Bowden v. Town of Cary

Citation754 F.Supp.2d 794
Decision Date07 December 2010
Docket NumberNo. 5:09–CV–504–FL.,5:09–CV–504–FL.
CourtUnited States District Courts. 4th Circuit. Eastern District of North Carolina
PartiesWilliam David BOWDEN, Plaintiff,v.TOWN OF CARY, Defendant.

OPINION TEXT STARTS HERE

Katherine Lewis Parker, American Civil Liberties Union of North Carolina, Mark R. Sigmon, Graebe Hanna & Welborn, PLLC, Raleigh, NC, for Plaintiff.Elizabeth A. Martineau, Gray King Chamberlin & Martineau, LLC, Charlotte, NC, Lisa C. Glover, Cary, NC, for Defendant.

ORDER

LOUISE W. FLANAGAN, Chief Judge.

This matter comes before the court on the parties' cross-motions for summary judgment (DE 19, 21). Each party has responded to the other's motion, and to each response a reply has been filed. In this posture, the issues raised are ripe for adjudication. For the reasons set forth more particularly herein, plaintiff's motion is granted, and defendant's motion is denied.

STATEMENT OF THE CASE

Plaintiff initiated this civil rights action November 19, 2009 by complaint filed together with an emergency motion for temporary injunctive relief. Plaintiff brings this action against defendant (sometimes referred to as “the Town”) pursuant to 42 U.S.C. § 1983 and the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq., seeking declaratory relief, injunctive relief, and damages.

Plaintiff's complaint launches both facial and as-applied challenges to the constitutionality of a sign ordinance which the Town has attempted to enforce against plaintiff. Plaintiff alleges that the enforcement of the sign ordinance against plaintiff in response to a protest sign painted on the front of plaintiff's house constitutes a violation of the First and Fourteenth Amendments to the United States Constitution, as well as Article I, Sections 12 and 14 of the North Carolina Constitution.

Four days after initiation of the action, on November 23, 2009, the court convened by telephone a Rule 16 conference, to determine a schedule for the case. During the conference, the parties informed the court of certain agreements relating to an interim stay of enforcement activities by defendant pending resolution of matters in dispute. These agreements were memorialized in the form of a proposed consent order, adopted by the court December 11, 2009. As set forth therein, plaintiff's pending motions for a temporary restraining order and preliminary injunction were deemed moot and withdrawn.

On April 22, 2010, the parties filed the instant cross-motions for summary judgment. Although plaintiff's complaint launches both federal and state constitutional challenges on a facial and as-applied basis, plaintiff's motion for summary judgment is crafted exclusively as a federal as-applied challenge.

STATEMENT OF THE UNDISPUTED FACTS

Plaintiff is a citizen and resident of the Town of Cary, which is located in Wake County, North Carolina. The Town is a municipal agency operating under the laws and Constitution of the State of North Carolina. Plaintiff has owned his home on Maynard Road since 1991. For several years, plaintiff has been engaged in a dispute with the Town over water runoff from Maynard Road which plaintiff claims has caused serious damage to his home.

On July 31, 2009, frustrated with what plaintiff considered an inadequate resolution of the problem, plaintiff painted a protest sign on the front of his house. On a background of white siding, in large fluorescent orange and pink letters, the simple sign reads: “Screwed by the Town of Cary.” 1 The Town then attempted to enforce against plaintiff the provisions of Chapter 9 of the Town's Land Development Ordinance (“LDO”), which regulates the display of signs within the Town (“sign ordinance”). Plaintiff initiated this action in response, claiming that the Town violated his First Amendment rights.

The parties have expended many pages detailing the underlying feud between plaintiff and the Town which led to plaintiff's protest sign. The dispute underlying this action is not relevant to the constitutional question now presenting itself before the court. A recitation of the undisputed facts surrounding the underlying dispute is set forth, however, to place the immediate controversy in context and illuminate plaintiff's motive in choosing to erect his sign.

Between 2006 and 2008, the Town conducted a road improvement project which involved widening Maynard Road and raising the roadbed by several feet where Maynard Road passes in front of plaintiff's house. Beginning in late 2008 or early 2009, plaintiff submitted several complaints to the Town about flooding in his house which he attributed to rainwater running from the improved road onto his property. Over the next several months, the Town attempted several solutions, including constructing a new driveway for plaintiff and building a retaining wall on plaintiff's property, however the flooding of plaintiff's house continued.

In June 2009, the Town offered to construct a trench drain outlet pipe to redirect the water away from plaintiff's property. Plaintiff rejected the offer, instead demanding that the Town purchase his house for $250,000.00, an amount which reflected its tax value plus an additional $80,000.00. Plaintiff warned that if the Town did not purchase plaintiff's house for that amount, he would paint a sign on his house that said “Screwed by the Town of Cary.”

