Outdoor Systems, Inc. v. City of Merriam, Kan.

Decision Date30 August 1999
Docket NumberNo. Civ.A. 98-2397-KHV.,Civ.A. 98-2397-KHV.
Citation67 F.Supp.2d 1258
PartiesOUTDOOR SYSTEMS, INC., Plaintiff, v. The CITY OF MERRIAM, KANSAS, Defendant.
CourtU.S. District Court — District of Kansas

Edward R. Spalty, Armstrong Teasdale LLP, Kansas City, MO, David H. Flint, Mark W. Forsling, Schreeder, Wheeler & Flint, LLP, Atlanta, GA, for Plaintiff.

Lynaia M. Holsapple, Holbrook, Heaven & Osborn, P.A., Kansas City, KS, John D. Tongier, Holbrook, Heaven & Osborn, P.A., Merriam, KS, for Defendant.

MEMORANDUM AND ORDER

VRATIL, District Judge.

Outdoor Systems, Inc. is an outdoor advertising company which leases billboards throughout the Kansas City metropolitan area. It filed suit against the City of Merriam, Kansas, a suburb of Kansas City, alleging that its sign ordinance is unconstitutional. This matter is before the Court on Plaintiff's Motion For Summary Judgment (Doc. # 13) filed March 1, 1999 and Defendant's Cross Motion For Summary Judgment (Doc. # 19) filed April 8, 1999. After carefully considering the parties' briefs, the Court is prepared to rule. For reasons set forth below, both motions are sustained in part and overruled in part.

Summary Judgment Standards

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir.1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252, 106 S.Ct. 2505.

The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Securities, Inc., 912 F.2d 1238, 1241 (10th Cir.1990); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). The nonmoving party may not rest on its pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.

"[W]e must view the record in the light most favorable to the parties opposing the motion for summary judgment." Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). Summary judgment may be granted if the nonmoving party's evidence is merely colorable or is not significantly probative. Anderson, 477 U.S. at 250-51, 106 S.Ct. 2505. "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505.

Factual Background

The following facts are uncontroverted or deemed admitted for purposes of the instant motions.

Outdoor Systems, Inc. is a Delaware corporation which conducts an outdoor advertising business in the metropolitan Kansas City area, including the City of Merriam, Kansas. The City has enacted zoning regulations which govern, inter alia, the erection and maintenance of on-premise, off-premise, political and other signs within the city.

Plaintiff wants to construct permanent off-premise outdoor advertising signs on property which is zoned for commercial and industrial uses. These signs would direct attention to businesses, commodities, services or entertainment conducted, sold or offered at locations other than the premises on which they would be located or affixed. Also, they would provide information to the public about goods, products, services, establishments, ideas and events. In other words, they would provide a medium for commercial, political and noncommercial speech. Plaintiff would post or paint messages on the signs, and it would periodically change them.

The ordinance does not specifically prohibit offsite signs but it states that only certain categories of signs (which do not include offsite outdoor advertising signs) are permitted. Sections 6-201 through 6-203 allow the following signs in all business, industrial and residential districts:

1. BULLETIN BOARD SIGN: A sign that indicates the name of an institution or organization on whose premises it is located and which contains the name of the institution or organization, the name or names of persons connected with it and announcement of persons, events or activities occurring at the institution. Such signs may also present a greeting or similar message.

2. BUSINESS SIGN: A sign which directs attention to a business or profession conducted or to a commodity or service sold, offered or manufactured or an entertainment offered, on the premises where the sign is located or to which it is affixed.

3. CONSTRUCTION SIGN: A temporary sign indicating the name of architects, engineers, landscape architects, contractors and similar artisans involved in the design and construction of a structure or project, permitted only during the construction period and only on the premises on which the construction is taking place.

4. IDENTIFICATION SIGN: A sign giving the name and address of a building, business, development or establishment. Such signs may be wholly or partly devoted to a readily recognized symbol.

5. NAME PLATE SIGN: A sign giving the name and/or address of the owner or occupant of a building or premises on which it is located and where applicable, a professional status.

6. REAL ESTATE SIGN: A sign pertaining to the sale or lease of the lot or tract of land on which the sign is located or to the sale or lease of one or more structures or a portion thereof located thereon.

Sign Ordinance § 6-107(A); see id. §§ 6-201, 6-202, 6-203. In business and industrial districts, the ordinance also permits advertising signs, which are defined as follows: "A sign which directs attention to a business, commodity, service or entertainment conducted, sold or offered at the location on which the sign is located or to which it is affixed." See id. § 6-107(A)(1).

An individual may not erect, repair, alter, relocate or maintain any sign without first paying a fee and obtaining a sign permit from the City Zoning Administrator. See id. § 6-103. Section 6-103(B)(2) of the ordinance provides that the Community Development Director may not issue any sign permit (other than a temporary permit) without the prior approval of a majority of a quorum of the members of the Community Development Committee. The Sign Ordinance provides that a permit should be issued if the "application is in order." See id. § 6-103(B). The City Zoning Administrator may also remove signs if he finds them to be "unattractive" or a "menace to the public." See id. § 6-103(F)(1). The ordinance requires that "all signs shall conform, generally, to the aesthetics of the immediate area in which they are placed." See id. § 6-104(I). The ordinance does not define "aesthetics" or explain how city officials should determine if a sign conforms to the aesthetics of the surrounding area.

The ordinance exempts the following signs from its regulations: real estate signs below a certain size and for a limited period; professional name plate signs; bulletin boards not over eight square feet located on the premises of public, charitable or religious institutions; signs denoting the architect, engineer or contractor of work; occupational signs; memorial signs; traffic or other municipal signs; flags; holiday decorations; house numbers and name plates; and signs located inside a building. See id. § 6-105(A).

The ordinance also permits temporary signs to be displayed for up to 30 days in any one calendar year but not in two consecutive months. See id. § 6-104(N). Advertisements on temporary signs must pertain to the business conducted on the premises unless the sign is of a civic, political or religious nature. See id. Political signs "may be erected no sooner than twenty-five (25) days before an election and shall be removed no later than five (5) days after an election." See id. § 6-104(N)(5)(d).1

Section 6-104(H) of the ordinance provides that "it shall be unlawful for any person to display upon any sign or other advertising structure any obscene, indecent or immoral matter." The ordinance does not define the type of matter deemed "obscene, indecent or immoral."

Section 6-106(A) of the ordinance provides that "every sign or other advertising structure lawfully in existence on the adoption of this ordinance shall not be altered unless it be made to comply with the provisions of these Regulations."

Plaintiff alleges that the sign ordinance violates the First Amendment to the United States Constitution and Section 11 of the Kansas Bill of Rights because it favors commercial speech over noncommercial speech, it impermissibly distinguishes between types of noncommercial speech based on content, and it allows the Community Development Committee, the City Zoning Administrator, and other city officials to remove signs in the exercise of unfettered discretion. Plaintiff also alleges that the ordinance is an...

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