Fairway Outdoor Advert. v. City of High Point

• Decision Date: 28 December 2022
• Docket Number: 1:21-CV-00867
• Parties: FAIRWAY OUTDOOR ADVERTISING, LLC, Plaintiff, v. CITY OF HIGH POINT, Defendant.
• Court: U.S. District Court — Middle District of North Carolina

FAIRWAY OUTDOOR ADVERTISING, LLC, Plaintiff,
v.
CITY OF HIGH POINT, Defendant.

No. 1:21-CV-00867

United States District Court, M.D. North Carolina

December 28, 2022

MEMORANDUM OPINION AND ORDER

Catherine C. Eagles, District Judge.

After its applications for permits to install digital billboards were denied by the defendant City of High Point, the plaintiff Fairway Outdoor Advertising, LLC sued the City, contending that the zoning ordinance regulating outdoor signs is unconstitutional. Fairway alleges no facts to undermine the content-neutral and narrowly-tailored prohibition on billboards outside the heavy industrial district, and Fairway does not have a constitutional right to erect digital billboards wherever it wants. Fairway lacks standing to challenge other provisions of the ordinance. The Court declines to exercise supplemental jurisdiction over the related state law claims. The City's motion to dismiss will be granted.

I. Background

A. The 2017 Zoning Ordinance

The City regulates outdoor signs, including billboards, primarily through § 5.7 of the City's Development Ordinance. See Doc. 13-1 at 82-103. The ordinance regulates

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all outdoor signs, including on-site signage and off-site signage. On-site signs are signs that direct attention to something “existing on the same lot where the sign is displayed.” Id. at 121 (§ 10.4). Off-site signs direct attention to something “existing elsewhere than upon the lot where the sign is displayed.” Id. The definition of an off-site sign is the same as the definition for an outdoor advertising sign/billboard. Id.; Doc. 34 at ¶ 4.^[1]

Under the ordinance, some signs are prohibited outright, such as signs affixed to trees, rocks, and bus shelters. Doc. 13-1 at 85 (§ 5.7.6). Others are allowed in certain zoning districts if they meet certain standards, see id. at 83-84 (§§ 5.7.4-5.7.5), and a permit is obtained. Id. at 88-101 (§§ 5.7.9-5.7.11). Still others must meet certain standards, but no permit is required, such as warning signs and temporary real estate signs. Id. at 86-88 (§ 5.7.8). Finally, some signs are exempt from the requirements in the ordinance, such as government signs and certain flags. Id. at 85-86 (§ 5.7.7); see Doc. 34 at ¶ 7. Billboards did not qualify for an exemption. Doc. 34 at ¶ 7.

All outdoor advertising signs such as the billboards Fairway wants to install here require a permit, see Doc. 13-1 at 100-01 (§ 5.7.11), and new billboards are limited to the “heavy industrial” zoning district. Id. at 100 (§ 5.7.11(A)); id. at 70 (§ 3.4.12). Even within that district, billboards are prohibited if they are within a specified distance of a residential district, a religious institution, or other billboards. Id. at 101 (§ 5.7.11(E)). The ordinance allowed existing billboards not in compliance with these requirements to remain in place but prohibited replacement. Id. at 104 (§§ 8.5.4, 8.5.5(A)).

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The zoning ordinance allowed digital signage in some districts, but not in the heavy industrial district. Id. at 93 (§ 5.7.9(B)(3)(g)(1)(i), (iii)); id. at 85 (§ 5.7.6(D)). Because billboards are only authorized in the heavy industrial district, Doc. 13-1 at 100 (§ 5.7.11(A)), this in effect banned digital billboards in the City. See Doc. 34 ¶ 6.

B. Overview of the Facts Alleged in the Complaint

Fairway is a limited liability company in the billboard business. Doc. 1 at ¶ 11. As of the filing of the complaint, Fairway had approximately 68 “billboard faces” on leased property within the City's zoning jurisdiction. Id. at ¶ 26.

In 2017, Fairway submitted nine applications for billboard permits to the City. Id. at ¶ 81. Fairway withdrew one application and lost the lease for the other, so only seven applications are at issue here. Id. In the applications, Fairway sought permission to erect six new billboards employing digital technology and to replace one existing vinyl billboard with a billboard with a digital face. Id. None of the billboards were in the heavy industrial district. See id. at ¶ 82.

For some time, traditional billboards have used computer-generated images printed on reflective vinyl. Id. at ¶¶ 49, 53. A crew of people must physically change the copy. Id. at ¶ 60. More recently, technology innovations have allowed digital billboards, which use thousands of LEDs and electrical currents to display messages that can be quickly and remotely changed. Id. at ¶¶ 49, 53-54, 59.

Applying the ordinance then in effect, the City denied the permits because all seven billboards were outside the heavy industrial district. Doc. 1-5 at 2-3. The City also denied the permits for two of the requested billboards because they were too close to

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a residential district or religious institution. Id. at 3. Lastly, the City denied one of the permits because Fairway sought to replace an existing nonconforming vinyl billboard with a digital billboard. Id.

C. Overview of Claims and the Pending Motion

Fairway contends the zoning ordinance as to billboards is unconstitutional, both as-applied and facially, under the First Amendment and various other federal and state constitutional provisions. It also challenges the ordinances as inconsistent with state zoning statutes. The City moves to dismiss some of Fairway's claims for lack of standing. Doc. 21. For the rest, the City contends that it is entitled to judgment on the pleadings. Id.

II. The On-Site/Off-Site Distinction

Under the ordinance, on-site signs are authorized throughout the City if they meet certain standards. See Doc. 13-1 at 88-96 (§ 5.7.9). Off-site advertising signs like billboards are authorized only in the heavy industrial district. Id. at 100 (§ 5.7.11(A)). As it made clear in the hearing on November 30, 2022, Fairway first challenges the constitutionality of the ordinance's distinctions between on-site and off-site signs, which limit billboards to the heavy industrial district. See Doc. 1 at ¶¶ 28-33, ¶¶ 189-95. Fairway also challenges the definitions of on-site and off-site signs. See id. at ¶¶ 109, 124-25, 127.

A. Standing

The City acknowledges that Fairway has standing to challenge the on-site/off-site distinction in the ordinance. See Doc. 22 at 2. The City denied Fairway's permit

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applications in part under the ordinance governing off-site signs, thus causing a concrete injury that is fairly traceable to the City. See Doc. 1-5 at 2-3 (citing §§ 5.7.11, 8.5.5). And there is a likelihood of redressability if the Court finds that this distinction is unconstitutional.

B. The Relevant Definitions

The Supreme Court recently held that distinctions between on-site signs and off-site signs like billboards are facially content neutral, so long as the sign's “substantive message itself is irrelevant to the application of the provisions.” City of Austin v. Reagan Nat'l Advert. of Austin, LLC, 142 S.Ct. 1464, 1472 (2022). “[A]bsent a content-based purpose or justification,” a zoning distinction between on-site and off-site signage “is content neutral and does not warrant the application of strict scrutiny.” Id. at 1471.

1. Location

In the first...