Nittany Outdoor Adver., LLC v. Coll. Twp.
| Decision Date | 20 May 2014 |
| Docket Number | Case No. 4:12–cv–00672. |
| Citation | 22 F.Supp.3d 392 |
| Parties | NITTANY OUTDOOR ADVERTISING, LLC and Stephanas Ministries, Plaintiffs v. COLLEGE TOWNSHIP, Defendant. |
| Court | U.S. District Court — Middle District of Pennsylvania |
David C. Shipman, Elion, Wayne, Grieco, Carlucci, Shipman & Irwin, PC, Williamsport, PA, E. Adam Webb, Webb, Klase and Lemond, Atlanta, GA, for Plaintiffs.
Anthony R. Sherr, Mayers, Menneis & Sherr, LLP, Blue Bell, PA, Louis T. Glantz, Glantz Johnson & Associates, State College, PA, for Defendant.
For the reasons that follow, plaintiffs's motions for partial summary judgment and for permanent injunctive relief (ECF Nos. 25 & 28) are each granted in part and denied in part.
On April 11, 2012, plaintiffs Nittany Outdoor Advertising, LLC, and Stephanas Ministries (hereinafter, “Nittany” and “Ministries”) filed a complaint seeking redress of defendant College Township's (hereinafter, the “Township”) denial of Nittany's applications to post three billboards bearing the Ministries's messages along East College Avenue, “the Township's most heavily trafficked commercial corridor.” (ECF No. 1 ¶ 7). Plaintiffs claimed that the Sign Ordinance under which the Township Zoning Officer denied Nittany's applications by separate letters, each dated March 13, 2012, violated the First Amendment of the United States Constitution and the Constitution of the Commonwealth of Pennsylvania.1 (Id. ¶¶ 16, 19–21). Plaintiffs sought damages as well as declaratory, injunctive and other equitable relief.
On July 3, 2012, plaintiffs filed an amended complaint reiterating the allegations of the original complaint and adding that, “[a]fter Plaintiffs' Complaint was filed on April 11, 2012, and as a clear result thereof, the Township commenced the process of amending the [challenged Sign] Ordinance,” a process plaintiffs projected would end with the adoption of an amended ordinance no sooner than August 2012. (ECF No. 11 ¶ 14). The amended complaint also asserted that Nittany had submitted two additional sign permit applications that the Township Zoning Officer rejected by letters dated June 19, 2012 “for reasons similar to those described in the March 2012 letters.” (Id. ¶ 19).
On July 17, 2012, the Township filed a motion that Chief Judge Christopher C. Conner (who was then presiding over this matter) construed as a ripeness challenge to this Court's subject matter jurisdiction. (See Mem. & Order, Jan. 15, 2013, ECF No. 24 at 1, 2013 WL 160225 ). In a January 15, 2013 memorandum opinion that relied primarily on the United States Court of Appeals for the Third Circuit's decision in Peachlum v. City of York, 333 F.3d 429 (3d Cir.2003) (Rosenn, J.), Chief Judge Conner rejected the Township's argument that, because the plaintiffs challenged the Sign Ordinance in federal court without first appealing their permit denials to the Township's Zoning Hearing Board, the controversy in this Court was unripe.2 (See Jan. 15, 2013 Mem. & Order at 2–3). Two days later, on January 17, 2013, Chief Judge Conner reassigned the case to the undersigned.
On March 1, 2013, plaintiffs filed motions for partial summary judgment (ECF No. 25) and for permanent injunctive relief (ECF No. 28).
Summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” where it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is “genuine” where “the evidence is such that a reasonable jury,” giving credence to the evidence favoring the nonmovant and making all reasonable inferences in the nonmovant's favor, “could return a verdict for the nonmoving party.” Id.
For movants and nonmovants alike, the assertion “that a fact cannot be or is genuinely disputed must” be supported by “citing to particular parts of materials in the record,” or by “showing that the materials cited [by an adverse party] do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). “If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may ... consider the fact undisputed for purposes of the motion.” Fed.R.Civ.P. 56(e)(2).
