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

Decision Date26 July 1999
Docket NumberNo. Civ.A. 98-2534-KHV.,Civ.A. 98-2534-KHV.
Citation67 F.Supp.2d 1231
PartiesOUTDOOR SYSTEMS, INC., Plaintiff, v. The CITY OF LENEXA, 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.

David M. Cooper, Rebecca A. Swanwick, City of Lenexa, Legal Department, Lenexa, KS, for Defendant.


VRATIL, District Judge.

Outdoor Systems, Inc., an outdoor advertising company, leases billboards throughout the Kansas City metropolitan area. Outdoor Systems filed suit against the City of Lenexa, Kansas, a suburb of Kansas City, alleging that its sign ordinance signs is unconstitutional. The matter is before the Court on Defendant's Motion For Summary Judgment (Doc. # 30) filed May 24, 1999 and Plaintiff's Motion For Summary Judgment (Doc. # 32) filed May 24, 1999. After carefully considering the parties' briefs, the Court finds that both motions should be 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 non-moving 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 Sec., 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 non-moving 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 off-premise outdoor advertising business in the Kansas City metropolitan area. The City of Lenexa has enacted certain zoning regulations which govern, inter alia, the erection and maintenance of signs throughout the city (the "sign ordinance").

Plaintiff wants to erect permanent, off-premise, 14' × 48' outdoor advertising signs, i.e. billboards, on commercial and industrial property within the City of Lenexa. The signs are expected to carry commercial, noncommercial and political messages. The sign ordinance prohibits "off-site" signs in all zoning districts of the city. An "off-site sign" is defined as "[a]ny sign which directs attention to a business, commodity, service, product or activity not conducted, sold, offered or available on the premises where the sign is erected or to which it is affixed." See § 4-1E-3(G).

The sign ordinance prohibits any type of sign that it does not expressly permit. See id. § 4-1E-3. Generally, a person who wants to erect a sign in the City must first obtain a permit. See id. § 4-1E-8. Some types of signs, including political signs and political campaign signs, are exempt from the permit requirement. See id. § 4-1E-4. Any permitted sign, regardless of type or location, may contain noncommercial speech in lieu of any other speech. See id. § 4-1E-3.

The sign ordinance provides that "[p]olitical signs may be permitted on any property of the same size as allowed for a real estate sign. Political campaign signs must be removed within 7 days after the election or campaign issue has been decided." See id. § 4-1E-4(I).

The Sign Ordinance states that the legislature enacted the ordinance for the following purposes:

A. Regulation and control of all advertising and identification signs or attention attracting devices placed for exterior observation in order to preserve, protect and promote the public health, safety and general welfare of the residents of the City.

B. Prevent an adverse community appearance from the unrestricted use of signs or attention-attracting devices by providing a flexible, creative, fair, comprehensive and enforceable set of regulations that will foster a high quality, aesthetic, visual environment for Lenexa, enhancing it as a place to live and do business.

C. Recognition of the business community's need for adequate business identification and advertising communication by improving the readability and, therefore, the effectiveness of signs or attention-attracting devices, by preventing their improper placement, over concentration, excessive height, area and bulk and by limiting such items as illumination or animation.

D. Ensuring that the public is not endangered or distracted by the unsafe, disorderly, indiscriminate or unnecessary use of signs and attention-attracting devices, including the promotion of traffic safety by reducing the visual distraction of motorists.

E. Regulating the size, location and content of commercial signage in order to maximize its effectiveness in directing the public to specific buildings and facilities, while meeting the aesthetic goals of the community.

F. Protection of property values by enhancement of the harmony between residential, commercial and industrial uses by reducing visual clutter and preventing blighting influences.

G. Coordination of the type, placement and physical dimensions of signs within the different land use zoning districts.

H. Acknowledgment of the differing design concerns and needs for signage in certain specialized areas such as freeway frontages, tourist areas and master planned developments.

See id. § 4-1E-2.

I. Restrictions On Noncommercial Speech

Signs are a form of expression protected by the First Amendment. See City of Ladue v. Gilleo, 512 U.S. 43, 48, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994).1 As an initial matter, the Court notes the Supreme Court's opinion in Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981), which addressed a sign ordinance similar to the one adopted by the City of Lenexa. In Metromedia, the city ordinance generally prohibited outdoor advertising display signs. 453 U.S. at 493-94, 101 S.Ct. 2882. It made exceptions, however, for onsite signs; government signs; signs at public bus stops; signs manufactured, transported, or stored within the city, if not used for advertising purposes; commemorative historical plaques; religious symbols; signs within shopping malls; for sale and for lease signs; signs on public and commercial vehicles; signs depicting time, temperature and news; approved temporary, off-premises, subdivision directional signs; and temporary political campaign signs. 453 U.S. at 494-95, 101 S.Ct. 2882. "Under this scheme, on-site commercial advertising is permitted, but other commercial advertising and noncommercial communications using fixed-structure signs are everywhere forbidden unless permitted by one of the specified exceptions." 453 U.S. at 495-96, 101 S.Ct. 2882.

A plurality of the Supreme Court held that San Diego could choose to value one kind of commercial speech, onsite advertising, more than another kind of commercial speech, offsite advertising. 453 U.S. at 512, 101 S.Ct. 2882. The Supreme Court stated that "the city could reasonably conclude that a commercial enterprise — as well as the interested public — has a stronger interest in identifying its place of business and advertising the products or services available there than it has in using or leasing its available space for the purpose of advertising commercial enterprises located elsewhere." Id. In other words, San Diego does not have to treat all commercial interests equally. Id.

The Supreme Court took a quite different view, however, of San Diego's restrictions on noncommercial speech. It noted that "[t]he fact that the city may value commercial messages relating to onsite goods and services more than it values commercial communications relating to off-site goods and services does not justify prohibiting an occupant from displaying its own ideas or those of others." 453 U.S. at 513, 101 S.Ct. 2882. San Diego's ordinance contained a broad exception for onsite commercial advertisements, but it omitted a similar exception for...

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