Lavey v. City of Two Rivers
| Decision Date | 25 March 1999 |
| Docket Number | No. 98-1785,98-1785 |
| Citation | 171 F.3d 1110 |
| Parties | Thomas J. LAVEY and The Lakeland Group, Incorporated, Plaintiffs-Appellants, v. The CITY OF TWO RIVERS, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Marc T. McCrory (argued), Brennan, Steil, Basting & MacDougall, Janesville, WI, for Plaintiffs-Appellants.
Winston A. Ostrow, Donald L. Romundson (argued), Godfrey & Kahn, Green Bay, WI, for Defendant-Appellee.
Before WOOD, JR., RIPPLE and ROVNER, Circuit Judges.
Thomas Lavey and his corporation, the Lakeland Group, Inc., filed this action against the City of Two Rivers. They sought injunctive and declaratory relief against a Two Rivers ordinance regulating outdoor advertising. The district court granted Two Rivers' motion for summary judgment. Mr. Lavey has appealed. For the reasons set forth in the following opinion, we affirm the judgment of the district court.
Two Rivers enacted an extensive ordinance regulating the placement and nature of outdoor advertising. In enacting the ordinance, Two Rivers recognized, in the ordinance's preamble, "the need to protect the safety and welfare of the public; the need for well-maintained and attractive sign displays within the community, and the need for adequate business identification, advertising, and communication." Ordinance § 10-3-1(a), R.30, Ex.A.
The heart of the ordinance is a provision that requires a permit for any sign or awning erected, constructed, enlarged or structurally modified within the City. 1 The ordinance further provides that an application for a permit shall be filed with the Zoning Administrator and identify the name of the owner and the contractor. 2 The application must include, among other information, a drawing of the sign and a description of the materials to be used in its construction. 3
The ordinance distinguishes between on-premises and off-premises signs. The ordinance defines "off-premises sign" to mean "[a] sign which advertises goods, products, facilities or services not necessarily on the premises where the sign is located, or directs persons to a different location from where the sign is located." Ordinance § 10-3-2(a)(19). It also defines "on-premises sign" to mean "[a]ny sign identifying or advertising a business, person, activity, goods, products or services located on a premises where the sign is A more precise examination of the ordinance's distinction between on-premises and off-premises signs is instructive. The ordinance contains general regulations on signs--regardless of whether they are off- or on-premises. For example, § 10-3-11 contains requirements for maintenance and repair that are applicable to "every sign"--even signs that are not required to receive a permit. Subsections (a) and (d) of § 10-3-14 contain various construction specifications applicable to all signs. Section 10-3-16 contains size and set-back restrictions applicable to various types of signs, but, with the exception of subsection (m), does not distinguish between on-premises signs and off-premises signs. However, in addition to these general requirements applicable to all signs, the ordinance contains further restrictions that treat on-premises signs less stringently than off-premises signs. With respect to location, § 10-3-18(a) permits on-premises signs in areas zoned as conservancy and residential districts; it does not allow off-premises signs in such areas. With respect to the number and size of signs, areas zoned for business and industrial use may contain up to three on-premises billboards totaling 300 square feet; only two off-premises billboards totaling 100 square feet are allowed in such areas. With respect to the size of highway signs, on-premises signs are subject to no square footage restriction; off-premises highway signs have a 300 square-foot area restriction. With respect to the spacing of highway signs, off-premises highway signs are subject to spacing limitations to which on-premises highway signs are not subject. Off-premises highway signs may not be located within 300 feet of any other off-premises sign, a residential property or a residential district. Finally, on-premises signs exceeding other limits in the ordinance may be allowed on fully developed sites exceeding five acres in area if they identify the on-site business. 4
installed and maintained." Ordinance § 10-3-2(a)(20)
Certain signs are exempt from the permit requirement. 5 The ordinance also contains a list of signs that are forbidden. 6 The ordinance forbids signs that will interfere with traffic either by creating confusion with traffic signs or by obscuring the driver's line of sight. 7 Signs that contain obscene, pornographic, or immoral words or pictures are also forbidden as is signage that is "untruthful." 8
The ordinance further provides: "Notwithstanding any other provision contained herein to the contrary, noncommercial messages may be contained on any authorized The ordinance requires that the Zoning Administrator issue a permit when an application is properly made, appropriate fees are paid, and the sign conforms with "the appropriate ordinances of the City." Ordinance § 10-3-6. If the permit is denied, the Zoning Administrator must give written notice to the applicant, together with a brief written statement of the reasons for the denial. 9 In the case of a denial, the applicant may appeal to the City's Sign Board of Appeals whose membership is those individuals who serve on the Zoning Board of Appeals. 10
sign." Ordinance § 10-3-1(c). Although the ordinance contains an extensive definitional section, it does not define the terms "commercial" or "noncommercial."
