Advantage Media, L.L.C. v. City of Hopkins, No. Civ.04-4959(MJD/AJB).
| Decision Date | 05 January 2006 |
| Docket Number | No. Civ.04-4959(MJD/AJB). |
| Citation | 408 F.Supp.2d 780 |
| Parties | ADVANTAGE MEDIA, L.L.C. and Hispanic Chamber of Commerce of Minnesota, Plaintiffs, v. CITY OF HOPKINS, Defendant. |
| Court | U.S. District Court — District of Minnesota |
E. Adam Webb, Webb & Porter, L.L.C., and Stephen W. Cooper, Cooper Law Office, Minneapolis, MN, for Plaintiffs.
Paul Donald Reuvers and Jason J. Kuboushek, Iverson Reuvers, L.L.C., Minneapolis, MN, for Defendant.
MEMORANDUM OF LAW & ORDER
This matter is before the Court on Cross-Motions for Summary Judgment. Oral arguments were heard on September 9, 2005. Plaintiffs' Motion for Partial Summary Judgment asks this Court to order Defendant to allow Plaintiff Advantage Media to construct four billboards within the City of Hopkins. [Docket No. 20] Plaintiffs also request an award of damages and attorney's fees pursuant to 42 U.S.C. §§ 1983, 1988. Defendant's Motion for Summary Judgment requests that the Court dismiss Plaintiffs' claims with prejudice. [Docket No. 23] The Court issues the following Memorandum of Law and Order.
Plaintiff Advantage Media, L.L.C. ("Advantage") is a Minnesota company that develops and operates advertising signs used by businesses, churches, organizations, and individuals to communicate both commercial and noncommercial messages. All of the proposed sign locations are in commercial areas adjacent to major roadways.
Plaintiff Hispanic Chamber of Commerce of Minnesota ("HCCM") is a 200-member nonprofit community and economic development organization that provides training, technical assistance, workforce development, and other resources to Latino individuals and entrepreneurs. HCCM's members are primarily small business owners.
Defendant is the City of Hopkins ("the City"). The City is a suburban community of over 17,000 residents located thirteen miles from Minneapolis and is approximately 98% developed with little remaining vacant land. The City has no signs of the type that Advantage proposes to construct.
Advantage applied for permits to build four 672 square-foot tri-vision billboards in the City. The City did not process, and subsequently denied, Advantage's permit applications. Advantage filed suit against the City on December 8, 2004, alleging that the City's sign ordinance in effect at that time ("Former Ordinance") violated the First Amendment, both facially and as-applied to Advantage. On July 5, 2005, Plaintiffs filed a Motion for a Preliminary Injunction seeking to enjoin enforcement of the Former Ordinance. This Court granted Advantage's Motion on July 29, 2005, and enjoined the City from enforcing the Former Ordinance. Advantage Media, L.L.C. v. City of Hopkins, 379 F.Supp.2d 1030, 1033 (D.Minn.2005). The Court held that Advantage successfully demonstrated a likelihood of success on the merits of its claims that the Former Ordinance was content-based, failed strict scrutiny analysis, favored commercial over non-commercial speech, and violated equal protection. Id. at 1038-43, 1045-48.
On August 16, 2005, the Hopkins City Council repealed the Former Ordinance. The City Council then enacted Ordinance No.2005-955 entitled, "AN EMERGENCY ORDINANCE FOR THE PURPOSE OF PROTECTING THE HEALTH, SAFETY, AND WELFARE OF CITY RESIDENTS AND FOR REGULATING THE CONSTRUCTION, INSTALLATION AND MAINTENANCE OF SIGNS" ("2005 Ordinance"). The 2005 Ordinance was made effective immediately upon enactment on August 16, 2005.
The Former Ordinance and the 2005 Ordinance are similar for the most part. The Former Ordinance read:
Permit Required. No or [sic] sign shall be erected, altered, reconstructed, maintained or moved in the city without first securing a permit therefore from the city. Application for a permit shall be in writing addressed to the zoning administrator and shall contain at least the following information:
a) the exact location of proposed sign including the name, address and legal description of premises;
b) the name and address of owner of sign;
c) the size and dimensions of sign;
d) the cost of sign; and
e) the purpose and intended duration.
