Get Outdoors II, LLC v. City of San Diego, CIV.03-1436 WQH (AJB).
| Decision Date | 08 August 2005 |
| Docket Number | No. CIV.03-1436 WQH (AJB).,CIV.03-1436 WQH (AJB). |
| Citation | 381 F.Supp.2d 1250 |
| Parties | GET OUTDOORS II, LLC, Plaintiff, v. CITY OF SAN DIEGO and Does 1 through 25, inclusive, Defendants. |
| Court | U.S. District Court — Southern District of California |
Adam Webb, Esq., Webb Law Group, Atlanta GA, Plaintiff's lead counsel.
Patrick Rick Lund, Esq., The Law Corporation of Patrick Lund, Newport Beach, CA, Plaintiff's local counsel.
Michael J. Aguirre, San Diego City Attorney, Mark Stiffler, Deputy City Attorney, Office of the City Attorney, Civil Division, San Diego, CA, Randal R. Morrison, Sabine and Morrison, San Diego, CA, Defendant's counsel.
AMENDED ORDER
Pending before the Court is Defendant's Motion for Summary Judgment, and Plaintiff's Motion for Partial Summary Judgment. After considering the arguments raised by the parties in their briefing and during oral argument, the Court now issues the following rulings.
Plaintiff Get Outdoors II, LLC (hereinafter "Get Outdoors") is a limited liability company organized under the laws of the State of Nevada, and qualified to do business in California. Get Outdoors has been issued the necessary licenses to operate outdoor advertising signs throughout the State. Defendant City of San Diego, California (hereinafter "City") is a political subdivision of the State of California.
Get Outdoors mostly operates outdoor advertising signs. Get Outdoors has signs throughout the nation. In the past, they have used their sign space to display messages of both commercial and noncommercial nature. In addition to leasing space to commercial advertisers, Get Outdoors has provided advertising space to noncommercial advertisers free of charge or at reduced rates.
Get Outdoors is currently "pursuing opportunities in the outdoor advertising industry in Southern California." To that end, Get Outdoors investigates possible sign locations, reviews municipal sign regulations and negotiates with landowners regarding the possibility of posting signs on their property. In an effort to break into the San Diego market, Get Outdoors negotiated with owners of various land parcels and arranged to lease space for the display of twenty four (24) signs. The parcels of land on which they hope to display signs are each located in heavily commercial and industrial areas and are adjacent to major roads or highways.
On June 5, 2003, pursuant to the City's sign regulations, Get Outdoors submitted twenty three (23) completed applications for permits to post signs. By letter dated June 9, 2003, the authorized city official denied the applications. The letter stated:
On June 5, 2003, your representative submitted plans for 23 project sites for Billboard Signs which we call Advertising Display Signs. Unfortunately, as of July 19, 1983, the City of San Diego no longer allows new Advertising Display Signs.
In accordance with Land Development Code, section 142.1210, "Permanent...signs...shall contain on-premises...message only". Section 127.0301(attached) says Advertising Display Signs that were lawfully erected before July 19, 1983 are considered previously conforming advertising display signs.
Since we did not do any plan check, no fees were collected. You may pick up your plans and checks at Plan Pick Up area between 7:00 AM and 4:00 PM Monday thru Thursday, and Friday 7:00 AM-3:00 PM.
If you have any questions, please call me at 619-446-5244.
[SIGNED]
Felly Parel
The Sign Ordinance is contained in San Diego Municipal Code ("SDMC") Chapters 11, 12 and 14. The Court will briefly summarize those provisions of the City's Sign Ordinance whose constitutionality Get Outdoors is challenging.
• The policy underlying the Sign Ordinance is SDMC § 142.1201.
• The Ordinance prohibits all signs that do not display on-premises or public interest messages. SDMC § 142.1210(a)(1). "On-premises" messages identify or advertise an establishment, person, activity, goods, products or services located on the premises where the sign is installed. Id. "Public interest" messages are limited to official signs and notices, public utility signs, directional signs, holiday decorations, historical markers, commemorative plaques, signs and notices relating to service clubs, religious and charitable organizations, political and ideological signs relating to election issues or candidates, and political and ideological signs unrelated to any election but expressing ideological or political views. Id.
