Lavey v. City of Two Rivers

• Decision Date: 24 February 1998
• Docket Number: No. Civ.A. 96-C-611.,Civ.A. 96-C-611.
• Citation: 994 F.Supp. 1019
• Parties: Thomas J. LAVEY and The Lakeland Group, Inc., Plaintiffs, v. The CITY OF TWO RIVERS, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

994 F.Supp. 1019

Thomas J. LAVEY and The Lakeland Group, Inc., Plaintiffs, v. The CITY OF TWO RIVERS, Defendant.

No. Civ.A. 96-C-611.

United States District Court, E.D. Wisconsin.

February 24, 1998.

Thomas S. Hornig, Marc McCrory, Brennan, Steil, Basting & MacDougall, Janesville, WI, for Plaintiffs.

Winston A. Ostrow, Godfrey & Kahn, Green Bay, WI, for Defendant.

DECISION AND ORDER FINDING CHAPTER 3 OF DEFENDANT THE CITY OF TWO RIVERS' ZONING ORDINANCE CONSTITUTIONAL

REYNOLDS, District Judge.

Defendant, The City of Two Rivers ("the City"), is a picturesque little city just north of Manitowoc, Wisconsin, on Lake Michigan. The City wishes to limit the number of billboards in its area; in an obvious effort to comply with constitutional requirements, the City has drafted a detailed zoning ordinance chapter, approximately thirty pages long, regarding signs and awnings ("the Ordinance").¹

Plaintiffs Thomas J. Lavey ("Lavey") and The Lakeland Group, Inc. ("Lakeland")² (collectively "Plaintiffs") are in the business of billboards; Plaintiffs own and maintain billboards in several Wisconsin counties, including Manitowoc County, where the City is located. The City periodically prosecutes Plaintiffs for violating the Ordinance; there is a long history between the parties, detailed below in the background section.

Plaintiffs brought this § 1983 action, seeking to declare the Ordinance unconstitutional. Plaintiffs allege that the City deprived them of their rights under the First Amendment (made applicable to the City by the Fourteenth Amendment), the Due Process Clause of the Fourteenth Amendment, and the Wisconsin Constitution. The complaint alleges that the Ordinance (1) is unconstitutionally vague, (2) improperly favors commercial over noncommercial speech, (3) is improperly content driven, (4) impermissibly delegates enforcement powers to the City's zoning administrator, (5) improperly applies strict liability penalties on speech; (6) is selectively enforced; and (7) violates the doctrine established by the Supreme Court in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980).

In reviewing the parties' submissions, the court became concerned that it should not proceed with this action given previous litigation between the parties in state court, wherein Plaintiffs attempted to raise constitutional challenges to the Ordinance. The court requested that the parties address this concern, including a record of relevant state court proceedings. The details of the state proceedings are described below in the background section. The City argues that because the state proceedings have been resolved without any right of further appeal, this action is barred by issue and claim preclusion. However, a review of the record shows that the state courts did not address the constitutional challenges, so that Plaintiffs were unable to obtain a ruling from those courts. The City cites no authority to suggest that under these circumstances, issue and claim preclusion are a bar to this action.

This court must relinquish jurisdiction if deciding the dispute requires the court to review the merits of a state court decision. Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). Here, Plaintiffs are not challenging state court rulings in the sense of seeking relief from judgment, but rather seek declaratory and injunctive relief by constitutional challenge to the Ordinance. In the First Amendment context and under the facts of this case, there is no question that Plaintiffs have standing to make their constitutional challenges. The court concludes that it has subject matter jurisdiction and should not abstain from proceeding with this action.

Both parties have filed motions for summary judgment, thereby agreeing that whether the Ordinance is unconstitutional may be determined at this stage of the proceedings and on the current record before the court. To determine the factual background of this dispute, the court relies on the parties' stipulated facts or proposed findings of fact. See generally Local Rule 6.05 (E.D.Wis.). If factual propositions are disputed, evidentiary support for the dispute must be cited. Id. For the following reasons, the court concludes that the Ordinance is constitutional.

BACKGROUND

The current Ordinance was adopted in October 1982, and has been amended nine times. The stated purpose of the Ordinance is

to create the legal framework to administer and enforce outdoor sign and awning regulations within the City of Two Rivers. This chapter recognizes 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.

Sec. 10-3-1(a).

