Advantage Media, L.L.C. v. City of Eden Prairie

• Decision Date: 01 August 2006
• Docket Number: No. 06-1035.,06-1035.
• Parties: ADVANTAGE MEDIA, L.L.C., Plaintiff-Appellant, v. CITY OF EDEN PRAIRIE, Defendant-Appellee. American Planning Association; International Municipal Lawyers Association; Scenic America, Incorporated; Scenic Minnesota, Incorporated, Amici on behalf of Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

456 F.3d 793

ADVANTAGE MEDIA, L.L.C., Plaintiff-Appellant, v. CITY OF EDEN PRAIRIE, Defendant-Appellee American Planning Association; International Municipal Lawyers Association; Scenic America, Incorporated; Scenic Minnesota, Incorporated, Amici on behalf of Appellee.

No. 06-1035.

United States Court of Appeals, Eighth Circuit.

Submitted: June 12, 2006.

Filed: August 1, 2006.

Rehearing Denied September 7, 2006.

E. Adam Webb, argued, Atlanta, GA, for appellant.

John M. Baker, argued, Minneapolis, MN (Robin M. Wolpert, on the brief), for appellee.

Before MURPHY, MELLOY, and COLLOTON, Circuit Judges.

MURPHY, Circuit Judge.

Advantage Media (Advantage) submitted permit applications to Eden Prairie, Minnesota (the City) to construct fourteen large commercial billboards. All of Advantage's applications were denied because each proposed billboard violated multiple provisions of the Eden Prairie Sign Code. Advantage then brought this action under 42 U.S.C. § 1983, claiming that the sign code is unconstitutionally overbroad under the First and Fourteenth Amendments and that its own constitutional rights were violated by the denial of its applications. The district court¹ granted summary judgment to the City, and Advantage appeals. Concluding that Advantage's overbreadth challenge to the sign code fails for lack of standing and that its own rights were not violated, we affirm.

I.

Advantage is an outdoor advertising company. It rents commercial advertising space for profit on billboards which it owns, although in its pleadings it stated that it would also be willing to make some space available for nonprofit advertising. On February 13, 2004 Advantage submitted permit applications to the City for construction of thirteen 672 square foot, double sided freestanding billboards, ranging in height from 20 to 80 feet. Each billboard was to contain trivision technology, which displays three different triangular images that rotate every ten seconds to allow for multiple displays. Advantage also applied to construct one 160 square foot billboard attached to an existing building.

Eden Prairie, like many other municipalities, regulates what signage may be erected within its limits through its sign code. The sign code's stated purpose is to "encourage creativity, freedom of choice, and effective communication" while preserving the City's "visual amenities" and protecting residents from annoyance and danger. The sign code regulates sign dimensions, construction, height, location, and setback (location from walkways, roadways, and property lines). It favors smaller signs over larger ones, dispersion over clustering, signs in commercial or industrial areas rather than residential, and signs located on the premises of a business (accessory signs) over those advertising a business or service located elsewhere (non accessory signs). It prohibits "motion signs" (signs with movable displays), signs of more than 80 square feet in size or 8 feet in height, freestanding signs with bases of more than 40 square feet, some types of multi faced signs, and all commercial non accessory signs. Noncommercial signage is exempt from many parts of the code and completely exempt from regulation for a specified period before and after elections.

The City reviews and approves sign applications through a permitting process. Permit applications must include a complete description of the proposed sign, a sketch, and "such other information as shall be necessary" to inform city officials of the sign's "kind, size, material, construction, and location." Under Minnesota law the City must grant or deny permit applications within 60 days, Minn.Stat. § 15.99, subd. 2(a), although it can extend the deadline to 120 days upon written notice to the applicant. Id., subd. 3(f). Until December 2004 the City's practice was to evaluate permit applications for compliance with the sign code and then subject them to additional review and approval by "the City Manager or a designee." The normal designee, a city planner named Steven Durham, stated in an affidavit that even when this extra step was in place he did not feel he had the discretion to deny permit applications which were otherwise in compliance with the sign code. The City nevertheless amended the code to eliminate this final review step. In 2005 it also added the 60 day limit for reviewing permit applications mandated by state law to the sign code itself. Denial of a permit application is appealable to the City's Board of Appeals and Adjustments (the Board).

