Crown Media, LLC v. Gwinnett County, Ga, No. 03-13707.
| Decision Date | 12 August 2004 |
| Docket Number | No. 03-13707. |
| Citation | 380 F.3d 1317 |
| Parties | CROWN MEDIA, LLC, Plaintiff-Counter-Defendant-Appellant, v. GWINNETT COUNTY, GA, Defendant-Counter-Claimant-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
David H. Flint, Mark W. Forsling, Schreeder, Wheeler & Flint, Atlanta, GA, for Crown Media, LLC.
Bret T. Thrasher, John Patrick O'Brien, Thompson, O'Brien, Kemp & Nasuti, P.C., Norcross, GA, Karen Gilpin Thomas, Gwinnett County Dept. of Law, Lawrenceville, GA, for Gwinnett County, GA. Appeal from the United States District Court for the Northern District of Georgia.
Before EDMONDSON, Chief Judge, HULL, Circuit Judge, and BUCKLEW*, District Judge.
In this sign ordinance case, Plaintiff Crown Media appeals the district court's order declaring that its constitutional challenges to Defendant Gwinnett County's now repealed 1990 and 1999 sign ordinances are moot. This case involves a sign that Gwinnett County approved but now seeks to have removed. Crown Media sued to enjoin Gwinnett County from requiring it to take down its sign. After oral argument and review, we conclude that Crown Media's complaint is not moot. Thus, we reverse and remand this case to the district court.
In this case, Crown Media challenges the constitutionality of Gwinnett County's now repealed 1990 and 1999 sign ordinances. The constitutionality of the current sign ordinance, enacted on August 28, 2001, is not involved in this case. Instead, Gwinnett County contends, and the district court concluded, that the enactment of the 2001 ordinance caused Crown Media's constitutional challenges to the repealed 1990 and 1999 ordinances to become moot.1 To answer this mootness issue, we first review the events surrounding Crown Media's permits and erection of its sign.
On September 11, 1998, Crown Media applied to Gwinnett County for a sign permit and a building permit for the construction of a sign on a 3.3 acre tract located at 4431 Peachtree Industrial Boulevard, zoned "M-1" for light industrial. Gwinnett County issued Crown Media both a sign permit and a building permit on September 17, 1998.2
At the time of Crown Media's application, Gwinnett County's ordinance (the "1990 ordinance") required this type of sign to be: (1) at least 300 feet from a residential zoning district and school, (2) at least seventy-five feet from a right-of-way, and (3) no more than forty feet in height. The dimensions in Crown Media's plans submitted with its sign application complied with the 1990 ordinance. Thus, Crown Media applied for a sign and building permit to erect a sign whose dimensions complied with the 1990 ordinance.
After obtaining permits, Crown Media paid $100,000 to PBJ Development Company ("PBJ") for the right to erect and maintain a sign on PBJ's property. Crown Media paid $32,515 to an independent contractor who completed the sign in March 1999. The contractor, however, did not erect the sign in exact compliance with Crown Media's plans. Specifically, the sign, as built, is: (1) seventeen and one-half feet closer than the approved placement to a residential zoning district of 300 feet; (2) closer than seventy-five feet to the nearest right-of-way; and (3) seven feet in excess of the approved height of forty feet.3 Notwithstanding the sign's non-adherence to the 1990 ordinance, the issued permits, and the plans on which the permits were based, Gwinnett County allowed and approved the sign through the required inspections, and Gwinnett County issued a certificate of occupancy and a certificate of completion of the sign on May 13, 1999. Crown Media then placed advertising on its sign.
After Gwinnett County issued the 1998 permits and 1999 certificates, Gwinnett County amended its sign ordinance on June 29, 1999 (the "1999 ordinance"). The required setback from the right-of-way and the height limitation remained the same in the 1990 and 1999 ordinances. The 1999 ordinance, however, increased the required setback distance for billboards from a residential zoning district, school, or daycare center from 300 feet to 500 feet.
The 1999 ordinance also changed an aspect of the permit process for billboards within the "M-1" zoning districts. The 1990 ordinance had provided that billboards may be permitted as "an allowed use" within the "M-1" districts. Gwinnett County, Ga., Ordinances art. XI, § 1113.1(1) (1990).4 The 1999 ordinance, however, provided that "[b]illboards may be permitted ... by special use permit within the M-1 district." Gwinnett County, Ga., Ordinances art. XI, § 1113.1(1) (1999).
