Hensel v. City of Little Falls

Decision Date08 January 2014
Docket NumberCiv. No. 12–1160 (RHK/LIB).
Citation992 F.Supp.2d 916
PartiesRobin HENSEL, Plaintiff, v. CITY OF LITTLE FALLS, MN, Defendant.
CourtU.S. District Court — District of Minnesota


Larry A. Frost, Paladin Law, PLLC, Bloomington, MN, Bruce Fein, Bruce Fein & Associates, Inc., Washington, D.C., for Plaintiff.

Paul D. Reuvers, Jason J. Kuboushek, Stephanie A. Angolkar, Iverson Reuvers Condon, Bloomington, MN, for Defendant.


RICHARD H. KYLE, District Judge.


In this First Amendment case, Plaintiff Robin Hensel challenges two ordinances enacted by Defendant City of Little Falls, Minnesota (the City). Presently before the Court are the parties' cross-Motions for Summary Judgment. For the reasons that follow, the Motions will be granted in part and denied in part.


I. The “old sign ordinance” and the “old bench ordinance”

The City is a small community of approximately 8,000 residents, located about 100 miles northwest of Minneapolis. It has had an ordinance (City Code § 5.30) restricting, among other things, the number, size, and location of residential yard signs since sometime prior to 2008. (Myers Dep. at 34; Kasella Aff. ¶ 2 & Ex. 1.) That year, the City decided to update its “outdated” ordinance in light of an “explosion” of electronic signage. (Myers Dep. at 34.) The City's planning commission reviewed several drafts of a new ordinance and was still in the process of revisions when the events at issue in this lawsuit first transpired. ( Id. at 35–36; Kasella Aff. ¶¶ 4, 7–8.)

Similarly, for many years the City has had in place an ordinance (City Code § 5.33) granting rights to an outside entity (JMR2 Investments (“JMR2”)) to place “advertising benches” in “nonhistoric areas” of the City, on a portion of the public right-of-way “between the curb and the property line.” (Kasella Aff. Exs. 13, 23.) Potential advertisers are required to pay a $400 fee to JMR2 in order to advertise on a bench (Hensel Dep. at 116), and the City and JMR2 share the revenue (Kasella Aff. Ex. 23, § 10). Both the bench ordinance and the City's contract with JMR2 granted the City the right to approve the “size, form, wording, illustration, and style” of all bench advertisements and reserved to the City the right to reject an advertisement for any (or no) reason. ( Id. Ex. 13, § 5.33.F (emphasis added); accord id. Ex. 23, § 7(a).)

II. Hensel's yard signs and her attempts to place an advertising benchA. Yard signs

Hensel is a long-time resident of the City. In September 2011, she posted a plethora of signs in her yard, along the side of a main City road, supporting the “Occupy Wall Street” movement and similar political themes. (Hensel Dep. at 39–40; Lochner Aff. Ex. 2; 3rd Am. Compl. ¶ 11.) 1 At the time, the sign ordinance permitted only one sign per residence, not exceeding two square feet in size. ( See Lochner Aff. Ex. 1.) It is undisputed the City received complaints about Hensel's signs, including at least one in which the complainant asserted that the signs had nearly caused a traffic accident. (Lochner Aff. ¶ 4; Kasella Dep. at 45–46; 3rd Am. Compl. ¶ 13.) Accordingly, the City sent Hensel a letter, dated November 9, 2011, advising that her signs violated the sign ordinance and had to be removed by November 18. (Lochner Aff. Ex. 1.)

Hensel responded by adding “seasonal motifs” to her signs, in an attempt to “shoehorn” them into the ordinance's exception for “temporary seasonal or religious displays.” (Lochner Aff. Exs. 3–4; 3rd Am. Compl. ¶ 16.) On November 28, 2011, the City informed her that she remained in violation of the ordinance and that “all but two (2) square feet of signage that is not seasonal or religious must be removed.” (Lochner Aff. Ex. 3.) The letter further noted that the City's police department had been provided a copy thereof and would issue a ticket if the signs were not removed before December 5. ( Id.) At that point, Hensel removed nearly all of her signs and placed many on her van, which she parked in “predominant” parts of the City. (Hensel Dep. at 58, 113–14.) Eventually, however, she decided that she would not comply with the City's demands, and she began placing “more and bigger” signs on her property. ( Id. at 58–60.)

In January 2012, Hensel observed a banner hanging in downtown Little Falls that said We Support Our Troops.” ( Id. at 76–81.) She complained to the City that the banner was illegal under the sign ordinance. ( Id.; Lochner Aff. ¶ 12; Kasella Aff. Ex. 11.) On January 17, 2012, the City Council discussed the ordinance and, on the advice of the City's attorney, Antoinette Wetzel, decided to suspend its enforcement until a new ordinance could be enacted. (Kasella Aff. Exs. 8, 36; Lochner Aff. ¶ 11.) Hensel then displayed yard signs of various sizes and colors over the ensuing months.

