Citizens for Free Speech, LLC v. County of Alameda
Docket: No. C14-02513 CRB
Court: District Court, N.D. California; July 16, 2015; Federal District Court
The Court partially granted and partially denied the County of Alameda's motion for summary judgment in a case brought by Citizens for Free Speech, LLC, Michael Shaw, and others, challenging the constitutionality of the County's billboard and advertising sign regulations. The plaintiffs had previously obtained a preliminary injunction against enforcing the Zoning Ordinance. The County's motion argued that both as-applied and facial challenges to the Zoning Ordinance failed.
The Court granted summary judgment on the plaintiffs’ free speech claims concerning:
1) as-applied challenges,
2) facial challenges related to unfettered discretion in specific Zoning Ordinance sections, and
3) content-based regulation of speech under a particular section.
However, the Court denied the County's motion regarding the plaintiffs’ facial challenge to a specific Zoning Ordinance section and their equal protection claims.
Background details reveal that Shaw owns a parcel of land within a Planned Development district, where he has maintained one sign for his business since January 2012 and planned to add three additional signs with non-commercial messages, potentially shifting to commercial messages. After a County official informed Shaw of the signs' prohibition, the County issued a "Declaration of Public Nuisance" Notice to Abate, leading to the lawsuit and the temporary restraining order. The preliminary injunction was granted based on findings that the Zoning Ordinance provided County officials with excessive discretion and did not ensure timely decision-making.
The County has filed a motion for summary judgment following discovery. Summary judgment is appropriate when there is no genuine dispute regarding any material fact, allowing the moving party to obtain judgment as a matter of law under Federal Rule of Civil Procedure 56. A genuine issue exists if a reasonable fact finder could rule in favor of the nonmoving party, and a material issue affects the lawsuit's outcome. The purpose of summary judgment is to eliminate unsupported claims. The moving party carries the burden of showing the absence of material fact disputes; if successful, the nonmoving party must substantiate claims with specific evidence beyond mere assertions or doubts.
The County argues for summary judgment on Plaintiffs’ free speech claims, asserting two main points: 1) Plaintiffs cannot pinpoint any improperly applied Zoning Ordinance provision in their as-applied challenge; and 2) their facial challenge fails because the Zoning Ordinance does not grant County officials arbitrary discretion in permitting decisions and because Section 17.52.515 is a content-neutral speech restriction that meets intermediate scrutiny standards. Additionally, the County contends that Plaintiffs’ equal protection claims are unsubstantiated as there is no evidence of differential treatment compared to similarly situated parties. The Court will consider these arguments in the following discussion.
The County argues for summary judgment against Plaintiffs' as-applied free speech challenge, presenting two main points. First, the County claims the Zoning Ordinance provisions requiring the removal of the Plaintiffs' Signs do not violate constitutional free speech rights, as these provisions focus solely on land use conformity within a planned development (PD) district. Second, it contends that the Plaintiffs' future intentions to display commercial messages permit regulation under Zoning Ordinance Section 17.52.515, although this argument is considered weak. An as-applied challenge asserts that a law is unconstitutional concerning a specific party's speech, even if it can be validly applied to others, and such a challenge focuses on discriminatory enforcement rather than the law's overall validity. The County maintains that its enforcement of the Zoning Ordinance against the Plaintiffs was content-neutral.
The enforcement action is based on the Plaintiffs' violation of Zoning Ordinance Sections 17.18.010 and 17.18.120, which require land use to conform to an approved development plan. The Parcel was rezoned into a PD district in 1989, limiting signage to one non-electrical, unlighted sign of specified dimensions, subject to zoning approval. The owner has received several conditional use permits (CUPs) since then, none of which permitted additional signage. The Plaintiffs do not contest the size of the Signs or claim they sought prior approval for their construction. They acknowledge the County's allegations but argue that the County's actions constitute an unconstitutional prior restraint on speech, without disputing the material facts regarding the Plan's substance or its application.
