Citizens for Free Speech, LLC v. Cnty. of Alameda

194 F.Supp.3d 968

CITIZENS FOR FREE SPEECH, LLC, et al., Plaintiffs,

v.COUNTY OF ALAMEDA, Defendant.

No. C14-02513 CRB

United States District Court, N.D. California.

Signed July 8, 2016

Joshua Reuben Furman, Joshua R. Furman Law Corporation, Sherman Oaks, CA, for Plaintiffs.

Gregory J. Rockwell, Boornazian Jensen & Garthe a Professional Corporation, Oakland, CA, for Defendant.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S SECOND MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

CHARLES R. BREYER, UNITED STATES DISTRICT JUDGE

Before the Court are the parties' cross motions for summary judgment in this case concerning billboards in Alameda County. See generally County MSJ 2 (dkt. 82); Plaintiffs' MSJ (dkt. 86). Following the Court's first summary judgment ruling, see MSJ Order (dkt. 71), there are three disputes left in the case: (1) whether and how Plaintiffs can recover on their facial challenge to the now-superseded Alameda County Zoning Ordinance section 17.18.130; (2) whether section 17.52.515 violates Plaintiffs' Equal Protection rights under the Fourteenth Amendment and California Constitution by preventing display of Plaintiffs' signs but allowing grandfathered billboard companies to display signs; and (3) whether section 17.52.520(A) likewise violates Plaintiffs' Equal Protection rights by preventing Plaintiffs' signs but allowing public agencies to erect official public signs. As explained below, the Court grants the County's Motion (and denies Plaintiffs' Motion) as to sections 17.18.130 and 17.52.515, but grants Plaintiffs' Motion (and denies the County's Motion) as to section 17.52.520(A).

I. BACKGROUND

The Zoning Ordinance at issue partitions Alameda County's unincorporated territory into twenty-five different types of districts, within which only certain buildings, structures, or land uses are permitted. See ALAMEDA, CA., CODE § 17.02.050.¹ Plaintiff Michael Shaw owns a parcel of land located at 8555 Dublin Canyon Road (the "Parcel") in Alameda County. Shaw Decl. (Plaintiffs' RJN) (dkt. 65-1) ¶ 2. The Parcel is located in a Planned Development ("PD") district. Id.

Plaintiff Citizens for Free Speech, LLC ("Citizens") and Shaw (collectively "Plaintiffs") entered into an agreement providing for the construction and display of three signs (the "Signs") on the Parcel. Herson Decl. (dkt. 64-2) ¶ 2. Shaw and Citizens have agreed to share in the proceeds earned from displaying the Signs. Id. The Signs currently consist entirely of non- commercial messages that "challenge the political ideology espoused by County officials,"² but Plaintiffs assert that the signs will contain commercial messages in the future. Id.¶ 3; Compl. (dkt. 1) ¶ 12.

According to Shaw, a County official visited the Parcel on June 9, 2014 to inform him that the Signs were prohibited within a Scenic Corridor Combining ("SC") district. Shaw Decl. ¶ 4. On June 10, 2014, the County mailed Shaw a "Declaration of Public Nuisance—Notice to Abate," claiming that the Signs violated Ordinances sections 17.18.010 and 17.18.120. Id.¶¶ 5, 6, Ex. C. The Notice to Abate instructed Shaw to remove the Signs or face an abatement proceeding and escalating schedule of fines. Id.

Plaintiffs sued and moved for a temporary restraining order to stop the abatement proceedings and impending fines. Pls.' Mot for Temp. Restraining Order (dkt. 11).³ In their Complaint, Plaintiffs asserted four claims: (1) violation of their right to free speech under the First Amendment; (2) violation of their right to Equal Protection under the Fourteenth Amendment; (3) violation of their right to free speech under the California Constitution; and (4) violation of their right to Equal Protection under the California Constitution. See Compl. ¶¶ 34–48.

The Court granted Plaintiffs a preliminary injunction, characterizing Plaintiffs' First Amendment arguments as "overbreadth" challenges, see Order Granting Motion for Preliminary Injunction (dkt. 34) at 4–5, and finding that Plaintiffs were likely to succeed on the merits of their arguments that the Ordinance was facially invalid because it (1) gave County officials unfettered discretion to make certain determinations regarding signs according to a subjective finding of a "material change" and (2) failed to ensure that those decisions would be made in a timely manner, see generally Preliminary Injunction (dkt. 50).

