Timilsina v. W. Valley City, Case No. 2:14–cv–00046–DN–EJF.

• Decision Date: 03 August 2015
• Docket Number: Case No. 2:14–cv–00046–DN–EJF.
• Parties: Robert Biplove TIMILSINA and Big Daddy's Pizza Restaurant, LLC, a Utah limited liability company, Plaintiffs, v. WEST VALLEY CITY, a municipal corporation, and Does 1–10, Defendants.
• Court: U.S. District Court — District of Utah

121 F.Supp.3d 1205

Robert Biplove TIMILSINA and Big Daddy's Pizza Restaurant, LLC, a Utah limited liability company, Plaintiffs,

v.WEST VALLEY CITY, a municipal corporation, and Does 1–10, Defendants.

Case No. 2:14–cv–00046–DN–EJF.

United States District Court, D. Utah, Central Division.

Signed Aug. 3, 2015.

Brian R. Barnhill, Osborne & Barnhill, Draper, UT, for Plaintiffs.

Jody K. Burnett, Robert C. Keller, Williams & Hunt, Salt Lake City, UT, for Defendants.

MEMORANDUM DECISION AND ORDER ADOPTING REPORT AND RECOMMENDATION

DAVID NUFFER, District Judge.

The Report and Recommendation¹ issued by United States Magistrate Judge Furse on July 1, 2015 recommends that West Valley City's Cross–Motion for Summary Judgment² be GRANTED and Mr. Timilsina's Motion for Summary Judgment³ be DENIED.

The parties were notified of their right to file objections to the Report and Recommendation within 14 days of service pursuant to 28 U.S.C. § 636 and Fed. R. Civ. P. 72.⁴ As of the date of this Order, no objection has been filed to the Report and Recommendation.

De novo review of all materials, including the record that was before the magistrate judge and the reasoning set forth in the Report and Recommendation, has been completed. The analysis and conclusion of the magistrate judge are correct and the Report and Recommendation will be adopted.

Because there was no objection to granting West Valley City's Cross–Motion for Summary Judgment, the relief requested by West Valley City—an order "dismissing Plaintiffs' Complaint as a matter of law"⁵ —is awarded.

IT IS HEREBY ORDERED that the Report and Recommendation⁶ is ADOPTED. West Valley City's Cross–Motion for Summary Judgment⁷ is GRANTED and Mr. Timilsina's Motion for Summary Judgment⁸ is DENIED. The above-captioned matter is DISMISSED with prejudice.

The Clerk is directed to close the case.

REPORT AND RECOMMENDATION

EVELYN J. FURSE, United States Magistrate Judge.

Plaintiffs Robert Biplove Timilsina and Big Daddy's Pizza Restaurant, LLC (jointly "Timilsina") seek a declaratory judgment finding West Valley City Municipal Code ("City Code") section 11–5–102 unconstitutional. (Comp. ì. 8, ECF No. 1.) The parties filed cross-motions for summary judgment. (ECF Nos. 19 & 21.) The parties acknowledged at oral argument that section 11–5–102, while titled Temporary On–Premise Signs, governs all temporary signs as set forth in its opening paragraph—"Temporary signs shall conform to the following provisions"—without reference to on- or off-premises. City Code § 11–5–102.

The undersigned¹ has carefully considered the Motions, Memoranda, and oral argument had on April 3, 2015. For the reasons set forth below, the undersigned RECOMMENDS the Court DENY Timilsina's Motion for Summary Judgment and GRANT West Valley City's (the "City's") Cross–Motion for Summary Judgment because the City's prohibition of A-frame signs constitutes a permissible regulation on commercial speech meant to advance aesthetics and traffic safety.

I. UNCONTESTED FACTS

On or about June 10, 2013, Timilsina placed an A-frame sign in an area in front of Timilsina's West Valley City restaurant. (Pls.' Summ. J. Mot. Ex. A, ECF No. 19 at 22–25; City's Combined Mem. in Opp'n to Pls.' Summ. J. Mot. & in Supp. of the City's Own Separately Filed Cross–Mot. ("Def.'s Summ. J. Mot.") Resp. to Pls.' Statement of Undisputed Material Fact ("Facts") ¶ 1, ECF No. 22.) The Parties agreed at oral argument that Timilsina placed this sign off his property, and therefore the sign constitutes an off premise sign. On July 7, 2013, the City issued Timilsina a $100 citation for violating City Code section 11–5–102(13). (Pls.' Summ. J. Mot. Ex. A, ECF No. 19 at 22.) Although the citation refers to subsection (13) as prohibiting A-frame signs, both parties refer to the apparently renumbered Code, which moved the relevant provision unaltered to subsection (14). (See, e.g., Pls.' Summ. J. Mot. 5, ECF No. 19; Def.'s Summ. J. Mot. 3, ECF No. 22.) The citation includes a checkmark next to City Code section 11–5–102(13), which is now subsection (14), stating "[p]rohibited signs include: A-frame, mobile, off premise, feathers, nongovernmental flags, streamers, and additional sign attached to an existing sign or fence, etc." (Pls.' Summ. J. Mot. Ex. A, ECF No. 19 at 24.) The issuing officer underlined the word "A-frame." (Id. ) Section 11–5–102(14)(a) prohibits "A-frame signs ... except if located in and as regulated in the City Center Zone." (Def.'s Summ. J. Mot. Facts ¶ 5, ECF No. 22.) Timilsina placed an A-frame sign between 3576 West 3500 South and a public sidewalk—outside the City Center Zone, (Pls.' Reply Add'l Facts ¶ 4, ECF No. 26)—advertising "$5.00 Pizza READY TO GO." (Pls.' Summ. J. Mot. Ex. A, ECF No. 19 at 25.) The sign contained "information that was truthful, not misleading, and advertised a lawful product and activity." (Def.'s Summ. J. Mot. Facts ¶ 2; ECF No. 22.) Timilsina does not intend to erect any other type of prohibited sign. (Pls.' Reply Add'l Facts ¶ 5, ECF No. 26.)

