Covenant Media of Ga. v. City, Lawrenceville, Ga.

580 F.Supp.2d 1313

COVENANT MEDIA OF GEORGIA, LLC, Plaintiff, v. CITY OF LAWRENCEVILLE, GEOGIA, and Bradford P. Leonard, in his official capacity as Director of Planning and Zoning, Defendants.

Civil Action No. 1:07-CV-2522-JEC.

United States District Court, N.D. Georgia, Atlanta Division.

September 18, 2008.

Edward Adam Webb, Webb & Porter, Matthew C. Klase, The Webb Law Group, LLC, Atlanta, GA, for Plaintiff.

Anthony O.L. Powell, Melody Allen Glouton, Webb, Tanner, Powell, Mertz & Wilson, LLP, Lawrenceville, GA, Dana Kristin Maine, Freeman Mathis & Gary, Paul B. Frickey, Freeman Mathis & Gary, Atlanta, GA, for Defendants.

ORDER & OPINION

JULIE E. CANES, District Judge.

This case is presently before the Court on defendants' Motion to Dismiss [2]. The Court has reviewed the record and the arguments of the parties and, for the reason's set out below, concludes that defendants' Motion to Dismiss [2] should be GRANTED.

BACKGROUND

Plaintiff is an outdoor advertising company that posts and operates signs in North Georgia. (Compl. [1] at ¶¶ 1, 10.) It has filed this lawsuit in an attempt to address what it perceives as a "real need" for additional advertising signs in the City of Lawrenceville ("the City"). (Id. at ¶ 12.) According to plaintiff, the City is underserved by advertising signs, in part as a result of the City's allegedly unconstitutional sign ordinance. (Id. at ¶ 11.)

The City's sign ordinance creates a comprehensive scheme for regulating the permitting, placement, and operation of signs within the City. (Id. at ¶ 5; Sign Ordinance, attached to Defs.' Mot. to Dismiss [2] at Ex. 4.) The ordinance completely prohibits certain types of signs, such as animated and flashing signs. (Sign Ordinance at § 10.4.) It permits other types of signs within specified zoning districts, but subjects those signs to height, size, and setback requirements. (Id. at §§ 10.5-10.9.)

Of particular relevance to this lawsuit, the ordinance restricts billboard signs to the "LM" and "HM" zoning districts, and requires that they be located in a "fall zone" equal to 133% of the height of the billboard in every direction. (Id. at § 10.9(F).) It also imposes maximum allowable height and size limits on billboards, and requires that every billboard be certified as having met the Gwinnett County Airport Authority's safety requirements. (Id.)

As required by the sign ordinance, plaintiffs representatives submitted nine sign applications to the City in February of 2007. (Compl. [1] at ¶ 15.) All of the applications involved billboards that failed to comply with the ordinance in numerous ways. (Denial Letters, attached to Defs.' Mot. to Dismiss [2] at Ex. 5.) For example, the proposed billboards were not located in the appropriate zoning district, and were at least twice the maximum allowable height and size. (Id.) Further, the billboards did not comply with the fall zone or airport safety certification requirements. (Id.) Accordingly, the City denied plaintiffs sign applications. (Id.)

Following an unsuccessful appeal to the City Board of Zoning Appeals, plaintiff filed this lawsuit.¹ (Compl. [1] at ¶ 1, 17.) In its complaint, plaintiff contends that the City's sign ordinance violates the United States Constitution because the ordinance: (1) allows City officials unfettered discretion to grant or deny sign permits, and unlimited time in which to rule on applications; and (2) imposes an unconstitutionally prohibitive fee structure. (Id. at ¶¶ 22-23, 26, 28, 29, 32.) In support of these claims, plaintiff cites §§ 10.11(A), (B),(D), and (E) of the ordinance. (Id.) Plaintiff also contends that the sign ordinance violates the Georgia Constitution because its provisions do not provide for the "least restrictive means" of achieving the City's stated goals in enacting the ordinance. (Id. at ¶ 24.) In support of its state claims, plaintiff cites §§ 10.9(F), 10.10(C), and 10.11(B) of the ordinance. (Id.)

Defendants have filed a motion to dismiss plaintiff's claims pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. (Defs.' Mot. to Dismiss [2].) According to defendants, plaintiff lacks standing to pursue the claims asserted in its complaint, and the Court therefore lacks jurisdiction to hear those claims. (Id.) Defendants' motion to dismiss is presently before the Court.

