Citizens for Free Speech, LLC v. Cnty. of Alameda, C14–02513 CRB

• Citation: 114 F.Supp.3d 952
• Decision Date: 16 July 2015
• Docket Number: No. C14–02513 CRB,C14–02513 CRB
• Parties: Citizens for Free Speech, LLC, et al., Plaintiffs, v. County of Alameda, Defendant.
• Court: U.S. District Court — Northern District of California

114 F.Supp.3d 952

Citizens for Free Speech, LLC, et al., Plaintiffs,

v.County of Alameda, Defendant.

No. C14–02513 CRB

United States District Court, N.D. California.

Signed July 16, 2015

Joshua Reuben Furman, Joshua R. Furman Law Corporation, Sherman Oaks, CA, for Plaintiffs.

Gregory J. Rockwell, Boornazian Jensen & Garthe a Professional Corporation, Oakland, CA, for Defendant.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

CHARLES R. BREYER, UNITED STATES DISTRICT JUDGE

Plaintiffs Citizens for Free Speech, LLC ("Citizens") and Michael Shaw ("Shaw") (collectively, "Plaintiffs") brought suit against Defendant County of Alameda (the "County"), alleging that the County's regulation of billboards and advertising signs is unconstitutional.¹ See generally Compl.

Plaintiffs previously obtained a preliminary injunction in this case to prevent the County from enforcing Title 17 of the Alameda County General Ordinance Code (the "Zoning Ordinance") against Plaintiffs. See Citizens for Free Speech, LLC v. Cnty. of Alameda, 62 F.Supp.3d 1129 (N.D.Cal.2014).

The County now moves for summary judgment on several grounds, arguing that Plaintiffs' as-applied and facial challenges to the Zoning Ordinance both fail.² See Mot. at 2. For the reasons discussed below, the Court GRANTS summary judgment as to Plaintiffs' free speech claims, to the extent that those claims are based on: (1) an as-applied challenge; (2) a facial challenge as to the unfettered discretion granted by Zoning Ordinance §§ 17.52.520(Q), 17.52.520(D),³ and 17.54.130; and (3) a facial challenge as to Section 17.52.515's purported regulation of speech based on its content. The Court DENIES the motion as to Plaintiffs' facial challenge to Zoning Ordinance § 17.18.130 and as to Plaintiffs' equal protection claims.⁴

I. BACKGROUND

The Zoning Ordinance divides the County's unincorporated territory into twenty-five different types of district, within which only certain buildings, structures, or land uses are permitted. Zoning Ordinance § 17.02.050. Shaw owns a parcel of land located at 8555 Dublin Canyon Road (the "Parcel") in the County. Shaw Decl. (dkt. 65–1) ¶ 2. The Parcel is located in an area zoned as a Planned Development ("PD") district. Id. Since January 2012, Shaw has maintained a single on-site sign that advertises for his company, Lockaway Storage. Id. ¶¶ 3–4.

Shaw and Citizens entered into an agreement with each other that provides for the construction and display of three additional signs (the "Signs") on the Parcel. Herson Decl. (dkt. 64–2) ¶¶ 2–3. They agreed to share in the proceeds earned from displaying the Signs. Shaw Decl. ¶ 7; Herson Decl. ¶ 2. The Signs currently consist entirely of non-commercial messages, but Plaintiffs claim that the Signs will contain commercial messages in the future. Herson Decl. ¶ 3, Ex. E; Compl ¶ 12.

A County official visited the Parcel on June 9, 2014 to inform Shaw that the Signs were prohibited. Shaw Decl. ¶ 4. On June 10, 2014, the County mailed Shaw a "Declaration of Public Nuisance—Notice to Abate," claiming that the Signs violated Zoning Ordinance §§ 17.18.010 and 17.18.120. Id. ¶¶ 5–6, Ex. C. The Notice to Abate instructed Shaw to remove the Signs or face an abatement proceeding and an escalating schedule of fines. Id. Ex. C.Plaintiffs sued and moved for a temporary restraining order against the County to stop the abatement proceedings and impending fines. Pls.' Mot. for Temp. Restraining Order (dkt. 11). The Court subsequently granted Plaintiffs a preliminary injunction, finding that they were likely to succeed on the merits of their arguments that the Zoning Ordinance was facially invalid because it (1) gave County officials unfettered discretion to make certain determinations regarding signs and (2) failed to ensure that those decisions would be made in a timely manner. See Citizens for Free Speech, 62 F.Supp.3d at 1140–42. Following discovery, the County now moves for summary judgment.