• The content of any flags displayed is limited to a national identity or other political subdivisions, corporations or institutions. SDMC § 142.1255(k).
• Signs whose content is remotely or electronically changeable are limited to time, date, temperature or weather. SDMC § 142.1210(a).
• Signs adjacent or oriented to a freeway may only identify "the establishments where transient lodging or prepared food are offered to the public, or any retail ... business engaged in supplying goods and services essential to the normal mechanical operation of automobiles[.]" Id.
• Off-premises signs are permitted if they contain the following content: public utility and safety signs, directional and identification signs for subdivisions, public interest messages on behalf of charitable organizations, open house directional signs. SDMC §§ 142.1210, 142.1255.
• Signs located in single-family residential areas and open space areas may contain the following content: street address number, warnings (such as "no parking," "guard dog," etc.), real estate sale or rental information, yard sale information. SDMC § 142.1265(b).
• Signs located in multi-family residential areas may contain the following content: street address numbers, occupant names, warnings, directions, property identification, real estate sale or rental information, yard sale information. SDMC § 142.1270.
• Signs located in agricultural districts may contain the following content: identification of the establishment or primary use of the premises, information regarding sale of products produced on the premises if for sale to the public, and real estate sale or rental information. SDMC § 142.1275.
• Sign Permit/Process One1: in this permit application process, the permit may be approved or denied by a staff person without a public hearing. SDMC § 112.0502. The following signs require permits obtained through Process One: signs visible from the public right-of-way, other than public safety or utility signs, that exceed minimum specified dimensions; wall signs, roof signs, projecting signs, ground signs, revolving signs, and clocks or banners in the public right-of-way. Id. at Table 142-12A.
• Neighborhood Use Permit/Process Two: the permit may be initially approved, conditionally approved, or denied by a staff person without a public hearing. The applicant may request an appeal hearing after a decision is made. SDMC § 112.0503. The following signs require permits obtained through Process Two: signs with automatic changing copy and neighborhood identification signs. Id.
• The following signs do not require a permit: signs visible from the public right-of-way, other than public safety or utility signs, that do not exceed minimum specified dimensions; real estate signs, construction site signs, building identification nameplates, warning signs, window signs, bulletin boards for religious or charitable organizations, incidental signs, national flags and flags for political subdivisions, banners, pennants, streamers, and holiday decorations. Id.
• The following sign proposals "may" require a permit: secondary signs, signs in a single-unit or multi-unit residential area, signs in agricultural zones, and signs in open space zones. Id.
• The following signs are exempt in that sign permits are not required: changing the copy of an existing sign, interior signs, public utility and safety signs required by law, other signs required by law that do not exceed minimum dimensions, non-illuminated real estate or construction signs, nameplate and address signs under four square feet in area, accessory warning signs, window signs, bulletin boards for charitable and religious organizations, temporary onsite banners, streamers and pennants. Id.
• Advertising display signs containing offsite commercial messages are permitted if they were erected prior to July 19, 1983. SDMC § 127.0301.
• A sign permit is not required in order to change the copy on an existing sign. SDMC § 129.0803(a).
On January 30, 2004, Plaintiff filed a Second Amended Complaint containing fourteen Claims for Relief. Many of the Claims contain similar or identical allegations. The Court will list each of the claims below.
1) The sign regulations' permit requirements lack necessary procedural safeguards because the regulation fails to constrain the time in which the city must reach a decision to grant or deny an applicants request. The city attempted to remedy the problem by setting forth a time restraint. However, the City passed an amendment requiring that the officials wait 45 days, as opposed to responding within 45 days.
2) The sign regulations grant city officials an impermissible level of discretion to approve or deny signs. Government officials are granted virtually limitless discretion in deciding whether permission will be granted or denied to post a sign, Government officials also retain discretion to circumvent or alter the applicability of the sign regulations without regard to any enunciated standards or guidelines. Such discretion in government...
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