Plaintiffs argue that the Zoning Ordinance is unconstitutional as a prior restraint on speech and, therefore, also unconstitutional as applied to them. However, an "as-applied" challenge focuses on the application rather than the law's nature itself. The County provided substantial evidence showing that specific sections of the Zoning Ordinance applied to Plaintiffs’ Signs and that the Plan prevented them from constructing the Signs on the Parcel. Plaintiffs did not rebut this evidence or demonstrate unconstitutional application, leading the Court to grant summary judgment on their free speech claims regarding the as-applied challenge.
Regarding the facial challenge to the Zoning Ordinance, the County contends that such challenges are generally disfavored but can be valid in First Amendment cases where unbridled discretion is granted to decision-makers or when regulations are overbroad. The Court previously noted that Plaintiffs' arguments are best classified as overbreadth challenges. To succeed, Plaintiffs must show that the provisions could infringe on First Amendment rights of individuals not involved in the case. The County argues that officials do not possess unfettered discretion because their decisions are guided by limited, objective criteria and are subject to review. Additionally, the County claims that a specific section of the Zoning Ordinance meets intermediate scrutiny standards. The Court grants partial summary judgment on the unfettered discretion claim and grants summary judgment on the Section 17.52.515 claim.
County officials do not possess unfettered discretion in permitting decisions under the challenged Zoning Ordinance provisions, as such discretion could infringe upon First Amendment rights. The law requires that permitting processes include adequate standards to guide officials and allow for judicial review. The Ninth Circuit outlines three factors to assess whether a permitting process confers excessive discretion: (1) the presence of limited and objective criteria for decision-making, (2) requirements for officials to provide reasons for their decisions, and (3) the necessity for timely decisions. The County contends that the challenged provisions include sufficient guidelines to limit officials’ discretion. However, prior court findings indicated that specific sections of the Zoning Ordinance potentially grant excessive discretion to County officials, namely Sections 17.52.520(Q) and (D), and Section 17.18.130. Additionally, Plaintiffs raised a challenge concerning the process for granting Conditional Use Permits (CUPs) in Sections 17.54.130 and 17.54.135. The court will address all four challenges in the order.
The County asserts that the Plaintiffs' challenges to Sections 17.52.520(Q) and (D) are moot due to amendments that eliminated discretionary elements from the Zoning Ordinance. Specifically, Section 17.52.520(D), which allowed for sign displays deemed historically significant by the historical landmarks committee, has been removed entirely. Additionally, Section 17.52.520(Q) was revised to eliminate the discretionary requirement for approval by the public works agency. Plaintiffs argue that the removal of Section 17.52.520(D) does not moot their claims regarding the Historical Landmarks Commission's discretion, referencing Outdoor Media Grp. Inc. v. City of Beaumont. However, the Court finds that the repeal of Section 17.52.520(D) negates any live issue, as it is no longer applicable. Furthermore, Plaintiffs have not demonstrated that they were adversely affected by this provision, rendering their claims for damages under Section 1983 untenable. The amended Section 17.52.520(Q) now specifies that signs associated with bus stop benches or transit shelters must be sponsored or placed under contract with AC Transit or similar entities, thus removing any discretionary authority from County officials.
Regarding Section 17.18.130, the County claims it does not grant unfettered discretion to officials in determining whether a proposed structure constitutes a material change to a land use plan. They argue that it only allows officials to decide if a conditional use permit (CUP) or rezoning application is needed. Plaintiffs counter that the Zoning Ordinance does not restrict officials' discretion under this section, but they do not address the County's assertion about permit authority. The Court does not accept the County's arguments regarding Section 17.18.130.
To determine if a proposed use requires a Conditional Use Permit (CUP) or a change to the land use and development plan, County officials must evaluate whether the proposed use "materially changes" the existing approved plan. The term "materially change" is not defined in the relevant Zoning Ordinance sections. The County suggests that officials may refer to definitions of related terms such as "principal use," "accessory use," and specifics regarding signage for guidance, but the ordinance does not mandate this approach, and there is no evidence that officials actually consult these terms. Consequently, there are no clear standards to direct officials' decisions regarding what constitutes a material change.
The discretion granted to County officials under Section 17.18.130 is significant despite the lack of defined standards. If officials conclude that a proposed use does not represent a material change, it will require a CUP, which involves a detailed application process with multiple levels of review, including advisory recommendations from municipal councils and zoning boards. Conversely, if a proposed use is determined to constitute a material change, it necessitates a more comprehensive rezoning process, involving public hearings and recommendations from various bodies, including the planning commission and the board of supervisors, along with a public report by planning staff.