Timilsina focuses the Court's attention on nine exceptions to the prohibitions on temporary signs listed in section 11–5–102:

(1) New Development Signs used for any new development in any zone—subject to a size restriction of 32 square feet (City Code § 11–5–102(5));

(2) Grand–Opening Signs—allowed in all zones without size restriction (City Code § 11–5–102(7));

(3) New Subdivision and Home Sale Signs—allowed in all zones for subdivisions of 5 or more lots with a size restriction of 32 square feet in one area if one builder, a combined 128 square feet if multiple builders, all not to exceed 12' in height (City Code § 11–5–102(10));

(4) Open House Signs—"advertising real estate open for inspection for a prospective sale" and may include a "maximum of four (4) off premise open house signs" with each sign not to exceed eight (8) square feet (City Code § 11–5–102(11));

(5) Other Temporary Signs—used for "non-business oriented banners whose sole intent is to promote festivals, holidays, seasons, or other community events ..." without any size restriction (City Code § 11–5–102(12)) (emphasis added);

(6) Political Signs—allowed in all zones "relating to the nomination or election of any individual for public office or advocacy of any issue to be voted upon ..." with a size restriction of 16 square feet if in a residential zone, otherwise there is no size restriction (City Code § 11–5–102(13)) (emphasis added);

(7) Sale, Rent or Lease Signs—allowed in all zones subject to a size restriction of eight (8) square feet in residential areas and thirty-two (32) square feet in nonresidential zones (City Code § 11–5–102(15));

(8) Vehicle Signs—allowed in all commercial zones and applies if the sign exceeds four (4) square feet (City Code § 11–5–102(16)); and

(9) Window Signs—allowed in all non-residential zones and may provide a "maximum of 50% coverage of all windows" (City Code § 11–5–102(17)).

(Pls.' Summ. J. Mot. 9–10, ECF No. 19.)

Title 11 of the City Code regulates all signage within the City. The ordinance describes the City's governmental interests in a section titled "Purpose and Intent," saying:

The City has developed the regulations set forth in this Title for the purpose of:

(1) Limiting and/or reducing the visual clutter along City streets;

(2) Encouraging good design and improved appearance by encouraging rapid replacement and eventual elimination of nonconforming or abandoned signs with the preferred sign types specified in this Ordinance;

(3) Implementing portions of the West Valley City Vision 2020 General Plan, to enhance the City's image and character;

(4) Reducing confusion and inattentive driving habits by requiring appropriate signage;

(5) Regulating all types of signs that are visible from the adjacent vehicular public right-of-way;

(6) Safeguarding and protecting property values;

(7) Promoting the public health, safety and the general welfare of the citizens of the City.

City Code § 11–1–102; (Pls.' Reply 5, ECF No. 26). The undersigned appends a copy of Title 11, last revised August 20, 2014, taken from the City's website for clarity's sake. (Appendix 1.)

II. CONTESTED FACTS

Timilsina alleges in his Complaint and in his Motion that "several temporary and/or portable signs", similar to the sign at issue existed within close proximity. (Compl. ¶ 10, ECF No. 1; Def.'s Summ. J. Mot. Facts ¶ 3, ECF No. 22.) The City denies Timilsina's "characterizations of the signs and surrounding areas" in its Answer and Opposition. (Ans. ¶¶ 8–10, ECF No. 6; Def.'s Summ. J. Mot. Facts ¶ 3, ECF No. 22.) Timilsina did not verify his Complaint. While " ‘[a] verified complaint may be treated as an affidavit for purposes of summary judgment,’ " Abdulhaseeb v. Calbone, 600 F.3d 1301, 1311 (10th Cir.2010) (quoting Conaway v. Smith, 853 F.2d 789, 792 (10th Cir.1988) (per curiam)), an unverified complaint does not qualify as evidence in the summary judgment context, Dodson v. Bd. of Cty. Comm'rs, 878 F.Supp.2d 1227, 1244 n. 4 (D.Colo.2012). Thus Timilsina has failed to comply with Rule 56(c)'s requirement to support asserted facts by citation to "materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations ..., admissions, interrogatory answers, or other materials" with respect to the issue of similar signs in close proximity. See Fed.R.Civ.P. 56(c)(1)(A).

Timilsina also alleged that "[p]ursuant to West Valley City Code § 11–5–102(15), real estate signs are exempt from the prohibition of WVCMC § 11–5–102." (Def.'s Summ. J. Mot. Facts ¶ 6, ECF No. 22; see also Compl. ¶ 13, ECF No. 1.) The City denied Timilsina's "characterizations of real estate signs as ‘exempt’ from prohibitions imposed by section 11–5–102". (Def.'s Summ. J. Mot. Facts ¶ 6, ECF No. 22; see also Ans. 12–14, ECF No. 6.)

Section 11–5–102(15) reads as follows:

(15) Sale, Rent, or Lease Signsa. Zoning Restrictions. In all zoning districts, signs may be erected to advertise the sale, rent or

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