 F.3d 456
Party Name:MIDWEST MEDIA PROPERTY, L.L.C.; CTI Properties, L.L.C.; and Speckert, L.L.C., Plaintiffs-Appellants, v. SYMMES TOWNSHIP, OHIO, Defendant-Appellee.
Case Date:October 01, 2007
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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503 F.3d 456 (6th Cir. 2007)

MIDWEST MEDIA PROPERTY, L.L.C.; CTI Properties, L.L.C.; and Speckert, L.L.C., Plaintiffs-Appellants,

v.

SYMMES TOWNSHIP, OHIO, Defendant-Appellee.

No. 06-3828.

United States Court of Appeals, Sixth Circuit.

Oct. 1, 2007

Argued: July 19, 2007.

Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 04-00604-Sandra S. Beckwith, Chief District Judge.

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[Copyrighted Material Omitted]

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ARGUED:

E. Adam Webb, The Webb Law Group, Atlanta, Georgia, for Appellants.

Kevin Lantz, Surdyk Dowd & Turner, Dayton, Ohio, for Appellee.

ON BRIEF:

E. Adam Webb, The Webb Law Group, Atlanta, Georgia, for Appellants.

Kevin Lantz, Robert J. Surdyk, Surdyk Dowd & Turner, Dayton, Ohio, for Appellee.

Before: CLAY and SUTTON, Circuit Judges; GREER, District Judge.[*]

SUTTON, J., delivered the opinion of the court, in which GREER, D.J., joined. CLAY, J. (pp. 466-81), delivered a separate dissenting opinion.

OPINION

SUTTON, Circuit Judge.

The district court granted summary judgment to Symmes Township on plaintiffs' claims that the township's sign regulations violated the First (and Fourteenth) Amendment because plaintiffs lack standing to challenge them. We affirm.

I.

Midwest Media, a company that erects and operates advertising signs, applied nine times for zoning permits to allow it to display billboards in Symmes Township, located in the greater Cincinnati metropolitan area, on behalf of its clients. Midwest

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Media filed one of the nine applications on behalf of CTI Properties and another on behalf of Speckert.

To post a sign in Symmes Township, the applicant must comply with the township's sign regulations. At the time Midwest Media filed these applications, the regulations prohibited "off-premise advertising sign[s] carrying a commercial message." Symmes Twp., Hamilton County, Ohio, Zoning Resolution art. XXXI, § 314.14; see id. § 312.40 (defining "[o]ff-premise [a]dvertising sign" as "[a] sign which directs attention to a business, commodity, or commercial or non-commercial service or entertainment which is not conducted, sold or offered upon the premises where such sign is located or affixed"); id. § 323.1(2) (prohibiting "[o]ff premise advertising"). They also imposed several height and size restrictions. See, e.g., id. § 321.2-1(3) ("No freestanding pole sign located three hundred . . . feet from the right of way . . . shall exceed forty-five . . . feet in height . . . and no sign within six hundred fifty . . . feet from the right of way . . . shall exceed twenty . . . feet in height ...."); id. § 321.2-2(4) ("No freestanding pole sign shall contain more than one hundred twenty (120) square feet of sign area per side (maximum 2 sides).").

According to the township, the regulations are designed to "minimize the possibility that sign size, location, or character will create hazards adversely affecting the public safety," id. § 311.4, to "provide sign regulations which are directly related to land use and therefore to the functional and economic need for signs of varying sizes, types and locations," id. § 311.8, to "create a more aesthetic environment," id. § 311.10, and to "provide for the size, lighting and spacing of off-premise advertising signs according to customary use and to provide special rules for retail areas which are surrounded by Residence Districts," id. § 311.12.

Midwest Media first sought permission to post a 40-foot-high, 672-square-foot, double-sided sign. The zoning inspector for the Hamilton County Rural Zoning Commission, which contracts with Symmes Township to oversee zoning matters, denied the application, noting that the proposed sign violated the township's height limit, see id. § 322.1-3, and its prohibition on off-premises advertising, see id. § 323.1(2).

Midwest Media's second application sought to display a 672-square-foot, single-face sign that stood 40 feet high. The zoning inspector denied the application, reasoning that "Commercial billboard[s] are not permitted in Symmes twp," JA 77, the application exceeded the township's height and square-footage limits, see Zoning Resolution art. XXXI, § 321.2-2(3)-(4), and it violated the prohibition on off-premises advertising, see id. § 323.1(2).