This discretionary power may lead to differential treatment of speech based on its content, as officials could impose varying requirements based on their interpretation of what constitutes a material change.
The lack of clear standards regarding the meaning of "material change" raises significant constitutional issues, as the County has not mandated the planning commission to justify its determination of what constitutes a material change. Despite the ability of affected parties to appeal such determinations, the board of supervisors' review capabilities are unclear. Consequently, the Court denies summary judgment on the Plaintiffs’ facial challenge to Section 17.18.130, citing that County officials possess excessive discretion under this provision.
On the other hand, the County asserts that Section 17.54.130 offers sufficient guidelines for granting or denying Conditional Use Permits (CUPs). The planning commission must evaluate whether a proposed CUP meets specific criteria, including public need, compatibility with surrounding land uses, potential adverse effects on health or safety, and alignment with district performance standards. The County argues that these criteria limit official discretion, whereas Plaintiffs contend that they allow for unrestricted consideration and are akin to standards previously deemed to confer excessive discretion.
The Court finds that the standards in Section 17.54.130 are ambiguous, sharing characteristics with those identified in prior cases as overly discretionary. Phrases like "materially affect adversely" and "detrimental to" are criticized for lack of specificity, similar to terms deemed too broad in previous rulings. Additionally, the guideline "required by the public need" is noted as vague. Overall, the Court concludes that the standards may not provide the necessary clarity to effectively guide the licensing authority, echoing concerns raised in past case law.
Section 17.54.130 of the County's zoning ordinance differs fundamentally from the Moreno Valley ordinance, focusing on the specific impacts of proposed uses "in the vicinity" or "in the neighborhood," rather than on the general public. While the phrases in Section 17.54.130 may lack the explicit definitions upheld in cases like G.K. Ltd. and City of Oakland, they are still more narrowly defined than those in other prior restraint cases. The provision does grant some discretion to the planning commission when evaluating Conditional Use Permits (CUPs), but this does not equate to excessive discretion. The plaintiff argues that the subjective criteria in Section 17.54.130 render it unconstitutional based on Moreno Valley, which emphasized the absence of objective criteria. However, judicial precedent indicates that both the nature of the criteria and the permitting process's capacity for judicial review must be assessed. The Court concludes that the CUP process sufficiently limits discretion for three reasons: the application process is well-documented, requires advisory input from a municipal council, and mandates that the zoning board provide written findings justifying their decisions, thus ensuring accountability and effective judicial review.
Affected parties have several options for appealing decisions on Conditional Use Permit (CUP) applications. Individuals aggrieved by a decision under Section 17.54.140 can appeal to the board of supervisors, and if dissatisfied with that outcome, they may file a writ of mandate for court review as per Cal. Civ. Proc. Code Section 1094.5(a). Plaintiffs argue that judicial review is unavailable due to the legislative nature of CUP decisions but acknowledge the option for traditional mandamus review under Cal. Civ. Proc. Code Section 1085, which they deem insufficient since the court cannot compel the County to grant a denied CUP. Nonetheless, the Court notes that no authority supports the claim that the limits on judicial review signify unfettered discretion, especially given the alternative administrative appeals available.
Additionally, CUP decisions are subject to review within a reasonable timeframe as stipulated by the Permit Streamlining Act (PSA), which requires agencies to notify applicants about incomplete applications within thirty days and mandates a decision within a specific timeframe after application completion. Plaintiffs contend that the PSA does not apply to CUP applications because they focus on land use rather than construction permits. However, the Zoning Ordinance indicates that CUPs can involve structures, thus subjecting them to the PSA's timelines. Although Plaintiffs argue that the PSA's minimum application process timeframe of 120 days is excessive, the County justifies this duration due to the complexities of the permitting process, a position the Court finds compelling. Consequently, the Court grants summary judgment favoring the County, ruling that the criteria for granting or denying CUPs, while not as clear-cut as in other contexts, are sufficiently supported by comprehensive documentation and review procedures.
