Neighborhood Enterprises Inc. v. City of St. Louis
| Decision Date | 18 August 2011 |
| Docket Number | No. 10–1937.,10–1937. |
| Citation | 644 F.3d 728 |
| Parties | NEIGHBORHOOD ENTERPRISES, INC.; Sanctuary in the Ordinary; Jim Roos, Plaintiffs–Appellants,v.CITY OF ST. LOUIS; St. Louis Board of Adjustment, Defendants–Appellees,Shari Cunningham; George Hitt; Joe Klitzing; Irene Soll; John Caruso; Mary Hart Burton; St. Louis City Department of Public Safety, Division of Building and Inspection, Defendants.International Municipal Lawyers Association; Scenic America, Inc.; Scenic Missouri, Inc., Amici on Behalf of Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
OPINION TEXT STARTS HERE
Michael E. Bindas, argued, William R. Maurer, on the brief, Seattle, WA, for appellants.Matthew M. Moak, argued, Robert M. Hibbs, on the brief, St. Louis, MO, for appellees.William D. Brinton, Jacksonville, FL, appeared on the amicus brief in support of appellees.Before SMITH, GRUENDER, and BENTON, Circuit Judges.SMITH, Circuit Judge.
Neighborhood Enterprises, Inc. (“Neighborhood”), Sanctuary In The Ordinary (SITO), and Jim Roos (collectively, “Sanctuary”) filed suit against, inter alia, the City of St. Louis (“City”) and St. Louis Board of Adjustment (“Board”) challenging the Board's denial of a sign permit. Sanctuary further challenged the constitutionality of provisions of Chapter 26.68 of the Revised Code of the City of St. Louis (“zoning code”) upon which the permit denial was based. Sanctuary asserted federal and state constitutional claims pursuant to 42 U.S.C. § 1983 and the Missouri Declaratory Judgments Act, Missouri Revised Statute § 527.010. It also sought a writ of certiorari pursuant to Missouri Revised Statute § 89.110, which provides for judicial review of “illegal” Board decisions. The district court granted summary judgment to the City and the Board, finding, inter alia, that the zoning code's restrictions on signs withstood constitutional scrutiny with respect to the Board's denial of Sanctuary's sign permit. Because we conclude that the challenged provisions of Chapter 26.68 of the zoning code are impermissibly content based and fail strict scrutiny, we now reverse and remand for further proceedings consistent with this opinion.
Neighborhood, a property-management company, manages the properties of SITO, a non-profit organization. Neighborhood describes itself as a “self-supporting housing ministry that manages rental housing mostly on the near south side of St. Louis.” Roos is the founder of SITO and Neighborhood, and he is also the coordinator and spokesperson for the Missouri Eminent Domain Abuse Coalition (MEDAC), a civic organization concerned about eminent-domain practices.
Roos describes himself as a critic of the City's use of eminent domain for private development. Roos and MEDAC, with tenant approval, commissioned a sign/mural 2 for the south side of 1806–08 South 13th Street, a SITO-owned building in the Near Southside Redevelopment Area. Roos described the sign/mural as a “poignant way ... to make a statement.” The sign/mural consists of the words “End Eminent Domain Abuse” inside a red circle and slash. The design of the sign/mural is similar to the design that MEDAC uses in its literature, buttons, and other materials. The sign/mural is approximately 363 or 369 square feet in area. It is visible from, among other areas, Interstates 44 and 55 and the Soulard neighborhood.
On April 10, 2007, the City's Division of Building and Inspection (“B & I”) issued a citation to SITO, care of Neighborhood, declaring the sign/mural an “illegal sign.” The citation explained that “[p]ermits must be acquired for signs of this type” and instructed SITO how it could obtain a permit. Consistent with the instructions in B & I's April 10, 2007 citation, SITO and Neighborhood filed a sign-permit application with B & I on May 14, 2007.
On May 30, 2007, the City's zoning administrator sent SITO a letter denying its sign permit application because it did not meet certain requirements of the zoning code. The “Basis for Denial” accompanying the letter stated that the building on which the sign/mural was painted was zoned “D,” or “Multiple Family Dwelling District,” and identified as the “applicable Zoning Code provisions” §§ 26.68.010; 26.68.020(17), (20), (21), (22) and (24); and 26.68.080(A), (B), (D) and (E)(2). A subsequent explanation of the zoning administrator's basis for denial, admitted as evidence at the Board hearing, stated:
Appellant has painted a wall sign on the building at this address. The wall face of the building on which the sign has been painted does not have street frontage as defined in the Zoning Code, and is therefore not entitled to signage. In the ‘D’ zoning district any signage can only be erected, altered and maintained for and by a conforming use and must be clearly incidental to the operation of the conforming use; this property is assessed as a two-family dwelling. The maximum allowable square footage for any sign within this district is 30 sq. ft.; based on the diameter of the circular sign it is approximately 363 sq. ft. in area. Variances will be required in order to permit this sign.
