Reed v. Town of Gilbert
| Decision Date | 11 February 2011 |
| Docket Number | No. CV 07–522–PHX–SRB.,CV 07–522–PHX–SRB. |
| Citation | 832 F.Supp.2d 1070 |
| Parties | Pastor Clyde REED; Good News Presbyterian Church, Plaintiffs, v. TOWN OF GILBERT; Adam Adams, in his official capacity as Code Compliance Manager, Defendants. |
| Court | U.S. District Court — District of Arizona |
OPINION TEXT STARTS HERE
Editor's Note: The opinion of the United States District Court, D. Arizona, in Reed v. Town of Gilbert, published in the advance sheet at this citation, 832 F.Supp.2d 1070, was withdrawn from the bound volume because it was not intended for publication.Benjamin W. Bull, Jeremy David Tedesco, Alliance Defense Fund Legal Ctr., Scottsdale, AZ, David A. Cortman, Alliance Defense Fund, Lawrenceville, GA, for Plaintiffs.
Kim Seibert Alvarado, Robert Grasso, Jr., Grasso Law Firm PC, Chandler, AZ, for Defendants.
At issue are Plaintiffs Pastor Clyde Reed and Good News Presbyterian Church's Motion for Summary Judgment (“ ”) (Doc. 100) and Defendants the Town of Gilbert (“the Town”) and Adam Adams' Cross–Motion for Summary Judgment (“ ”) (Doc. 97). The Court also resolves Defendants' Motion for Leave to File Objection to Admission of Evidence ( ) (Doc. 111) at this time.
I. BACKGROUND
The facts of this case were set out in this Court's Order of September 30, 2008 (the “PI Order”), in which the Court denied Plaintiffs' Second Motion for Preliminary Injunction. ( See Doc. 43, PI Order at 1–7.) The pertinent details are summarized here.
Plaintiff Clyde Reed is the Pastor of Plaintiff Good News Community Church (“Good News”).1 (Pls.' Statement of Undisputed Facts (“PSOF”) ¶ 8.) For approximately five years prior to the filing of Plaintiffs' Complaint in March 2007, Good News met at Coronado Elementary School in Gilbert, Arizona. ( Id. ¶ 22.) Good News presently rents space at an elementary school in Chandler, Arizona, which borders Gilbert, Arizona, for its weekly services. (DSOF ¶¶ 3, 5; PSOF ¶ 23.) Good News has about 25–30 adult members, as well as 4–10 children. (DSOF ¶ 4.) As part of their religious beliefs, members of Good News “reach out to the community to meet together on a regular basis.” (PSOF ¶¶ 12–15.)
“A primary way in which the community may learn about Plaintiffs' services is through the signs that are placed announcing the time and location of the services.” (PSOF ¶ 18.) “For a time, the Church was placing about 17 signs in the areas surrounding” the meeting place. ( Id. ¶ 24.) On September 17, 2005, Good News received an advisory notice from the Town's Code Compliance Department, stating that Good News was in violation of § 4.402(P) of the Town's Sign Code because the signs were displayed outside the statutorily-limited time period of two hours before, during, and one hour after the advertised event. ( Id. ¶ 26.) On January 8, 2008, the Town passed amendments to its Sign Code. 2 (Joint Statement of Facts in Supp. of Cross–Mots. for Summ. J. (“JSOF”) ¶ 2.) Plaintiffs subsequently filed a First Amended Verified Complaint, in which they allege that the amended Sign Code, in particular § 4.402(P), still violates their rights, as guaranteed by the United States and Arizona Constitutions and the Arizona Free Exercise of Religion Act (“FERA”). 3
On March 24, 2008, the Court heard oral argument on Plaintiffs' Second Motion for Preliminary Injunction. In the PI Order, which was filed on September 30, 2008, the Court denied preliminary injunctive relief, finding that Plaintiffs had not demonstrated a likelihood of success on the merits of their claims. (PI Order at 16–17.) Plaintiffs appealed the Court's decision regarding preliminary injunctive relief to the Ninth Circuit Court of Appeals, which in turn issued a decision filed on December 14, 2009. See Reed v. Town of Gilbert, Ariz., 587 F.3d 966 (9th Cir.2009). The Court of Appeals largely affirmed this Court's conclusions in the PI Order. Id. at 970–71. However, the Court of Appeals remanded this matter for consideration of one issue: whether the Sign Code “unfairly discriminates among forms of noncommercial speech.” Id. at 971. At a status conference held after the mandate of the Court of Appeals issued, the parties stated that their intention was to resolve all remaining issues on summary judgment, rather than renewing a motion for a preliminary injunction or saving some issues for trial. ( See Status Conference Hr'g Tr. 3:15–5:2, Jan. 11, 2010.) 4 Therefore, this Order is fully case dispositive. The Court heard oral argument on the parties' Cross–Motions for Summary Judgment on November 22, 2010. ( See Doc. 116, Minute Entry.)
