Johnsonville LLC v. City of Buffalo

Johnsonville, LLC, a Minnesota limited liability company, Relator, v. City of Buffalo, a Minnesota municipal corporation, Respondent.

No. A21-0957

Court of Appeals of Minnesota

May 2, 2022

This opinion is nonprecedential except as provided by Minn. R Civ. App. P. 136.01, subd. 1(c).

City of Buffalo City Council File No. 2021-24

Johnsonville, LLC, Montrose, Minnesota (relator)

James J. Thomson, Michelle E. Weinberg, Kennedy & Graven Chartered, Minneapolis, Minnesota (for respondent)

Considered and decided by Bryan, Presiding Judge; Jesson, Judge; and Wheelock, Judge.

WHEELOCK, Judge

Relator challenges a decision by respondent-city imposing administrative penalties for violations of the city's sign ordinance stemming from relator's display of a large political flag from a construction crane. Relator asserts that the flag did not violate one sign-ordinance provision the city relied on and challenges the constitutionality of the others. We reverse because (1) a provision of the ordinance prohibiting advertising or business signs attached to equipment does not apply to relator's sign, and (2) the other provisions of the ordinance applied to relator's sign create content-based restrictions on speech that do not survive strict scrutiny.

FACTS

In early 2021, Johnsonville displayed a 30-by-50-foot flag saying, "TRUMP 2020 Keep America Great," from atop a mobile construction crane on its agricultural zo ne in Buffalo. The city attorney issued three notices of administrative penalties to Johnsonville in April 2021 for violations of multiple provisions of chapter 13 of the Buffalo City Code (the sign ordinance or ordinance) because of the flag's size and manner of display.^[1] The notices imposed penalties for flying the flag from an extended crane on the property and for exceeding size restrictions deemed applicable to the flag.

Johnsonville appealed the administrative penalties, and the city council scheduled a review hearing for May 2021. At the hearing Johnsonville argued that its flag display was protected speech.

In June 2021, the city council issued a written decision sustaining the ad ministrativ e penalties. The d ecision cited to several provisions of the sign ordinance and concluded that Johnsonville's flag violated the sign ordinance "in regards to size, height, being erected on equipment, and being installed on the property without a permit."

Johnsonville appeals by writ of certiorari.

DECISION

Johnsonville challenges the city's decision to impose administrative penalties on three grounds.^[2] First, Johnsonville asserts that the city erred by interpreting the sign ordinance's substitution clause to prohibit all signs attached to equipment. Second, Johnsonville argues that the varying size limitations in different provisions of the sign ordinance create unconstitutional content-based restrictions on speech. Third, Johnsonville argues the city enforced the sign ordinance in a discriminatory manner. Because the first two issues are dispositive of Johnsonville's appeal, we need not address Johnsonville's discriminatory-enforcement argument.

We review a city's quasi-judicial decision to determine whether it was "arbitrary, oppressive, unreasonable fraudulent, under an erroneous theory of law, or without any evidence to support it." Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992) (quotation omitted). And while appellate courts typically make only a limited and deferential review of a quasi-judicial decision, Big Lake Ass'n v. St. Louis Cnty. Plan. Comm'n, 761 N.W.2d 487, 491 (Minn. 2009), ordinance interpretation and constitutional analysis present questions of law subject to de novo review. See Fletcher Props., Inc. v. City of Minneapolis, 947 N.W.2d 1, 9 (Minn. 2020) (applying de novo review to a challenge to the constitutionality of an ordinance); Cannon v. Minneapolis Police Dep't, 783 N.W.2d 182, 192 (Minn.App. 2010) (applying de novo review to a question involving the interpretation and application of a city ordinance).

I. The sign ordinance's equipment-prohibition provision does not apply to Johnsonville's flag.

Johnsonville first argues that the city erred by finding that its flag violated the provision of the sign ordinance that prohibits advertising or business signs attached to equipment. That provision, to which we will refer as the equipment-prohibition provision, prohibits "[a]dvertising or business signs on or attached to equipment such as semi-truck trailers where signing is a principal use of the equipment on either a temporary or permanent basis." Buffalo, Minn., City Code (BCC) § 13.06, subd. 2(B) (1985). The city asserts that another sign-ordinance provision-the substitution clause-subjected Johnsonville's flag to the equipment-prohibition provision.

