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Nittany Outdoor Adver., LLC v. College Twp.

United States District Court, M.D. Pennsylvania

May 20, 2014


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[Copyrighted Material Omitted]

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For Nittany Outdoor Advertising, LLC, Stephanas Ministries, Plaintiffs: David C. Shipman, Elion, Wayne, Grieco, Carlucci, Shipman & Irwin, PC, Williamsport, PA; E. Adam Webb, Webb, Klase and Lemond, Atlanta, GA.

For College Township, Pennsylvania, Defendant: Louis T. Glantz, Glantz Johnson & Associates, State College, PA.

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Matthew W. Brann, United States District Judge.

For the reasons that follow, plaintiffs's motions for partial summary judgment and for permanent injunctive relief (ECF Nos. 25 & 28) are each granted in part and denied in part.

I. General Background

On April 11, 2012, plaintiffs Nittany Outdoor Advertising, LLC, and Stephanas Ministries (hereinafter, " Nittany" and " Ministries" ) filed a complaint seeking redress of defendant College Township's (hereinafter, the " Township" ) denial of Nittany's applications to post three billboards bearing the Ministries's messages along East College Avenue, " the Township's most heavily trafficked commercial corridor." (ECF No. 1 ¶ 7). Plaintiffs claimed that the Sign Ordinance under which the Township Zoning Officer denied Nittany's applications by separate letters, each dated March 13, 2012, violated the First Amendment of the United States Constitution and the Constitution of the Commonwealth of Pennsylvania.[1] (Id. ¶ ¶ 16, 19-21). Plaintiffs sought damages as well as declaratory, injunctive and other equitable relief.

On July 3, 2012, plaintiffs filed an amended complaint reiterating the allegations of the original complaint and adding that, " [a]fter Plaintiffs' Complaint was filed on April 11, 2012, and as a clear result thereof, the Township commenced the process of amending the [challenged Sign] Ordinance," a process plaintiffs projected would end with the adoption of an amended ordinance no sooner than August 2012. (ECF No. 11 ¶ 14). The amended complaint also asserted that Nittany had submitted two additional sign permit applications that the Township Zoning Officer rejected by letters dated June 19, 2012

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" for reasons similar to those described in the March 2012 letters." (Id. ¶ 19).

On July 17, 2012, the Township filed a motion that Chief Judge Christopher C. Conner (who was then presiding over this matter) construed as a ripeness challenge to this Court's subject matter jurisdiction. (See Mem. & Order, Jan. 15, 2013, ECF No. 24 at 1). In a January 15, 2013 memorandum opinion that relied primarily on the United States Court of Appeals for the Third Circuit's decision in Peachlum v. City of York, 333 F.3d 429 (3d Cir. 2003) (Rosenn, J.), Chief Judge Conner rejected the Township's argument that, because the plaintiffs challenged the Sign Ordinance in federal court without first appealing their permit denials to the Township's Zoning Hearing Board, the controversy in this Court was unripe.[2] (See Jan. 15, 2013 Mem. & Order at 2-3). Two days later, on January 17, 2013, Chief Judge Conner reassigned the case to the undersigned.

On March 1, 2013, plaintiffs filed motions for partial summary judgment (ECF No. 25) and for permanent injunctive relief (ECF No. 28).

II. Summary Judgment and Permanent Injunction Standards

Summary judgment is appropriate where " the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A fact is " material" where it " might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is " genuine" where " the evidence is such that a reasonable jury," giving credence to the evidence favoring the nonmovant and making all reasonable inferences in the nonmovant's favor, " could return a verdict for the nonmoving party." Id.

For movants and nonmovants alike, the assertion " that a fact cannot be or is genuinely disputed must" be supported by " citing to particular parts of materials in the record," or by " showing that the materials cited [by an adverse party] do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1). " If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion." Fed.R.Civ.P. 56(e)(2).

Anderson, Bixler v. Cent. Pennsylvania Teamsters

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Health & Welfare Fund, 12 F.3d 1292, 1302 (3d Cir. 1993). Only citation to specific facts is sufficient. Anderson, 477 U.S. at 250.

Before the Court considers whether plaintiffs are entitled to a permanent injunction, plaintiffs must succeed on the merits of their claims. See Ciba-Geigy Corp. v. Bolar Pharm. Co., Inc., 747 F.2d 844, 850 (3d Cir. 1984) (" In deciding whether a permanent injunction should be issued, the court must determine if the plaintiff has actually succeeded on the merits (i.e. met its burden of proof). If so, the court must then consider the appropriate remedy." ). If the plaintiff prevails on the merits, then the Court must consider whether " the moving party will be irreparably injured by the denial of injunctive relief," whether " the granting of the permanent injunction will result in even greater harm to the defendant," and whether " the injunction would be in the public interest." Shields v. Zuccarini, 254 F.3d 476, 482 (3d Cir. 2001).