Section 17-52.515 of the Alameda County Zoning Ordinance prohibits the installation, alteration, or maintenance of billboards or advertising signs in unincorporated areas. The County argues this is not a content-based speech restriction and thus meets intermediate scrutiny. Plaintiffs contend that the ordinance constitutes a content-based restriction under both the First Amendment and the California Constitution, asserting that the inclusion of content-based exemptions within an otherwise content-neutral framework renders it content-based.
The plaintiffs argue that the ordinance improperly limits free speech by regulating noncommercial billboards based on their content, referencing case law that invalidates such regulations. However, they do not claim that Section 17.52.515(A) itself regulates noncommercial speech, as it explicitly targets commercial messages. Instead, they argue that the ordinance's content-based exemptions, identified in Section 17.52.520, imply that the restriction is content-based. The Court previously determined that Section 17.52.515 does not regulate noncommercial speech, stating that exemptions cannot exist without a corresponding general rule.
The plaintiffs attempt to challenge this prior ruling by asserting that references to noncommercial permitted signs necessitate the ordinance's application to noncommercial speech. However, the Court finds this argument flawed, noting that the ordinance clearly specifies its focus on commercial speech, distinguishing it from cases like National Advertising and Metromedia, which dealt with ambiguous regulations. Thus, the Zoning Ordinance explicitly regulates only commercial speech through its billboard ban.
Billboards are defined as signs displaying offsite commercial messages, and the Zoning Ordinance interprets "billboard" as synonymous with "advertising sign." The Court emphasized that the definition of "advertising sign" cannot include noncommercial speech, as this would contradict the Ordinance's language. The Court is not obligated to adopt interpretations that deviate from the Ordinance's plain meaning and seeks to uphold its constitutionality when possible. The plaintiffs failed to provide additional evidence to support their interpretation after it was previously rejected. Furthermore, the plaintiffs argued that the Supreme Court's decision in Reed v. Town of Gilbert rendered the exemptions in the Zoning Ordinance content-based. However, the Court determined that Reed was not applicable to the current case, as it dealt with a sign code that imposed different restrictions based on content, whereas Section 17.52.520 does not have such temporal or geographic distinctions.
Given that the Court maintains its stance that Section 17.52.515 pertains solely to commercial speech, it applies intermediate scrutiny rather than strict scrutiny. Under intermediate scrutiny, an ordinance regulating commercial speech must (1) serve a substantial governmental interest, (2) directly advance that interest, and (3) be no broader than necessary. The Zoning Ordinance satisfies these criteria, as the County has shown that the billboard ban aims to promote substantial governmental interests in aesthetics, safety, and property value protection. The burden on the County to prove this substantial interest is minimal.
Traffic safety and visual aesthetics are recognized as significant government interests, supported by legal precedents such as Metromedia and World Wide Rush. The County has shown substantial interest in regulating billboards to promote these interests, and the plaintiffs do not dispute this. The assertion that the County failed to provide evidence that Section 17.52.515 advances its stated purpose is incorrect. The Court can grant summary judgment in the County's favor without extensive proof, as minimal evidence suffices under the established legal standards.
The Supreme Court in Metromedia upheld that even a limited record could justify an ordinance aimed at enhancing traffic safety by eliminating certain billboards. The subjective nature of visual appearance further supports leniency in demonstrating the regulation's purpose. The County provided evidence indicating that Section 17.52.515 addresses concerns regarding the increase of billboards contributing to visual blight and clutter in unincorporated areas.
The regulation is deemed to meet the intermediate scrutiny test, as it does not impose more restrictions than necessary to achieve the County's goals. It strikes a reasonable balance, targeting only new billboards displaying offsite commercial messages while allowing existing billboards to remain, thus mitigating significant harm to current billboard owners.
The relocation provision aims to minimize environmental impact while preserving the economic value of existing billboards. Similar billboard bans have met the Central Hudson test, allowing exceptions for onsite advertising and specific exempted signs. The City has the authority to entirely prohibit commercial billboards for traffic safety and aesthetics, or restrict them to those related to activities on the premises. Section 17.52.515 has been found to pass intermediate scrutiny, rendering the County's regulation of commercial speech valid, warranting summary judgment against the Plaintiffs' First Amendment claims regarding content regulation.
