Signs for Jesus v. Town of Pembroke

• Decision Date: 07 October 2020
• Docket Number: No. 17-1192,17-1192
• Citation: 977 F.3d 93
• Parties: SIGNS FOR JESUS ; Hillside Baptist Church, Plaintiffs, Appellants, v. TOWN OF PEMBROKE, NH; Pembroke Zoning Board of Adjustment; Everett Hodge, Code Enforcement Officer, Town of Pembroke, in both his individual and official capacities, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

977 F.3d 93

SIGNS FOR JESUS ; Hillside Baptist Church, Plaintiffs, Appellants,

v.TOWN OF PEMBROKE, NH; Pembroke Zoning Board of Adjustment; Everett Hodge, Code Enforcement Officer, Town of Pembroke, in both his individual and official capacities, Defendants, Appellees.

No. 17-1192

United States Court of Appeals, First Circuit.

October 7, 2020

Michael J. Tierney, with whom Wadleigh, Starr & Peters, P.L.L.C. was on brief, for appellants.

Christopher Cole, with whom Megan Carrier, Manchester, NH, and Sheehan Phinney Bass & Green, PA were on brief, for appellees.

Before Howard, Chief Judge, Torruella and Barron, Circuit Judges.

HOWARD, Chief Judge.

The Town of Pembroke, New Hampshire, bans the use of electronic signs in all of its zoning districts except its commercial district (C1) and certain nearby areas. In April 2015, Hillside Baptist Church -- located outside of these areas -- applied for a permit to install an electronic sign on its property, which would transmit messages provided by Signs for Jesus, a nonprofit corporation. The Pembroke Zoning Board of Adjustment (the "Board") denied the permit, citing the electronic sign provision in the Pembroke Sign Ordinance (PSO).

After a series of unsuccessful administrative appeals, Signs for Jesus and Hillside Baptist Church (collectively, the "Church") filed a complaint in district court against Pembroke, the Board, and Everett Hodge, the Town's Code Enforcement Officer (collectively, the "Town"), alleging violations of the United States Constitution, the New Hampshire Constitution, the Religious Land Use and Institutionalized Persons Act (RLUIPA), and certain New Hampshire zoning laws. Both parties filed cross-motions for summary judgment. The court granted the Town's motion and declined to exercise supplemental jurisdiction over the Church's state statutory claims. The Church now appeals that ruling. Because we conclude that the Town has met its summary judgment burden on all counts, we affirm.

I.

A. Regulatory Framework

The stated purpose of the PSO is to "[p]romote" street safety, "[r]educe distractions and obstructions," "[d]iscourage excessive visual competition," and "[p]reserve or enhance town character." Pembroke, N.H., Code ch. 143, art. VIII, § 143-57. To that end, the PSO requires that individuals and businesses desiring to install signs submit applications for permits to the Town's Code Enforcement Officer, who is authorized to issue a permit "only if [he] determines that the sign complies with, or will comply with all applicable provisions of [the PSO]." Id. § 143-59A(3). Certain types of signs, such as political and "for sale" signs, however, are exempt from the permit requirement. Id. § 143-59A(8)(a)-(e).

Regardless of whether a sign is exempt from the permit requirement, it is always subject to a "Dimensional Table of Signs" in Section 143-62, which specifies the types of signs that are allowed in each zone of Pembroke. See id. §§ 143-19, 143-62. Pursuant to a March 2012 change to the table, at the time of the Church's application, "Electronic Changing Signs" were banned from all zones, except in C1 and certain lots "directly abutting Pembroke Street." Id. § 143-63X.

While the PSO restricts "permitted signs" to signs that "conform to the provisions of [the sign ordinance]," it specifies that two types of signs are always allowed under the PSO. First, "[s]igns which are required by federal, state or municipal laws" are categorically allowed under the PSO. Id. § 143-58A. Additionally, a separate provision allows "non-conforming sign[s] lawfully existing at the time of adoption" of the PSO to "continue," unless such signs pose safety problems under the PSO. Id. § 143-58G(1).

B. Facts and Procedural History

Hillside Baptist Church, located in the Limited Office (LO) District in Pembroke, displayed a sign on its property that conveyed religious messages and could be changed manually. In April 2015, the Church applied for a permit to install an electronic sign that could be remotely programmed to display different religious messages each day, with messages provided by Signs for Jesus.