III. Facts

Despite plaintiffs's penchant for larding their averments with argument and opinion more appropriate for other stages of litigation, the Court has extracted the following undisputed material facts from the parties's L.R. 56.1 submissions. See L.R. 56.1 (requiring party moving for summary judgment to submit " short and concise statement of the material facts . . . as to which the moving party contends there is no genuine issue to be tried," and requiring nonmoving party to " include a separate, short and concise statement of the material facts, responding to the numbered paragraphs set forth in the [moving party's] statement . .., as to which it is contended that there exists a genuine issue to be tried" ).

As the " Outdoor Advertising" part of its name suggests, plaintiff Nittany is in the business of disseminating its customers's commercial and noncommercial messages by way of outdoor signage. (Pls.'s Facts, Mar. 1, 2013, ECF No. 27 ¶ 2). Plaintiff Stephanas Ministries is a " Christian-based charitable and religious organization headquartered in Greensburg, Pennsylvania." (Pls.'s Facts ¶ 3). Except where distinction is necessary or helpful, this memorandum will refer to plaintiffs collectively as " Nittany" hereinafter.

Defendant College Township is a political subdivision of Centre County and the Commonwealth of Pennsylvania and regulates the posting of outdoor signs under its zoning code. (Def.'s Facts, Apr. 4, 2013, ECF No. 38 ¶ 7). Signs are governed specifically by chapter 170, the " Sign Ordinance," which provides that, " [w]ith the exception of signs listed in Article II, no sign may be constructed, installed, posted, displayed or modified without first obtaining a sign permit approving the proposed sign's size, design, location and display, as well as a license in accordance with Article VII of this chapter." [3] Coll. Twp. Code § 170-3.

Until August 2012, the Sign Ordinance provided that permits were not to be granted for any " off-premises sign," defined as " [a] sign which advertises or directs the public to a business product or service not present on the property where sad sign is located, including but not limited to billboards and off-site directional signs." Coll. Twp. Code § § 170-4. & 170-7.I. The Ordinance defined " billboard" as:

A sign which directs attention to a business, commodity, service, entertainment or attraction which is sold, offered or existing elsewhere than upon the same

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lot where such sign is displayed. Billboards offer space which is generally leased or rented by the owner thereof to others for the purpose of conveying a commercial or noncommercial message. For the purposes of this chapter, a billboard shall be considered an off-premises sign.

Id. § 170-4. The Ordinance also restricted the location, sign face area, number, and height of any " freestanding sign," defined as " [a] sign that is not attached to a building and which is supported permanently upon the ground by poles, pedestals or braces. Such signs include what are commonly called 'ground pole and monolith signs.'" Id.

Several College Township landowners have (in exchange for the promise of compensation, naturally) given Nittany permission to post billboards on their respective properties adjacent to East College Avenue, the Township's most heavily trafficked commercial corridor. (Pls.'s Facts ¶ ¶ 11-12). On March 7, 2012, Nittany submitted three applications to the Township for permission to post billboards, intending to use the billboards to promote the work of the Ministries. (Id. ¶ ¶ 14-15). The Township's " Sign Permit Application" form -- in addition to requesting information about Nittany itself, the location of Nittany's proposed installation, and the identity of the property owner and sign fabricator associated with the installation -- required Nittany to describe various aspects of each proposed sign, including message and type (e.g., digital billboard); whether single-or double-faced; the height, width, and total square footage of the sign face; the total height of the installation; the installation's distance from property lines and projection from buildings; and the location of streets adjacent to the proposed sign property. (Pls.'s Ex. D, Mar. 1, 2013, ECF No. 27-4).

Each of Nittany's three applications was denied by separate letters, each dated March 13, 2012. (Id. ¶ 16). In each letter John Franek, Jr., the Township's Zoning Officer, explained that Nittany's proposed signs violated the Sign Ordinance of College Township in multiple ways. Specifically, Nittany's proposal -- to erect what Franek, in accordance with definitions provided by the Sign Ordinance, classified as " freestanding" " off-premise signs" -- violated (i) the Ordinance's prohibition on off-premise signs (citing Coll. Twp. Code § 170-7.I.); (ii) location restrictions on freestanding signs (citing Coll. Twp. Code § 170-8.A.(2)); (iii) limitations on the maximum area of freestanding sign faces (citing Coll. Twp. Code § 170-8.B.(1)); (iv) limitations on the maximum number of freestanding signs permitted on nonresidential developments (citing Coll. Twp. Code § 170-8.C.(1)); and (v) limitations on the maximum height of freestanding signs (citing Coll. Twp. Code § 170-8.D.).[4] (Pls.'s Ex. B, July 3, 2012, ECF No. 11-2). Franek's letters further explained that Nittany could appeal his decisions to the Township's Zoning Hearing Board or seek a variance from the Sign Ordinance (id.), but Nittany chose not to exercise these options, instead filing its federal complaint with this Court on April 11, 2012.

