Conteers LLC v. City of Akron, CASE NO. 5:20-CV-00542

CourtUnited States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
Writing for the CourtJUDGE PAMELA A. BARKER
Decision Date15 September 2020
PartiesCONTEERS LLC, Plaintiff, v. CITY OF AKRON, SUMMIT COUNTY, OHIO, et al., Defendants.
Docket NumberCASE NO. 5:20-CV-00542

CONTEERS LLC, Plaintiff,

CASE NO. 5:20-CV-00542


September 15, 2020



This matter comes before the Court upon the Motion for Preliminary Injunction of Plaintiff Conteers LLC ("Conteers") filed on March 17, 2020. (Doc. No. 5.) Defendants City of Akron, Summit County, Ohio (the "City") and Akron City Council (the "City Council") (collectively, "Defendants") filed a brief in opposition to Conteers' Motion for Preliminary Injunction on May 4, 2020, to which Conteers replied on June 25, 2020. (Doc. Nos. 12, 23.)

Also, currently pending is Defendants' Motion for Judgment on the Pleadings filed on May 12, 2020. (Doc. No. 14.) Conteers filed a brief in opposition to Defendants' Motion for Judgment on the Pleadings on June 25, 2020, to which Defendants replied on July 20, 2020. (Doc. Nos. 24, 26.)

For the following reasons, Defendants' Motion for Judgment on the Pleadings (Doc. No. 14) is DENIED, and Conteers' Motion for Preliminary Injunction (Doc. No. 5) is GRANTED IN PART and DENIED IN PART.

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I. Background

a. Factual Background

Conteers is in the business of buying or leasing land upon which to construct, maintain, and operate billboards. (Doc. No. 1 at ¶ 9; Doc. No. 5-2 at ¶ 3.)1 Conteers leased property located at 475 East North Street, Akron, Ohio with the intention of erecting a billboard on the property. (Doc. No. 1 at ¶¶ 10-13; Doc. No. 5-2 at ¶¶ 4-7.) The intended location of the billboard is on a surface street—North Street—adjacent to State Road 8. (Doc. No. 1 at ¶ 14; Doc. No. 5-2 at ¶ 8.) State Road 8 crosses North Street via an approximately 150-foot tall bridge over North Street. (Doc. No. 1 at ¶ 15; Doc. No. 5-2 at ¶ 9.) Because of the difference in elevation between the leased property and the bridge above, Conteers sought to erect a 202-foot tall billboard so that passengers in vehicles on State Road 8 could see it. (Doc. No. 1 at ¶ 34; Doc. No. 5-2 at ¶ 10.) The intended billboard would be a double-faced digital billboard, with the face made primarily of steel. (Doc. No. 1 at ¶¶ 34-36; Doc. No. 5-2 at ¶¶ 24-26.)

On July 24, 2019, Conteers obtained a permit for its billboard from the Ohio Department of Transportation. (Doc. No. 1 at ¶ 16; Doc. No. 5-2 at ¶ 12.)

Shortly thereafter, on August 2, 2019, Conteers submitted an application to the City for a sign permit for its intended billboard. (Doc. No. 1 at ¶ 32; Doc. No. 5-2 at ¶ 23.) Chapter 153 of the City's Code of Ordinances, which is entitled "Zoning Code," regulates the placement of outdoor advertising displays, which includes billboards. See Akron Code of Ordinances ("A.C.O.") § 153.140. Pursuant to the Zoning Code, a billboard may be permitted as a conditional use. A.C.O. §

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153.464(Y). The City Council has the ultimate authority to grant or deny a conditional use for a billboard, and there is no requirement that its decision be made within any specified time. See A.C.O. §§ 153.488, 153.476(D). However, applicants may appeal the City Council's decision to the Summit County Court of Common Pleas. A.C.O. § 153.498.

Article 9 of the Zoning Code lays out the specific requirements for billboards. Article 9 contains only one section—Section 153.385. Thus, the Court will refer to Article 9 and Section 153.385 interchangeably. As relevant here, Section 153.385(A) sets forth the "[d]evelopment requirements for outdoor advertising displays permitted as a conditional use," including certain size, height, and set-back requirements. A.C.O. § 153.385(A). With respect to height limits, Section 153.385(A)(6) provides that "[n]o ground bulletin whose supports and braces are of steel or other approved noncombustible material, and whose face is of noncombustible construction FRTW wood as approved by the Superintendent of Building Inspection and Regulation shall exceed the height district as found in this code or of a maximum height of fifty feet, whichever is less." A.C.O. § 153.385(A)(6).