Regarding state claims, the Plaintiffs argue that Section 17.52.515 violates Article I, Section 2(a) of the California Constitution, asserting that its protections are broader than those of the First Amendment. They contend that the onsite/offsite and commercial/noncommercial distinctions in the Zoning Ordinance, though content-neutral under federal law, become content-based under California law, thus subjecting them to strict scrutiny. However, the County argues there is no legal precedent supporting the Plaintiffs’ claims. The Court agrees, stating there is no authority indicating that the distinctions in Section 17.52.515 breach the California liberty of speech clause, which guarantees freedom of speech without restraint. It is acknowledged that while California's clause is more protective than the First Amendment, this does not imply it is universally broader in all applications. Courts often draw from federal First Amendment standards to determine content-based versus content-neutral restrictions. Plaintiffs reference Metromedia, Inc. v. City of San Diego to support their argument against distinguishing commercial from noncommercial speech, but the County highlights that Plaintiffs misinterpret the context of that ruling, which was fundamentally concerned with the inclusion of noncommercial speech in prohibitions.
In Metromedia II, the court determined that it could not sever an unconstitutional provision from an ordinance, leading to the invalidation of the entire ordinance. The court noted that the ordinance could be sustained by limiting its application to commercial speech, which was reflected in Section 17.52.515 that restricts its scope to "offsite commercial messages." The plaintiffs did not provide authority to support their claim that prohibiting commercial messages violated free speech rights, leading the court to find Section 17.52.515 acceptable under the California Constitution.
The court then applied California's intermediate scrutiny test to the content-neutral regulation, assessing whether it is narrowly tailored, serves a significant government interest, and leaves open ample alternative avenues of communication. The County satisfied the first two prongs, and it was determined that Section 17.52.515 does not suppress a particular message but aims to limit the growth of billboards in unincorporated areas. The provision allows for other forms of communication elsewhere in the County, thus passing the scrutiny test and resulting in the granting of summary judgment on the plaintiffs’ free speech claim.
Regarding equal protection claims, the plaintiffs argued that summary judgment was inappropriate because the Zoning Ordinance permits the County to prevent their signs while allowing CBS Outdoor and Clear Channel Communications to display theirs. The County contended that these companies were not subject to the same provisions because they owned legally permitted billboards prior to the ordinance's enactment.
The County failed to address the Plaintiffs' equal protection claims in its opening brief, and the Court will not consider arguments introduced for the first time in a reply brief. Consequently, the County did not provide sufficient grounds for summary judgment on the equal protection claims, leading the Court to deny the motion regarding these claims. Conversely, the Court granted summary judgment for the County concerning the Plaintiffs' free speech claims related to specific challenges under the First Amendment and California Constitution, except for one facial challenge regarding unfettered discretion in a zoning ordinance. The Plaintiffs' fifth claim, a request for attorneys' fees, was not considered a separate claim. The County’s motion for summary judgment was interpreted broadly as seeking judgment on all claims, but it did not specifically identify the claims. The Plaintiffs' request for partial summary judgment was denied due to procedural issues and the failure to demonstrate an absence of genuine material facts. Finally, the Court indicated that the County's interpretation of the zoning ordinance regarding billboards was inadequate.
The County contends that a specific provision prohibits both the construction of signs with commercial messages and signs intended to display commercial messages, even if they currently show noncommercial content. Courts must interpret the statute's language to ascertain its clear and unambiguous meaning concerning the case at hand. It is noted that Section 17.52.515 does not consider the future intentions of sign owners, implying that the term "used" excludes potential future messages. Section 17.18.010 outlines the objectives of Planned Development (PD) districts, focusing on compatibility with the general plan, efficient land use, preservation of open areas, community engagement, and the creation of an attractive and safe environment. The provision in question was previously referenced as Section 17.52.520(R) and has since been modified in November 2014, resulting in its deletion. The Court determined that the Plaintiffs were unlikely to succeed on their argument regarding unfettered discretion in relation to another provision, Section 17.54.080, which is not further addressed as the Plaintiffs concede its irrelevance. During the hearing, Plaintiffs claimed that despite the deletion of Section 17.52.520(D), Section 17.52.520(C) still allows County officials undue discretion in identifying "locations of historic interest." However, no substantial evidence was provided to support the assertion that such determinations involve unfettered discretion. The Court dismissed Plaintiffs' objection to the Lopez Declaration, as the Planning Director's statements are deemed admissible due to his firsthand knowledge of the Conditional Use Permit (CUP) process.
