Outdoor Media Group Inc. & Chance Outdoor Llc. v. City Of Beaumont

• Decision Date: 06 July 2010
• Docket Number: No. EDCV 03-1461 RT (OP).,EDCV 03-1461 RT (OP).
• Court: U.S. District Court — Central District of California
• Parties: OUTDOOR MEDIA GROUP, INC. & Chance Outdoor, LLC, Plaintiffs, v. CITY OF BEAUMONT, Defendant(s).

702 F.Supp.2d 1147

OUTDOOR MEDIA GROUP, INC. & Chance Outdoor, LLC, Plaintiffs,

v.CITY OF BEAUMONT, Defendant(s).

No. EDCV 03-1461 RT (OP).

United States District Court,C.D. California.

March 22, 2010.

Order Granting Extension for Filing Notice of Appeal July 6, 2010.

COPYRIGHT MATERIAL OMITTED.

Jeffrey A. Tidus and Henry Gonzales of Baute and Tidus, Los Angeles, CA, for Plaintiffs Outdoor Media Group and Chance Outdoor.

Joseph S. Aklufi of Aklufi and Wysocki, Michael A. Bell of Bell Orrock and Watase, Riverside CA, Randal R. Morrison of Sabine and Morrison, San Diego, CA, and Timothy T. Coates of Greines, Martin, Stein and Richland, Los Angeles, CA, for Defendant City of Beaumont.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

ROBERT J. TIMLIN, District Judge.

Before the Court is Plaintiffs Outdoor Media Group, Inc. (“OMG”) and Chance Outdoor, LLC's (“Chance”) (collectively, “Plaintiffs”) Motion for Summary Judgement, or in the Alternative, Summary Adjudication (“Plaintiffs' Motion”). Also before the Court is Defendant City of Beaumont's (the “City” or “Defendant”) Motion for Summary Judgment (“Defendant's Motion”). The Court finds the matters appropriate for decision without oral argument. Fed.R.Civ.P. 78; Local R. 7-15. After considering the moving, opposing, and reply papers, as well as all evidence submitted in conjunction with both motions, the Court hereby rules as follows:

I. Background

The following are uncontroverted facts supported by admissible evidence:

Plaintiffs OMG and Chance were in the business of leasing outdoor advertising space to the public through the provision of billboards. On May 22, 2003, OMG filed a conditional use permit (“CUP”) application with the City to erect four billboards on property at the northwest intersection of Interstate 10 and State Highway 60. On July 8, 2003, the City's then Director of Planning, Ernest A. Egger (“Egger”), noted that when considering the erection of any new billboard sign, the City's Planning Commission (the “Commission”) should evaluate: “(1) whether the proposal is consistent with the existing visual environment or whether a new visual character will result for the area, (2) the potential advertising content of the sign, and (3) the duration of any approvals.” See Second Declaration of Randal Morrison in Supp. of Def.'s Mot., Exh. F. In evaluating the specific CUP application submitted by Plaintiff OMG, Egger posited that the proposal would likely “result in grossly excessive signage in the vicinity, and utter visual blight.” Id. As to advertising content, Egger stated that if the application was approved, the “staff would recommend conditions to preclude the advertising of adult-oriented businesses on the sign....” And, because the site at issue would likely be part of a future commercial development, Egger recommended a 10-year permit duration.

Egger recommended that the Commission make the following findings with respect to OMG's CUP application:

1. The proposal would result in an excessive, undue and adverse visual intrusion in the character of the subject Interstate 10 and State Highway 60 commercial corridors, by adding unrelated advertising to a future new commercial facility.

2. The project, due to adverse visual effects, will have a detrimental effect on the general public health, safety and welfare by adversely affecting existing views of open space and visual relief and future views of new commercial development.

Id. The Commission adopted Planning Director Egger's recommended findings and denied the CUP application. OMG appealed the denial to the City Council. The City Council affirmed the denial. While the City's old sign ordinance (Municipal Code § 17.60.005, et seq.) regulated the erection of billboards and the signage thereon, neither the City's staff nor the Planning Commission nor the City Council expressly stated the specific sections of the old sign ordinance (the “Old Ordinance”) relied upon to deny the application.

