Bruce & Tanya & Assocs., Inc. v. Bd. of Supervisors of Fairfax Cnty.

• Citation: 355 F.Supp.3d 386
• Decision Date: 16 November 2018
• Docket Number: 1:17-cv-01155 (LMB/TCB)
• Court: U.S. District Court — Eastern District of Virginia
• Parties: BRUCE & TANYA & ASSOCIATES, INC., Plaintiff, v. BOARD OF SUPERVISORS OF FAIRFAX COUNTY, VIRGINIA, et al., Defendants.

355 F.Supp.3d 386

BRUCE & TANYA & ASSOCIATES, INC., Plaintiff,

v.BOARD OF SUPERVISORS OF FAIRFAX COUNTY, VIRGINIA, et al., Defendants.

1:17-cv-01155 (LMB/TCB)

United States District Court, E.D. Virginia, Alexandria Division.

Signed November 16, 2018

Jesse R. Binnall, Sarah Elizabeth York, Harvey & Binnall PLLC, Alexandria, VA, Louise Tavey Gitcheva, Rees Broome PC, Tysons Corner, VA, for Plaintiff.

Sarah Anne Hensley, Sara Grossman Silverman, Fairfax, VA, Stephen Andrew Cobb, Office of the Attorney General, Richmond, VA, for Defendants.

MEMORANDUM OPINION

Leonie M. Brinkema, United States District Judge

Bruce & Tanya & Associates, Inc. ("BTA" or "plaintiff") has filed a complaint alleging that Virginia's statutory scheme governing signs placed "within the limits of" highways—on its face and as enforced by Fairfax County ("County"), the County's Board of Supervisors ("Board") (collectively, the "County Defendants"), and Virginia's Commissioner of Highways ("Commissioner")—violates the First and Fourteenth Amendments to the U.S. Constitution. Before the Court are the County Defendants' motion to dismiss [Dkt. No. 49], the Commissioner's motion to dismiss [Dkt. No. 52], and BTA's motion for summary judgment and injunctive relief [Dkt. No. 55]. The Court has heard oral argument and received supplemental briefing. For the reasons stated below, defendants' motions to dismiss will be granted, BTA's motion will be denied, and judgment will be entered in favor of defendants.

I. BACKGROUND

A. Factual Background

BTA is a real estate company operating across Burke, Springfield, and Fairfax Station, Virginia. Pl.'s Br. in Supp. of Its Mot. for Partial Summ. J. and for a Prelim. Inj.

[Dkt. No. 56] ("BTA's SJ Br.") 4; id. Ex. A [Dkt. No. 56-1] ("Tyburski Decl.") ¶¶ 2-3. "[A]s a service to BTA's clients," BTA often posts real estate sales signs immediately adjacent to highways. Am. Compl. [Dkt. No. 46] ¶¶ 9-10; Pl.'s Reply in Supp. of Its Mot. for Partial Summ. J. [Dkt. No. 65] 2. For most of BTA's 30-year history, its posting of real estate sales signs met with little resistance. Although the Virginia Department of Transportation ("VDOT")¹ would remove signs "once or twice a year," BTA never received any fines. Tyburski Decl. ¶¶ 4-5.

Beginning in April 2012, VDOT notified BTA that its signs were violating section 33.2-1224 of the Virginia Code, which prohibits posting signs or advertisements "within the limits of any highway." BTA's SJ Br. 4. VDOT's enforcement efforts were soon joined by those of the Board, which in March 2013 signed a cooperative agreement with the Commissioner to enforce section 33.2-1224.² Tyburski Decl. ¶ 13; see Am. Compl. Ex. B [Dkt. No. 46-2] ("Enforcement Agreement"). VDOT and the Board enjoy concurrent authority: VDOT is responsible for all roads in the County, see Commissioner of Highway's Memo, in Opp'n to Pl.'s Mot. for Summ. J. [Dkt. No. 63] ("Comm'r's SJ Opp'n") 2-3, and the Board enforces section 33.2-1224 on designated roads in Fairfax County through its Illegal Sign Removal Program, BTA's SJ Br. 5; id. Ex. C [Dkt. No. 56-3].

In the first three years of the Illegal Sign Removal Program, the County collected signs believed to be in violation of the statute but issued no fines. Memo. in Supp. of Defs. Board of Supervisors and Fairfax County's Mot. to Dismiss Am. Compl. [Dkt. No. 50] ("Cty. Defs.' MTD Memo.") 2; BTA's SJ Br. 5. The enforcement strategy changed when the Department of Code Compliance ("DCC") began assisting with enforcement efforts.³ From March to October 2016, the Board fined BTA at least 89 times. BTA's SJ Br. 5. BTA, considered to be an "egregious violator[ ]" of section 33.2-1224, see Cty. Defs.' MTD Memo. 2, accounted for a sizable portion of the Board's efforts. For example, from May until October 2016, approximately 21% of all fines issued by the Board went to BTA. BTA's SJ Br. 5; id. Ex. F [Dkt. No. 56-6].