II. LEGAL STANDARD

Summary judgment is proper when the pleadings, depositions, answers to interrogatories, affidavits or declarations, or other materials show that there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(a), (c)(1)(A). This occurs where either the materials cited do not establish the absence or presence of a genuine dispute, or the nonmoving party cannot produce admissible evidence to support a fact. Id. 56(c)(1)(B). An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable fact finder could find for the nonmoving party, and a dispute is "material" only if it could affect the outcome of the suit under governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A principal purpose of the summary judgment procedure "is to isolate and dispose of factually unsupported claims ...." Celotex Corp. v. Catrett, 477 U.S. 317, 323–24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal quotations omitted).

A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548. If the moving party satisfies its initial burden, the nonmoving party cannot defeat summary judgment merely by demonstrating "that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. 1348 ; see also Anderson, 477 U.S. at 252, 106 S.Ct. 2505 ("The mere existence of a scintilla of evidence in support of the [nonmoving party]'s position will be insufficient...."). Rather, the nonmoving party must go "beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing there is a genuine issue for trial." Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (internal quotations omitted).

III. DISCUSSION

The County argues that summary judgment is warranted as to Plaintiffs' free speech claims for two reasons. First, the County contends that Plaintiffs' as-applied challenge fails because Plaintiffs cannot identify any Zoning Ordinance provision that was improperly applied to them. See Memo. (dkt. 59) at 6–11. Second, the County asserts that Plaintiffs' facial challenge fails because (1) the Zoning Ordinance does not give County officials unfettered discretion to make permitting decisions, and (2) Section 17.52.515 is a content-neutral speech restriction that passes intermediate scrutiny. See id. at 12–21; Reply (dkt. 66) at 10–12. The County also reasons that Plaintiffs' equal protection claims fail because the evidence does not indicate that Plaintiffs were treated differently than any similarly-situated parties. See Reply at 12–13. The Court addresses these arguments in order below.

A. Free Speech Claims

1. Plaintiffs' As–Applied Challenge

The County makes two arguments in support of summary judgment on Plaintiffs' as-applied challenge. First, it argues persuasively that the Zoning Ordinance provisions under which the County required Plaintiffs to remove their Signs do not even implicate Plaintiffs' constitutional rights to free speech, since those provisions only examine whether a particular use of land in a PD district conforms with the specific land use and development plan for the land on which the use occurs. See Memo. at 6–7. Second, the County argues unpersuasively that Plaintiffs' intention to display commercial messages on the Signs in the future would have allowed the County to properly regulate that speech under Zoning Ordinance § 17.52.515. Id. at 7–11.⁵

"An as-applied challenge contends that the law is unconstitutional as applied to the litigant's particular speech activity, even though the law may be capable of valid application to others." Foti v. City of Menlo Park, 146 F.3d 629, 635 (9th Cir.1998). Such challenge "does not implicate the enforcement of the law against third parties," but instead "argue[s] that discriminatory enforcement of a speech restriction amounts to viewpoint discrimination in violation of the First Amendment." Id. For that reason, a successful as-applied challenge "does not render the law itself invalid but only the particular application of the law." Id.

The County asserts that the Zoning Ordinance is constitutional as applied to Plaintiffs, since the County sought to remove the Signs "without regard to any issue of content ...." Id. at 6. The parties do not dispute that the Notice to Abate stated that the County's basis for enforcing the Zoning Ordinance as to the Signs was Plaintiffs' violation of Zoning Ordinance §§ 17.18.010⁶ and 17.18.120. Id. ; Shaw Decl., Ex. C. Section 17.18.120 provides that "[a]ny use of land within the boundaries of a [PD] district adopted in accordance with the provisions of this chapter shall conform to the approved land use and development plan." Zoning Ordinance § 17.18.120.

The Parcel was originally rezoned into a PD district in 1989, and an accompanying land use and development plan (the "Plan") was also adopted at that time. See Def.'s Request for Judicial Notice (dkt. 60) ("Def.'s Second RJN"), Ex. A (dkt. 60–1) at 1. The signage that could be built on the Parcel was limited to "one non-electrical unlighted sign with maximum dimensions of two feet by twenty-four feet," and was required to "be approved through Zoning approval." Id. The Parcel's owner obtained a conditional use permit ("CUP") for uses of the Parcel in 1990, 1994, 1997, 1999, 2005, 2011, and 2012, but none of those CUPs provided for the construction of additional signage on the Parcel. See id. Exs. B–P (dkts. 60–2 to 60–14). Plaintiffs do not argue that the...