The Court denies the objection raised by the Plaintiffs, referencing the rationale provided in footnote 12. The discussion surrounding the Conditional Use Permit (CUP) process primarily relates to Section 17.54.135, but the governing section is Section 17.54.140, which outlines the zoning board's authority to adjudicate CUP applications. The zoning board can delegate this authority to the planning commission only if it is unable to act on an application. The Court finds no significant difference in the deliberative processes outlined in Sections 17.54.135 and 17.54.140, thus treating them similarly for this motion.
At the hearing, Plaintiffs' counsel argued that the Moreno Valley ordinance provides more suitable standards for assessing the discretion granted by Section 17.54.130 than the criteria from other cited cases, as those did not pertain to billboard permit applications. However, the Court maintains that it can still reference the permitting criteria from those cases to understand the standards of Section 17.54.130, citing prior cases that compared different permit processes for guidance.
The Plaintiffs objected to a segment of the Lopez Declaration as being opinion-based, but the Court denies this objection for reasons stated previously. Even if the Permit Streamlining Act (PSA) does not apply to all CUP applications, the lack of a specified time frame for granting or denying a CUP does not imply unrestricted discretion. The absence of a processing time limit in the Zoning Ordinance is not inherently detrimental, as established in Outdoor Systems Inc. v. City of Mesa. The cases cited by the Plaintiffs that argue otherwise relate specifically to content-based speech restrictions, whereas the Zoning Ordinance is deemed content-neutral, leading to different procedural requirements.
Definitions provided in the Zoning Ordinance clarify that a "billboard" is a permanent structure for displaying offsite commercial messages, synonymous with "advertising sign," which refers to any matter that advertises or informs about goods or services not available on the property where the sign is located.
Section 17.52.520(A) is deemed unconstitutional due to its content-based nature, which discriminates based on the speaker, a matter more relevant to the Plaintiffs' equal protection claims discussed in Section III(B). The Zoning Ordinance permits various types of signs, including those for sales, official notices, and public events. Plaintiffs seek a reconsideration of the Court's prior assessment regarding the noncommercial designation of permitted signs, highlighting that some signs, such as those for apartment rentals, may be commercial. However, this classification does not affect the validity of the billboard ordinance, as regulation of commercial speech is permissible. The Court notes that previous cases cited by the Plaintiffs involved comprehensive sign regulations that explicitly targeted all speech types, which is not the case with Section 17.52.515. Furthermore, Plaintiffs have not argued that the commercial speech restricted by this section is misleading or unlawful. The Court acknowledges the inclusion of specific subsections of the Zoning Ordinance that were not published due to a publisher’s error but were properly judicially noticed. The Plaintiffs' objection to hearsay in the Dalton Declaration is denied, as the objection lacks specificity and the statements in question are deemed admissible based on Dalton’s involvement with the Castro Valley Community Advisory Committee.
The County’s Redevelopment Agency employee possesses firsthand knowledge regarding the actions of the CAC, which is relevant to her statements in the Dalton Declaration. Plaintiffs' argument that the relocation exception in Section 17.52.515(A)(3) undermines government interests is rejected; the provision allows for the relocation of existing billboards to more suitable locations and aims to reduce the overall number of billboards, thus aligning with the County's objectives. The Court dismisses the plaintiffs' objection to a relevant statement in the Dalton Declaration concerning the relocation provision’s purpose. Additionally, the plaintiffs reference an Oregon Supreme Court case to claim that the on-site/offsite distinction violates the liberty of speech clause, but the Court finds this argument unpersuasive. The Ninth Circuit has previously determined that such distinctions are not content-based under the California Constitution, affirming that the prohibition of "offsite commercial messages" is content-neutral and not facially invalid under state law.