Plaintiffs then filed a complaint in the instant action on December 12, 2003, pursuant to 42 U.S.C. § 1983 (“Section 1983”), alleging that the City deprived them of their First and Fourteenth Amendment rights. By their complaint, Plaintiffs specifically allege that: (1) the Old Ordinance pursuant to which the City denied the CUP application violated the First Amendment because it regulated signs on the basis of content, regulated commercial speech without a substantial government interest, allowed the government standardless discretion in the permitting process, and was overbroad; (2) the City violated OMG's procedural due process rights because its denial was unreasonable, arbitrary, and capricious; and (3) the Old Ordinance violated the Equal Protection Clause by regulating on the basis of arbitrary and unreasonable classifications. Plaintiffs sought damages for deprivation of their constitutional rights, a declaration that the sign ordinance was unconstitutional on its face and as applied to Plaintiffs, and injunctive relief prohibiting the city from interfering with Plaintiffs' efforts to erect otherwise-conforming signs within the city.

On February 3, 2004, the City Council repealed the Old Ordinance and replaced it with a new sign ordinance that specifically bans all new billboards and includes an express message substitution clause permitting the substitution of noncommercial copy for any existing copy on otherwise permissible signs. With the passage of the new sign ordinance, the City then moved to dismiss on mootness grounds Plaintiffs' complaint in its entirety. On June 30, 2005, 374 F.Supp.2d 881 (C.D.Cal.2005), this Court granted the City's motion. The Court specifically held that Plaintiffs' requests for declaratory and injunctive relief were rendered moot by passage of the new sign ordinance. Second, while acknowledging that Plaintiffs' claim for damages was not mooted, the Court held that Plaintiffs had no vested property right in the rejected billboard permit application and therefore had no viable damages claim for infringement of such property right. Plaintiffs appealed to the Ninth Circuit Court of Appeals.

On November 1, 2007, the Ninth Circuit affirmed in part, reversed in part, and remanded the case to this Court. Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895 (9th Cir.2007). Specifically, the Ninth Circuit upheld this Court's ruling on the mootness of Plaintiffs' declaratory and injunctive relief claims. With respect to the damages claim, while upholding this Court's dismissal of the procedural due process allegations, the Circuit indicated that this Court erred in dismissing the First Amendment and Equal Protection claims due to Plaintiffs' lack of a vested property right. Therefore, the Circuit proceeded to analyze whether Plaintiffs had otherwise stated claims for violations of these constitutional rights.

While affirming dismissal of the deprivation of Equal Protection claim, the Circuit engaged in a lengthier analysis regarding the First Amendment allegations. First, the Circuit held that the Old Ordinance did not grant the City's Planning Director unbridled, standardless discretion and upheld the dismissal of such an alleged constitutional infirmity. Furthermore, in affirming dismissal of Plaintiffs' overbreadth allegations, the Circuit recognized that Section 1983 damages are unavailable pursuant to such allegations, as such a claim of deprivation of First Amendment rights presupposes that the Old Ordinance was constitutionally applied to Plaintiffs but may be so broad as to unconstitutionally suppress the speech of third parties. In other words, with Plaintiffs' own constitutional rights not violated, they could not claim personal money damages.

With respect to the Old Ordinance's regulation of commercial speech, the Circuit held the ordinance constitutionally sufficient, finding the ordinance implicated a substantial government interest and did not reach further than necessary to achieve that interest. Specifically, the Circuit found constitutional in the context of commercial speech the Old Ordinance's distinction between permissible on-site signs and impermissible off-site signs, i.e., a sign that advertises services provided at the location of the sign versus a sign that advertises services available at locations other than where the sign is located.

The Old Ordinance's purported regulation of noncommercial speech, however, caused more concern to the Ninth Circuit. In particular, it noted that the “broad prohibition [of off-site signs specified in the City's Municipal Code § 17.60.010 ¹ ] seems to reach beyond off-site commercial copy to preclude the posting of many noncommercial messages, if those messages are not related to the site upon which the sign is located.” Id. at 906. In so pointing out, the Circuit noted that the new sign ordinance expressly limits the reach of the off-site ban to commercial copy by including a message substitution clause allowing noncommercial copy to replace legal commercial copy. However, the Old Ordinance included no such express substitution clause. In addition, the Circuit recognized that the Old Ordinance appeared to impermissibly regulate noncommercial copy based on content by exempting certain noncommercial messages from the permit requirement. The Ninth Circuit reasoned that these two seeming infirmities could potentially render the Old Ordinance facially unconstitutional.

In noting that the Old Ordinance may have impermissibly regulated noncommercial speech, the Ninth Circuit acknowledged that the procedural posture of the case-that it was on appeal from the granting of a motion to dismiss and consequently had no developed record-did not allow for a final determination on appeal regarding the constitutionality of the restrictions. Likewise, the Ninth Circuit recognized that it “[could not] say whether this facial infirmity [i.e., regulation of...