Citizens for Free Speech, LLC v. Cnty. of Alameda

• Decision Date: 05 August 2014
• Docket Number: No. C14–02513 CRB,C14–02513 CRB
• Citation: 62 F.Supp.3d 1129
• Court: U.S. District Court — Northern District of California
• Parties: Citizens for Free Speech, LLC, et al., Plaintiffs, v. County of Alameda, Defendant.

62 F.Supp.3d 1129

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 August 5, 2014

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 MOTION FOR PRELIMINARY INJUNCTION

CHARLES R. BREYER, UNITED STATES DISTRICT JUDGE

Plaintiffs brought suit against the County of Alameda (“County”), alleging that the County's regulation of billboards and advertising signs is unconstitutional. See generally Compl. (dkt. 1). Plaintiffs now move for a preliminary injunction, claiming that the County's comprehensive zoning law, codified as Title 17 of the Alameda County General Ordinance Code (the “Zoning Ordinance”), violates their First Amendment rights and is facially invalid. See Mot. (dkt. 11) at 2 (“the Code is facially unconstitutional”).¹ As explained below, the Court will GRANT the Motion for Preliminary Injunction.

I. BACKGROUND

The Zoning Ordinance zones 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 § 17.02.050.² Michael Shaw owns a parcel of land located at 8555 Dublin Canyon Road (the “Parcel”) in the County. Shaw Decl. (dkt. 11–3) ¶ 2. The Parcel is located in an area zoned as a Planned Development (“PD”) district. Id.

Shaw also owns Lockaway Storage, a self-storage business that currently operates on the Parcel. Shaw Decl. ¶ 4. Lockaway Storage operates pursuant to a Conditional Use Permit (“CUP”) that authorizes the business to operate in a PD district. Id. ¶ 2; Mot. Ex. A (dkt. 11–5). The County issued the CUP in January 2012, and since then Shaw has maintained a single on-site sign that advertises for Lockaway Storage. Shaw Decl. ¶ 3, Mot. Ex. A.

Shaw and Citizens for Free Speech, LLC (collectively “Plaintiffs”) entered into an agreement that provides for the construction and display of three additional signs (the “Signs”) on the Parcel. Herson Decl. (dkt. 11–4) ¶ 2. They agreed to share in the proceeds earned from displaying the Signs. Id. ; Shaw Decl. ¶ 7. The Signs, now constructed, feature entirely noncommercial messages that “challenge the political ideology espoused by County officials,” but will contain commercial messages in the future. Herson Decl. ¶ 3; Mot. Ex. E (dkt. 11–9); Compl ¶ 12.

According to Shaw, a County official visited the Parcel on June 9, 2014 to inform him that the Signs were prohibited within an SC district.³ 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 sections 17.18.010 and 17.18.120.⁴ Id. ¶¶ 5, 6; Mot. Exs. C, D (dkt. 11–7, 11–8). Section 17.18.010 states that PD districts are:

established to encourage the arrangement of a compatible variety of uses on suitable lands in such a manner that the resulting development will:

A. Be in accord with the policies of the general plan of the county;

B. Provide efficient use of land that includes preservation of open areas and natural and topographic landscape features with minimum alteration of natural land forms;

C. Provide an environment that will encourage the use of common open areas for neighborhood or community activities and other amenities;

D. Be compatible with and enhance the development of the general area;

E. Create an attractive, efficient and safe environment.

Zoning Ordinance § 17.18.010. Section 17.18.120 states that “[a]ny land use 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.” Id. § 17.18.120. The Notice to Abate stated that the “specific violation is unlawful signs (billboards),” but did not explain how sections 17.18.010 or 17.18.120 apply to the Signs on the Parcel or signs in general. See Mot. Ex. C. The Notice to Abate instructed Shaw to remove the signs or face an abatement proceeding and an escalating schedule of fines. Id.

