Citizens for Free Speech, LLC v. County of Alameda
Docket: No. C14-02513 CRB
Court: District Court, N.D. California; August 5, 2014; Federal District Court
The Court grants the Plaintiffs' motion for a preliminary injunction against the County of Alameda, which is accused of unconstitutionally regulating billboards and advertising signs under its Zoning Ordinance, specifically Title 17. The Zoning Ordinance categorizes the County's unincorporated territory into twenty-five districts, permitting specific uses within each. Michael Shaw owns a parcel in a Planned Development (PD) district where his self-storage business, Lockaway Storage, operates under a Conditional Use Permit (CUP) issued in January 2012, allowing one on-site advertising sign.
Shaw, in partnership with Citizens for Free Speech, LLC, constructed three additional signs that currently display noncommercial messages but are intended to feature commercial content later. A County official informed Shaw on June 9, 2014, that these signs were prohibited, followed by a "Declaration of Public Nuisance" Notice to Abate, citing violations of Zoning Ordinance sections 17.18.010 and 17.18.120, which govern land use compatibility and adherence to approved development plans in PD districts. The Notice failed to clarify how the cited sections applied to the signs and threatened abatement proceedings for non-compliance.
In response, the Plaintiffs filed suit and sought a temporary restraining order, which was later treated as a motion for a preliminary injunction, with the County waiving the bond requirement.
To obtain a preliminary injunction under Federal Rule of Civil Procedure 65, a plaintiff must demonstrate four key elements: likelihood of success on the merits, likelihood of suffering irreparable harm without relief, a favorable balance of equities, and that the injunction serves the public interest. A preliminary injunction is considered an extraordinary remedy and should not be granted as a matter of right; courts must weigh competing claims and consider the public consequences of granting or denying the injunction. The Ninth Circuit employs a sliding scale approach, allowing for a stronger showing in one area to compensate for a weaker showing in another.
There are two types of facial constitutional challenges: (1) a plaintiff can argue that an ordinance is unconstitutionally vague or restricts protected activities; (2) an individual can challenge a statute that restricts their own speech if it also threatens the rights of others not present in the case.
Plaintiffs have standing to challenge the Zoning Ordinance, even if they do not contest specific provisions cited in a Notice to Abate. Generally, litigants can only assert their own constitutional rights, but an exception exists for broadly written laws that may inhibit the protected speech of third parties. In the context of the First Amendment, this exception allows plaintiffs to present “overbreadth” challenges, asserting that the ordinance may restrict fully protected noncommercial speech or grant officials excessive discretion to deny expressive activities. Thus, under the overbreadth doctrine, Plaintiffs can challenge other provisions of the Zoning Ordinance based on their potential impact on the First Amendment rights of individuals not before the court.
An overbreadth challenge to a local ordinance requires demonstrating that the ordinance unconstitutionally prohibits a wide range of protected conduct. Plaintiffs claim the Zoning Ordinance is overbroad and unconstitutional for three reasons: (1) it regulates billboards and advertising signs without a substantial governmental purpose; (2) it discriminates based on content by allowing some commercial speech while banning all noncommercial speech; and (3) it grants County officials excessive discretion in regulating speech. The court identifies that Plaintiffs are likely to succeed only with the third argument.
While Plaintiffs argue the Zoning Ordinance lacks a stated purpose for restricting speech, the court notes that a three-part test must be satisfied for restrictions on commercial speech to be constitutional. Although Plaintiffs recognize aesthetics and safety as substantial governmental interests, they claim the Ordinance fails to articulate how its restrictions support those interests, labeling the stated “Purpose” provisions as inadequate.
The court acknowledges the 2008 Zoning Ordinance version, which provided clear reasons for a County-wide billboard ban related to aesthetics, safety, and property values. Although a 2010 amendment inadvertently omitted certain subsections in the published code, the County asserts those provisions remain effective. Plaintiffs counter that unpublished provisions lack legal effect, referencing California Government Code which stipulates that unpublicized ordinances do not take effect until properly published. The court confirms compliance with publication requirements for the relevant ordinance.
Sections 17.52.515(B) and (G) of the Zoning Ordinance are upheld by the Court, which finds that the County-wide ban on new billboards and advertising signs serves substantial government interests, namely community aesthetics, pedestrian and driver safety, and property value protection. The Court determines that the Plaintiffs are unlikely to demonstrate a lack of substantial government interest in the Zoning Ordinance, referencing the case Metromedia, Inc. v. City of San Diego to support this position. The ordinance’s objectives of traffic safety and urban appearance are deemed significant. The Ninth Circuit's precedent indicates that the County's burden to articulate its interests is minimal, requiring only a clear purpose related to safety and aesthetics.
