Adams Outdoor Advert. Ltd. v. City of Madison, 17-cv-576-jdp
| Decision Date | 07 April 2020 |
| Docket Number | 17-cv-576-jdp |
| Parties | ADAMS OUTDOOR ADVERTISING LIMITED PARTNERSHIP, Plaintiff, v. CITY OF MADISON and MATTHEW TUCKER, Defendants. |
| Court | U.S. District Court — Western District of Wisconsin |
The City of Madison strictly regulates billboards, banning them in the city center and limiting them elsewhere. Plaintiff Adams Outdoor Advertising Limited Partnership would like to modernize its billboards and build more, but it can't under Madison's sign ordinance. Adams Outdoor has challenged the ordinance several times before; this is the latest such challenge.
Adams Outdoor is suing Madison and its zoning administrator, Matthew Tucker, alleging that Madison's sign ordinance is unconstitutional on numerous grounds. But its primary claim is that the ordinance violates the First Amendment by drawing content-based distinctions between billboards and other kinds of signs, relying chiefly on the Supreme Court's 2015 decision in Reed v. Town of Gilbert. Both sides move for summary judgment. Dkt. 61; Dkt. 70.
Adams Outdoor's claims are mostly ones that it brought, or could have brought, in a prior lawsuit against the city, so most of its claims are precluded. But even if they weren't, Adams Outdoor's claims would fail on the merits. Whether the Capitol Square should look like Times Square is a decision that Madison city government is entitled to make, even after Reed. The court discerns no constitutional infirmity in Madison's sign ordinance, so the court will grant summary judgment to the city and dismiss the case.
The material facts are undisputed.
Plaintiff Adams Outdoor Advertising is an outdoor advertising company that owns and operates billboards throughout the state of Wisconsin. It owns 90 billboard structures in Madison containing 186 billboard faces. Adams leases those faces to clients, who use them to display a wide variety of commercial and noncommercial messages.
Defendant Matthew Tucker is the zoning administrator for the city of Madison. He is responsible for interpreting and enforcing Madison's sign ordinance, which is codified at Chapter 31 of the Madison General Ordinances.
Chapter 31 regulates all manner of signs, ranging from decorative banners and murals to "business opening signs" and "condominium identification signs." The purpose of Chapter 31, as set out in its purpose and intent section, is to promote "public safety and aesthetic values." Madison. Gen. Ord. § 31.02(1).
Under Chapter 31, billboards (which the ordinance calls "advertising signs") are subject to stricter regulation than other types of signs. In 1989, the city passed an ordinance requiring removal of advertising signs from certain areas of downtown and imposing a prospective ban on the construction of new or replacement advertising signs anywhere in the city. Those advertising signs remaining after the 1989 ordinance are categorized as non-conforming uses, and they may not be "relocated, replaced, expanded, enlarged, repositioned or raised in height," except in certain limited circumstances. § 31.05(2)(b). By contrast, Chapter 31 allows other types of signs (such as "business signs" or "ground signs") to be erected, relocated, repaired, or altered so long as the sign owner first obtains a permit from the zoning administrator. See§ 31.041. Still other types of signs (such as "athletic field signage" and "election campaign signs") may be erected without a permit at all. See § 31.044.
The ordinance limits advertising signs to certain zoning districts within the city, and it subjects them to strict setback, height, net area, and other spacing requirements. § 31.11. No other type of sign regulated by the ordinance is subject to these restrictions. And whereas owners of other types of signs may seek variances from strict application of ordinance requirements through a process known as "comprehensive design review," advertising signs are generally ineligible for that process. § 31.043(4)(b)(5).
The city will allow the replacement or relocation of an advertising sign under limited circumstances. For instance, advertising signs may be realigned (that is, relocated on the same site) if necessary to accommodate a Wisconsin Department of Transportation highway project. § 31.05(2)(c). Advertising signs may be restored or reconstructed if they are "damaged or destroyed by fire or other casualty or act of God," but only if the total cost of the restoration doesn't exceed certain limits. § 31.04(2)(b). And under the city's "advertising sign bank" program, which the city established in 2015, owners of qualifying advertising signs that must be removed due to redevelopment projects may "bank" the net area of the removed sign and then apply for a permit to construct a replacement advertising sign elsewhere in the city. See § 31.112. The ordinance imposes a higher per-square-foot permit fee for advertising signs ($2.50 per square foot) than it does for other types of signs that require permits ($1.75 per square foot). § 31.041(3)(a).