Crown Media did not receive any complaints about its sign during the initial ten months after its May 13, 1999, completion. On March 15, 2000, however, Phyllis Humrich, the Gwinnett County Zoning Compliance Manager, sent Crown Media a letter alleging that "several violations exist concerning the installation, placement, and lighting of the billboard."5 Although written in 2000, Humrich's letter specifically noted that the sign violated the forty-foot height limitation, the 300 foot setback requirement, and the illumination regulations: all requirements of the 1990 ordinance in effect when the 1998 permits issued.6 Thus, Gwinnett County originally faulted Crown Media for not complying with the 1990 ordinance. Prior to receipt of Humrich's March 15, 2000, letter, Crown Media believed that the contractor constructed its sign in accordance with its plans, which complied with the 1990 ordinance.
A meeting about the alleged violations occurred on May 19, 2000. Humrich informed Crown Media that the sign's height should be reduced to forty feet and its head should be cantilevered or rotated so that all portions of the sign would be located at a minimum of 300 feet from any residential zoning district.7 According to Crown Media, Humrich further advised that these changes could be made under the existing sign and building permits issued in 1998, and requested evidence that the sign could be safely altered to cause it to be located at a minimum of 300 feet from a residential subdivision. Crown Media assured Humrich that it would comply with her requests.
Crown Media then gave Gwinnett County a June 12, 2000, letter from the sign builder stating (1) that the sign could be moved to conform with Gwinnett County's requirements, and (2) that such construction could be completed in approximately three months.
In response to the June 12, 2000, letter, Humrich sent Crown Media a July 6, 2000, notice stating that its sign violated Gwinnett County's sign ordinance and must be removed within thirty days to avoid further legal action. The notice stated that "the sign structure is in violation of the Gwinnett County Zoning Resolution Section 1113.1 and must be removed." The notice did not specifically state whether Gwinnett County relied on a violation of the 1990 or 1999 ordinance or both in determining that the billboard must be removed.8
After receiving Gwinnett County's July 6, 2000, notice, Crown Media appealed to the Gwinnett County Zoning Board of Appeals ("ZBA"). In that appeal, Crown Media claimed: (1) that Gwinnett County was impermissibly applying new zoning regulations enacted after the issuance of the permits and certificates of occupancy and completion; (2) that this was an illegal attempt to enforce a new law retroactively; (3) that the 1990 and 1999 ordinances were unconstitutional in any event; and (4) that Crown Media had a vested property right to maintain its sign. Crown Media asked the ZBA (1) to overturn the removal notice and (2) to order that Crown Media could complete construction of its sign in strict compliance with the 1990 ordinance in effect when its 1998 permits were issued.
The ZBA denied Crown Media's appeal on August 9, 2000.9 Crown Media appealed the ZBA's decision to the Superior Court of Gwinnett County in an action styled Crown Media, LLC v. Gwinnett County, Ga., No. 00-A-8227-4 (Ga. Sup.Ct. filed Sept. 6, 2000). In that action, Crown Media claims that the 1990 and 1999 ordinances are unconstitutional and void, and that it has vested property rights in its sign. On March 4, 2002, the Gwinnett County Superior Court stayed that action until this pending federal litigation concludes.
While the state court action was pending, Crown Media applied for a special use permit for its sign on August 21, 2001. The 1999 ordinance added this special use permit requirement for billboards in "M-1" zoning areas.10 Crown Media initially sought variances under the 1999 ordinance for its sign, but was told by county officials that it must first obtain a "special use permit" under the 1999 ordinance, and then apply for variances.11 On November 27, 2001, the Gwinnett County Board of Commissioners held a public hearing at which Crown Media requested a special use permit with the intent to relocate its sign to a conforming location under the 1990 ordinance, a plan similar to that discussed with Humrich. The Board denied Crown Media a special use permit.
On the Board's behalf, a Commissioner made these findings: (1) that there was no legitimate reason stated for the approval of the special use permit application; (2) that allowing Crown Media's sign to remain would set an adverse precedent under the 1999 ordinance; (3) that the sign does not meet the 500 foot minimum setback from a residential zoning district or daycare center; (4) that the sign does not meet the minimum separation from another billboard; (5) that the sign adversely affects the visual quality and traffic safety along the Peachtree Industrial corridor; (6) that the sign violates policy LI.2 of the comprehensive plan land use element for light industrial areas; and (7) that the sign creates light problems.
Having been denied a special use permit...
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