The Plaintiffs' argument, drawing from National Advertising Co. v. Town of Babylon, is found misleading; the Zoning Ordinance explicitly identifies substantial governmental interests, unlike the case referenced by Plaintiffs. Consequently, the Court concludes that the Zoning Ordinance likely meets the first prong of the Central Hudson test, making it improbable that the Plaintiffs will succeed on this point.
Regarding the second argument, the Court addresses whether the Zoning Ordinance imposes greater restrictions on noncommercial speech compared to commercial speech. It underscores that both types of speech are protected under the First Amendment, with noncommercial speech receiving heightened protection. The Zoning Ordinance prohibits advertising signs in specific districts, which does not discriminate against noncommercial speech in favor of commercial speech, thus aligning with precedents set in cases like Metromedia and National Advertising Co. v. City of Orange. The regulations permit existing developments to continue under certain conditions but do not allow for advertising signs in newly developed or improved areas.
The Zoning Ordinance imposes a county-wide ban on new billboards and advertising signs in unincorporated areas of Alameda County, prohibiting the installation, alteration, or maintenance of such displays. Exemptions exist for billboards that were legally in place when the ordinance was adopted or those with valid, unexpired permits. The County asserts that the ban also applies to noncommercial speech, interpreting the definitions of "billboard" and "advertising sign" to encompass any offsite commercial messages. Conversely, the Plaintiffs argue that the Ordinance does not address noncommercial speech and that the terms should only refer to commercial content. They contend that the presence of content-based exemptions undermines the claim of content neutrality, citing judicial precedent. The Court agrees with the Plaintiffs, concluding that the definitions in the Zoning Ordinance specifically relate to commercial speech, and the County's interpretation misrepresents the plain meaning of the terms. Consequently, the Court determines that the billboard ban does not prohibit noncommercial speech.
The Court finds that Plaintiffs are unpersuasive regarding their argument on content-based exemptions in the Zoning Ordinance, which lists certain noncommercial signs as "permitted" but does not classify them as exemptions from a general ban. The Ordinance does not prohibit noncommercial speech, and since exceptions require a general rule, the Court does not interpret the permitted signs as exceptions to any ban on noncommercial speech. This contrasts with a previous case, Maldonado v. Kempton, where a regulation prohibited all billboard advertising but allowed on-premises advertising, creating a constitutional issue by favoring commercial speech over noncommercial. In the current Ordinance, both billboards and advertising signs are defined as off-site commercial speech, so the list of permitted signs does not serve as exemptions. Additionally, Section 17.52.515(C) includes a substitution clause allowing noncommercial messages to replace permitted commercial messages without increasing overall signage, reinforcing that the County does not favor commercial speech. Plaintiffs argue that this substitution provision is irrelevant to the content neutrality of the Ordinance, but the Court disagrees. Consequently, the Court concludes that Plaintiffs are unlikely to succeed on their argument that the Zoning Ordinance imposes greater restrictions on noncommercial speech compared to commercial speech or regulates based on content.
The plaintiffs argue that the Zoning Ordinance grants County officials excessive discretion in sign approvals, potentially infringing on First Amendment rights by allowing content-based regulation. They reference case law indicating that government officials cannot have 'unbridled discretion' in such matters, as highlighted in Gaudiya Vaishnava Soc’y v. City and Cnty. of San Francisco and other precedents. The plaintiffs assert that the ordinance’s approval process lacks procedural safeguards, which could lead to suppression of protected speech based on officials' subjective preferences. They identify specific provisions of the ordinance where officials can permit signs without clear guidelines:
1. Section 17.54.080 allows variances if deemed not detrimental to public welfare.
2. Section 17.52.520(R) permits signs on bus stop benches or transit shelters upon approval from the public works director.
3. Section 17.52.520(D) allows signs deemed historically significant by the historical landmarks committee.
4. Section 17.18.130 permits the planning commission to grant conditional use permits (CUPs) for non-conforming uses in planned development districts if such actions do not materially change the approved land use.
The plaintiffs claim these provisions lack procedural guidelines for timely decisions, which the County fails to address in its opposition. However, the court indicates that the plaintiffs are likely to succeed on this argument. The court also refutes the plaintiffs’ assertion regarding the variance provision (section 17.54.080), clarifying that it does not grant officials unfettered discretion since variances for principal uses are not allowed. The Zoning Ordinance distinguishes between principal uses and auxiliary uses, with the former being more strictly regulated.
Variances from zoning regulations are permitted only when specific factual findings indicate that a property's characteristics deprive it of privileges enjoyed by nearby properties. The Court interprets the variance provision as applicable solely to area variances, which address deviations from dimensional or physical land use restrictions, and explicitly excludes use variances that would allow new billboards in prohibited areas. Section 17.54.080 does not grant officials the authority to regulate speech based on its content, but there is a concern that the lack of procedural guidelines might lead County officials to unlawfully suppress speech by delaying decisions on variances.