The Ordinance contains twenty-nine definitions, more than half which define particular sign types. Sec. 10-3-2. Construction or structural alteration of a sign requires paying a permit fee and filing an application, which will be granted or denied within ten days by the Zoning Administrator. Secs. 10-3-3, 10-3-4, 10-3-6, 10-3-7(d). Decisions made by the Zoning Administrator may be appealed to the Sign Board of Appeals. Sec. 10-3-7. Annual permits are required for certain signs which extend into or over public streets, or are under the jurisdiction of the Wisconsin Department of Transportation. Sec. 10-3-5. A permit is not required to change copy or to perform sign maintenance. Sec. 10-3-3.

Thirty days are allowed to comply with the Ordinance or remove the violating sign after written notification of a violation is received from the Zoning Administrator. Sec. 10-3-9.

Pre-existing billboards which were legal prior to adoption of the Ordinance are given the status of nonconforming legal use. This status is lost if the sign is structurally altered, other than for normal maintenance. Sec. 10-3-10. Certain types of signs are prohibited, such as signs painted directly on buildings over a specified size, abandoned signs, and illuminated signs which would interfere with traffic visibility. Sec. 10-3-12. Some signs do not require a permit, such as construction signs under a specified size, government signs, and political signs under a specified size. Sec. 10-3-13. The Ordinance contains general design requirements and construction specifications. Secs. 10-3-14, 10-3-16. The Ordinance also enumerates certain signs which are allowed depending on the zoning district in which they are located. Sec. 10-3-18. Noncommercial messages may be contained on any authorized sign. Sec. 10-3-1(c).

Lavey is the President of Lakeland, which is in the business of advertising and public relations, with clients throughout Wisconsin. Lavey and Lakeland own and maintain billboards in Calumet, Sheboygan, Manitowoc, and Kewaunee Counties; they disseminate, and make signs available for the public to disseminate, commercial and noncommercial messages. The parties agree that the billboards are used as a medium of communication. Copy on outdoor advertising changes frequently; approximately half of Lakeland's inventory changes monthly. As discussed above, the City specifically does not require prior approval to change advertising copy because it would be impractical; rapid copy change is desirable for outdoor advertising.

Plaintiffs have owned and maintained billboards in the City for more than fifteen years. Lavey actively participated in the proceedings which led up to the Ordinance's enactment. For more than the last six years, Lavey and Lakeland have periodically been taken to municipal court for alleged violations of the Ordinance.³

On May 19, 1990, the municipal court for the City of Manitowoc found that Lavey was not guilty of fifteen citations issued to him under the Ordinance, stating that "[h]aving reached this decision, the Court does not consider the issue of whether the ordinance is unconstitutionally vague or overbroad, nor does it address the 1st Amendment freedom of speech issues presented on these citations." (May 19, 1990 Decision at 2, attached as Ex. F to Apr. 22, 1997 Schmitt Aff.) The court further found Lavey guilty of three citations involving off-premises commercial advertising, and assessed civil forfeitures. This order was never appealed.

A subsequent municipal court proceeding⁴ regarding another citation for illegally advertising an off-premises commercial product, and Plaintiffs' most-emphasized example of litigation between the parties, involved copy which read "Outdoor. It's Not a Medium, It's a Large." The entire background of the billboard was a colored, extreme close-up of an orange, with a "Sunkist" logo clearly visible. The slogan was part of a nationwide marketing plan by the Outdoor Advertising Association of America, of which Lakeland is a member. The poster arrived from the printer and was posted by Lakeland's crew. The City's zoning administrator for almost three decades (who apparently retired in 1995), cited Plaintiffs for illegally advertising oranges (an off-premises product) in violation of the Ordinance. In municipal court, Plaintiffs claimed that they never intended to advertise oranges, but rather that the poster was to promote outdoor advertising (the zoning administrator did not understand the slogan's play-on-words); Plaintiffs also claimed the Ordinance was unconstitutional. Following a trial to the municipal court which found against Plaintiffs, Plaintiffs appealed to circuit court, where a jury found Lavey guilty of violating the Ordinance. Lavey appealed to the court of appeals, which court certified two questions to the Wisconsin Supreme Court: "[w]hether a municipal ordinance regulating billboards impermissibly regulates commercial speech," and "[w]hether proof of knowledge of the contents of the commercial speech...