The May 30, 2007 letter denying SITO's sign-permit application stated that SITO could appeal the denial to the Board, which SITO did on June 5, 2007.
On July 11, 2007, the Board heard SITO's appeal of the permit denial. At the hearing, SITO's attorney argued, inter alia, that SITO's sign/mural does not require a permit because, as a “work of art” or a “civic symbol[ ] or crest [ ],” it is exempted from the zoning code's definition of “sign.” In the alternative, counsel argued that the zoning code's sign regulations violate the free-speech protections of the United States and Missouri Constitutions.
The Board upheld the denial of the sign permit on July 25, 2007. The Board's “Findings of Fact” stated that the “[p]roposed sign is in conflict with Sections 26.68.010, 26.68.020 and 26.68.080 of the Zoning Code of the City of St. Louis.” The Board's “Conclusion of Law and Order” stated:
The sign is located in Zone D, the multiple family dwelling district, and the sign is located on a residential building. The sign is substantially larger than the footage allowed by the Zoning Code and it is located on the side of the building in contravention to the requirements of the Zoning Code. Board Member Hitt made a motion to uphold the decision to deny the sign permit as the size and location of the sign were in violation of the Zoning Code.
The above motion, made by George Hitt and seconded by Joe Klitzing was passed by a 4–0 vote of the Board, with Board member Caruso voting against.
The City justified its outdoor sign restrictions principally on concerns for traffic safety and aesthetics. Neither the City nor the Board is aware of any reports, studies, or memoranda (1) concerning or supporting the regulation of outdoor signs in Chapter 26.68 of the zoning code, (2) regarding whether the City's restrictions on outdoor signs affect traffic safety, (3) regarding whether the City's restrictions on outdoor signs affect the aesthetics of the City or surrounding neighborhood, (4) regarding whether the City's restrictions on outdoor signs affect property values in the City, or (5) discussing the impact of SITO's sign/mural on the flow of traffic on any street or highway. The City and the Board are unaware of any traffic incidents in which any driver involved mentioned SITO's sign/mural, or any “painted wall sign,” as contributing to such incident. Further, the City and the Board have no (1) internal memoranda or communications, and no communications to or from them, discussing the adoption or enforcement of the regulations of outdoor signs in Chapter 26.68 of the zoning code or (2) minutes or transcripts of any City Board of Aldermen meeting, including any committee or subcommittee of such Board, concerning or relating to the regulation of outdoor signs in Chapter 26.68 of the zoning code.
Section 26.68.020(17) of the zoning code provides that “[i]f for any reason it cannot be readily determined whether or not an object is a sign, the Community Development Commission shall make such determination.” St. Louis City Ordinance 64687 provides that “all functions and duties performed, or powers exercised prior to the effective date of this ordinance by personnel of the Community Development Commission pursuant to any City ordinance shall be performed by personnel of the Planning Commission as assigned by the Planning Commission.” The City has no written policy, other than Chapter 26.68 of the zoning code, for use in determining if (1) a sign contains the “symbol[ ] or crest [ ]” of a civic organization, as those terms are used in § 26.68.020(17)(d), or (2) if something is “art,” as that term is used in § 26.68.020(17)(e).
The City's policies for implementing the sign regulations are contained in Chapter 26.68 of the zoning code.
Following the Board's decision, Sanctuary filed suit in state court, challenging the Board's denial of the sign permit and the zoning code provisions upon which the denial was based. Sanctuary asserted federal and state constitutional claims pursuant to 42 U.S.C. § 1983 and the Missouri Declaratory Judgments Act, Missouri Revised Statute § 527.010. Specifically, Sanctuary's complaint stated that it is brought pursuant to the First and Fourteenth Amendments of the United States Constitution; Article I, § 8 of the Missouri Constitution; The Civil Rights Act of 1871, 42 U.S.C. § 1983; and Missouri Revised Statute § 527.010. Sanctuary further stated that it seeks relief against the enforcement of the zoning code's sign regulations and the practices and policies of the City that allegedly—facially and as applied—deny Sanctuary the opportunity to engage in constitutionally protected communications.
Sanctuary's complaint alleged that (1) the zoning code's sign regulations are...
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