After Advantage submitted its permit applications on February 13, 2004, it received a reply letter from Durham dated February 27 informing it that the applications were incomplete and requesting additional information related to setback and location. Advantage responded by providing scaled aerial photographs of all the proposed sign locations. On March 26 Advantage received a second letter from Durham, informing it that the review period would be extended to 120 days due to the number of permit applications it had submitted and their uniqueness. Finally on May 28, Advantage received letters from Durham denying each application for numerous reasons. Among the reasons listed for the denials were that all of the proposed signs exceeded the size and height limits in the sign code and the thirteen proposed double sided freestanding signs had excessively large bases, were too close to nearby roadways, had too much space between each sign face, and violated the City's prohibitions on motion signs and commercial non accessory signs. The record does not indicate that Advantage appealed to the Board.

Approximately two months after its permit applications were denied, Advantage brought this action in the district court. Advantage argued that the sign code's substantive regulations are unconstitutionally overbroad under the First and Fourteenth Amendments because they favor commercial over noncommercial speech and some types of noncommercial speech over others, thereby chilling a wide array of protected expression without being narrowly tailored to a compelling government interest. Advantage also claimed that its own free speech rights had been violated by the denial of its sign permit applications. Finally, Advantage argued that the sign permit process, as it existed when Advantage's applications were denied, was both facially invalid and invalid as applied because it lacked necessary procedural safeguards and afforded city officials unbridled discretion. Advantage argued that the sign code should be declared "invalid in its entirety" and requested injunctive relief, damages, and attorney fees.

The City moved for summary judgment, arguing that Advantage lacked standing under Article III of the Constitution to bring facial or applied challenges to the sign code on its own behalf or on behalf of other potential speakers. In the alternative, the City argued that Advantage also lacked prudential standing to bring an overbreadth challenge on behalf of noncommercial speakers and that the applied challenges on its own behalf failed on the merits. The district court agreed with all of the City's arguments and granted the motion. Advantage appeals, arguing that it did have standing to bring a facial overbreadth challenge to the sign code and that the applied challenges had merit.

II.

We review the grant of summary judgment de novo, using the same standard as the district court. Bunch v. Canton Marine Towing Co., Inc., 419 F.3d 868, 870 (8th Cir.2005). Summary judgment should not be granted unless there is no issue of material fact and the moving party is entitled to judgment as a matter of law. Lund v. Hennepin County, 427 F.3d 1123, 1125 (8th Cir.2005). An issue of fact cannot result from mere denials or conclusory allegations in the pleadings but must be based on specific factual allegations. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

A.

Advantage argues that it has met the constitutional standing requirements necessary to bring a facial overbreadth challenge to the sign code in its entirety. The City disagrees. The Supreme Court has held that the "irreducible minimum" of constitutional standing consists of three elements: 1) an injury in fact which is "actual, concrete, and particularized"; 2) a causal connection between that injury and defendant's conduct; and 3) a likelihood that the injury can 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).

Advantage first contends that it has constitutional standing regardless of whether it has met the Lujan test. Citing Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973), it claims that the Supreme Court has created an exception to normal standing requirements for overbreadth challenges under the First Amendment. So long as it has demonstrated an injury in fact and that it will "satisfactorily ... frame the issues in the case," Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 958, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984), Advantage claims that its facial overbreadth challenge to the sign code may proceed. The City counters that facial overbreadth challenges are not exempt from normal constitutional standing requirements and that Advantage must satisfy the Lujan test.

Article III of the Constitution limits federal jurisdiction to cases and controversies, and the "core component of standing is an essential and unchanging part of the case-or-controversy requirement." Lujan, 504 U.S. at 560, 112 S.Ct. 2130. Whether a party has established the traditional elements of Article III standing is thus an inescapable threshold question. Id.; see also Mosby v. Ligon, 418 F.3d 927, 932-33 (8th Cir.2005) (litigants must satisfy "normal requirements" of Article III standing even when bringing facial challenges). Advantage's reliance on Broadrick and Munson to support...