Hodge denied the Church's application, on the ground that the Church is located in a zone where electronic signs are prohibited. At the time, there were three electronic signs on the same road as the Church. The first was a gas station sign in the LO district, which predated the adoption of the PSO. The second was a sign on the property of Pembroke Academy, a public school in the Residential District, which posted messages advertising school events.¹ The third sign was a temporary electronic sign, erected during the summer of 2015 by the New Hampshire Department of Transportation (NHDOT) to inform motorists of possible construction delays.²

Following Hodge's denial of its application, the Church filed an administrative appeal and variance request with the Board. After a public hearing, the Board denied both the Church's appeal and its request for a variance. In its Notice of Decision, the Board emphasized that allowing the electronic sign would "detract from the rural character of the Route 3 corridor," and noted that the municipality's interest in maintaining the area's rural character was "compelling." The Church moved for a rehearing, but the Board again denied the appeal and variance request in October 2015.

The Church responded to these rejections by filing a complaint in the district court. After first determining that the Church had standing to challenge only the electronic sign provision, the district court granted the Town's motion for summary judgment with respect to the Church's constitutional and RLUIPA claims, and declined to exercise supplemental jurisdiction over the complaint's state statutory claims. See Signs for Jesus v. Town of Pembroke, 230 F. Supp. 3d 49, 57-68 & n.14 (D.N.H. 2017). This appeal followed.

The Church maintains that the court erred in holding that the PSO does not violate the First Amendment's free-speech guarantees. As it did in the district court, the Church argues that it has standing to pursue a First Amendment challenge to the PSO as a whole, both facially and as applied. And it also contends that it has standing to challenge the electronic sign provision in particular, again both facially and as applied.

In addition to its First Amendment claims, the Church also challenges the district court's dismissal of its claims under the Federal and New Hampshire equal protection clauses, as well as its RLUIPA claims. Finally, the Church argues that the district court erred in declining to exercise supplemental jurisdiction over its remaining state law claims.

II.

We review a district court's grant of summary judgment de novo. Specialty Nat'l Ins. Co. v. OneBeacon Ins. Co., 486 F.3d 727, 732 (1st Cir. 2007). In this case, the Church had also filed its own motion for summary judgment, but "[t]he presence of cross-motions for summary judgment neither dilutes nor distorts th[e] standard of review." Id. (quoting Mandel v. Bos. Phoenix, Inc., 456 F.3d 198, 205 (1st Cir. 2006) ).

A. Standing

Article III, section 2 of the Constitution restricts the federal judicial power to the resolution of "Cases" and "Controversies." U.S. Const. art. III, § 2. The "case-or-controversy" requirement is satisfied only where a plaintiff has "standing" to sue. Sprint Commc'ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 273, 128 S.Ct. 2531, 171 L.Ed.2d 424 (2008). To establish such standing, a plaintiff must identify an injury in fact that is 1) "concrete, particularized, and actual or imminent," 2) "fairly traceable to the challenged action," and 3) "redressable by a favorable ruling." Clapper v. Amnesty Int'l USA, 568 U.S. 398, 409, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (quoting Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149, 130 S.Ct. 2743, 177 L.Ed.2d 461 (2010) ). As the party invoking federal jurisdiction, the Church "bears the burden of establishing these elements." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

The parties agree that the Church has standing to challenge the electronic sign provision itself with regard to all of its claims. In the Church's First Amendment claims in its appellate briefing, however, the Church focuses on a number of other regulatory provisions that it contends are content-based. Those provisions include exemptions from the permitting provisions, various categories of signs for which special rules and conditions apply, and two provisions addressing government-related signs. And, the Church contends that, in light of these provisions, the electronic sign provision is itself impermissibly content-based and is unconstitutional under the First Amendment. To the extent that the identified exemptions allow a sign to circumvent the requirements of the electronic sign provision, there is no standing problem with that contention, as the parties seem to agree.

Insofar as the Church's argument nevertheless fails, because even though those exemptions may be content-based they do not exempt a proposed sign from complying with the electronic sign provision, the Church appears to have a fallback argument. That argument suggests that the Church has standing to challenge the PSO "as a whole" on the basis of the content-based exemptions, no matter whether those exemptions are relevant to the Town's denial of the Church's request. Because the Church advances no affirmative argument that the electronic sign provision is not severable from different parts of the PSO that may be content-based, though, it has no standing to challenge those provisions on this basis.³ See Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320, 328-29, 126 S.Ct. 961, 163 L.Ed.2d 812 (2006) ("[W]hen confronting a constitutional flaw in a statute, .... [w]e prefer to ... sever its problematic portions while leaving the remainder intact ...."); Sabri v. United States, 541 U.S. 600, 609-10, 124 S.Ct. 1941, 158 L.Ed.2d 891 (2004) (...