Lamar Advertising of Penn v. Town of Orchard Park

• Citation: 356 F.3d 365
• Decision Date: 02 February 2004
• Docket Number: Docket No. 03-7335(XAP).,Docket No. 03-7287(L).
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Parties: LAMAR ADVERTISING OF PENN, LLC, Plaintiff-Appellant — Cross-Appellee, v. TOWN OF ORCHARD PARK, NEW YORK, Defendant-Appellee — Cross-Appellant.

356 F.3d 365

LAMAR ADVERTISING OF PENN, LLC, Plaintiff-Appellant — Cross-Appellee, v. TOWN OF ORCHARD PARK, NEW YORK, Defendant-Appellee — Cross-Appellant.

Docket No. 03-7287(L).

Docket No. 03-7335(XAP).

United States Court of Appeals, Second Circuit.

Argued: November 5, 2003.

Decided: February 2, 2004.

Appeal from the United States District Court for the Western District of New York, Richard J. Arcara, Chief Judge.

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J. Joseph Wilder, Wilder & Linneball, LLP (Laura Linneball, of counsel), Buffalo, NY, for Plaintiff-Appellant — Cross-Appellee.

Thomas Knab, Hiscock & Barclay, LLP (Leonard Berkowitz, Orchard Park, NY, on the brief), Buffalo, NY, for Defendant-Appellee — Cross-Appellant.

Before: CARDAMONE, SOTOMAYOR, KATZMANN, Circuit Judges.

SOTOMAYOR, Circuit Judge.

Lamar Advertising of Penn, LLC ("Lamar") filed suit in August 2001, challenging a local ordinance governing the erection and maintenance of signs in the Town of Orchard Park, New York ("Orchard Park" or "the Town"), as facially unconstitutional. Lamar thereafter moved for preliminary and permanent injunctions in conjunction with its motion for summary judgment. Just prior to filing its reply to Lamar's motion for summary judgment, however, Orchard Park amended the ordinance to address some — but not all — of Lamar's constitutional claims. In light of the amendments, the United States District Court for the Western District of New York (Arcara, J.) dismissed as moot those of Lamar's claims lodged against the portions of the sign ordinance that were amended.¹

In addition to finding some of Lamar's claims moot, the district court held that Lamar lacked standing to challenge the sign ordinance, relying on the Seventh Circuit's decision in Harp Advertising Illinois, Inc. v. Village of Chicago Ridge, Illinois, 9 F.3d 1290 (7th Cir.1993) (holding plaintiff advertising company lacked standing to challenge local sign ordinance when the signs it sought to build were larger than permitted by a separate and unchallenged law). Finding Lamar without standing and its claims moot, the district court denied Lamar's request for injunctive relief and its motion for summary judgment. Apparently unwilling to dismiss the case in the absence of a motion from Orchard Park, even after finding that it lacked subject matter jurisdiction over Lamar's claims, the district court scheduled the case for trial.

Lamar neither proceeded to trial nor amended its complaint to assert claims against the amended ordinance. Instead, Lamar filed this appeal, challenging the district court's denial of its motion for preliminary injunction pursuant to 28 U.S.C. § 1292(a)(1) (2000). Orchard Park cross-appeals insofar as it asks this Court to dismiss the suit for lack of subject matter jurisdiction. After determining that the scope of our appellate jurisdiction may extend to the district court's rulings on Lamar's motion for summary judgment, we hold that the district court erred in finding that Lamar lacked standing. Although we agree with the district court that some of Lamar's claims are now moot, we remand for the district court to address the merits of those claims over which a live controversy still remains. Lamar also raises, for the first time on appeal, a number of challenges to the amended provisions of the ordinance. These claims, however, are not properly before us as Lamar never amended its complaint below to include claims against the amended ordinance. Should Lamar move to amend its complaint on remand, the district court should address the merits of Lamar's claims against the amended ordinance in the first instance.

BACKGROUND

Lamar is an "outdoor advertising business" that wants to erect billboards of varying sizes throughout Orchard Park. Standing in its way, however, are a number of provisions of Orchard Park's Zoning Code pertaining to signs ("the ordinance"), which Lamar claims are unconstitutional. See Orchard Park, N.Y., Code §§ 144-33 to -42 (2001). Under the version of the ordinance in effect when this suit was filed, Lamar was required to obtain a permit from a Zoning Officer prior to erecting any of its signs. Permits would be issued only if the requested signs met certain size and location requirements that varied depending upon whether the sign was to be erected in an area zoned for residential, commercial, or industrial use. Sign permits, however, would not issue unless a sign's content were limited to advertising products and services available for sale on the premises. Id. § 144-35(B).² The ordinance, in other words, permitted only on-site commercial speech, and effectively barred off-site commercial speech and signs bearing non-commercial speech. If a requested sign met these size, location and content restrictions, the permit would issue upon the payment of a fee of twenty dollars plus one dollar for every square foot of sign space.