Thus, where the moving party's motion is properly supported and his evidence, if not controverted, would entitle him to judgment as a matter of law, the nonmoving party, to avoid summary judgment in his opponent's favor, must answer by setting forth “genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson, 477 U.S. at 250, 106 S.Ct. 2505. In the face of the moving party's evidence, the nonmoving party's mere allegations, general denials or vague statements will not create a genuine factual dispute. See Bixler v. Cent. Pennsylvania Teamsters Health & Welfare Fund,
12 F.3d 1292, 1302 (3d Cir.1993). Only citation to specific facts is sufficient. Anderson, 477 U.S. at 250, 106 S.Ct. 2505.
Before the Court considers whether plaintiffs are entitled to a permanent injunction, plaintiffs must succeed on the merits of their claims. See CIBA–GEIGY Corp. v. Bolar Pharm. Co., Inc., 747 F.2d 844, 850 (3d Cir.1984) ( ). If the plaintiff prevails on the merits, then the Court must consider whether “the moving party will be irreparably injured by the denial of injunctive relief,” whether “the granting of the permanent injunction will result in even greater harm to the defendant,” and whether “the injunction would be in the public interest.” Shields v. Zuccarini, 254 F.3d 476, 482 (3d Cir.2001).
Despite plaintiffs's penchant for larding their averments with argument and opinion more appropriate for other stages of litigation, the Court has extracted the following undisputed material facts from the parties's L.R. 56.1 submissions. See L.R. 56.1 ().
As the “Outdoor Advertising” part of its name suggests, plaintiff Nittany is in the business of disseminating its customers's commercial and noncommercial messages by way of outdoor signage. (Pls.'s Facts, Mar. 1, 2013, ECF No. 27 ¶ 2). Plaintiff Stephanas Ministries is a “Christian-based charitable and religious organization headquartered in Greensburg, Pennsylvania.” (Pls.'s Facts ¶ 3). Except where distinction is necessary or helpful, this memorandum will refer to plaintiffs collectively as “Nittany” hereinafter.
Defendant College Township is a political subdivision of Centre County and the Commonwealth of Pennsylvania and regulates the posting of outdoor signs under its zoning code. (Def.'s Facts, Apr. 4, 2013, ECF No. 38 ¶ 7). Signs are governed specifically by chapter 170, the “Sign Ordinance,” which provides that, “[w]ith the exception of signs listed in Article II, no sign may be constructed, installed, posted, displayed or modified without first obtaining a sign permit approving the proposed sign's size, design, location and display, as well as a license in accordance with Article VII of this chapter.”3 Coll. Twp.Code § 170–3.
Until August 2012, the Sign Ordinance provided that permits were not to be granted for any “off-premises sign,” defined as “[a] sign which advertises or directs the public to a business product or service not present on the property where said sign is located, including but not limited to billboards and off-site directional signs.” Coll. Twp.Code §§ 170–4. & 170–7.I. The Ordinance defined “billboard” as:
A sign which directs attention to a business, commodity, service, entertainment or attraction which is sold, offered or existing elsewhere than upon the same lot where such sign is displayed. Billboards offer space which is generally leased or rented by the owner thereof to others for the purpose of conveying a commercial or noncommercial message. For the purposes of this chapter, a billboard shall be considered an off-premises sign.
Id. § 170–4. The Ordinance also restricted the location, sign face area, number, and height of any “freestanding sign,” defined as Id.
Several College Township landowners have (in exchange for the promise of compensation, naturally) given Nittany permission to post billboards on their respective properties adjacent to East College Avenue, the Township's most heavily trafficked commercial corridor. (Pls.'s Facts ¶¶ 11–12). On March 7, 2012, Nittany submitted three applications to the Township for permission to post billboards, intending to use the billboards to promote the work of the Ministries. (Id. ¶¶ 14–15). The Township's “Sign Permit Application” form—in addition to requesting information about Nittany itself, the location of Nittany's proposed installation, and the identity of the property owner and sign fabricator associated with the...
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