We address the issue of whether the flag violated the equipment-prohibition provision first because Johnsonville does not challenge the constitutionality of that provision, and thus it could provide an independent basis to affirm the city's decision that would allow us to avoid a constitutional question. See In re Senty-Haugen, 583 N.W.2d 266, 269 n.3 (Minn. 1998) ("It is well-settled law that courts should not reach constitutional issues if matters can be resolved otherwise."); see also Advantage Media, L.L.C. v. City of Eden Prairie, 456 F.3d 793, 801 (8th Cir. 2006) (holding that appellant lacked standing to challenge sign-code provisions where proposed sign would still violate other, unchallenged provisions of the sign code).

"The same rules that apply to the interpretation of a statute apply to the interpretation of an ordinance." State v. Vasko, 889 N.W.2d 551, 556 (Minn. 2017). When interpreting a statute, we attempt to "ascertain and effectuate the intent of the Legislature." State v. S.A.M., 891 N.W.2d 602, 604 (Minn. 2017). Appellate courts "construe words and phrases in a statute according to their plain and ordinary meaning." Id. "We interpret a statute as a whole to give effect to all of its provisions." Id.

The sign ordinance's substitution clause provides that "[s]igns containing non-commercial speech are permitted anywhere that advertising or business signs are permitted, subject to the same regulations applicable to such signs." BCC § 13.05, subd. 3 (1985). Consistent with the generally understood purpose of a substitution clause, ^[3] t h e plain language of the substitution clause permits non-commercial speech in any circumstances commercial speech is permitted. But the sign ordinance does not permit advertising or business (i.e., commercial) signs to be attached to equipment, so the substitution clause does not apply. The plain language does not extend prohibitions on commercial speech to non-commercial speech. Moreover, interpreting the clause in that manner would wholly nullify all distinctions between commercial and non-commercial speech in the sign ordinance. See S.A.M., 891 N.W.2d at 604 (stating appellate courts "interpret a statute as a whole to give effect to all of its provisions"). We therefore conclude that the substitution clause does not extend the prohibition against advertising or business signs attached to equipment to non-commercial signs.

Because the sign ordinance does not generally prohibit signs attached to equipment, the city erred by deciding that Johnsonville's flag violated the equipment-prohibition provision. The administrative penalties must be reversed to the extent that they are based on the equipment-prohibition provision. That provision therefore cannot provide a basis for us to affirm the city's decision without reaching Johnsonville's constitutional challenge to the remaining provisions of the sign ordinance under which it was penalized.

II. The size restrictions of the sign ordinance's permitted-signs subdivision violate the First Amendment.

Johnsonville's primary argument on appeal is that the city's decision imposing penalties must be reversed because the sign ordinance, as applied, violates the First Amendment.^[4] Johnsonville does not dispute that its flag exceeds the size limitation for a non-commercial sign. Rather, it argues that because the sign ordinance permits larger holiday signs, the ordinance is not content neutral, and accordingly the sign ordinance's size restrictions must be subjected to strict scrutiny review, which the ordinance's content-based restrictions cannot withstand.

To examine these arguments, we first address our standard of review and the constitutional backdrop. We then consider whether the sign ordinance creates content-based restrictions, triggering a strict-scrutiny analysis of its size limitations for non-commercial signs. After engaging in this analysis, we conclude that the ordinance impermissibly creates a content-based regulation of speech and reverse the city's decision to impose administrative penalties against Johnsonville.

A. Standard of Review and Constitutional Backdrop

As noted above, the constitutionality of a statute or an ordinance is a question of law, which we review de novo. See Fletcher Props., Inc., 947 N.W.2d at 9. "Because statutes are presumed constitutional, we exercise our power to declare a statute unconstitutional with extreme caution and only when absolutely necessary." Id. (quotation omitted). "Ordinarily, laws are afforded a presumption of constitutionality, but statutes allegedly restricting First Amendment rights are not so presumed." Dunham v. Roer, 708 N.W.2d 552, 562 (Minn.App. 2006).

Also as stated above, we apply the same rules to the interpretation of an ordinance as we apply to the interpretation of a statute. Vasko, 889 N.W.2d at 556. Appellate courts "construe words and phrases in a statute according to their plain and ordinary meaning." S.A.M., 891 N.W.2d at 604. "We i...