DISCUSSION

I. Rule 12(b)(1) Standard for Dismissal

"`Federal courts are courts of limited jurisdiction.'" Federated Mut. Ins. Co. v. McKinnon Motors, LLC, 329 F.3d 805, 807 (11th Cir.2003)(quoting Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir.1994)). A party invoking federal jurisdiction thus "bears the burden of establishing its existence." Parker v. Scrap Metal Processors, Inc., 386 F.3d 993, 1003 (11th Cir.2004). That party must allege facts sufficient to show jurisdiction and, when the Court's jurisdiction is appropriately challenged, support those facts by competent evidence. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936).

As suggested by McNutt, the Court may consider evidence outside of the pleadings to determine whether it has jurisdiction. See Goodman v. Sipos, 259 F.3d 1327, 1332 (11th Cir.2001) (citing Smith v. GTE Corp., 236 F.3d 1292, 1299 (11th Cir.2001)). To that end, the Court has the power to grant a Rule 12(b)(1) motion on any of three separate bases: "(1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed facts plus the Court's resolution of disputed facts." United States ex rel. McElmurray v. Consol. Gov't of Augusta-Richmond County, 501 F.3d 1244, 1251 (11th Cir.2007) (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.1981)). In a case involving disputed facts, however, it may be necessary to provide an opportunity for discovery and a hearing "that is appropriate to the nature of the motion to dismiss." Id.

In this case, the Court is able to decide the standing question without resolving any factual disputes. For purposes of this motion, the Court assumes all of the allegations in the complaint are true and construes all facts in favor of plaintiff. Accordingly, discovery and a hearing are not necessary.

II. Standing

Article III of the United States Constitution limits the subject matter jurisdiction of federal courts to "cases" and "controversies." U.S. Const. Art. III, § 2. The case or controversy requirement prohibits federal courts from issuing advisory opinions on a plaintiff's claim. CAMP Legal Defense Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1269 (11th Cir.2006). Whether a plaintiff has standing to assert a particular claim is thus a "threshold question in every federal case." Id.See also KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1266 (11th Cir.2006) ("It is by now axiomatic that a plaintiff must have standing to invoke the jurisdiction of the federal courts.")

"`[T]he irreducible constitutional minimum of standing contains three elements.'" CAMP, 451 F.3d at 1269 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). Those elements include: "`(1) an injury in fact, meaning an injury that is concrete and particularized, and actual or imminent, (2) a causal connection between the injury and the [allegedly unconstitutional] conduct, and (3) a likelihood that the injury will be redressed by a favorable decision.'" Id. (quoting Granite State Outdoor Adver., Inc. v. City of Clearwater, 351 F.3d 1112, 1116 (11th Cir.2003)). Each element is "`an indispensable part of the plaintiff's case.'" Id.<sup>2</sup> Moreover, "standing cannot be `inferred argumentatively from averments in the pleadings,' but rather `must affirmatively appear in the record.'" Id. at 1276 (quoting FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990)).

A. Plaintiff's Federal Claims

Plaintiff claims that the City's sign ordinance: (1) grants City officials unfettered discretion to determine whether and when to grant or deny sign applications; and (2) imposes a prohibitive tax on expressive activity. (Compl. [1] at ¶¶ 22-23, 26, 28, 29, 32.) In support of these claims, plaintiff specifically identifies §§ 10.11(A) and (E)(allowing City officials to require compliance with unspecified City regulations), § 10.11(B)(requiring a $4000 fee for billboard applications), and § 10.11(D)(giving City officials discretion to delay ruling on an application that is deemed to be incomplete). (Id.) According to plaintiff, all of these provisions violate the United States Constitution. (Id.)

1. Plaintiff's Federal Claims Are Not Redressible.

In order for an injury to be redressible, "it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." KH Outdoor, LLC v. Clay County, 482 F.3d 1299, 1303 (11th Cir.2007)(citing Lujan, 504 U.S. at 561, 112 S.Ct. 2130). Plaintiff's injury is that it cannot erect its proposed billboards. Id. To establish redressibility, plaintiff must therefore show that a favorable decision on its federal constitutional claims will allow plaintiff to build its proposed signs. Id. at 1303-1304. This plaintiff cannot do.

It is undisputed that all of plaintiff's applications violate numerous provisions of the sign ordinance that are not in any way related to the allegedly unconstitutional discretionary and fee provisions of § 10.11. (See generally Pl.'s Resp. [6]; Denial Letters, attached to Defs.' Mot. to Dismiss [2] at Ex. 5.³) To name just a few examples, plaintiff's proposed billboards are at least twice the maximum allowable height and size. (Id.) None of the billboards are located in appropriately zoned locations or within a required fall zone. (Id.) Further, the applications do not contain the required certification of compliance with airport safety guidelines. (Id.)

Plaintiff does not mount a federal constitutional challenge to the height, size, location, and...