The Zoning Ordinance provides the Public Works Agency and the Historical Landmarks Commission with unfettered discretion to approve or deny sign placements, as seen in sections 17.52.520(R) and 17.52.520(D), which lack explicit guidelines for decision-making. This could result in County officials favoring certain speech over others based solely on content.
Similarly, the Planning Commission has broad discretion to grant Conditional Use Permits (CUPs) for non-conforming uses within Planned Development (PD) districts without clear guidelines on what constitutes a material change from the approved land use and development plan. The lack of substantive criteria allows County officials to determine whether to allow or suppress speech based on content, leading to concerns about arbitrary decision-making in relation to the Zoning Ordinance.
The County's Zoning Ordinance lacks procedural safeguards ensuring timely discretionary decisions, particularly regarding area variances and sign approvals. The Court notes that the County has not established any specific time frame for these decisions, which could lead to arbitrary treatment of different types of speech. The County's argument regarding a substitution clause is deemed insufficient as it only pertains to billboard content rather than the broader issues of approval for other signs and regulatory variances. The absence of time limits allows County officials to impose subjective standards on speech, which raises First Amendment concerns.
Given the likelihood of success on the merits of the plaintiffs' argument regarding unfettered discretion, the Court concludes that plaintiffs would suffer irreparable injury without a preliminary injunction. The loss of First Amendment freedoms, even for a brief period, constitutes irreparable harm. The County contends that plaintiffs have not demonstrated direct harm to their rights or that they have alternative means of expression, but the Court finds that these arguments fail to address the underlying issue of potential irreparable injury from enforcing the Zoning Ordinance. Cases cited by the County relate to the merits of constitutional challenges rather than the risk of irreparable harm from enforcement. Thus, the Court affirms that plaintiffs face irreparable injury if the County enforces its regulations.
The County asserts that the only hardships Plaintiffs face from billboard removal are financial, specifically removal costs and lost revenue. Conversely, the County claims significant hardship, citing visual disruption for the public and potential enforcement issues for the Zoning Ordinance. Plaintiffs argue that their constitutional rights to free speech are at stake, along with the risk of monetary fines. The Court concludes that while an injunction would inconvenience the County, the loss of constitutionally protected rights represents a greater hardship for Plaintiffs, especially given the likelihood that the County's ordinance is constitutionally flawed.
The public interest supports granting a preliminary injunction, as Plaintiffs are likely to succeed in their facial challenge to the Zoning Ordinance. The County fails to present a compelling argument regarding public interest. The Court finds that Plaintiffs are likely to succeed on the merits of their claim that the Zoning Ordinance grants excessive discretion to County officials, which could infringe on First Amendment rights, leading to irreparable harm if an injunction is not issued. The balance of hardships favors the Plaintiffs, and the public interest aligns with granting the injunction.
Consequently, the Motion for Preliminary Injunction is granted. Both parties are instructed to submit proposed injunctions within seven days, without a bond requirement, as the County has waived this. Additionally, Plaintiffs mention an "as applied" challenge in their reply, but the Court does not consider this as it was not adequately addressed in prior submissions. The Zoning Ordinance is acknowledged by the Court, which has taken judicial notice of it.
Plaintiffs assert that the Parcel is zoned within a Planned Development (PD) district, located within a larger Shopping Center (SC) district. The County acknowledges the PD designation but states that no areas have been designated as SC districts within its jurisdiction. During the motion hearing, both parties agreed that the SC designation is irrelevant. The legal challenge primarily concerns the regulation of billboards, specifically within SC districts, and does not directly contest the County-wide billboard ban outlined in section 17.52.515(A) of the Zoning Ordinance. However, Plaintiffs indirectly challenge this ban by claiming certain exemptions result in unconstitutional content-based regulation of speech. They also briefly mention potential infringements on their Due Process Rights but provide little discussion on this point.
In a supplemental filing, Plaintiffs acknowledge the County's proof of publication of the full text of the ordinance but argue that the absence of the complete ordinance in the print and online versions constitutes a breach of the publication ordinance, undermining democratic principles. They request permission to conduct discovery regarding the County’s sign regulations, which is denied. The Court notes that while the County's failure to include the full ordinance in its publications is concerning, there is no legal requirement mandating such publication. Moreover, the ordinance does not need to be published in the same manner as other ordinances. The Zoning Ordinance permits various types of signs, including sale or lease signs, official public signs, and temporary political signs. Sections related to billboard regulations have been inadvertently omitted from the published General Ordinance Code; however, the Court finds these sections effective, as the County met its statutory obligations for publication. The County's arguments emphasized its authority to manage zoning laws.