The third application sought permission to display a 672-square-foot, single-face sign standing 40 feet high, and the zoning inspector denied the certificate for the same reasons as he did the second one.

The fourth application sought permission to post a double-sided, 672-square-foot sign standing 40 feet high. Once again, the zoning inspector denied the certificate because it violated the township's height and square-footage limits and its ban on off-premises advertising.

The fifth application sought permission to display another double-sided, 672-square-foot sign measuring 40 feet high. In denying the certificate, the inspector cited sections of the township regulations setting size and height limits and prohibiting off-premises advertising. See id. §§ 321.2-2(3)-(4), 323.1(2).

The sixth, seventh and eighth applications requested permission to erect a "monopole," double-sided, 672-square foot

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billboard measuring 40 feet high. The zoning-plans examiner denied the certificates, citing the regulation prohibiting off-premises advertising signs, see id. § 323.1(2), and noted later (in an affidavit) that she could have denied the requests on the basis of size and height limits.

The ninth application sought to display a 40-foot-tall, three-sided sign measuring 672 square feet on two of the sides and 288 on the third. The township rejected the application, citing the ban on off-premises advertising, see id., and Midwest Media's failure to seek a variance, and noting later (in an affidavit from the zoning-plans examiner) that the proposed sign violated the township's size and height requirements.

After the denial of the ninth application, Midwest Media, CTI Properties and Speckert filed this lawsuit against Symmes Township, challenging the validity of the off-premises advertising ban, though not the size and height restrictions, and the validity of the permitting process because it lacked "procedural safeguards." Compl. ¶ ¶ 49-50, 54. The plaintiffs sought an injunction, damages and attorney fees.

Soon after plaintiffs filed this lawsuit, Symmes Township amended the regulations to clarify some of them, to remove others and to leave still others intact. Of particular interest to this lawsuit, the township left in place its size and height requirements. See Zoning Resolution art. XXXI, § 313.3-5.

Symmes Township filed a motion for summary judgment, which the district court initially denied because "the parties had given inadequate attention" to (1) whether the court could "require the Township to permit the erection of signs in clear violation" of the size and height requirements, which appeared to be "constitutionally permissible regulations," simply "because [zoning] official[s] failed to cite those regulations in denying" some of the applications, D. Ct. Order at 7, 2006 WL 143476, (2) whether the size and height provisions were "severable and enforceable even if other provisions [were] not," id., and (3) whether the plaintiffs were "entitled to damages even though their applications would have been subject to denial even in the complete absence of the contested portions of the Sign Rules," id. at 7-8. After additional briefing on these points, the court granted the township's supplemental motion for summary judgment on the ground that plaintiffs lack standing to bring their claims.

II.

This appeal raises two "case[]" or "controvers[y]" issues under Article III: Is the dispute moot in view of the township's passage of the amendment to the sign-ordinance law? And, even if the case is not moot, do plaintiffs have standing to bring this challenge?

A.

While standing restricts a party's capacity to bring a lawsuit at the time the complaint is filed, moot ness restricts a party's capacity to bring a lawsuit throughout the course of the litigation. United States Parole Comm'n v. Geraghty, 445 U.S. 388, 396-97, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980). Moot ness occurs "when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). Even when an action presents a live case or controversy at the time of filing, subsequent developments--including the passage of a new law or an amendment to the original law--may moot the case. Hall v. Beals, 396 U.S. 45, 48, 90 S.Ct. 200, 24 L.Ed.2d 214 (1969).

In most cases, the repeal or amendment of a law moots challenges to

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the original law. But, in this case, plaintiffs sought money damages arising from the township's failure to approve their nine sign applications. The existence of this damages claim preserves the plaintiffs' backward-looking right to challenge the original law and to preserve a live case or controversy over that dispute. Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381, 387 (6th Cir. 2005).

B.

To meet the "irreducible minimum" requirements of constitutional standing, plaintiffs must demonstrate (1) that they "have suffered an injury in fact--an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical," Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotation marks and citations omitted), (2) that a causal link exists "between the injury and...

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