On June 5, 2012, Nittany submitted two additional sign permit applications. (Pls.'s Facts ¶ 20). Franek rejected these applications by letters dated June 19, 2012. (Id. ¶ 21). The letters explained that each

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proposal to erect a freestanding sign violated (I) the Ordinance's limitations on the maximum area of freestanding sign faces (citing Coll. Twp. Code § 170-8.B.(1)); (ii) limitations on the maximum number of freestanding signs permitted on nonresidential developments (citing Coll. Twp. Code § 170-8.C.(1)); and (iii) limitations on the maximum height of freestanding signs (citing Coll. Twp. Code § 170-8.D.). (Pls.'s Ex. D, July 3, 2012, ECF No. 11-4). Franek also faulted Nittany for including deficient site plans along with the applications. (Id.). Nittany filed its amended complaint on July 3, 2012.

The amended complaint lodged as-applied and facial First Amendment challenges to the Township's Sign Ordinance on the grounds that the Ordinance is " impermissibly content-based," " impermissibly suppresses noncommercial speech," " grants unfettered discretion to Township officials," and " fails the requirements for proper regulation of commercial speech." (Am. Compl. ¶ 23). Further, the amended complaint asserted that the Ordinance's ban on off-premises signs violates Pennsylvania law. (Id. ¶ 27).

In August 2012, the Township amended its Sign Ordinance with the stated intention of allowing " off-premise advertising through the placement of billboards within College Township" while " also providing protection to residents and motorists viewing the billboards." (Pls.'s Ex. E, Mar. 1, 2013, ECF No. 27-5). Accordingly, the amendment, inter alia, eliminated the Township's prohibition on off-premises signs and allowed for the posting of billboards as long as the installation complies with restrictions on billboard location, area, number, height, setback, and lighting. (Id.).

IV. Discussion

In support of its motion for summary judgment and permanent injunctive relief, Nittany argues that the Township's pre-amendment Sign Ordinance and amended Sign Ordinance violate the First Amendment and the Pennsylvania Constitution for multiple reasons, including the Ordinance's failure to meet the strict scrutiny standard applicable to content-based regulations, the Ordinance's preference for commercial over noncommercial speech (together, Nittany's " substantive" challenges), and the Ordinance's vesting of unbridled discretion in Township officials.

In part (a) of the following discussion, the Court holds that Nittany is without standing to pursue its substantive attacks on the Township's pre-amendment Sign Ordinance. In part (b), the Court holds (on the merits) that Nittany is not entitled to summary judgment on its substantive challenges to the Township's amended Sign Ordinance. Beginning with part (c), the Court takes up Nittany's argument that the Ordinance vests Township officials with unbridled discretion, determining that Nittany has standing to pursue this claim. In part (d), the Court holds that the Ordinance vests Township officials with unbridled discretion in violation of the First Amendment. In part (e), the Court engages in severability analysis to determine whether any part of the Ordinance should remain in effect. Finally, in part (f), the Court determines whether Nittany is entitled to the various remedies it seeks.

(a) Nittany lacks standing to pursue its substantive challenges to the Township's pre-amendment Sign Ordinance.

Nittany asserts that the Township's pre-amendment Sign Ordinance [5] -- i.e., the

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Ordinance as it stood when Nittany's sign permit applications were denied --violates the First Amendment. Specifically, Nittany argues that the Township's ban on off-premises signs, " coupled with [the Township's] failure to identify permissible noncommercial content," violates the First Amendment because " [s]uch a prohibition . . . is content-based and inherently favors commercial over noncommercial speech," and " cannot possibly meet" the strict scrutiny standard applied to content-based prohibitions on speech. (Pls.'s Summ. J. Supp. Br., Mar. 1, 2013, ECF No. 26 at 6-7). The ban on off-premises signs also, according to Nittany, violates the Pennsylvania Constitution. (Pls.'s Summ. J. Supp. Br. at 6).

The Court does not reach the merits of these challenges to the Sign Ordinance because Nittany lacks standing to pursue them. The federal courts --including this one -- are empowered to expound the law only to the extent necessary to decide actual controversies between parties. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) (" If a dispute is not a proper case or controversy, the courts have no business deciding it, or expounding the law in the course of doing so." ). If the Court were empowered to decide legal issues having no immediate practical impact on litigants, then the quality of the Court's decisions would suffer (assuming, reasonably, that parties are better advocates when they have skin in the game) and, even worse, the Court would be unleashed to opine at will on Constitutional questions and aggressively strike down laws, upsetting the balance of power of the federal courts vis a vis the federal policy-making branches and the states. See generally id. at 340-42. Subjecting a plaintiff's claim to Article III standing analysis ensures that the Court decides issues only as they arise incident to an actual case or controversy. Id. at 342 (standing requirement enforces Constitution's Article III case-or-controversy requirement); U.S. Const. art. III, § 2 (" The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority . . . ." ).

" The 'irreducible constitutional minimum' of Article III standing consists of three elements," Toll Bros., Inc. v. Twp. of Readington, 555 F.3d 131, 137 (3d Cir. 2009) (quoting Lujan v. Defenders of Wildlife, 504 U.S. ...

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