Following discovery, the County moved for summary judgment on all of Plaintiffs' claims. See generally MSJ Order. The Court granted summary judgment for the County on Plaintiffs' free speech claims to the extent that they were based on as-applied challenges, facial challenges to Ordinance sections 17.520(Q), 17.52.50(D), 17.54.130, and section 17.52.515's purported regulation of speech based on content. Id. at 2. The Court denied summary judgment on (1) Plaintiffs' facial challenge to Zoning Ordinance section 17.18.130,⁴ finding that "the ‘totality of the factors' indicates that County officials have unfettered discretion under that provision,"⁵ and on (2) Plaintiffs' Equal Protection claims, finding that the County had failed to address those claims in its opening brief. Id. at 14, 30. These are the only claims that remain.

On September 29, 2015, in response to the Court's denial of summary judgment, the County amended section 17.18.130. See County MSJ 2 at 4; Lopez Decl. ¶ 10; Plaintiffs' RJN Exs. A, B. Under the amended section, officials no longer have to determine whether a proposed land use constitutes a "material change" to the approved land use—rather, the Conditional Use Permit ("CUP") process is now the only path when a landowner wants to use his or her land for a purpose other than that for which it is zoned. Lopez Decl. ¶ 10. The amended language of section 17.18.130 authorizes an official to issue a CUP only where he or she makes specific findings that:

a. The proposed change does not increase:

1) The number of housing units beyond that permitted in the existing Land use and development plan; or

2) The number of, or size of, structures; or

3) The number of, or size of, accessory structures; or

4) Signage (number and/or/aggregate sign area); or

5) The floor area ration of the structures permitted in the existing land use and development plan.

b. The original land use and development plan was approved less than five years ago;

c. The proposed change does not reduce public infrastructure provided in the land use and development plan;

d. The proposed change does not reduce public uses such as community centers, public parks or open spaces;

e. The proposed change does not have an adverse financial impact on the county, including the provision of services;

f. The proposed change does not involve uses not previously approved for the project.

The Planning Commission shall adopt a statement or resolution of findings for each criteria required for issuance of a conditional use permit. A Planning Commission decision pursuant to this Section is subject to appeal pursuant to Section 17.54.670.

ALAMEDA, CA., CODE § 17.18.130 (as amended Sept. 29, 2015).

The other two sections of the Ordinance that are at issue in this case, and which have not changed over the course of the litigation, are sections 17.52.515 and 17.52.520(A). Section 17.52.515 reads, in relevant part:

[N]o person shall install, move, alter, expand, modify, replace or otherwise maintain or operate any billboard or advertising sign in the unincorporated area of Alameda County, except: (1) Those billboards or advertising signs which legally exist as of the time this section is first adopted; (2) Those billboards or advertising signs for which a valid permit has been issued and has not expired; (3) Pursuant to an agreement relocating presently existing, legal billboards or advertising signs pursuant to Business and Professions Code Section 5421 ; provided that every billboard or advertising sign relocation agreement shall fully comply with the site development review process and criteria in Sections 17.54.220 and 17.54.226....

ALAMEDA, CA., CODE § 17.52.515. Section 17.52.520(A) allows "Official public signs or notices or any temporary notice posted by a public officer in the performance of his duty." ALAMEDA, CA., CODE § 17.52.520(A).

The County now moves for summary judgment, arguing that the amendment to section 17.18.130 renders Plaintiffs' facial challenge moot, and that Plaintiffs' Equal Protection claims fail because Plaintiffs are not members of a protected class, the challenged provisions do not constitute content regulation, and the Zoning Ordinance's exceptions are not content-based. See generally County MSJ 2.⁶ Plaintiffs, in their cross-motion, argue that they are entitled to a permanent injunction because the original section 17.18.130 is invalid and they constructed their signs before the amended section 17.18.130 went into effect. See Plaintiffs' MSJ at 4–6. Plaintiffs also complain that the Ordinance makes exceptions for other advertisers and for governmental speakers in violation of Plaintiffs' Equal Protection rights. Id. at 8.

II. LEGAL STANDARD

Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A principal purpose of the summary judgment procedure is to isolate and dispose of factually unsupported claims. See Celotex Corp. v. Catrett, 477 U.S. 317, 323–24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden is on the moving party to demonstrate that there is no genuine dispute with respect to any material fact and that it is entitled to judgment as a matter of law. Id. at 323, 106 S.Ct. 2548. A genuine issue of fact is one that a trier of fact could reasonably resolve in favor of the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106...