Section 153.385(F) of Article 9 also incorporates the general standards applicable to all conditional uses set forth in Section 153.474 of Article 14 of the Zoning Code. A.C.O. § 153.385(F) ("The outdoor advertising display must conform to the requirements of Section 153.474."). Article 14 governs the approval of conditional uses generally. Section 153.474 provides:

The planning staff, the City Planning Commission, and Council, when studying a petition for a conditional use, shall review the particular facts and circumstances of each proposed use in terms of the following standards, and if taking favorable action on the proposal, shall find adequate evidence that the use:

A. Will be harmonious with and in accordance with the general objectives of the City's Comprehensive Plan;

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B. Will be designed, constructed, operated, and maintained so as to be harmonious and appropriate in appearance with the existing or intended character of the general vicinity and will not change the essential character of the same area;

C. Will not be hazardous or disturbing to existing or future neighboring uses;

D. Will be served adequately by essential public facilities such as highways, streets, police and fire protection, drainage structures, refuse disposal, water and sewers and schools; or that the person or agency responsible for the establishment of the proposed use shall be able to provide adequately any such services;

E. Will not create excessive additional requirements at public cost for public facilities and services, and will not be detrimental to the economic welfare of the community,

F. Will not involve uses, activities, processes, materials, equipment, and conditions of operation that will be detrimental to any person or property or the general welfare by reason of excessive production of traffic, noise, smoke, fumes, glare, or odors;

G. Will have vehicular approaches to the property which shall be so designed as not to create an interference with traffic on surrounding public streets or roads;

H. Will not result in the destruction, loss, or damage of a natural, scenic, or historic feature of major importance.

A.C.O. § 153.474.

If these criteria are met, the City Council may also permit a billboard to vary from the specific size, height, and set-back requirements set forth in Article 9. See A.C.O. § 153.385(F) ("Council may except or increase any of the provisions in this chapter consistent with the provisions of Section 153.474."). For example, the City Council has allowed at least three billboards within the City that are over fifty feet tall. (Doc. No. 1 at ¶ 68; Doc. No. 5-2 at ¶¶ 43-46.)

In addition to the general standards set forth in Section 153.474 that apply to all conditional uses, Article 14 also contains requirements specific to certain types of conditional uses. See A.C.O.

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§ 153.476. Article 14 also provides, with regard to its overall intent, that "[i]t is recognized that an increasing number of new kinds of uses are appearing daily, and that many of these and other more conventional uses possess characteristics of such unique and special nature relative to the location, design, size, method of operation, traffic circulation, and need for public facilities that each specific use must be considered individually." A.C.O. § 153.462.

Before Conteers' application for a permit for its billboard reached the City Council for a final decision based on the standards described above, it underwent several reviews by other commissions. First, the Urban Design and Historic Preservation Commission ("UDHPC") conducted an independent aesthetic review. (Doc. No. 1 at ¶¶ 39-40; Doc. No. 5-2 at ¶ 27.) UDHPC "acts[s] in an advisory capacity to the City government in connection with historic preservation of the City." See A.C.O. §§ 31.391-93. On November 5, 2019, about three months after Conteers first submitted its application, UDHPC recommended denying the application because the billboard was "not suitable" for the location. (Doc. No. 1 at ¶¶ 59-60; Doc. No. 5-2 at ¶ 36; Doc. No. 5-3 at 2.) UDHPC noted that the adjacent State Road 8 bridge was being completely replaced and that "great attention" had been given to creating an "attractive design" for that bridge. (Doc. No. 1 at ¶ 61; Doc. No. 5-3 at 2.) UDHPC believed that, due to the height of the billboard, it would "appear out of place, both adjacent to the bridge and overlooking the forested Little Cuyahoga River valley below." (Doc. No. 1 at ¶ 62; Doc. No. 5-3 at 2.) The City's Planning Department then issued a report and recommendation that also recommended the denial of Conteers' permit application for similar reasons. (Doc. No. 1 at ¶¶ 63-64; Doc. No. 5-4 at 2-3.) Subsequently, on November 15, 2019, the City's Planning Commission met and voted to deny the permit application as well. (Doc. No. 1 at ¶ 65; Doc. No. 5-4 at 4.)

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Finally, on February 10, 2020, the City Council met and voted to deny Conteers' application. (Doc. No. 1 at ¶ 66; Doc. No. 5-2 at ¶¶ 40-41; Doc. No. 14-5 at ¶ 3.) The City Council noted two reasons for denying Conteers' permit application: (1) the height of the proposed billboard was over fifty feet, and (2) the "aesthetics" of the billboard. (Doc. No. 1 at ¶ 67; Doc. No. 5-2 at ¶ 42.)

b. Procedural History

On March 11, 2020, Conteers filed a Complaint against Defendants in this Court, setting forth three causes of action. (Doc. No. 1.) In its first cause of action, Conteers alleges that the City's Code of Ordinances violates the First and Fourteenth Amendments of the United States Constitution, as well as the Ohio Constitution, because it contains unconstitutional prior restraints on speech since it lacks certain procedural safeguards and provides Defendants unbridled discretion with respect to permitting decisions. (Id. at ¶¶ 74-87.) In its second cause of action, Conteers alleges that Defendants...

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