Signs for Jesus v. Town of Pembroke, Case No. 15–cv–482–PB

• Decision Date: 27 January 2017
• Docket Number: Case No. 15–cv–482–PB
• Parties: SIGNS FOR JESUS, et al. v. TOWN OF PEMBROKE, NH, et al.
• Court: U.S. District Court — District of New Hampshire

230 F.Supp.3d 49

SIGNS FOR JESUS, et al.

v.TOWN OF PEMBROKE, NH, et al.

Case No. 15–cv–482–PB

United States District Court, D. New Hampshire.

Signed January 27, 2017

Pierre A. Chabot, Michael J. Tierney, Wadleigh Starr & Peters PLLC, Manchester, NH, for Signs for Jesus, et al.

Christopher Cole, Megan C. Carrier, Sheehan Phinney Bass & Green PA, Manchester, NH, Garry R. Lane, Ransmeier & Spellman, Concord, NH, for Town of Pembroke, NH, et al.

MEMORANDUM AND ORDER

Paul Barbadoro, United States District Judge

Hillside Baptist Church and Signs for Jesus want to install an electronic sign on the Church's property in Pembroke, New Hampshire. They brought this action against the Town of Pembroke, its Zoning Board of Adjustment, and its Code Enforcement Officer, Everett Hodge, after defendants denied plaintiffs' request for a permit to install the proposed sign. Plaintiffs allege violations of the United States Constitution, the New Hampshire Constitution, and the Religious Land Use and Institutionalized Persons Act (RLUIPA). The matter is before me on cross motions for summary judgment.

I. BACKGROUND

A. The Pembroke Sign Ordinance

Applications for an electronic sign are governed by Pembroke's sign ordinance. Pembroke, N.H., Code ch. 143, art. VIII, §§ 143–57 to –66, relevant version available at Doc. No. 1–5. The stated purpose of the ordinance is to "[p]romote the safety, comfort and well-being of the users of streets;" "improve traffic safety;" "discourage excessive visual competition among signs;" and "[p]reserve or enhance town character by requiring new and replacement signage which is ... [c]ompatible with the surroundings." Id. § 143–57.

The ordinance sets out "General requirements" in section 143–58. Subsection A, entitled "Permitted signs," provides that "[o]nly signs which refer to any lawful use, permitted use or an approved special exception use as set forth in Article IV of this Chapter shall be permitted, provided such signs conform to the provisions of this article." Id. § 143–58(A). Below this subsection, a box of text provides that "[s]igns which are required by federal, state or municipal laws are permitted." Id. Subsection B lists signs that are generally prohibited. Id. § 143–58(B). Subsection G allows all signs that predate the adoption of the ordinance. Id. § 143–58(G).

The "General requirements" provisions are followed by section 143–59, entitled "Administration," which details the process that must be followed to procure a sign permit. Subsection A, entitled "Permits," provides that "no sign shall be erected, displayed, altered or enlarged until an application has been filed" and a permit issued. Id. § 143–59(A). Within that subsection, provision A(8), entitled "Exception to permits," identifies five types of signs that "shall be exempt from the permitting requirements."¹

The remaining sections of the ordinance regulate where and how particular types of signs may be used. Id. §§ 143–60 to –66. A Table of Signs divides Pembroke into a number of zoning districts (e.g., Commercial, Residential, and Limited Office) and allows certain signs in some districts but not others. Id. §§ 143–60, –62.

Several years ago, the Town decided to protect its natural aesthetic by limiting the number of electronic signs. Accordingly, the ordinance was amended to bar Electronic Changing Signs in all districts but the Commercial District and limited parts of other districts that abut the Commercial District. See id. § 143–62, –63(X). Electronic Changing Signs include "electronic message center (EMC), electronic message sign (EMS), and changeable copy board (CCB) signs." Id. § 143–63(X). "These signs are capable of storing and/or displaying single or multiple messages in various formats at varying intervals." Id. Electronic Changing Signs are identifiable by certain physical criteria, including text, graphics, or patterns that are illuminated or flash. See id. When allowed, Electronic Changing Signs are subject to the additional minimum requirements specified by the ordinance, such as a limitation on their nighttime brightness, "along with all other requirements for signage within" the sign ordinance as a whole. Id.