The Zoning Administrator also has the duty to enforce the ordinance. Upon written notification of a violation, the owner must bring the sign into compliance or the sign is removed at the owner's expense. 11 The ordinance also provides for other penalties.
Mr. Lavey is in the business of managing outdoor advertising and has several signs in Two Rivers. He is the president of the Lakeland Group, which is in the advertising and public relations business. For the past fifteen years, Mr. Lavey and the Lakeland Group have owned and maintained billboards and made them available to the public for the dissemination of commercial and noncommercial messages. The district court noted that about half of the messages on the signs change monthly. The City frequently has cited Mr. Lavey and Lakeland for placing off-premises signs in areas where the ordinance does not allow such signs. 12
Mr. Lavey brought this action in the United States District Court for the Eastern District of Wisconsin. Alleging a cause of action under § 1983, he sought a declaration that the ordinance violated his First Amendment rights, as secured against state encroachment by the Fourteenth Amendment. He further alleged that the ordinance violated the Due Process Clauses of the Fourteenth Amendment and of the Wisconsin Constitution. We shall detail below with more specificity the allegations made in the district court that are renewed on appeal and are therefore before us for decision. 13
Mr. Lavey first contends that the ordinance does not withstand analysis under Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). That case adopted a four-part test to determine when a restriction on commercial speech is valid under the First Amendment. First, only speech that is truthful and not misleading receives First Amendment protection. Second, the restriction must seek to implement a substantial government interest. Third, the restriction must directly advance that interest. Fourth, the restriction must reach no further than necessary to accomplish its objective. See id. at 564, 100 S.Ct. 2343.
Although Mr. Lavey contends that the City's ordinance violates the latter three prongs of this test, we think that the focus ought to be on the last two. The second consideration poses no significant constitutional issue. After the Supreme Court's decision in Metromedia, Inc. v. San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981), we do not think that it can be said that the City's interests in traffic and aesthetics are not substantial municipal goals. See id. at 507-08, 101 S.Ct. 2882. We therefore turn to the two remaining considerations.
In Metromedia, the Supreme Court upheld the portion of a San Diego ordinance that allowed on-premises advertising yet disallowed off-premises advertising. 14 San Diego asserted the same interests that Two Rivers asserts in this case. See id. at 507-08, 101 S.Ct. 2882. The Court's inquiry focused on the third prong and held that the restriction on off-premises advertising directly advanced the state's interest. The Court initially noted that the restriction was based on "common-sense judgments of local lawmakers and of the many reviewing courts that billboards are real and substantial hazards to traffic safety." Id. at 509, 101 S.Ct. 2882. Additionally, the Court stated that "[i]t is not speculative to recognize that billboards, by their very nature, wherever located and however constructed, can be perceived as an 'esthetic harm.' " Id. at 510, 101 S.Ct. 2882. The Court went on to reject the contention that the San Diego ordinance's provision banning off-premises advertising, while allowing on-premises advertising, denigrated its interests in safety and aesthetics. First, said the Court, this underinclusiveness did not prevent the ordinance from advancing the safety and aesthetics goals. Second, San Diego could have believed that off-premises advertising, with its changing content, could present a greater threat to its goals. Third, San Diego could choose to value one kind of commercial speech, on-site advertising, over another, off-site...
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