In addition to its advertising sign-specific regulations, the ordinance contains a blanket prohibition on digital image signs—that is, signs that incorporate technology that displays illuminated digital images. § 31.045(3)(i).
Over the years, Adams Outdoor has filed multiple lawsuits against the city, including most notably one in 1990, which the city and Adams Outdoor settled with a comprehensive agreement. The specific events giving rise to the current litigation began in 2016, when Adams Outdoor began submitting applications for sign permits that were disallowed by the terms of the ordinance.
Adams Outdoor operates a billboard at 615 Forward Drive, on property owned by a local television station. The owners of that station constructed a new facility that partially obstructed the view of Adams Outdoor's billboard. So in 2016, Adams Outdoor sought to remove the sign and bank its net area through the advertising sign bank program. Tucker denied Adams Outdoor's application for sign replacement credit after determining that the billboard in question didn't meet the program's strict eligibility criteria. Although the new development partially obstructed Adams Outdoor's sign, the sign was not located in the same physical space as the new facility, nor was it so close to the facility that it would result in a building code violation. See § 31.112(2)(b)(3). Adams Outdoor could have appealed Tucker's decision to the Urban Design Commission, the deliberative body that considers appeals of decisions made by the zoning administrator, but it chose not to do so. Adams Outdoor's billboard remains at its original location, now partially obstructed by a building.
In April 2017, Adams Outdoor submitted 26 applications to the city seeking to modify or replace existing billboards. Adams Outdoor expected the applications to be denied because they proposed modifications that contravened the terms of the ordinance. In June, Tuckerdenied 25 of the 26 permits, citing the various ordinance provisions that Adams Outdoor's proposed modifications would violate. See Dkt. 93, ¶ 47. Tucker determined that the proposed modifications would violate the general ban on new, relocated, or replacement advertising signs in §§ 31.05(2) and 31.11(1). He also identified other ordinance provisions that supported the permit denials, including height and size restrictions, setback rules, zoning conditions, and the prohibition on the use of digital displays.
In July 2017, Adams Outdoor filed this lawsuit in federal court. Adams Outdoor also appealed 22 of the 25 denials to the Urban Design Commission. Rather than contesting specific factual errors that Tucker made in reviewing the permit applications, Adams Outdoor asserted that the ordinance was unconstitutional. When the Urban Design Commission denied the appeals, Adams Outdoor sought review in the Dane County Circuit Court. See Adams Outdoor Advertising Ltd. P'ship v. City of Madison, No. 17-cv-2754 (filed Nov. 11, 2017). The state-court case has been stayed pending resolution of this case.
In December 2017, the common council made several amendments to Chapter 31. The amendments were prompted by Adams Outdoor's litigation as well as a 2015 Supreme Court case, Reed v. Town of Gilbert, --- U.S. ----, 135 S. Ct. 2218 (2015). See Dkt. 75-2, at 2, 3. The amendments themselves were minor. As relevant here, definitions for the terms "commercial message" and "noncommercial message" were deleted from the ordinance's definitions section, and references to "noncommercial messages" were excised from the ordinance's definition of "advertising sign." The amended ordinance defines advertising sign as a "sign containing a commercial message directing attention to a business, commodity, service, or entertainment, not related to the premises at which the sign is located, or directing attention to a business,commodity, service or entertainment conducted, sold or offered elsewhere than on the premises where the sign is located."
Adams Outdoor challenges the constitutionality of Madison's sign ordinance on several grounds. But its core argument is that the city's regulation of billboards depends on content-based distinctions that are subject to strict scrutiny under Reed v. Town of Gilbert. For reasons explained more fully in the body of this opinion, the court is not persuaded that Reed represents the radical shift in First Amendment law that Adams Outdoor suggests. Reed leaves intact the general framework for evaluating restrictions on commercial speech in Central Hudson Gas & Electric Corporation v. Public Service Commission of New York, 447 U.S. 557 (1980), and for evaluating billboard regulation...
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