B. Advertising bench

On March 26, 2012, Hensel wrote the City and requested to place an advertising bench at a location adjacent to City Hall. (Kasella Aff. Ex. 15.) A bench previously existed at that location but had been removed after it was vandalized and broken. ( Id. Exs. 16, 22; Hensel Dep. at 116.) The City responded by informing Hensel that she should contact JMR2, and the company, in turn, wrote the City and indicated that it had “received a request from a potential customer for that location ... to set a bench.” (Kasella Dep. Ex. 16.)

The City Council discussed JMR2's request at a “work session” on April 2, 2012, at which Hensel and Wetzel were present. ( Id. Ex. 18.) Wetzel indicated she thought the City's bench ordinance needed to be revised in order to remove the provision granting the City the right to review an advertisement's wording before a bench could be placed. ( Id.) Accordingly, she informed the Council that it should decide whether to approve the application solely based on the bench's proposed location. ( Id.) In their subsequent discussions, Council members indicated that they did not believe a bench was appropriate at the proposed location, but they nevertheless placed the matter on the “formal agenda” for the City Council's next “regular meeting” on April 16, 2012. ( Id.)

At that April 16, 2012 meeting, several Council members expressed concerns that (1) the bench previously placed at the desired location had caused line-of-sight problems for passing motorists and (2) a bench in such close proximity to City Hall could be viewed as City endorsement of the bench's message. (Reuvers Aff. Ex. 9.) The City Council then voted to deny the bench application. (Kasella Aff. Ex. 20.)

III. The City enacts the “new sign ordinance” and the “new bench ordinance” after Hensel sues

Meanwhile, during late 2011 and early 2012, the City considered several drafts of a new sign ordinance. Among other things, the City's planning commission (1) consulted with the League of Minnesota Cities regarding proposed content, (2) reviewed a sign ordinance recently enacted in another nearby community, and (3) reviewed sign complaints the City had received from its residents. The commission also held several public meetings at which comments were offered and considered, including about the effects of signs on traffic safety, property values, and community aesthetics. Commission members and other City officials also used “common sense” regarding the effects of the proliferation of signs and considered comments they had received individually. ( See, e.g., Lochner Dep. at 32–41; Kasella Dep. at 29–30, 35; Myers Dep. at 31, 46–48, 63–64; Burggraff Dep. at 17; Van Risseghem Dep. at 18–21, 49, 53; Kasella Aff. Exs. 3–5, 8.)

Despite enforcement of the sign ordinance having been halted while a new sign ordinance was being drafted, on May 14, 2012, Hensel sued the City, alleging inter alia that the old sign ordinance was facially unconstitutional and that the City's enforcement of the ordinance had deterred her from exercising her free-speech rights.2 She sought damages, a judgment declaring the old sign ordinance unconstitutional, an injunction prohibiting its enforcement, and an award of attorneys' fees and costs.

Then, on July 2, 2012, the City enacted a new sign ordinance. (Kasella Aff. Exs. 6–7.) In its preamble, the new ordinance provides that the City Council had determined signs have a “substantial impact on the character and quality of the environment” and can create traffic hazards, aesthetic concerns, and detriments to property values. ( Id. Ex. 2, § 5.30.I.A.) The ordinance's stated “purpose and intent” is to [r]egulate the number, location, size, type, illumination and other physical characteristics of signs ... in order to promote the public health, safety and welfare,” and to [m]aintain, enhance and improve the aesthetic environment of the City by preventing visual clutter” and [i]mprov[ing] the visual appearance of the City.” ( Id. § 5.30.I.B.) The new ordinance requires a permit for any sign erected in the City unless falling within an enumerated exception. ( Id. § 5.30.II.A, B.) One such exception is that two signs, totaling eight square feet, may be erected without a permit on any City property zoned “residential.” ( Id. § 5.30.II.B.1.) For a sign requiring a permit, an application must be submitted indicating the name and address of the property owner, the location of the proposed sign on the property, and other similar information. ( Id. § 5.30.II.A.) However, [t]he content of the sign shall not be reviewed or considered in determining whether to approve or deny a sign permit.” ( Id.)

At the same time the City revised the sign ordinance, it also revised the bench ordinance. ( See Kasella Aff. Ex. 14.) Though largely tracking the language of the old bench ordinance, the new bench ordinance removed the provisions entitling the City to (i) review a proposed advertisement's “wording” before being approved and (ii) reject any proposed advertisement it saw fit. ( Id.) The City retained the right, however, to review and approve the “location and placement”...

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