Plaintiffs sued and moved for a temporary restraining order against the County. See generally Mot. The parties then stipulated to treat the application for a temporary restraining order as a motion for preliminary injunction. See Stipulation (dkt. 17). The County waived any bond requirement. Id. at 2.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 65 governs the issuance of preliminary injunctions. To obtain a preliminary injunction, a plaintiff “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). “A preliminary injunction is an extraordinary remedy never awarded as of right. In each case, courts must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief. In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.” Id. at 24, 129 S.Ct. 365 (internal citations omitted). The Ninth Circuit has adopted a sliding scale approach to preliminary injunctions in which “the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir.2011).

There are two types of facial constitutional challenges. “First, a plaintiff seeking to vindicate his own constitutional rights may argue that an ordinance ‘is unconstitutionally vague or ... impermissibly restricts a protected activity.’ ” Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1033 (9th Cir.2006) (quoting Foti v. City of Menlo Park, 146 F.3d 629, 635 (9th Cir.1998) ). “Second, ‘an individual whose own speech or expressive conduct may validly be prohibited or sanctioned is permitted to challenge a statute on its face because it also threatens others not before the court.’ ” Id. at 1033 (quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985) ).

III. DISCUSSION

A. Plaintiffs Have Standing to Challenge the Zoning Ordinance

As a preliminary matter, although Plaintiffs do not challenge the constitutionality of the provisions cited in the Notice to Abate, the Court finds that they have standing to challenge the Zoning Ordinance's other provisions. “As a general rule, a litigant has standing only to vindicate his own constitutional rights. The Supreme Court, however, has recognized ‘an exception to this general rule for laws that are written so broadly that they may inhibit the constitutionally protected speech of third parties.’ ” S.O.C., Inc. v. Cnty. of Clark, 152 F.3d 1136, 1142 (9th Cir.1998) (citations omitted).

In the First Amendment context, “the general rule [of only allowing litigants to vindicate their own rights] is disregarded because of the possibility that protected speech ... may be inhibited by the overly broad reach of [a regulation.]” Id. at 1142–43 (internal quotations omitted). Here, Plaintiffs' arguments are best characterized as “overbreadth” challenges. See S.O.C., 152 F.3d at 1144 (ordinance that improperly restricts fully protected noncommercial speech is overbroad); U.S. v. Linick, 195 F.3d 538, 542 (9th Cir.1999) (regulations that vest officials with unbridled discretion to deny expressive activity are overbroad on their face). Thus, under the Supreme Court's “overbreadth” doctrine, Plaintiffs may challenge the other provisions of the Zoning Ordinance by “showing that [those provisions] may inhibit the First Amendment rights of individuals who are not before the court.” See 4805 Convoy, Inc. v. City of San Diego, 183 F.3d 1108, 1112 (9th Cir.1999).

B. Likelihood of Success on the Merits

An “overbreadth” challenge to a local ordinance must show that the ordinance “seeks to prohibit such a broad range of protected conduct that it is unconstitutionally overbroad.” S.O.C., 152 F.3d at 1142 (internal quotations omitted). Plaintiffs argue that the Zoning Ordinance is overbroad and facially unconstitutional because it (1) regulates billboards and advertising signs without identifying a substantial governmental purpose; (2) regulates speech based on its content by allowing some commercial speech while disallowing all noncommercial speech;⁵ and (3) gives certain County officials the power to regulate speech based on content by giving them unfettered discretion to allow variances or to permit signs with certain types of content.⁶ Mot. at 3. As explained below, Plaintiffs are only likely to succeed on the merits of their third argument.

1. The Zoning Ordinance States Substantial Government Interests for the County's Restrictions on Commercial Speech

Plaintiffs first contend that “the [Zoning Ordinance] is unconstitutional because it does not contain a stated purpose for speech restrictions.” Mot. at 5. To determine the constitutionality of restrictions on commercial speech, courts apply a three-part test. An ordinance that restricts commercial speech that is not misleading and concerns lawful activity must: (1) seek to implement a substantial governmental interest; (2) directly advance that interest; and (3) reach no further than necessary to accomplish the given objective. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n. of New York, 447 U.S. 557, 563–66, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980) ; Desert Outdoor Advertising, Inc. v. City of Moreno Valley, 103 F.3d 814, 819 (9th Cir.1996).

Although Plaintiffs concede that aesthetics and safety are substantial government interests, they...