B. Procedural History

Hillside Baptist Church (the "Church") wants to install its electronic sign next to the road on its property at 547 Pembroke Street in Pembroke, New Hampshire. Although the Church has an existing sign that can be changed manually, it hopes to upgrade to an electronic sign that can be remotely preprogrammed to display different messages each day. The new sign would display religious messages, and it would be provided by Signs for Jesus, a non-profit corporation "whose purpose is to publicly display daily Bible scriptures to the public via road signs."²

The Church is located in Pembroke's Limited Office ("LO") district, in which both residential and limited commercial development is permitted but electronic signs are barred. Two electronic signs are currently in use on the same road as the Church in districts that do not permit such signs. The first, which is on property owned by a gas station in the LO district, predates the adoption of the sign ordinance. The second is on property owned by Pembroke Academy, a public school in the Residential district.³

In April 2015, the Church applied for a permit to install an electronic sign. Town Code Enforcement Officer Everett Hodge determined that section 143–64(X) of the ordinance classifies the Church's proposed sign as an Electronic Changing Sign. Because the proposed sign would be erected in Pembroke's LO district—where electronic signs are prohibited—Hodge denied the Church's application. His decision was based solely on the Church's ineligible location, not its religious identity or proposed messages.

In May 2015, the Church filed an administrative appeal and a variance request with the Town's Zoning Board of Adjustment ("the Board"). The Church contended that the permit denial violated its rights under the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. 2000(cc), and the United States and New Hampshire constitutions. The Board held a public hearing on July 27, 2015, where it heard from the Church and community members. In rejecting the Church's appeal and variance request, the Board found that Hodge had correctly interpreted the sign ordinance, that a variance was not required under ordinary variance criteria, and that federal law did not require a contrary result. When the Board explained its decision, it emphasized the Town's interest in promoting a semi-rural aesthetic by limiting electronic signs in the LO district.

In August 2015, the Church requested a rehearing. Following a presentation by the Church, the Board again denied the Church's administrative appeal and variance request. In announcing the Board's decision, the Vice Chairman of the Board read from the draft motion that had been provided by counsel. It later issued a written Notice of Decision.

In November 2015, the Church filed its complaint here, claiming state and federal free speech, free exercise of religion, equal protection, and due process violations, along with claims under RLUIPA's substantial burden and equal terms provisions.⁴ Doc. No. 1 at 9–24. The complaint names as defendants the Town of Pembroke (the "Town"), its Zoning Board of Adjustment, and its Code Enforcement Officer, Everett Hodge.⁵ Id. at 1. The Church seeks declaratory, injunctive, and monetary relief. Id. at 24–25. The parties have filed cross motions for summary judgment. Doc. Nos. 32, 34.

II. STANDARD OF REVIEW

Summary judgment is appropriate when the record reveals "no genuine dispute as to any material fact and [that] the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The evidence in the record must be considered in the light most favorable to the nonmoving party, drawing all reasonable inferences in its favor. See Navarro v. Pfizer Corp. , 261 F.3d 90, 94 (1st Cir. 2001).

A party seeking summary judgment must first identify the absence of any genuine dispute of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A material fact "is one ‘that might affect the outcome of the suit under the governing law.’ " United States v. One Parcel of Real Prop. with Bldgs. , 960 F.2d 200, 204 (1st Cir. 1992) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ), abrogated in part on other grounds. If the moving party satisfies this burden, the nonmoving party must then "produce evidence on which a reasonable finder of fact, under the appropriate proof burden, could base a verdict for it; if that party cannot produce such evidence, the motion must be granted." Ayala–Gerena v. Bristol Myers–Squibb Co. , 95 F.3d 86, 94 (1st Cir. 1996) ; see Celotex , 477 U.S. at 322–23, 106 S.Ct. 2548.

On cross motions for summary judgment, the standard of review is applied to each motion separately. SeeAm. Home Assurance Co. v. AGM Marine Contractors, Inc. , 467 F.3d 810, 812 (1st Cir. 2006) ; see also Mandel v. Boston Phoenix, Inc. , 456 F.3d 198, 205 (1st Cir. 2006) ("The presence of cross-motions for summary judgment neither dilutes nor distorts this standard of review."). Thus, I must "determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed." Adria Int'l Group, Inc. v. Ferré Dev., Inc. , 241 F.3d 103, 107 (1st Cir. 2001).

III. ANALYSIS

The principal issue in this case is whether the Town improperly denied the Church's request for an electronic sign permit. The Church argues that the Town's denial of its request violates its First Amendment right to free speech, its First Amendment right to freely exercise its religion, its state and federal constitutional rights to equal protection, its Fourteenth Amendment right to procedural due process, and its rights under RLUIPA's undue burden and equal terms provisions. In addition to these claims, the...