Some categories of signs, however, were given different treatment. No permit, for example, was required for "for sale," "for rent," or "sold" signs, or for "[c]hurch, school or other exterior institutional bulletin boards." Id. § 144-35(D), (E). Other signs, such as those with flashing lights or those attached to utility poles or trees, were prohibited outright.³ Id. § 144-36. Still other categories of signs, including marquees and time and temperature signs, could be erected only upon the approval of Orchard Park's legislative body, the Town Board. Id. § 144-35(H), (I). Nowhere in the ordinance was there a statement of legislative purpose. Orchard Park's Municipal Zoning Code, however, did contain a severance clause pertaining to all the Code's provisions. Id. § 1-5.

Prior to filing suit, Lamar submitted permit requests for eight signs. The signs Lamar proposed were to measure 14 by 48 feet, well in excess of the ordinance's size limits for freestanding and pedestal signs. Id. § 144-38(B), (C). Lamar's permits unsurprisingly were denied, because the signs were too big.⁴ Lamar thereafter filed suit under 42 U.S.C. § 1983 (2000), claiming that the sign ordinance was facially unconstitutional. Specifically, Lamar argued that the ordinance violated the First Amendment because (1) it was unsupported by a legitimate government purpose; (2) it discriminated between and among signs bearing commercial and non-commercial speech; (3) it was vague; (4) it left too much discretion over the approval of certain signs to the Town Board; and (5) it conditioned speech on the payment of an excessive fee. Lamar further claimed that, despite the Zoning Code's severance clause, the unconstitutional provisions could not be severed from the lawful ones without producing results that Orchard Park's Town Board never intended. Accordingly, Lamar asserted that Orchard Park's entire sign regulating scheme should be declared unconstitutional and that the Town should be enjoined from interfering with its erection of signs. Shortly after filing suit, Lamar moved for summary judgment, and for preliminary and permanent injunctions.

In its opposition to Lamar's motions, Orchard Park conceded that its sign ordinance — at least in some respects — was unconstitutional in light of prior decisions from the Supreme Court and this Court pertaining to sign ordinances. See Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981) (plurality); National Adver. Co. v. Town of Babylon, 900 F.2d 551, 556-57 (2d Cir.1990); National Adver. Co. v. Town of Niagara, 942 F.2d 145, 147 (2d Cir.1991). In February 2002, therefore, the Town Board met and amended the ordinance in order "to give the Town an opportunity to defend the Town's position in Federal Court." The amendments added to the ordinance a list of nine purposes, ranging from the preservation of the Town's aesthetic value to the reduction of distractions that lead to traffic accidents. Furthermore, the ordinance's section permitting only on-site commercial advertising — § 144-35(B) — was repealed. In its place, the Town enacted a separate provision to prohibit all "billboards," id. § 144-36(A)(8), and elsewhere defined the term "billboards" as, effectively, any sign advertising goods or services not sold or provided on the premises, id. § 144-5. The Town, however, also added a specific provision permitting the posting of signs bearing non-commercial messages on any sign otherwise authorized by the ordinance. Id. § 144-33(B).

No change, however, was made to the ordinance's size and location restrictions, or to the fee payment provisions. Nor were definitions added for some of the terms — such as "banner" and "bulletin board" — that Lamar claimed were unconstitutionally vague.

In light of these amendments, the district court held that the repeal of § 144-35(B) — which forbade the posting of signs containing off-site commercial advertising and non-commercial messages — mooted Lamar's claims insofar as they pertained to that section. Lamar's claims premised on the absence of a statement of legislative purpose were also deemed moot. The district court further denied Lamar's motion for summary judgment on its claim that the fees charged constituted an unlawful tax upon its first amendment rights, finding that Lamar had not shown that the fees charged exceeded the costs of administering and enforcing the ordinance.

The district court left unaddressed Lamar's claims that (i) the ordinance gives "unbridled discretion" over the approval of some signs, such as marquees and time and temperature signs, to the Town Board, and (ii) some of the ordinance's undefined terms are unconstitutionally vague. The court did not leave these claims alive, however, as it held, in the alternative, that Lamar lacked standing to challenge any part of the sign ordinance. Following the Seventh Circuit's decision in Harp Advertising Illinois, Inc. v. Village of Chicago Ridge, Illinois, 9 F.3d 1290 (7th Cir.1993), the district court reasoned that, because Lamar's signs were larger...