§ 570.03 (repealed). The 2005 Ordinance now states:
Permit required. No sign shall be erected, altered, reconstructed, maintained or moved in the city without first securing a permit from the city. The content of the message or speech displayed on the sign shall not be reviewed or considered in determining whether to approve or deny a sign permit. Application for a permit shall be in writing addressed to the zoning administrator and shall contain the following information:
a. names and addresses of the applicant, owners of the sign and lot;
b. the address at which any signs are to be erected;
c. the lot, block and addition at which the signs are to be erected and the street on which they are to front;
d. a complete set of plans showing the necessary elevations, distances, size and details to fully and clearly represent the construction and place of the signs;
e. the cost of the sign;
f. type of sign; (i.e. wall sign, monument sign, etc.);
g. certification by applicant indicating the application complies with all requirements of the sign ordinance; and
h. if the proposed sign is along state trunk highway or interstate highway, the application shall be accompanied by proof that the applicant has obtained a permit from the state for the sign.
Plaintiffs' Motion for Partial Summary Judgment asks the Court to enter an order allowing them to erect the four signs in question. Plaintiffs also ask for an opportunity to prove their damages before a jury. Defendant's Motion for Summary Judgment argues that the signs should not be developed because the proposed signs violate other provisions of the City's zoning laws, namely, the setback requirements and size restrictions within the 2005 Ordinance.
Summary judgment is appropriate if, viewing all facts in light most favorable to the non-moving party, there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party seeking summary judgment bears the burden of showing that there is no disputed issue of material fact. Id. Summary judgment is only appropriate when "there is no dispute of fact and where there exists only one conclusion." Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir.1994) (citation omitted).
Initially, the Court addresses the issue of standing. The July 29, 2005 Order granting Plaintiffs' Motion for Preliminary Injunction determined that both Advantage and HCCM had standing to challenge the Former Ordinance. Advantage Media, 379 F.Supp.2d. at 1038. Since then the parties have completed discovery and new information has come to light. For the reasons stated below, HCCM no longer has direct or associational standing in this case. Conversely, Advantage still has standing with respect to the Former Ordinance.
New deposition testimony of Velda Vargas, the President and CEO of HCCM, conclusively demonstrates that HCCM lacks both direct and associational standing. Vargas's deposition proves that HCCM suffered no injury from the Former Ordinance and has no interest in this lawsuit distinct from that of any member of the general public.
The July 29, 2005 Order held that HCCM sufficiently demonstrated direct standing to challenge the ordinance. That ruling was based Vargas's declaration that HCCM's members refrained from erecting signs because they could not risk civil and criminal penalties, including fines, forfeiture of property, and possible imprisonment. At that time, Vargas's declaration was the only admissible evidence available to analyze the direct standing question. Because the record at the time lacked any admissible evidence to the contrary, Vargas's declaration was held to be sufficient to establish direct standing.
Vargas testified in a deposition on July 28, 2005. Vargas's deposition shows that: (1) HCCM never applied for a permit to post a billboard in the City of Hopkins; (2) HCCM currently lacks the resources to engage in billboard advertising; (3) HCCM cannot identify any messages it refrained from posting because of the former sign ordinance; (4) HCCM earmarked funding for an advertising budget later in the year; and (5) HCCM is developing an advertisement to be placed in the City of Hopkins, however the message is still in the development stage. Vargas stated that HCCM "would love to advertise" through billboard signs as soon as possible, but a lack of money and expertise has prevented HCCM from doing so.
To establish standing, a plaintiff must demonstrate (1) that it has suffered an "injury in fact," which is concrete and particularized and actual or imminent, not conjectural or hypothetical; (2) a causal connection between the injury and the complained-of conduct and that the injury is "fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court;" (3) and that it is "likely" rather than merely "speculative" the injury will be "redressed by a favorable decision." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).
Vargas's deposition testimony demonstrates that HCCM lacks direct standing. Vargas's deposition testimony does not comport with her previous declaration that HCCM refrained from posting signs because it feared the Former Ordinance. Even though HCCM has earmarked funds for advertising in the future, Vargas's testimony shows that HCCM has zero dollars to advertise in 2005. Even if HCCM successfully attained a permit today, it would be financially unable to develop a billboard sign. Furthermore, the earmarked funds...
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