The Town of Gilbert Land Development Code, Division 4, General Regulations, Article 4.4, Sign Regulations, controls the posting of signs within the Town of Gilbert. (JSOF, Ex. 1, Sign Code (henceforth, the “Sign Code”).) Section 4.401(A) outlines the purposes of the Sign Code, namely, to “assure proper and efficient expression through visual communications involving signs compatible with the character and environment of the Town; to eliminate confusing, distracting, and unsafe signs; and to enhance the visual environment of the Town of Gilbert.” Section 4.401(A) also lists the reasons why Defendants believe that the regulation of signs is necessary and in the public interest.5
Under § 4.402(A), no person may “construct, install, attach, place, paint, alter, relocate, or otherwise maintain any sign in the Town without first obtaining a sign permit” unless the sign is one exempted under § 4.402(D). Section 4.402(D) lists nineteen different exceptions: types of signs that are allowed without a permit. These include, among others, § 4.402(P), “Temporary Directional Signs Relating to a Qualifying Event;” (“Qualifying Event Signs”) § 4.402(I), “Political Signs;” and § 4.402(J), “Ideological Signs.” ( See Sign Code at 2–3.)
Section 4.402(P), concerning Qualifying Event Signs, provides, in relevant part:
Temporary Directional Signs Relating to a Qualifying Event shall be permitted subject to the following regulations:
1. Size. Signs shall be no greater than 6 feet in height and 6 square feet in area.
2. Number. No more than 4 signs shall be displayed on a single property at any one time.
3. Display. Signs shall only be displayed up to 12 hours before, during, and 1 hour after the qualifying event ends. The person who installed the signs shall be responsible for removal. If the person installing the signs is unknown, the property owner shall be responsible.
4. Location. Temporary Directional Signs Relating to a Qualifying Event may be located off-site and shall be placed at grade level. Signs shall be placed only with the permission of the owner of the property on which they are placed.
5. Prohibited Locations. Temporary Directional Signs Relating to a Qualifying Event shall not be located:
a. In the public right-of-way.
b. On fences, boulders, planters, other signs, vehicles, utility facilities, or any structure.
The Sign Code's Glossary of General Terms defines “Temporary Directional Signs Relating to a Qualifying Event” as “a temporary sign intended to direct pedestrians, motorists, and other passersby to a ‘qualifying event’ ” and a “Qualifying Event” as “any assembly, gathering, activity, or meeting sponsored, arranged, or promoted by a religious, charitable, community service, educational, or other similar non-profit organization.” (JSOF, Ex. B at 23). A “Political Sign” is defined as “[a] temporary sign which supports candidates for office or urges action on any other matter on the ballot of primary, general and special elections relating to any national, state or local election.” ( Id. at 21–22.) An “Ideological Sign” is “[a] sign communicating a message or ideas for non-commercial purposes that is not a construction sign, directional sign, temporary directional sign relating to a qualifying event, political sign, garage sale sign, or a sign owned or required by a governmental agency.” ( Id. at 22.)
Plaintiffs also highlight another type of sign: “Homeowners Association Facilities Temporary Signs,” (“HOA Temporary Event Signs”) governed by § 4.406(C)(4). Section 4.406(C)(4), provides, in pertinent part:
Temporary Signs for Homeowners Association Facilities shall comply with the following regulations:
a. Applicability. Banners and Directional Signs for Homeowners Association Facilities are permitted that display information concerning seasonal or temporary events occurring in the development.
b. Sign Area and Location. A maximum of 80 square feet of sign area is permitted within the limits of the residential community.
c. Installation and Removal. Signs shall be installed no earlier than 30 days prior to the date of an event and shall be removed within 48 hours of completion of the event.
...
e. Placement. The regulations of Section 4.402: General Sign Regulations and Section 4.403.C: Placement of Signs shall apply.
II. LEGAL STANDARDS AND ANALYSISA. Summary Judgment Standard
The standard for summary judgment is set forth in Rule 56(c) of the Federal Rules of Civil Procedure. Under Rule 56, summary judgment is properly granted when: (1) no genuine issues of material fact remain; and (2) after viewing the evidence most favorably to the non-moving party, the movant is clearly entitled to prevail as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288–89 (9th Cir.1987). A fact is “material” when, under the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A “genuine issue” of material fact arises if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.
In considering a motion for summary judgment, the court must regard as true the...
To continue reading
Request your trial