In December 2016, the Board sued BTA in Fairfax County Circuit Court for payment of outstanding fines and to enjoin BTA from placing more signs along County highways.⁴ BTA's SJ Br. 5. BTA filed a counterclaim in the state court proceeding, raising First and Fourteenth Amendment claims against the Board under 42 U.S.C. § 1983. It also attempted to add the Commissioner through a third-party complaint but was unsuccessful. Memo. in Supp. of Defs.' Mot. to Dismiss [Dkt. No. 53] ("Comm'r's MTD Memo.") 2. BTA took a nonsuit on its counterclaim before trial in September 2017.⁵ Id. After BTA initiated this civil action, the parties agreed to ask the state court to stay that proceeding, and that request was granted. See Pl.'s Consolidated Opp'n to the Defs.' Mots. to Dismiss [Dkt. No. 25] 7-8.

B. Statutory Scheme

Virginia has long regulated signs near highways "to promote the safety, convenience and enjoyment of travel..., to attract tourists and promote the prosperity, economic well-being and general welfare of the State, and to preserve and enhance the natural scenic beauty or aesthetic features of the highways and adjacent areas." Act of Apr. 1, 1970, ch. 322, § 33.1-351, 1970 Va. Acts 459, 555 (codified as amended at Va. Code Ann. § 33.2-1200(A) ). Chapter 12, Article 1 of Title 33.2 of the Virginia Code ("Article 1") governs "the erection and maintenance of outdoor advertising in areas adjacent to the rights-of-way of the highways within the Commonwealth." Va. Code Ann. § 33.2-1200(A). Most of Article 1 addresses signs "visible from" highways. See, e.g., id. § 33.2-1205 (establishing a licensing system for advertisements "visible from the main traveled way" of any highway); id. § 33.2-1208 (establishing a similar permitting system). One provision of Article 1 is narrower: Section 33.2-1224 ("Highway Signs Statute") generally prohibits placing any signs "within the limits of" a highway:

Any person who in any manner (i) paints, prints, places, puts, or affixes any sign or advertisement upon or to any rock, stone, tree, fence, stump, pole, mile-board, milestone, danger-sign, guide-sign, guidepost, highway sign, historical marker, building, or other object lawfully within the limits of any highway or (ii) erects, paints, prints, places, puts, or affixes any sign or advertisement within the limits of any highway is subject to a civil penalty .... Signs or advertisements placed within the limits of the highway are hereby declared a public and private nuisance and may be forthwith removed, obliterated, or abated by the Commissioner of Highways or his representatives without notice.... In addition, the Commissioner of Highways or his representative may seek to enjoin any recurring violator of this section. The Commissioner of Highways may enter into agreements with any local governing body authorizing local law-enforcement agencies or other local governmental entities to act as agents of the Commissioner of Highways for the purpose of (i) enforcing the provisions of this section and (ii) collecting the penalties and costs provided for in this section....

Va. Code Ann. § 33.2-1224.

At issue in this litigation is the interaction between the Highway Signs Statute and section 33.2-1204 ("Exceptions Statute"). The Exceptions Statute exempts certain categories of signs from some of the provisions in Article 1. The exempt signs range from those "relating solely to farm produce, merchandise, service, or entertainment" to those "warning the public against hunting, fishing, or trespassing" to those "advertising only the name, time, and place of bona fide agricultural, county, district, or state fairs." Va. Code Ann. § 33.2-1204(2), (14), (17).

In April 2018, the Virginia General Assembly amended the Exceptions Statute. See Act of Apr. 6, 2018, 2018 Va. Laws ch. 794. The amendment changed the statute in two ways. It first made explicit that the types of signs described in the Exceptions Statute were not exempt from the broad prohibition in the Highway Signs Statute unless specifically noted. It then identified six types of signs that are exempt from the Highway Signs Statute (identified as " § 33.2-1224"). As amended, the Exceptions Statute provides:

The following signs and advertisements, if securely attached to real property or advertising structures, and the advertising structures or parts thereof upon which they are posted or displayed are excepted from all the provisions of [Article 1] except those enumerated in ... [§] 33.2-1224 ...:

...

5. Notwithstanding the provisions of § 33.2-1224, danger or precautionary signs relating to the premises or signs warning of the condition of or dangers of travel on a highway erected or authorized by the Commissioner of Highways; forest fire warning signs erected under authority of the State Forester; and signs, notices, or symbols erected by the United States government under the direction of the U.S. Forest Service;

6. Notwithstanding the provisions of § 33.2-1224, notices of any telephone company, telegraph company, railroad, bridges, ferries, or other transportation company necessary in the discretion of the Commissioner of Highways for the safety of the public or for the direction of the public to such utility or to any place to be reached by it;

...

12. Notwithstanding the provisions of § 33.2-1224, historical markers erected by duly constituted and authorized public authorities;

13. Notwithstanding the provisions of § 33.2-1224, highway markers and signs erected or caused to be erected by the Commissioner of Highways or the Board or other authorities in accordance with law;

...

15. Notwithstanding the provisions of § 33.2-1224, signs erected by Red Cross authorities relating to Red Cross Emergency Stations, with authority hereby expressly given for the erection and maintenance of such signs upon the right-of-way of all highways in the Commonwealth at such locations as may be approved by the Commissioner of Highways;

...

19. Notwithstanding the provisions of § 33.2-1224, signs containing advertisements or notices that have been authorized by a county and that are

...