The Town did not comply with plaintiff's demand, and on July 31, 2009, plaintiff hired a sign painter to paint the protest sign on the front of his house. The sign reads as plaintiff warned it would. “Screwed by the Town of Cary appears in fluorescent orange and pink paint. The sign has two rows of letters that range in size from fourteen (14) to twenty-one (21) inches in height. The bottom row is approximately fifteen (15) feet in length, and the sign in its entirety occupies approximately forty-eight (48) square feet of the front exterior surface of the house which faces Maynard Road. On the same day that the sign was painted on plaintiff's house, representatives of the Town hand-delivered to plaintiff at his residence a “Notice of Zoning Violation” (July 2009 Notice”), informing plaintiff that his protest sign was in violation of the sign ordinance.

The sign ordinance is contained within the Town's Land Development Ordinance (“LDO”) which governs all aspects of land development and control in the Town. The LDO is organized into twelve chapters, including Chapter 1 (general provisions), Chapter 9 (signs), Chapter 11 (enforcement), and Chapter 12 (rules of construction, use classifications, and definitions). The term “sign ordinance” refers to Chapter 9 of the LDO. The sign ordinance is intended to further such goals as “to maintain and enhance the pleasing look of the Town,” “to preserve Cary as a community that is attractive to business,” “to improve pedestrian and traffic safety,” and “to minimize the possible effects of signs on nearby public and private property.” LDO § 9.1.1. Emphasizing the ordinance's concern with aesthetic values, Section 9.1.1 further states that “a major purpose of this chapter is to ensure that signs in the community are compatible with the high quality image that the Town seeks and in which the Town continuously invests.”

The court notes here that the sign ordinance was amended on February 25, 2010, therefore the current version of the sign ordinance differs in some respects from the version in effect in 2009 when plaintiff painted his protest sign and filed his lawsuit. But for the most part, it is largely the same ordinance and unless otherwise specified, “sign ordinance” shall hereinafter refer to the current version of the ordinance, as amended February 25, 2010.

The sign ordinance provides that every sign within the town must conform to the requirements of the sign ordinance. LDO § 9.1.2. “Sign” is defined quite broadly to include “any device, fixture, placard or structure, that uses any color, form, graphic, illumination, symbol, or writing to advertise, attract attention, announce the purpose of, or identify the purpose of a person or entity, or communicate information of any kind to the public.” LDO § 12.4. Section 9.3.2 then sets forth the specific restrictions which apply to each of twenty-six (26) different types of signs.

Section 9.3.2(S) governs “residential signs,” which are defined as “any sign located in a district zoned for residential uses that contains no commercial message.” LDO § 12.4. Under the ordinance, residential signs are permitted only on the following conditions:

(1) Such signs shall not exceed five square feet per side in area and 42 inches in height;

(2) There shall not be more than two residential signs on any site containing only a single dwelling unit;

(3) Such signs shall not be posted in public rights-of-way or on any private common area;

(4) Such signs shall carry no commercial message other than information on the lease or sale of the premises on which the sign is displayed;

(5) Such signs shall not advertise or identify the conduct of a permitted home occupation in a residential district; and

(6) Political signs on residential property are permitted in addition to permitted residential signs.

LDO § 9.3.2(S).

Additionally, under Section 9.3.2(X)(2), each single-family residential property is allowed to display one “wall sign” provided that it does not exceed two square feet in area, is not separately illuminated, and does not contain any commercial message. “Wall sign” as contemplated by the ordinance is “any sign painted on or attached to and extending not more than six inches from an exterior wall in a parallel manner.” LDO § 12.4.

The restrictions of the sign ordinance are suspended in some instances by exemptions. The former version of the sign ordinance exempted the following categories of signs from all regulation under the sign ordinance:

(A) Any official or public notice or warning required by a valid and applicable federal, state or local law, regulation or chapter, by a public utility company or by order of a...

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2 cases
  • Neighborhood Enterprises Inc. v. City of St. Louis
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • August 18, 2011
    ...... Bowden v. Town of Cary, 754 F.Supp.2d 794, 801 (E.D.N.C.2010). B. Free Speech         Sanctuary ......
  • Neighborhood Enter. Inc. v. City of St. Louis
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • July 13, 2011
    ...that the alleged sign fits no content exemption under §§ 26.68.020(17)(a)-(e), 26.68.030, or 26.68.050. Bowden v. Town of Cary, 754 F. Supp. 2d 794, 801 (E.D.N.C. 2010).B. Free Speech Sanctuary asserts that the zoning code's sign regulations impermissibly burden free speech. According to Sa......

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